A New Approach to Statutory Interpretation
Assignment 01
Introduction
The enactment of both the interim and final Constitution ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BLCR 969 (C) is true.
The interpretative approach adopted by South African courts pre-1994
Statutory interpretation pre-1994 lacked a single theoretical starting point.
There was no single methodology that was applied to interpret legislation.
Consequently the process of interpreting legislation involved a mixture of theoretical approaches that were often conflicting and inconsistent.
One of the theoretical approaches that were used pre-1994 was the text-based approach. The text-based approach accords the legislation in question its literal meaning. In Principal Immigration Officer v Hawabu 1936 AD 26 it was stated that: “It is the primary rule of interpretation that, if the meaning of the text is clear, it should be applied, and, indeed, equated with the legislatures intention.” The text-based approach to interpreting legislation relies heavily on the meaning of the words. Therefore the intention of the legislator is subject to the literal meaning of the text. This is made clear in the following dictum of Stratford JA in
Bhyat v Commissioner of Immigration 1932 AD 125 129:
The cardinal rule of construction of a statute is to endeavor to arrive at the intention of the lawgiver from the language employed in the enactment… in construing a provision of an Act of Parliament the plain meaning of language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the Legislature could not have intended.
It is very clear that the text based theoretical approach to interpreting legislation has a narrow focus on words. It ignores other important aids to interpretation, which could be used to establish the meaning of the text in context.
Introduction
The enactment of both the interim and final Constitution ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BLCR 969 (C) is true.
The interpretative approach adopted by South African courts pre-1994
Statutory interpretation pre-1994 lacked a single theoretical starting point.
There was no single methodology that was applied to interpret legislation.
Consequently the process of interpreting legislation involved a mixture of theoretical approaches that were often conflicting and inconsistent.
One of the theoretical approaches that were used pre-1994 was the text-based approach. The text-based approach accords the legislation in question its literal meaning. In Principal Immigration Officer v Hawabu 1936 AD 26 it was stated that: “It is the primary rule of interpretation that, if the meaning of the text is clear, it should be applied, and, indeed, equated with the legislatures intention.” The text-based approach to interpreting legislation relies heavily on the meaning of the words. Therefore the intention of the legislator is subject to the literal meaning of the text. This is made clear in the following dictum of Stratford JA in
Bhyat v Commissioner of Immigration 1932 AD 125 129:
The cardinal rule of construction of a statute is to endeavor to arrive at the intention of the lawgiver from the language employed in the enactment… in construing a provision of an Act of Parliament the plain meaning of language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the Legislature could not have intended.
It is very clear that the text based theoretical approach to interpreting legislation has a narrow focus on words. It ignores other important aids to interpretation, which could be used to establish the meaning of the text in context.