Page v

Preface

Teaching interpretation of statutes to the so-called Y-generation—armed with the

newest tablet computers, smart phones and other electronic gadgets, and well-

trained in social-media interaction—at South African law schools is not for the faint-

hearted. Since the preface to the fourth edition of this book was written in 2005

nothing has changed. If anything, students’ reading and writing skills are worse,

and they know (and care) less and less about time and space. For many students

Wikipedia, Blackberry, Twitter and Facebook represent the extreme limits of their

contextual world.

One of the current education-speak issues workshopped by South African legal

academics is whether or not we ‘over-teach’ law students (other buzz phrases are

‘closing the curriculum gap’, ‘blended learning’, ‘enquiry-led teaching’, ‘expectancy

zones’ and ‘scaffolding of threshold concepts’); a lecturer should not be a ‘sage on

the stage’, but rather a ‘guide on the side’; et cetera and so on and so forth.

However valuable these profound deliberations may turn out to be in the future, in

the meantime fewer law lecturers at understaffed faculties have to teach more and

more hopelessly under-taught and over-confident students who enter universities

straight out of a collapsing school system. According to modern educationists,

lecturers just have to accept this situation as an unfortunate given. Get used to it,

get over it and get on with it, because (according to those in the know) if you are

not part of the solution, you are part of the problem. After all, to quote from one of
the many anonymous parodies of Rudyard Kipling’s If, lecturers are supposed to be

quite adaptable:

If you can write, and not be tired of writing

Or being laughed at, aren’t reduced to tears;

Or if ignored, do not indulge in hating,

Or being fought, do not give way to sneers;

If you can talk with fools and keep your virtue;

If you can read until your eyes are gone,

Yours are the Clouds and nothing else, you fool you

and which is less—you’ll be a lecturer, my son!

Page vi

Mind you, since beleaguered lecturers are struggling in the trenches, Alfred Lord

Tennyson’s Charge of the Light Brigade may be more apt!

On the other hand the Y-generation law students will have to accept that, like

toll roads and rock ’n roll, interpretation of statutes is here to stay. During recent

discussions between the Council for Higher Education, members of the South

African Law Deans’ association, law teachers and members of the professions, one

of the required core skills of South African law graduates was identified as having

‘the ability to read and interpret statutes and legal documents’. So: as the

Americans are fond of saying, let’s cut to the chase. Law students may consider

interpretation of statutes boring, confusing and instantly forgettable, but the

legislation and Government Gazettes and Green Papers will still be waiting out
there, and the principles, rules and maxims needed to interpret legislation will

accompany all lawyers for the rest of their careers.

Because this book is aimed at the next generation of lawyers, allow me a number

of explanatory clauses and disclaimers:

It is largely based on my own re-interpretation and personal adaptation of

Lourens du Plessis’s suggested practical and inclusive approach to

interpretation. However, while I accept that there may be different viewpoints

about my categorisation of certain presumptions and rules within the

suggested inclusive approach, it should be borne in mind that this book is,

first and foremost, a teaching tool.

Furthermore, this is an introductory textbook for undergraduate students—a

basic and ‘student-friendly’ introduction to the fundamental principles of the

interpretation of legislation. It is not intended as an exhaustive reference

work or complete compendium. After all, this year’s landmark case is next

year’s overturned decision, and today’s draft Bill is tomorrow’s repealed

Act . . .

Let us be frank about it: it is impossible to teach every rule, maxim, principle,

theory and presumption of interpretation to a large group of students in a

single semester (paradoxically, those perceived dangers of ‘over-teaching’ are

sometimes counterbalanced by sheer numbers and lack of time). This

 introduction for students does not cover every aspect of the discipline, and it

cannot teach students how to interpret legislation. It is merely an attempt to

teach

Page vii

students the most important rules and principles of the interpretation of

legislation, as well as some of the necessary skills required to find solutions

to future problems. In a way it is similar to teaching a novice the basic

principles of golf: it is impossible to teach every possible shot in just a few

coaching sessions. However, a player who has mastered the fundamentals of

the golf swing should have the basic skills to deal with a plugged lie in the

bunker, to play a high fade into the wind or to take on a bump-and-run chip

from a tight lie. This also means that the golfer has to hone those skills on

the course, not only on the practice range. But then again, interpretation of

legislation and golf are not exact sciences: from time to time there will be

bad drafting or out-of-bounds shots to deal with!

It is suggested that this book be used as part of an integrated teaching

methodology. The rules of statutory interpretation cannot be taught in

isolation, and should be continually linked to other law subjects (preferably in

the same year of study), with suitable practical examples and references to

relevant legislation. Practical examples and hypothetical scenarios will not

only enable the students to link the rules and principles of interpretation to

the ‘real’ world, but will also emphasise the interrelatedness of statutory
 interpretation and the rest of the law. Needless to say, such an approach will

necessarily require more problem-based examples during lectures and

contact sessions.

This fifth edition is not only the product of more than three decades’ efforts

(including misguided visions and mistakes) to teach interpretation of statutes to

undergraduate students, but it has also been influenced by lectures to the

association of Regional Magistrates of Southern Africa and by my certificate course

in legislative drafting (offered by the University of Pretoria). I also have to

acknowledge the positive criticism, innovative ideas, comments and suggestions of

a number of my friends: Rassie Malherbe, Isabeau Southwood, Bernard Bekink,

Pieter Carstens, Jakkie Wessels, Mike van Heerden, Koos Malan, Werner Krull and

all the other usual suspects. However, all the mistakes, shortcuts and wrong

interpretations will inevitably be deemed to be mine. of course, since my personal

mantra is ‘Why procrastinate if you can do it tomorrow’, Linda van de Vijver of Juta

deserves a medal for her infinite patience.

Page viii

Finally, this fifth edition includes supplementary material containing the

Constitution of the Republic of South Africa, 1996 and the Interpretation Act 33 of

1957

CHRISTO BOTHA

PRETORIA

2012
 Page ix

Contents

Preface

Part 1: Statute law

General Introduction

1.1

Legislation as source of law

1.2

What is interpretation of statutes?

1.3

The new constitutional order

The term ‘legislation’

2.1

What is legislation?

2.2

Categories of legislation

2.2.1

Chronological categories
(a)

Legislation before 1806

(b)

Old order legislation

(c)

Legislation in the new constitutional order since 1994

2.2.2

Hierarchical categories

(a)

The Constitution

(b)

Original legislation

(c)

Subordinate (delegated or secondary) legislation

2.2.3

Old wine in new bags: Applying old order legislation in the new constitutional

order

2.2.4

‘Law of general application’

2.3

What is not legislation?

