Statutory Interpretation Notes

 Statutory Interpretation The interpretation of statutes, more precisely, the juridical understanding of legal texts. Legislation, in other words, deals with the body of rules and principles which are used to construct the correct meaning of legislative provisions to be applied in practical situations. The use of these principles/rules is necessary for the following reasons:  the written and spoken words are imperfect renderings of human thoughts  in the case of legislation, the courts are obliged to use specific rules of interpretation to construe its meaning. The Importance of Statutory Law The question whether statutory law is a prime source of law is a debatable one. Statutory law as written law is indispensable to the effective administration and regulation of any modern state. The relationship between statutory law and common law: our legal system can be best described as a hybrid system. It is historically related to two different families of the legal system. On the one hand, it is related to the Roman-Germanic system of western Europe, which legislation has come to enjoy an indispensable supremacy as a source of law. On the other hand, the English common law family in which case/judgment law prevails. *The prime source of law in Namibia is the Constitution Advantages of Statutory law (compared to case/customary law) 1. Since there are case in a formal way and are written, Statutes are readily accessible and knowable. 2. Statutory law is flexible; it can readily be altered and adapted to ever-changing circumstances, especially if there is sound cooperation between the legislature and judiciary. 3. Since statutes are written, they remain as such until repealed. They contribute to enhancing legal certainty.

Types of Legislation Original Legislation: these are Acts of Parliament; derives from the complete and comprehensive legislature capacity of an elected legislative body AKA direct or primary legislative capacity. Since it is derived directly from the Constitution or is assigned by another Act of Parliament. Delegated Legislation: Acts of parliament and other forms of original legislation are sometimes drafted in broad terms (skeleton form), because the respective legislative bodies are not continuous in session to deal with every possibility in a changing society. Delegated legislation then ‘adds the flesh’. The legislature might find it necessary to delegate some of its powers to other persons, bodies or tribunals. These are then vested with delegated legislative (subordinate legislative) powers under enabling legislation. 1

Traditional Theories of Interpretation 1. Orthodox text-based (literal) approach 2. The purposive (in-text) approach 3. Judicial/free approach

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Literal Approach The first theory is a theory of literalism (plain-meaning approach). It is condensed at the true meaning of the text, it is to be sought in “ipsissima verba” used in the legislature: the meaning it equated with linguistic/philosophical meaning. The safer course to adopt is to observe the literal and grammatical sense of words employed and leave it to the legislature, which also is at the hands for the purpose to amend the law in case such construction should not carry out its real intention. The literal rule in its crude (basic/simple) form has undergone metamorphosis (change/alteration). This is because in its crude form, the literal rule says that if the words of an enactment are unambiguous and clear, then you apply it, notwithstanding its absurdity of its application. According to the textualist, the interpretative process should proceed along the following lines: 1. It is the primary rule of interpretation that if the meaning of the words is clear, it should be put into effect and indeed equated with the legislature’s intention. CASE: Principle Immigration Officer v Hawabu 1936 AD 26 2. If the so-called plain meaning of the words 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 CASE: Venter v R 1907 TS 910 914 This is also known as the golden rule of interpretation (secondary aids of interpretation). This is used to find out the intention of the legislature (such as the long title of the statute, headings to chapters and sections). 3. Should these secondary aids to interpretation prove insufficient to ascertain the intention, the courts will have recourse to the so-called ‘tertiary aids’ to construction.

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Criticisms of the Literal Approach In a text that has few wordings are so clear that only one interpretation is possible. Meaning the existence of the regulation in interpretation of statutes advocates that legislation is rarely clear and unambiguous. The normative function of the common law presumptions throughout the legislative the interpretation process is reduced to a mere ‘last resort’, to be applied only if the legislative text is ambiguous and unclear. 2

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Some crucial methods of interpretation (internal and external) are overlooked and disregarded. As a consequence, the ‘intention of the legislature’ is reliant on how clear the language used in the legislation may be to the particular court. In the narrow approach, words are considered as the basic guide to legislative meaning.

The literal approach leaves very little room for judicial law-making, and the courts are seen as mere mechanical interpreters of the law. *The Golden rule is part of the Literal rule. The Golden rule modifies the meaning of the words CASE: Farrar’s Estate v CIR 1926 TPD 501 In particular at page 504 the court said: the governing rule of interpretation over writing the socalled golden rule is to endeavor to ascertain the intention of the lawmaker from the study of provisions of the enactment in question. The literal approach seems to still be popular through the influence of English law. Generally speaking, 4 factors led to the adoption of the textual approach in England: λ Misconception about separation of powers (the trias politica doctrine) and sovereignty of Parliament resulted in acceptance of the idea that the court’s function should be limited to the interpretation and application of the will of the legislature as recorded in the text of the particular legislation. In other words, the will of the legislature is only to be found in the words of the legislation. λ The doctrine of legal positivism influenced the literal approach in England. The positivists idea is based on the absolute validity of the decree/command. The role of the court is limited to the analysis of the law as it is not as it ought to be. λ England has a common law tradition in which the courts traditionally played a very creative role in regard to common law principles. As a result, legislation has been viewed as the exception to the rule, altering the traditional common law as little as possible.

