Interpretation of Statues

This document discusses the interpretation of statues in civil law, specifically focusing on the role of judges in making law and the different theories of statutory interpretation. It explores the impact of the South African Constitution on the country's legal system and provides relevant case laws. The document also highlights the importance of applying a teleological approach to interpret laws.

Running head: CIVIL LAW
Interpretation of Statues
Name of the Student
Name of the University
Author Note

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INTERPRETATION OF STATUES
Question 1:
ANSWER 1.1
South African Constitution is regarded as one of the best constitutions in the world as
it empowers the state to make legislation against inequality1. The South African Government
gives access to the citizen to the court to make demand for any action by the government. The
South African Constitution is regarded as supreme because the parliamentary sovereignty of
old system does not exist in the present day Constitution which is the lex fundamentalis of the
legal order of South Africa. Lex fundamentalis means the highest law of the land. It is
actually the prism through which everyone and everything must be seen. It is the lex
fundamentalis of the South African legal order and comprises of the values of the society
together with dreams, fear and aspirations of the country.
In order to compare the constitution of South Africa with that of others, study of
various aspects plus case laws must be made. The South African legislation is not only a
legislative document but also the cardinal law of the state. It is primarily underpinned by two
bases; the formal one consists of separation of powers, checks and balance of the government
and principle of the law of the land, whereas the material one comprises of a state that is
bound by the fundamental values of justice and equality. Similar type of observation was
made by Karpen.
According to the Harvard law scholar, Cass Sunstein termed the South African
Constitution as the most admired Constitution in the world history when compared to any
other countries’ Constitutions2. The US Supreme Court justice, Ruth Bader Ginsburg
appreciated it for its dealing with new challenges. According to her, the Constitution
deliberately tried to have a fundamental structure of government that besides having an
1 Clark, Nancy L., et al. South Africa: The rise and fall of apartheid. Routledge, 2016.
2 Sunstein, Cass R. Legal reasoning and political conflict. Oxford University Press, 2018.

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independent judiciary, embraces basic human rights also3. The South African Constitution is
much more modern and practical that the US constitution.
ANSWER 1.2
Since the case of S v Makwanyane4, Ubuntu has formed an essential part of the
Constitutional values and the principles that consider interpretation of the Bill of Rights and
other parts of law. Two main periods are highlighted in the growth of ubuntu, which are
indicated by the decisions regarding constitution made in the Makwanyane and PE
Municipality respectively. The first one formed the core part for ubuntu’s growth whereas the
second one indicated the beginning of the concept’s thematic development in the path of
restoration justice.
The Constitutional preamble considers reference to a society on the basis of social
justice, democracy and fundamental human rights. Democracy in this context means freedom,
human dignity and equality along with progress of human rights and freedom from racialism
and sexism. The court being the enforcer and guardian must uphold and give protection to the
Constitution together with human rights. It is perfect to discuss the constitutional status given
by ubuntu. As per Justice Madala, ubuntu is a principle that pervades the Constitution in
general and establishes the fundamental human rights in particular. Justice Mokgoro, also
made a similar observation about the legal status of ubuntu, by keeping it in foreground for
interpreting the constitution. Both Justices Madala and Mokgoro believe that ubuntu can be
used as a foundation from the elucidation of the Bill of Rights can proceed5. They declared
the concept of ubuntu as a comprehensive and basis of constitution that could help the court
while dealing with future jurisprudence. However, Justice Sach explained in the case of
3 Christie, Pam. "Educational change in post-conflict contexts: Reflections on the South African experience 20
years later." Globalisation, Societies and Education 14.3 (2016): 434-446.
4 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
5 Kirby, James. "Conditional on a Bill of Rights: Race and Human Rights in the Constitutional of Botswana,
1960-1966." law&history 4 (2017): 30.