2.4

Legislative structure and ‘codes’

2.5

Relationship between legislation and common law

Is it in force? The commencement of legislation

3.1

Adoption and promulgation of legislation

3.2

Hear Ye, hear Ye! The requirement of publication

Page x

3.3

Pulling the trigger: Commencement of legislation

3.3.1

Who promulgates?

3.3.2

When is it force?

(a)

The default setting: on the date of publication

(b)

Delayed commencement: on a future specified date

(c)

Delayed commencement: on an unspecified future date still to be proclaimed

(d)

Retroactive commencement
(e)

A combination of the above

(f)

When does a ‘day’ start?

3.3.3

Jumping the gun? Section 14 of the Interpretation Act

3.4

Back in the time warp: The presumption that legislation applies only to the

future

3.4.1

General principle: Let bygones be bygones

3.4.2

The difference between retroactive and retrospective

3.4.3

What prevents legislation from applying with retro-effect?

(a)

The common-law presumption

(b)

New offences and higher penalties

(c)

Other constitutional rights

3.4.4

No harm done: Exceptions to the rule

(a)

If the enactment deals with procedure

(b)

If the retro-effect favours the individual

3.4.5

Retroactivity and other constitutional issues

Is it still in force? Changes to and the demise of legislation

4.1

General

Page xi

4.2

Changes to legislation

4.2.1

Formal amendment of legislation by a competent legislature

4.2.2

Modificative interpretation by the courts

(a)

Attempts to save legislation during constitutional review

(b)

Modification of the legislative meaning during interpretation

4.3

The demise of legislation

4.3.1

Invalidation of legislation by the courts

(a)

Unconstitutional provisions

(b)

Invalid subordinate legislation

4.3.2

Repeal of legislation by a competent lawmaker

(a)

Substitution (repeal and replace)

(b)

Repeal (deletion)

4.4

Suspension of legislation already in force

4.5

The presumption that legislation does not intend to change the existing law

more than is necessary

4.5.1

Common law

4.5.2

Legislation

Part 2: How legislation is interpreted

5
 Theoretical foundations

5.1

Introduction

5.2

Jurisprudential perspectives on statutory interpretation

5.2.1

The general principles of hermeneutics

5.2.2

The influence of certain modern critical theories

(a)

The Critical Legal Studies Movement (CLS)

(b)

Deconstruction

(c)

The linguistic turn

5.3

South African theories of interpretation

5.3.1

The orthodox text-based approach

Page xii

5.3.2

The text-in-context approach

5.3.3

The influence of the supreme Constitution

5.3.4

A practical, inclusive method of interpretation

A practical, inclusive methodology: The five interrelated dimensions of

interpretation

6.1

The language dimension

6.1.1

Basic principles

(a)

The initial meaning of the text

(b)

Every word is important

(c)

No addition or subtraction

(d)

The continuing time-frame of legislation: the law is always speaking

6.1.2

Internal language aids to interpretation

(a)

The legislative text in another official language

(b)

The preamble

(c)

The long title

(d)

The definition clause

(e)

Express purpose clauses and interpretation guidelines

(f)

Headings to chapters and sections

(g)

Schedules

6.1.3

External language aids to interpretation

(a)

Dictionaries and linguistic evidence

(b)

Examples and footnotes

(c)

Definitions in the Constitution and the Interpretation Act

(d)

The clock is ticking: computation of time

6.2

The holistic (contextual and structural) dimension: Don’t miss the wood for the

trees

6.2.1

Legislation must be construed within the total legal picture

Page xiii

6.2.2

Balance between text and context

6.2.3

Structure of legislation

6.2.4

Conflicting legislation

(a)

Legislation has a purpose: the presumption that legislation does not contain futile

or nugatory provisions

(b)

Conflicts with other legislation

6.2.5

The King can do no wrong: The presumption that government bodies are not

bound by their own legislation

6.3

The value-laden (teleological) dimension: The ghost in the machine

6.3.1

The new constitutional approach to statutory interpretation, or, moving from

bumper stickers to substantive interpretation

6.3.2

Ubuntu

6.4

The historical dimension: Lest we forget

6.4.1

Preamble to the constitution

6.4.2

Prior legislation

6.4.3

Preceding discussions

(a)

Debates during the legislative process

(b)

Commission reports

6.4.4

The mischief rule

6.4.5

Contemporanea expositio

6.4.6

Subsecuta observatio
6.5

The Comparative Dimension

6.5.1

Foreign law

6.5.2

International law

Part 3: Some practical issues and tricks of the trade: Judicial law-making during

interpretation, and peremptory and directory provisions

Judicial law-making during concretisation

7.1

What is concretisation?

Page xiv

7.2

The law-making function of the courts

7.2.1

The text-based viewpoint

7.2.2

The text-in-context viewpoint

7.2.3

The myth that courts merely interpret the law

7.2.4

Factors which support and limit judicial law-making during statutory

interpretation

(a)

Restrictions on the law-making discretion of the courts

(b)

Factors which support judicial law-making

7.3

Possibilities during concretisation

7.3.1

No problems with correlation

7.3.2

Modification of the meaning is necessary

(a)

Restrictive interpretation

(b)

Extensive interpretation

7.3.3

No modification of the meaning is possible

Peremptory and directory provisions

8.1

General introduction
8.2

Some guidelines

8.2.1

Semantic guidelines

8.2.2

Jurisprudential guidelines

8.2.3

Presumptions about specific circumstances

Part 4: Constitutional interpretation

Constitutional interpretation

9.1

Introduction

9.1.1

Constitutional interpretation and ‘ordinary’ statutory interpretation

9.1.2

The supreme Constitution and ordinary legislation

9.2

Why is a supreme Constitution different?

9.2.1

A constitution as formal power map

Page xv
9.2.2

Substantive constitutionalism

9.2.3

Constitutional symbolism

9.3

How to interpret the constitution

9.3.1

Constitutional guidelines

9.3.2

A comprehensive methodology

(a)

Grammatical interpretation

(b)

Systematic (or contextual) interpretation

(c)

Teleological (value-based) interpretation

(d)

Historical interpretation

(e)

Comparative interpretation

9.4

Avoiding unconstitutional legislation

9.4.1

The limits of corrective interpretation during constitutional review

9.4.2

Reading-down

9.4.3

Reading-up

9.4.4

Reading-in

9.4.5

Severance

9.5

Contemporary challenges, or, whose Constitution is it anyway?