Wider Contextual Theory The mischief rule is the wider contextual theory, it was formulated in the Heydon’s case (1584) 3 Co Rep 7a and forms the cornerstone of the contextual approach to interpretation. It poses 4 questions that must be answered to establish the meaning of legislation: 1. What was the legal position before the legislation was adopted? 2. What was the mischief (defect) not provided for by existing legislation or common law? 3. What remedy was provided by the legislature to solve this problem? 4. What was the true reason for the remedy? 3

True interpretation is always suppressive of the mischief in that it is conclusive to the remedy aimed at its elimination. The mischief approach examines the purpose of legislation because the purpose of legislation is sometimes used to shed light on the true intention of the legislation once the plain meaning has failed. CASE: Jaga v Donges 1950 (4) SA 653 (A) Schreiner JA argued in favor of the purposive approach, hence according to him, that this approach aims at avoiding the pitfall of literalism throughout the process of interpretation. Cowen maintains with Schreiner that the interpretation of an enactment involves and requires recognition of its contextual framework right from the outset. Thus a proper balance is ought therefore to be struct between the grammatical meaning and the overall context. Recourse to the contextual element should not occur only to the plain/grammatical meaning of the enactment proves to be insufficient due to ambiguity. This approach is referred to as a more modern approach to interpretation of statutes. CASE: Mjuqu v Johannesburg City Council 1973 (3) SA 421 (A) This case can be regarded as a model of the contextual approach. This case made use of all the aids of statutory interpretation surrounding the circumstances used to determine the scope of the interpretation. The judge took in account the intention of the legislature. CASE: University of Cape Town v Cape Bar Council 1986 (4) SA 903 The court held that the court has to examine all the contextual factors in ascertaining the intention of the legislature, irrespective of whether or not the words of the legislature are clear and unambiguous. CASE: Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 (1) SA 925 Smalberger JA came to the conclusion that although the intention of the legislature is the primary rule of interpretation, it must be accepted that the literal interpretation principle is firmly entrenched in our law and I do not seek to challenge it. Judicial Theory: This is a free theory of interpretation, which in its moderate form recognizes and justifies and in its radical form, which vehemently advocates the creative role to be played by the judiciary in the interpretation and application of statutes.

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The Influence of the Constitution The traditional SA approach to statutory interpretation was characterized by a strict devotion to the legislative text, and the sovereignty of parliament. Now the supreme Constitution is the fundamental law, the yardsticks against which everything should be measured. It is a valuated document; as a result the plain meaning/grammatical interpretation can no longer be the overriding/decisive factor in interpretation. CASE:

S v Makwanyane

1995 (3) SA 391

CASE:

Holomisa v Argus Newspapers Ltd

1996 (2) SA 588

CASE: Kalla v The Master 1995 (1) SA 261 (T) In this case the court held that the traditional rules of statutory interpretation still formed part of the law and the land and that they were not affected by the Constitution. *CASE: Matiso v Commanding Officer, Port Elizabeth prison 1994 (4) SA 592 In this case, the intention of the Legislature does not apply in a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Con is sovereign and not the Legislature. *CASE: Namujebo & Others v WHK Prisons 1999 NR 271 (SC) In this case, the prisoners tried to escape, they were then chained. It was then said that this was a violation of dignity. It was a contravention of Art 8 of the Nam Con. They were put in chains for 5~6 months. Sec 80 of the Prison Act, regulation 102 was declared unconstitutional. Value judgment was used in this case. In determining VJ, the court looked at other international instruments. Value judgment takes into consideration: λ Contemporary Norms λ Expectations λ Sensitivities Q: where do we find these considerations? λ Historical Background λ The Constitution of Namibia λ Value laden documents λ Universal Declaration of Human Rights This is not a static exercise, it is evolving and dynamic. Whatever might be acceptable in the past, might appear to be human degrading today. * in Exam 5

CASE: S v Tcoeib 1996 (7) BCLR 996 (NmS) The court had said that life imprisonment in itself is not unconstitutional. Life imprisonment in Namibia is 20 years. In this case, the court also looked at the values of the people. The NB part of the case: The major and basic consideration when arriving at a decision involves an enquiring: λ Contemporary Norms λ Aspirations λ Sensitivities λ Expectations λ Perception of the Namibian society λ Experiences λ Moral Standards “Such a culture of mutually sustaining despair appears to me to be inconsistent with the deeply humane values articulated in the preamble and the text of the Nam Cons which eloquently portrays the vision of a caring and compassionate democracy determining to liberate itself from the cruelty, pain, shame, repression of its racist and colonial past. Those values require the organs of the society continuously and consistently to care for the conditions of the prisoners, to seek to manifest concern for, to reform and rehabilitate those prisoners during incarceration, and concomitantly to induce in them a consciousness of their dignity, a belief in their worthiness and hope in their future.” The judge came to the conclusion that life imprisonment does not amount to a sentence of death. One needs to distinguish between the deprivation of life and the deprivation of liberty. A life sentence cannot be interpreted as a death sentence. Life imprisonment does not terminate the life of the imprisoned, it invades his liberty.

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Similarities between Statutory Interpretation and Constitutional Interpretation The practical inclusive method of interpretation λ

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Grammatical Interpretation: this aspect acknowledges the significance of the function of the language of the constitutional text. It focuses on the linguistic and grammatical meaning of the words, phrases, sentences and other structural components of the text. Systematic Interpretation – This approach is concerned with the illumination of the meaning of a particular constitutional provision in combination with the Constitution as a whole Teleological Interpretation – This requires a value-coherent construction, the aim and purpose of the provision must be ascertained against the fundamental constitutional values. Historical Interpretation – this approach refers to the use of the ‘historical’ context of the Constitution. The historical context includes factors such as the circumstances which gave rise to the adoption of the Constitution. Comparative Interpretation – This refers to the process during which the court examines international law and the constitutional decisions of foreign courts.

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