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Makwanyane that the courts can look into the legal tradition of Africa as law sources having
capability to guide the general jurisprudence of the Constitution.
Section 39 of the Constitution Act of 108 of 19966 holds that for interpreting the Bill
of Rights or any other legislation, courts have been bound to develop the indigenous law by
considering the spirit, object and principle of the Bill of Rights. The laws of South Africa are
always under scrutiny of constitution. The Constitution of South Africa provides that while
making the interpretation of right to access the social assistance, each and every court, forum
or tribunal must encourage the values that form the basis of a democratic society which has
its foundation on freedom, equality and dignity. Ubuntu offers a lot of things which are
extraordinarily valuable with respect of South Africa. Section 39 of the Constitution of South
Africa is a primary tool by which the Constitution of South Africa is intending to do the
revolutionary work. For this they will be requiring all legislation, common law as well as
customary law which must be interpreted as well as developed according to the spirit, objects
and purpose with regards to the Bill of Rights. The new methodology is consistent to Section
39 of the Constitution of South Africa.
ANSWER 1.3
The Constitution of South Africa is a supreme law with regards to the Republic
of South Africa7.
The theories that are involved in statutory interpretation are very helpful in assisting
the jurists or advocates on how an individual is going to make interpretation of certain
legislation or section8. There are mainly five theories that are used in statutory interpretation
throughout the history of South Africa. They are literalism, intentionalism, contextualism,
6 Constitution of the Republic of South Africa, 1996.
7 Cameron, Edwin. "Judges, justice, and public power: the constitution and the rule of law in South
Africa." Oxford University Commonwealth Law Journal 18.1 (2018): 73-97.
8 Tushnet, Mark. "New forms of judicial review and the persistence of rights-and democracy-based
worries." Bills of Rights. Routledge, 2017. 265-290.

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purposivism and teleological interpretation. The judgment given in the Mansingh v The
General Council of the Bar9 given by the Constitutional court provides that how a judge or
court would interpret section 84 (2) (k) which enables the president the liability to confer
honours on certain individuals. Similarly, while interpreting any other legislation or
provisions, all or any of these theories can be used as held in Engels v Allied Chemical
Manufacturers(Pty) Ltd10.
In the literalism theory, the meaning of the provision enacted has to be deduced
primarily from the language in which it is added, that is if the meaning is clear, it has to be
put into effect, it must be given the same footing as intention of the legislator. This was held
in De Villiers v Cape Divisional Council11. It is the orthodox text based approach.
In intentionalism, the main objective of the statutory interpretation is that to recognize
and give result to the actual intention of the legislature.
As per Du Plessis, contextualism requires that while interpreting any legislation, the
meaning of the concerned provision and its words and language can be analyzed by
considering its background or context.
Du Plessis further elaborates Purposvism that while demeaning any provision of
legislation, the jurist or theb court must interpret such provision in respect of the objective or
purpose with which it was designed to achieve. However, while using this theory, the
Mischief rules must be considered too. The problem with the Purposive interpretation is that
it gives more power and discretion to the judges instead of allowing them to interpret the
meaning of the law as it is.
9 Mansingh v The General Council of the Bar 2014 2 SA 26 (CC).
10 Engels v Allied Chemical Manufacturers(Pty) Ltd 1993 (4) SA 45.
11 De Villiers v Cape Divisional Council (1875).

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The most dominant approach for interpreting the Constitution of South Africa is the
Teleological theory of interpretation. As per this theory, the purpose is not only to be
achieved for the purpose of legislation in a narrow manner but also in the light of relation of
South African morals and values in the constitution. In the case of African Christian
Democratic Party v The Electoral Commission and others, it was held by O’Regan J that
when doing interpretation of a provision, the objective of such provision must galore the
words used in it12.
ANSWER 2:
The South African Constitution had a remarkable influence on the country’s society
and people. In the last two decades, there has been a surprising development of the
jurisprudence of the constitution, greatly affected by the constitutional jurisprudence. In this
answer, the role of judges in making law of the Judiciary is being considered since 1920. The
judges have the main role of concretising the law. It means the law making process in
incomplete without promulgation of legislation. The requirement here is the harmonisation of
the legislative writing with the case facts through process of interpretation within the ambit of
Constitution or law relevant here. This was held in the case of Corocraft Ltd v Pan American
Airways13.
In order to appreciate the role of judges, an elaboration of some of the popularised
philosophical theories is important. Prior to the constitution, the doctrine of parliamentary
sovereignty is being applied by South Africa. It is evident that this particular doctrine was
imposed on the country during the rule of the British on it as found in Zimnat Insurance Co
Ltd v Chawanda 1991 (2) SA (ZSC)14. Thus in spite of the fact that the country was under
12 African Christian Democratic Party v The Electoral Commission and others.
13 Corocraft Ltd v Pan American Airways.
14 Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA (ZSC).