9.5.1

The counter-majoritarian difficulty

9.5.2

The constitutional values

9.5.3

Fostering a rights culture

9.5.4

Constitutional interpretation and social justice

Bibliography

Table of Cases

Index
Supplementary material

The Constitution of the Republic of South Africa, 1996

The Interpretation Act 33 of 1957

 Page 1

Part 1
Statute law

1
General Introduction

2
The term ‘legislation’

3
Is it in force? The commencement of legislation

4
Is it still in force? Changes to and the demise
of legislation
 Page 3

Chapter 1
General Introduction

1.1 Legislation as source of law

In order to understand and apply the rules,
principles and canons required to interpret
legislation (Part 2), lawyers need to be proficient in
the technical ‘black letter’ or ‘nuts and bolts’
aspects of legislation explained in Part 1. These
aspects include the various types and categories of
legislation, the structural parts or components of
legislation, and the sometimes confusing ‘codes’
used in legislative texts, as well as the challenging
interrelationship between existing old order
legislation and new post-1994 laws.
The law consists of all forms of law (common
law, statute law, indigenous (customary) law, case
law), while a law is a written statute enacted by
those legislative bodies which have the authority to
make laws.
•
Legislation (‘enacted law-texts’ or statute law)
comprises all the different types of enacted
legislation, such as Acts of Parliament,
provincial legislation, municipal by-laws,
proclamations and regulations. An Act (upper
case) refers to a parliamentary statute or the
legislation of a provincial legislature (wet). An
act (lower case) refers to conduct or action
(optrede or handeling) such as the act of a
government official or an organ of state.

•
The common law is composed of the rules of
law which were not originally written down, but
came to be accepted as the law of the land.
The common law is made up of the underlying
original or basic legal principles. South African
common law is known as Roman-Dutch law
and most of it originated during the
seventeenth century in the erstwhile province
of Holland.

•
 Common law needs to be distinguished from
codifications, which are statutory compilations
of all the legal principles
Page 4
relating to a particular branch of the law (eg a
criminal code). The common law may be
changed by original legislation, but if there is
no statutory law on the subject, the common
law applies.

•
Indigenous law refers to the traditional law of
the indigenous black people of South Africa.
This may either be unwritten customary law, or
codified (statutory compilations).

•
Case law (also referred to as ‘judicial
precedent’) is the law as various courts in
specific cases before them have decided on it.
(For law students, the term ‘case law’ usually
refers to those cases they had to read, but did
not, and had to discuss in the examination, and
could not!) The precedent system (also known
 as stare decisis) means that judgments of
higher courts bind lower courts and courts of
equal status.
Statute law (legislation) plays an ever-increasing
role in common-law legal systems. In the past,
legislation may have been viewed as exceptions to
the common law, but the rapid changes in modern
society have stretched the adaptability of common-
law rules to their limits. Since the common law
cannot deal with the regulation of new
technological and scientific developments such as
electronic funds transfers, stem cell research and
cross-border human trafficking (to name only a
few), more and more legislative intervention is
necessary and inevitable. As a result, legislation is
the most important source of new law in most
modern societies.
In South Africa there is, of course, a more
fundamental reason for a thorough understanding
of the technical aspects of legislation. In a strictly
legalistic sense apartheid was an ideologically
underpinned and public-law driven system, based
on a web of interlocking legislation. The
dismantling of this legal edifice not only requires
an excellent knowledge of statute law, but a great
deal of new legislation is needed to remedy the
situation in the new constitutional dispensation.

1.2 What is interpretation of statutes?

Interpretation of statutes, or perhaps more
precisely, the juridical understanding of legislation,
deals with those rules and principles which are
used to construct the correct meaning of legislative
provisions to be applied in practical situations. Du
Plessis (2002: 18) explains it as follows:
[S]tatutory (and constitutional) interpretation
is about construing enacted law-texts with
reference to and reliance
Page 5
on other law-texts, concretising the text to be
construed so as to cater for the exigencies of
an actual or hypothesised concrete situation.
In other words, it is about making sense of the
total relevant legislative scheme applicable to the
situation at hand.
 But why do we need special rules of
interpretation? Lawyers all have (or should have!)
the necessary language skills to read and
understand legislation. You just read the legislation
carefully and apply it to the situation at hand. How
difficult can it be? Should you encounter an
ambiguity in the text, you can always use a
dictionary. However, it is not that simple.
Interpretation of legislation requires more than a
mere reading of the provisions. It is not a
mechanical sequence of join-the-dots or painting-
by-numbers.
For example:
During the 1950s Professor Lon Fuller (1958: 664)
provided a very interesting hypothetical example
to illustrate the inherent difficulties of language
(words) in legislation. At the same time he asked
uncomfortable questions about issues such as
morality, poverty and power (in other words, value
judgements). Suppose a law is passed that states
that it is a criminal offence to sleep in any railway
station. Common sense tells us that the law is
intended to prevent homeless people (vagrants or
squatters or tramps) from using railway stations as
shelters. Two men appear in court on a charge of
contravening the law in question. One man is a
regular commuter who sat upright, but dozed off
while waiting for the train; the other man, who
brought a blanket to the station and settled down
for the night on one of the benches, was arrested
while still fully awake. How should the court
interpret and apply the legislation? Surely the
court cannot read the legislation in a literal sense.
If not, why not? After all, the words are clear—or
are they? What about the historical background
and other surrounding circumstances? How much
of these may the court take into consideration? All
of a sudden interpretation of statutes is not that
simple and straightforward any more.
Page 6
Another example, closer to home:
Take s 11 of the Bill of Rights in the Constitution as
an example. It reads: ‘Everyone has the right to
life.’ Does the supreme Constitution guarantee
immortality? That is absurd, since we all know that
it a biological impossibility. But, then, what does s
11 mean? Since ‘the right to life’ forms part of an
‘enacted law-text’ (the Constitution), how do the
courts interpret it? In S v Makwanyane 1995 (3)
SA 391 (CC) the Constitutional Court held that the
right to life means that the state may not take a
person’s life in retribution, and the death penalty
was declared unconstitutional. Does this decision
mean that a person may not be killed in self-
defence? Not at all: In Makwanyane and Ex parte
Minister of Safety and Security: In re S v Walters
2002 (4) SA 613 (CC) the Constitutional Court held
that the existing right to kill a person in self-
defence was not abolished by the Constitution. On
the other hand, the decision of the Constitutional
Court in Soobramoney v Minister of Health,
Kwazulu-Natal 1998 (1) SA 765 (CC) effectively
means that the constitutional right to life does not
mean the state has a duty to keep all terminal
patients alive in all circumstances. Furthermore, in
Carmichele v Minister of Safety and Security 2001
(4) SA 938 (CC) the Constitutional Court linked the
constitutional rights to life and the freedom and
security of the person to the constitutional duty
imposed on the state and all of its organs not to
perform any act that infringes these rights. Now
the phrase ‘Everyone has the right to life’ does not
seem so simple and unambiguous anymore! This
simple example makes it clear that there is more
to interpretation of legislation than reading and
spelling skills, and words, phrases and grammar.
The supreme Constitution, the context of
legislation, and competing human rights and
fundamental values also form part of this process:
a very intricate, nuanced and multi-faceted
process. Du Plessis (1999: 230) explains this
aspect very well:
One cannot understand a legal text merely by
concentrating on its language. You must also
understand how law works and what it seeks
to achieve in order to understand how it
communicates with you and what it wants to
tell you.
Page 7
In the British case of Corocraft Ltd v Pan American
Airways Inc. [1968] 3 WLR 714 732 Donaldson J
explained interpretation of legislation as follows:
 In the performance of this duty the judges do
not act as computers into which are fed the
statutes and the rules for the construction of
statutes and from which issue forth the
mathematically correct answer. The
interpretation of statutes is a craft as much as
a science and the judges, as craftsmen, select
and apply the appropriate rules as the tools of
their trade. They are not legislators, but
finishers, refiners and polishers of legislation
which comes to them in a state requiring
varying degrees of further processing.
The interpretation of legislation is not a mechanical
exercise during which predetermined formulae,
well-known maxims and careful reading will reveal
the meaning of the legislative provision. Technical
aspects (eg the structure of the legislation and
language rules) must be applied in conjunction
with substantive aspects (eg constitutional values
and fundamental rights). Apart from the inherent
difficulties of language and meaning, the
interpreter has to keep a number of other related
issues in mind:
•
The provision must be read, understood and
applied within the framework of the supreme
Constitution and the Bill of Rights.

