Interpretation

CHAPTER 5

HOW LEGISLATION IS INTERPRETED

5.1 Introduction

* The theoretical background of statutory interpretation

cannot simply be ignored or wished away. A basic

understanding of theory is essential for a perspective on and

understanding of legal interpretation.

* One of the reasons for the dismal state of statutory

interpretation in SA is the lack of a sound theoretical basis for

the discipline.

* The aim of this chapter is to provide a brief survey of the

theoretical basis of statutory interpretation in SA.

5.2 Theories of interpretation

* Only two main approaches will be discussed: the literal

(text based) approach and the purposive (text-in-context)

approach, followed by an inclusive methodology based on the

five techniques of interpretation suggested by Du Plessis and

Corder.

* The difference between the two main approaches to

statutory interpretation in SA can largely be reduced to the

respective views on the relationship between the text and

the context of legislation.

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5.2.1

THE ORTHODOX TEXT-BASED (LITERAL)

APPROACH

* According to this approach the interpreter should

concentrate primarily on the literal meaning of the provision

to be interpreted.

* The interpretation process should proceed along the

following lines:

 Primary rule of interpretation: if the m e a n i n g of

the word is clear, it should be put into effect; it must be

equated with the legislator’s intention.

 If the ‘plain meaning’ of the word

- is ambiguous, vague or misleading or

- if a strict literal interpretation would result in absurd

results

- then the court may deviate from the literal meaning to

avoid such an absurdity.

- This is also known as the ‘golden rule’ of interpretation.

 Then the court will turn to secondary aids of interpretation

to find the intention of the legislature eg

- the long title of the statute;

- headings to chapters and sections;

- the text in the other official language;

- etc.

 Should these ‘secondary aids’ to interpretation prove

insufficient to...