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the control of British, no one had to succumb to the notorious derogatory racial laws of the
country. This doctrine however had a far reaching effect on the laws of the country. While
applying this doctrine during the period of apartheid, the judicial sytem allowed the
government to utilise it as a tool to target its goals as observed in Engels v Allied Chemical
Manufacturers(Pty) Ltd 1993 (4) SA 4515. In the case of Collins v Minister of the Interior16,
which was decided during this period, Centilivres CJ held that when the provision of the
legislation are transparent, the court is not bothered with the legislation propriety; the duty is
to interpret and minister it. This decision was used in many other cases.
In most states of Africa, it is noted that the judicial system was eclipsed by legislative
and executive parts of government. The shift of emphasis from the parliamentary sovereignty
to constitutional empowerment since the beginning of 1990 has altered it totally. The judicial
system was able to understand its influence on law and its development. It was observed in
Matiso v Commanding Officer, Port Elizabeth Prison17 that the Constitution of the country
was highly responsible for enabling the judicial system to affect the law in relation to relevant
provisions.
In this regard, Tembeka Ngcukaitobi’s The Land is Ours: South Africa’s First Black
Lawyers and the Birth of Constitutionalism has to be referred18. This book is about the lives,
careers and politics of some of the black lawyers of the country. The author gives detailed
information about the lawyers with care to put forward his theory.
The courts give value judgments when dealing with the interpretation and law
application. Botha in Bodha Statutory Interpretation 164, held that the courts are the
15 Engels v Allied Chemical Manufacturers(Pty) Ltd 1993 (4) SA 45.
16 Collins v Minister of the Interior.
17 Matiso v Commanding Officer, Port Elizabeth Prison1994 (4) SA 592 (SE).
18 Madlingozi, Tshepo. "South Africa’s first black lawyers, amaRespectables and the birth of evolutionary
constitution–a review of Tembeka Ngcukaitobi’s The Land is Ours: South Africa’s First Black Lawyers and the
Birth of Constitutionalism." South African Journal on Human Rights34.3 (2018): 517-529.

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defenders of the values behind the Constitution19. Thus whenever any matter is brought
before the court, the court must ensure to enforce and give protection to the values of the
Constitution as held in Minister of Home Affairs & Another v Fourie& Others, Lesbian and
Gay Equality Projects & Others v Minister of Home Affairs & Others 2006(3) BCLR 355
(CC)20. Due to this, a noticeable shift is being observed from literal methodology to a value
base or teleological mode of interpretation.
The section 39(2) of the Constitution is a very important part of the Constitution. It
clearly outlines that it is mandatory to apply a more teleological approach to interpret any
law. It is totally different from the literal approach which was adopted prior to Constitution.
In the case of Matiso v Commanding Officer, Port Elizabeth Prison, that was adjudicated
under Interim Constitution, Sachs J held that the values which are bound to suffuse the
process of interpretation are taken from principle of open democratic society on the basis of
freedom and equality.
It can be ascertained from the discussion made above, is that the judges have been
empowered with a degree of discretion while adjudicating cases. This allows them to adopt
an external method of interpretation. Thus, this particular approach not only focuses on the
intention or objective of the legislature but also concentrates on all the deliberations that can
be used. It refers and uses the law as a whole and tries to achieve a better coherence.
This approach coincides with the theory of constructive interpretation of Dworkin
which enables the judges to look upon the law as a whole and reach at the best decision
permissible while making interpretation of the law. It is held that the teleological approach
needed that the judges must take into account the past history of the nation and values of the
Constitution.
19 Singh, Annette. The impact of the constitution on transforming the process of statutory interpretation in South
Africa. Diss. 2016.
20 Minister of Home Affairs & Another v Fourie& Others, Lesbian and Gay Equality Projects & Others v
Minister of Home Affairs & Others 2006(3) BCLR 355 (CC).