•
What is the impact of other legislation (eg the
Promotion of Access to Information Act 2 of
2000, the Promotion of Administrative Justice
Act 3 of 2000 and the Promotion of Equality
and Prevention of Unfair Discrimination Act 4 of
2000)?

•
Is the legislation that must be interpreted still
in force? If still in force, has it been amended
since?

•
If, for instance, a provision in an Act of
Parliament is to be interpreted, it must be read
with the rest of the Act, including its definition
section and possibly its schedules as well.
Regulations may have been issued in terms of
 the particular provision, which have to read
with the enabling legislation. Are those
regulations valid?

•
What is the context (general background or
surrounding circumstances) of the legislative
text?

•
Other external aids (eg dictionaries or
commission reports) may be used to establish
the meaning of the legislation.

•
Sometimes the interpreter will be confronted
by the results of poor drafting, conflicting
provisions or a lack of resources to research
the current law.
Page 8
Make no mistake: interpretation of legislation is
not easy, quick or mechanical. It not only requires
excellent language skills, but the interpreter must
also have a very good knowledge of the law and
where to find it. This means research: reading
reported cases (lots of them!), finding and
analysing the latest Acts and regulations, and
keeping up to date with new developments in the
law.
Practical example:
As has been pointed out, interpretation of statutes
is not easy. Take a look at the definition of a
‘firearm’ in s 1 of the Firearms Control Act 60 of
2000:
In this Act, unless the context indicates
otherwise—
...
‘firearm’ means any—
(a)
device manufactured or designed to propel a
bullet or projectile through a barrel or cylinder
by means of burning propellant, at a muzzle
energy exceeding 8 joules (6 ft-lbs);
...
What is muzzle energy of 8 joules (6 ft-lbs)?
Muzzle energy is the kinetic energy of the bullet
when it exits the barrel. To know the muzzle
energy, you need to know the muzzle velocity (the
speed of the bullet when it exits the barrel), the
mass of the bullet, and a lot of mathematics!
Muzzle energy (in ft-lbs) is calculated as follows:
Muzzle velocity (in feet per second)2 d 450240 x
bullet weight in grains. One grain = .064789 gram,
and one ft-lb muzzle energy = 1.356 joule. Did the
legislative drafters know or understand this
definition? Do you think the prosecutors, legal
practitioners and the judiciary understand the
definition? To cut a long story short—there is more
to interpretation of legislation than merely glancing
through the words in the text!
Legalese
Bad drafting and legalese is another problem.
‘Legalese’ refers to the perplexing and specialised
language (or social dialect) used by lawyers in
legal documents, incomprehensible to the non-
lawyer. Somebody once defined it as ‘the language
of lawyers that they would not use in ordinary
communications but for the fact that they are
lawyers’. It is characterised by wordiness, Latin
expressions, passive verbs, lengthy sentences
Page 9
and legal doublets (stringing together two words to
convey a single legal concept such as null and
void, fit and proper, perform and discharge and
terms and conditions). Why do drafters use
verbose language? Maybe it is part of a
professional mystique, compelling lawyers to write
in a complicated and learned style in order to
maintain an aura of profound importance. Lord
Radcliffe (1950: 368) explained the use of legalese
as follows:
It seems to me that a sort of hieratic language
has developed by which the priests incant the
commandments. I seem to see the ordinary
citizen today standing before the law like the
laity in a medieval church: at the far end the
lights glow, the priestly figures move to and
fro, but it is in an unknown tongue that the
great mysteries of right and wrong are
proclaimed.
Yet despite the efforts of the advocates of more
understandable plain language in legal drafting,
interpreters still have to deal with convoluted
language in legislation. Just imagine you have to
interpret the following provisions:
Section 1 of the Orange Free State Civil
Protection Ordinance 10 of 1977 was a somewhat
ridiculous attempt to define a ‘disaster’:
In this Ordinance, unless the context otherwise
indicates—‘disaster’ means a disaster or a
state which is not a state of emergency or a
state of disaster and which, in the opinion of
the Administrator or of the local authority
concerned, is a disaster, as defined in section 1
of the Act, or is likely to develop into such a
disaster;
Or even worse, another potential tongue-twister
was s 1(4) of the previous Labour Relations Act 28
of 1956:
The definition of ‘unfair labour practice’
referred to in subsection (1), shall not be
interpreted either to include or exclude a
labour practice which in terms of the said
 definition is an unfair labour practice, merely
because it was or was not an unfair labour
practice, as the case may be, in terms of the
definition of ‘unfair labour practice’, which
definition was substituted by section 1(a) of
the Labour Relations Amendment Act, 1991:
provided that a strike or lock-out shall not be
regarded as an unfair labour practice.
In an almost desperate attempt to make sense of s
22(1)(d) and 22(1)(bb) of the Compulsory Motor
Vehicle Insurance Act 56 of 1972 (as amended
several times), Botha JA in Santam
Page 10
Insurance Ltd v Taylor 1985 (1) SA 514 (A) 523B
and 526E expressed himself as follows on the
confusion:
In an attempt to escape from the prolixity
which disgraces this piece of legislation I shall
take a number of short cuts when referring to
its provisions . . . In my opinion the man in the
street would be at least as perplexed by the
language used by the legislature as is the man
on the Bench who is writing this judgment.
Clearly the judge was not impressed with the
standard of drafting and the legalese used in the
legislation which it had to interpret. As Botha &
Bekink (2007: 34) point out, it is not always easy
to use so-called ‘plain language drafting’ in
legislation and other legal documents. However,
even in South Africa legislative drafters,
legislatures and lawyers are becoming more aware
of the need to draft legal documents in more
understandable language.
Practical example:
Section 3(1)(b)(iv) of the Consumer Protection Act
68 of 2008 is a good example of an express
legislative acknowledgement of the link between
understandable language and access to justice:
3 Purpose and policy of Act
(1) The purposes of this Act are to promote
and advance the social and economic welfare
of consumers in South Africa by—
...
(b)
reducing and ameliorating any disadvantages
experienced in accessing any supply of goods
or services by consumers—
...
(iv)
whose ability to read and comprehend any
advertisement, agreement, mark, instruction,
label, warning, notice or other visual
representation is limited by reason of low
literacy, vision impairment or limited fluency in
the language in which the representation is
produced, published or presented;

