Interpretation of Statutes

Introduction

Two approaches to interpretation (i.e. the orthodox text-based and the text-in-context approaches) are relevant in South Africa. The introduction of a supreme Constitution changed the approach to statutory interpretation adopted by South African courts. In this essay, I compare the orthodox text based approach with the text-in-context approach. I explain how the interpretation clause of the Constitution has affected the approach adopted by the courts when interpreting statutes and finally, I discuss some of the general principles South African courts will apply when interpreting the Constitution.

A comparison between the orthodox text-based and text-in-context approaches to statutory interpretation.

In terms of the orthodox text based approach the interpreter should concentrate primarily on the literal meaning of the provision to be interpreted and should proceed as follows. If the meaning of the text is clear, it should be applied and equated with the legislature’s intention (Principal Immigration Officer v Hawabu). If the plain meaning is ambiguous, vague, misleading or would result in absurd results then the court may deviate from the literal meaning to avoid the absurdity. The court will then turn to secondary aids (for example, long title of the statute, headings etcetera) to interpretation to try and find the intention of the legislature, again if the secondary aids prove insufficient to ascertain the intention the courts have recourse to tertiary aids (i.e. the common law presumptions)

In terms of the text-in-context approach, the purpose or object of legislation is the prevailing factor in interpretation. The context of the legislation, including social and political policy directions, is also taken into account to establish the purpose of the legislation. The search for the purpose of legislation requires a purpose oriented approach which recognises the contextual framework of the legislation right from the outset and not only in...