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While applying the law in the way discussed above, the judges also must consider the
situations and facts that encompasses the adoption of the Constitution, its values and must
consider the social, economic and political factors. On the other hand, the courts also use its
power to check the conformity of other laws with the constitutional criteria. The court
suggests the boundary of the law making body of the legislature. It may include not only the
deletion of the legislation but also the development of the common law. Thus it reduces and
interferes with the law making powers of the legislature. Thus both these clash with the will
of the majority which is an important part of the Constitution.
It can be thus concluded that it is quite evident that it is significant for the growth and
development of the constitutional democracy which the courts incorporates in the judicial
activity21. Moreover, these powers are given to judges in respect of section 39(2) of the
Constitution. The use of section 39(2) has effected in a new form of value based class of
jurisprudence as contradictory to the legal positivism theory that existed before the
constitution. This is similar to natural law. Thus the judges must work using their creativity
given to them in the Constitution and also take into account the above mentioned factors
before making any decision which will affect other categories of the government. It is given
that taking account of the factors discussed before is not only important for the process of law
making of the judicial system but also important to consider that the judges must use their
discretionary power sensitively as given in the section 39(2) of the Constitution.
21 Tushnet, Mark. "New forms of judicial review and the persistence of rights-and democracy-based
worries." Bills of Rights. Routledge, 2017. 265-290.

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References:
Primary Sources
Constitution
Constitution of the Republic of South Africa, 1996.
Cases
South African:
Collins v Minister of the Interior.
De Villiers v Cape Divisional Council (1875).
Engels v Allied Chemical Manufacturers (Pty) Ltd 1993 (4) SA 45.
Mansingh v The General Council of the Bar 2014 2 SA 26 (CC).
Matiso v Commanding Officer, Port Elizabeth Prison1994 (4) SA 592 (SE).
Minister of Home Affairs & Another v Fourie& Others, Lesbian and Gay Equality Projects &
Others v Minister of Home Affairs & Others 2006(3) BCLR 355 (CC).
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA (ZSC).
Foreign:
African Christian Democratic Party v The Electoral Commission and others.
Corocraft Ltd v Pan American Airways.
Secondary Sources

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INTERPRETATION OF STATUES
Cameron, Edwin. "Judges, justice, and public power: the constitution and the rule of law in
South Africa." Oxford University Commonwealth Law Journal 18.1 (2018): 73-97.
Clark, Nancy L., et al. South Africa: The rise and fall of apartheid. Routledge, 2016.
Kirby, James. "Conditional on a Bill of Rights: Race and Human Rights in the Constitutional
of Botswana, 1960-1966." law&history 4 (2017): 30.
Madlingozi, Tshepo. "South Africa’s first black lawyers, amaRespectables and the birth of
evolutionary constitution–a review of Tembeka Ngcukaitobi’s The Land is Ours:
South Africa’s First Black Lawyers and the Birth of Constitutionalism." South African
Journal on Human Rights34.3 (2018): 517-529.
Singh, Annette. The impact of the constitution on transforming the process of statutory
interpretation in South Africa. Diss. 2016.
Sunstein, Cass R. Legal reasoning and political conflict. Oxford University Press, 2018
Christie, Pam. "Educational change in post-conflict contexts: Reflections on the South
African experience 20 years later." Globalisation, Societies and Education 14.3
(2016): 434-446.
Tushnet, Mark. "New forms of judicial review and the persistence of rights-and democracy-
based worries." Bills of Rights. Routledge, 2017. 265-290.