What is in a name: purpose or intention?

As explained earlier, interpretation of statutes is
about the juridical understanding of legislation.
The interpreter has to determine what the
legislation has to accomplish in the legal order.
Case law and most of the older sources refer to
this as
Page 11
the ‘intention of the legislature’. Other sources
prefer the terms ‘purpose of the legislation’ or the
legislative scheme, and so on.
The term ‘intention of the legislature’ is closely
linked to the principle of sovereignty of parliament.
Parliament was the sovereign lawmaker in the
Republic and legislation reflected a parliamentary
legislative intention. As one of the influential
proponents of the intention theory, Steyn (1980:
1) defined statutory interpretation as the process
during which the will or thoughts of the legislature
are ascertained from the words used by the
legislature to convey that will or thoughts.
But it is difficult to picture such a collective
intention exercised by all the members of a
legislative body:

•
The legislature is composed of a large number
of persons, all of whom take part in the
legislative process.

•
 As part of the democratic legislative process
some members of the legislature may oppose
the legislation for various reasons, with the
result that the adopted legislation ultimately
reflects the ‘intention’ of only the majority of
the legislature.

•
Some members will support legislation for the
sake of party unity, though they may be
personally opposed to a Bill. This means that
the ‘intention’ of the legislature is subject to
what the individual members of the legislative
body, under pressure from their party caucus,
‘had to’ intend!

•
Parliamentarians are elected politicians, and
they do not necessarily understand the
complex and technical legislation which they
adopt.

•
A Bill introduced in the legislature is not drafted
by the public representatives, but by legislative
 drafters and law advisers acting on the advice
of bureaucrats from various state departments.

•
Some members of the legislative body may
even be absent when voting on draft legislation
takes place.
To put it another way: the intention of the
legislature refers to the fictional collective intent of
the majority of the legislative body present at the
time when the vote took place, expressing their
will within the constraints of the voting guidelines
laid down by the caucus of the ruling party in the
legislature, and voting for draft legislation—
formulated by legal drafters on the advice of
bureaucrats from a government department—
which had been approved earlier by the state law
advisors!
In the final analysis the correct interpretation of
legislation does not depend on which term is used.
What is important,
Page 12
though, is how that purpose (or intention or
legislative scheme or aim of legislation) is
ascertained and construed. The correct way to
interpret legislation is discussed in greater detail in
Part 2 of this book.

1.3 The new constitutional order

For many years statutory interpretation was the
Cinderella of South African jurisprudence. During
the late 1970s and the 1980s in particular, the
unsystematic application of the rules and principles
of statutory interpretation was criticised by
academics. Traditionally, interpretation of statutes
in South Africa was saddled with unnecessary (and
unacceptable) baggage: a confusing system of
maxims and canons of interpretation, tentative
principles, a golden rule, overriding principles, so-
called primary, secondary and tertiary rules,
manifest and clear meanings, rules of Roman-
Dutch law influenced by English law,
misconceptions about the structure and meaning of
language, exceptions to the rule, as well as
differences of opinion about how the so-called
intention of the legislature should be ascertained.
The acceptance and legitimacy of the new supreme
Constitution may have been compromised if the
application of the fundamental rights was
hampered by the orthodox interpretation of
‘ordinary’ legislation.
A supreme constitution is the highest law (lex
fundamentalis) in the land. Although parliament
remains the highest legislative body in a system of
government with a supreme constitution, any
legislation or act of any government body
(including parliament) which is in conflict with the
constitution will be invalid. However, constitutional
supremacy does not imply judicial supremacy. The
courts are also subject to the constitution and
merely act as the final guardians of the values and
principles embodied in the constitution.
Traditionally, the South African rules of statutory
interpretation were based on the sovereignty of
Parliament. In such a system, Parliament is not
only the highest legislative body, capable of
enacting any laws it wishes, but no court may test
the substance of parliamentary Acts against
standards such as fairness or equality. This was
the system of government which operated in South
Africa before the interim Constitution took effect.
In 1992 Devenish (1992: 290-291) articulated the
need for a new method of statutory interpretation
in a constitutional democracy as follows (emphasis
added):
Page 13
The constitutional doctrine of parliamentary
sovereignty, the jurisprudence of positivism,
and the political hegemony of Afrikaner
Nationalism have greatly influenced the
methodology and theory of interpretation in
South Africa. Steyn’s advocacy of the
subjective or intention theory of interpretation
facilitated a sympathetic interpretation of
apartheid and draconian security legislation
. . . [T]he demise of the apartheid state and
the emergence of a new political and legal
order involving a negotiated and legitimate
constitution with a entrenched and justiciable
bill of rights must of necessity influence the
process and theory of interpretation. The
courts will be able, in the new constitutional
 and political dispensation, (which will of
necessity be cleansed of all race discrimination
laws) to exercise their powers to test and
invalidate legislation. In order to do this all
statute law will have to be interpreted to be
compatible with the letter and the spirit of the
constitution. This means that a value-coherent
theory of interpretation should become
increasingly prevalent. In effect the
introduction of a justiciable bill of rights is likely
to herald a new methodology and theory of
interpretation of statutes.
On 27 April 1994 the Constitution of the Republic
of South Africa 200 of 1993 (hereafter ‘the interim
Constitution’) came into operation. Apart from its
constitutional implications and political
ramifications, it also changed the interpretation of
statutes as we knew it. Not only was the principle
of parliamentary sovereignty replaced by
constitutional supremacy, but the interpretation
clause stated that the spirit and purport of the
fundamental rights had to be taken into account
during the interpretation of statutes. In other
words, the courts can no longer ignore value
judgements. Since the commencement of the
interim Constitution, even the rules of statutory
interpretation have been influenced by the new
constitutional order. The critical questions asked by
academics were no longer theoretical reflections.
Suddenly the correct method of statutory and
constitutional interpretation formed the centre of
the debate about the protection of fundamental
human rights!
On 4 February 1997 the Constitution of the
Republic of South Africa, 1996 (hereafter ‘the
Constitution’) came into operation. Those
principles of the interim Constitution which
transformed statutory interpretation were retained
in the Constitution of 1996. Apart from the
constitutional values, the interpretation of statutes
was transformed by six provisions of the
Constitution in particular: s 1 (the foundational
provision); s 2 (the
Page 14
supremacy clause); s 7 (the obligation clause); s 8
(the application clause); s 36 (the limitation
clause) and s 39 (the interpretation clause). These
provisions, as well as the constitutional values, are
discussed fully in later chapters.
 Page 15

Chapter 2
The term ‘legislation’

2.1 What is legislation?

It is important to distinguish legislation from other
sources of law, because the rules and principles of
statutory interpretation apply only to legislation.
Legislation (also called ‘statute law’) is written law
enacted by a body or person authorised to do so
by the Constitution or other legislation. Du Plessis
(2002: 1) refers to legislation as ‘enacted law-
texts’.
What does ‘enacted law-text’ mean?

•
‘Enacted’ means it was
adopted/issued/promulgated in terms of the
prescribed legal requirements (for instance, the
Constitution and the Interpretation Act 33 of
1957 (‘the Interpretation Act’)).
•
‘Law’ means it has the force of law.

•
‘Text’ means it is written law.
The term ‘legislation’ (statute law or enacted law-
texts) comprises a number of sometimes confusing
names and concepts, for instance, Acts, statutes,
ordinances, regulations, proclamations, rules,
notices and by-laws. Apart from the fact that the
various types of legislation are categorised in
terms of both a chronological timeline and a
hierarchical power structure (discussed in 2.2
below), some of these names have different
meanings, depending on the context in which they
are used.
Page 16
Please note:
Generally a statute is an Act of Parliament, but
sometimes a statute may refer to the set of
subordinate legislation regulating the internal
organisation of a university. A notice may be a
specific type of subordinate legislation issued by a
competent functionary, but a notice in an official
Gazette could also be just that—an official
notification of facts or situations that must be
brought to the attention of the public.
In order to determine the legal meaning of
‘legislation’, let us start with the definitions in the
Interpretation Act. Section 1 of the Interpretation
Act provides:
1 Application of Act
The provisions of this Act shall apply to the
interpretation of every law (as in this Act
defined) in force, at or after the
commencement of this Act, in the Republic or
any portion thereof, and to the interpretation
of all by-laws, rules, regulations or orders
made under the authority of any such law,
unless there is something in the language or
context of the law, by-law, rule, regulation or
order repugnant to such provisions or unless
the contrary intention appears therein.
‘Law’ in this context does not include the common
law. In other words, the rules of statutory
interpretation apply only to legislation. But how
does legislation define itself? Section 2 of the
Interpretation Act defines ‘law’ as follows:
‘law’ means any law, proclamation,
ordinance, Act of Parliament or other
enactment having the force of the law.
According to the Interpretation Act (ss 1 and 2
read together) legislation consists of:

•
any law, proclamation, ordinance, Act of
Parliament, all by-laws, rules, regulations or
orders; and

•
any other enactment having the force of the
law.
So far, so good: if these different types of
legislation seem confusing, it gets worse! Section
239 of the Constitution also defines legislation:
In the Constitution, unless the context
indicates otherwise—
‘national legislation’ includes—

(a)
 subordinate legislation made in terms of an Act
of Parliament; and

(b)
legislation that was in force when the
Constitution took effect and that is
administered by the national government;
Page 17
...
‘provincial legislation’ includes—

(a)
subordinate legislation made in terms of a
provincial Act; and

(b)
legislation that was in force when the
Constitution took effect and that is
administered by a provincial government.
Furthermore, ss 101(3) and 140(3) of the
Constitution refer to subordinate legislation as
proclamations, regulations and other instruments
of subordinate legislation, item 1 of Schedule 6 of
the Constitution distinguishes between old order
legislation and legislation since 1994, and ss 44,
104 and 156 of the Constitution mention assigned
legislation. Finally, s 156(2) of the Constitution
empowers local governments (municipalities) to
make by-laws as mentioned in the Interpretation
Act.
According to the Constitution the legislative
menu consists of the following:

•
national and provincial legislation;

•
proclamations, regulations and other
instruments of subordinate legislation;

•
assigned legislation;

•
old order legislation (defined in item 1 of
Schedule 6 of the Constitution as any
legislation enacted before the interim
Constitution took effect on 27 April 1994);
•
legislation in the new constitutional order since
1994; and

•
municipal by-laws.
All of these will be explained in the sections to
follow. It should now be clear that the
Interpretation Act and the Constitution refer not
only to legislation emanating from certain
geographical areas (national, provincial and local
authorities), but also to a time-line (old order and
post-1994 legislation) as well as to a hierarchical
distinction (for instance, ‘instruments of
subordinate legislation’). This means that the term
‘legislation’ needs to be understood, interpreted
and applied in terms of a horizontal timeline,
geographical space and vertical hierarchical
authority. Now things get interesting: fasten your
seatbelts, or as William Shakespeare (Julius
Caesar: Act 3 scene 1) put it: ‘Cry “Havoc!” and let
slip the dogs of war . . .’
2.2 Categories of legislation
In this part of the chapter the various categories
and types of legislation will be explained. These
categories relate to the historical origins of
legislation (chronological categories) as well as to
the status of the various types of legislation in the
Page 18
legal order (hierarchical categories). Students may
think that all types of legislation (statute law or
enacted law texts) are essentially the same.
Unfortunately this is not the case. The various
hierarchical categories of legislation differ
fundamentally from each other. These differences
have an impact on the commencement and demise
of legislation, and play an important role in all the
other branches of the law (more specifically
administrative law, human rights law and
constitutional law).

2.2.1 Chronological categories

This classification explains all forms of existing
legislation according to their historical origins. This
part is fairly simple: it is a little bit of history, and
the legislation is merely categorised in terms of a
chronological time-line.

(a) Legislation before 1806

Some statutes of the Staten-Generaal of the

Netherlands and placaaten (statutes) of Holland
may still be in force. Although technically classed
as legislation, these became part of South African
common law with no formal procedures required
for their demise, and they may be abrogated by
disuse. This means that neither the various
definitions of legislation (statute law) nor the rules
of statutory interpretation will apply to them.

(b) Old order legislation

Old order legislation is defined in item 2 of

Schedule 6 of the 1996 Constitution as being any
legislation in force before the interim Constitution
took effect (just after midnight) on 27 April 1994.
However, to understand the potential complexities
of existing old order legislation, a few important
historical highlights of South Africa’s constitutional
development since 1910 are necessary.
Page 19
Constitutional highlights:
On 31 May 1910 the four erstwhile British colonies
(Transvaal, Cape, Orange River Colony, and Natal)
united in terms of the South Africa Act, 1909
(adopted by the British Parliament) to form the
Union of South Africa. The Union of South Africa
became an independent state within the British
Commonwealth after the Statute of Westminster
was adopted by Britain in 1931. In 1955 the
Freedom Charter was adopted in Kliptown (outside
Johannesburg) by the Congress of the People, a
loose alliance of extra-parliamentary opposition
groups. After the Republic of South Africa
Constitution Act 32 of 1961 commenced on 31 May
1961, South Africa became a republic (and
simultaneously left the British Commonwealth). In
1983 the Republic of South Africa Constitution Act
110 of 1983 resulted in a so-called tricameral
parliament for South Africa. In 1994 the era of
constitutionalism and supreme constitutions
started with the Constitution of the Republic of
South Africa Act 200 of 1993 (referred to as the
‘interim Constitution’, negotiated by various parties
and stakeholders, and adopted by the Parliament
of the previous regime), which took effect on 27
April 1994 and later culminated in the Constitution
of the Republic of South Africa, 1996 (referred to
as ‘the Constitution’, adopted by the Constitutional
Assembly and certified by the Constitutional
Court), which entered into force on 4 February
1997.
Back to the categories of legislation—old order
legislation is divided into the following two
historical eras:

Pre-Union legislation (1806-1910)

This category refers to the legislation adopted

between the British annexation of the Cape in
1806 and the creation of the Union of South Africa
in 1910. It consists of legislation of the British
colonies and the Boer Republics. Most of these had
been either repealed or incorporated into
legislation of the Union (1910-1961), and the
Republic (since 1961) with legislation such as the
Pre-Union Statute Laws Revision Act 24 of 1979.
However, according to the Department of Justice
and Constitutional Development, on 30 March 2007
some examples of pre-Union legislation still in
force (and probably in conflict
Page 20
with the Constitution and other more recent
legislation) include the Lord’s Day Observance Act
19 of 1895 (Cape Province), the Sunday Act 28 of
1896 (Transvaal) and the Police Offences
Ordinance 21 of 1902 (Free State).

Legislation between Union and the democratic era (1910-1994)

In view of the constitutional changes since 1994,

this legislation is known as ‘old order legislation’
and would include most of the existing South
African legislation: Acts of Parliament, legislation of
the so-called ‘independent homelands’ or TBVC
states (Transkei, Bophuthatswana, Venda and
Ciskei), legislation of the former self-governing
territories or homelands (Kangwane, Gazankulu,
Lebowa, KwaZulu, Kwandebele and QwaQwa),
provincial ordinances enacted by the provincial
councils of the four ‘white-controlled’ provinces
(Transvaal, Cape, Orange Free State and Natal
from 1910 to 1986), proclamations issued by the
administrators of the four ‘white-controlled’
provinces after the provincial councils were
abolished (1986-1994), by-laws enacted by local
authorities (town councils and municipalities), as
well as other existing delegated (subordinate)
legislation.

(c) Legislation in the new constitutional order since 1994

This category refers to all legislation enacted after

the start of constitutional democracy in 1994. It
includes the interim Constitution (since repealed);
the 1996 Constitution; national legislation (Acts of
Parliament and delegated legislation issued in
terms thereof); provincial legislation (Acts of the
nine provincial legislatures and delegated
legislation issued in terms thereof); other
regulations and proclamations; and legislation by
the new local authorities created since 1994.

2.2.2 Hierarchical categories

The historical distinction was fairly easy. However,
the hierarchical categories deal with the status of
legislation, and this is where things become
difficult. Before 1994 the Constitution was not
supreme, and the classification of legislation was
simple and straightforward: original legislation
(such as Acts of Parliament) and subordinate
legislation (such as regulations and
proclamations).
The post-1994 era is more complicated. Now we
have a supreme Constitution, old order legislation
and new post-1994
Page 21
legislation, and three spheres of government
(national, provincial and local). The Constitution is
supreme, and all legislation is now subject to it. It
may now be argued that legislation issued by the
administration (also known as subordinate or
secondary legislation) should be referred to as
delegated legislation to avoid confusion. However,
the Constitution itself expressly refers to
subordinate legislation (ss 101, 140 and 239 of the
Constitution).

(a) The Constitution

The Constitution is the supreme law of the

Republic, any law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be
fulfilled (s 2). The courts may now test all
legislation (including new and old order Acts of
Parliament) and government action in the light of
the Constitution.
Initially the Constitution was known as the
Republic of South Africa Constitution Act 108 of
1996. However, the Constitution cannot merely be
Act 108 of 1996. It is the highest law in the land,
and incorporates the rights, aspirations and values
of its people. It is degrading to number such an
exalted document (the birth certificate of a new
constitutional order) as merely the next statute on
the legislative list. Furthermore, the Constitution
was not adopted by Parliament but drafted by the
Constitutional Assembly and certified by the
Constitutional Court. This mistake has been
corrected by the Citation of Constitutional Laws Act
5 of 2005. From the date of commencement of the
Citation of Constitutional Laws Act, no Act number
is associated with the Constitution. Any reference
to the Constitution of the Republic of South Africa
Act 108 of 1996 in any law in force immediately
prior to the commencement of this Act, must be
construed as a reference to the Constitution of the
Republic of South Africa, 1996.
Some people refer to the Constitution of 1996 as
the final Constitution or FC. Since nothing is final
except death and taxes, and although the
Constitution refers to itself as the new Constitution
(item 1 of Schedule 6), this book will refer to the
Constitution of the Republic of South Africa, 1996
as ‘the Constitution’.

(b) Original legislation

Original (primary) legislation derives from the

complete and comprehensive legislative capacity of
an authorised legislative
Page 22
body. The hierarchical status of original legislation
in South Africa is based on two interrelated
principles:
Firstly, it is enacted by democratically elected,
deliberative, law-making bodies. In Middelburg
Municipality v Gertzen 1914 AD 544 the Appellate
Division stressed that the status of legislation is to
a large extent determined by the deliberation
(discussions) during the law-making process.
Please note that in certain cases the Constitution
also requires the additional measure of public
participation as part of the law-making process of
original legislation.
Secondly, the original law-making powers of the
elected deliberative legislatures are always
founded in the Constitution, but are derived in two
different ways:

•
directly from the Constitution—Parliament (ss
43(a) and 44), provincial legislatures (ss 43(b)
and 104(1)) and municipalities (ss 43(c) and
156(1)(a)); and

•
indirectly from the Constitution (assigned by
another Act of Parliament or a provincial
legislature)—Provincial legislatures (additional
legislative powers assigned by Acts of
Parliament (ss 44(1)(a)(iii) and
104(1)(b)(iii))); and municipalities (additional
legislative powers assigned by Acts of
 Parliament (ss 44(1)(a)(iii) and 156(1)(b)) and
additional legislative powers assigned by
provincial Acts (ss 104(1)(c) and 156(1)(b)).

Acts of Parliament

These include all Acts of Parliament since 1910.

Between 1910 and 1983 Parliament consisted of
the House of Assembly and Senate; between 1983
and 1994 it comprised the House of Assembly, the
House of Representatives, the House of Delegates
and the President’s Council; and since 1994
Parliament has consisted of the National Assembly
and the National Council of Provinces.
The legislative authority of the current Parliament
is derived directly from the Constitution.
Parliament is the highest legislative body in South
Africa and it may, subject to the Constitution, pass
legislation on any matter. This means the courts
may review (test) Acts of Parliament against the
Constitution.
Although the Constitution is the supreme law,
some Acts of Parliament have a higher status than
other original legislation. The Promotion of Access
to Information Act, the Promotion of
 Page 23
Administrative Justice Act and the Promotion of
Equality and Prevention of Unfair Discrimination
Act (the so-called ‘constitutional Acts’) were
enacted to give effect to specific and express
legislative measures required by the Constitution
(ss 32, 33(1) and 9 read with item 23(1) of
Schedule 6 of the Constitution, respectively). A
good example of this specific superior status is
found in s 5 of the Promotion of Access to
Information Act:
Application of other legislation prohibiting
or restricting disclosure
This Act applies to the exclusion of any
provision of other legislation that—

(a)
prohibits or restricts the disclosure of a record
of a public body or private body; and

(b)
is materially inconsistent with an object, or a
specific provision, of this Act.
Other examples of original legislation also contain
provisions stating that it will prevail over any other
law in a particular field of law (for example s 70 of
the Higher Education Act 101 of 1997):
Application of Act when in conflict with
other laws
This Act prevails over any other law dealing
with higher education other than the
Constitution.
Obviously provisions such as these have to be read
in conjunction with the supreme Constitution as
well as with the constitutional Acts (for instance,
the Promotion of Administrative Justice Act).

New provincial Acts (1994-)

This category comprises the legislation enacted by

the nine new provincial legislatures. Their
legislative power is also derived directly from the
Constitution or assigned to them by Acts of
Parliament. The courts also have the power to
review provincial Acts in the light of the Bill of
Rights in the Constitution.
 The Constitution confers original legislative
powers directly on provincial legislatures to pass
legislation for their provinces on matters referred
to in Schedules 4 and 5 to the Constitution and, in
addition, provides for additional legislative powers
to be assigned to them by Acts of Parliament on
matters outside the Schedules.
Page 24
Case law example:
In Premier, Limpopo Province v Speaker of the
Limpopo Provincial Government 2011 (6) SA 396
(CC) the court held that a provincial legislature
cannot enact legislation dealing with its own
financial management because the Constitution
does not directly authorise that in Schedules 4 and
5, nor has it been assigned to them by the
Financial Management of Parliament Act 10 of
2009.

Provincial ordinances (1961-1986)

The Provincial Government Act 32 of 1961

empowered the four provincial councils of the time
(Transvaal, Orange Free State, Natal and Cape
Province) to enact provincial ordinances on matters
concerning their respective provinces.
These provincial councils were abolished on 1
July 1986 by the Provincial Government Act 69 of
1986. Since these ordinances were enacted by an
elected body, could alter the common law and
could even have retroactive force, they represent a
category of original legislation. A particular
ordinance applies only in the ‘old’ geographical
area of the former province.

Legislation of the former homelands

The homelands (self-governing territories) enjoyed

concurrent original legislative powers with the
central government. In terms of the repealed Self-
governing Territories Constitution Act 21 of 1971,
these territories were granted complete legislative
capacity with regard to certain specific matters (eg
health and welfare, education and agriculture). In
these matters the particular legislative assemblies
could enact any legislation and even repeal or
amend parliamentary legislation. Prescribed
matters such as defence and foreign affairs fell
outside their legislative competence. They were
also not empowered to repeal the Self-Governing
Territories Constitution Act or the proclamations in
terms of the Act which granted self-governing
status to a particular homeland.

Legislation of the former TBVC states

Although the legislation of former so-called

‘independent’ homelands did not form part of
South African legislation, it remains valid as part of
South African law in the area where it previously
applied, because these territories have been
Page 25
reincorporated into the Republic. It will have the
same force of law as provincial Acts, provincial
ordinances and legislation of the former self-
governing territories in their areas of operation.
Although the legislation of the TBVC states is
original legislation, the High Court has the
jurisdiction to test its constitutionality against the
provisions of the supreme Constitution like that of
any Act of Parliament (Zantsi v Council of State,
Ciskei 1995 (4) SA 615 (CC)).
New municipal legislation

In terms of the Constitution, municipal councils

may enact by-laws in respect of local government
matters for their areas. Because municipal councils
are representative and deliberative legislative
bodies, new municipal by-laws (after 1994)
constitute original legislation (Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council 1999 (1) SA 374 (CC)).
Municipal councils now have original legislative
powers, and may pass by-laws for their areas on
matters referred to in Schedules 4B and 5B of the
Constitution without the need for enabling
parliamentary or provincial Acts. Additional
legislative powers may also be assigned to them
by either national or provincial legislation.
Municipalities cannot delegate the making of a by-
law. As a result, there is no ‘subordinate
legislation’ category for the local sphere.

(c) Subordinate (delegated or secondary) legislation

In principle, subordinate legislation is a violation of

the separation of powers principle because
unelected (appointed) persons, sometimes
members of the executive, obtain law-making
powers. However, the reason for subordinate
legislation is not as sinister as it seems.
Acts of Parliament and other forms of original
legislation are sometimes drafted in broad terms
(skeleton form); subordinate (delegated)
legislation then ‘adds the flesh’ (Hahlo & Kahn
(1973: 163)). Because the respective elected
deliberative legislative bodies are not continuously
in session so as to deal with every possible detail
in a changing society, they may find it necessary
to delegate some of their powers to other persons
(eg the President or a Minister) or bodies (eg the
Rules Board or the Council of a university). These
are then vested with delegated legislative powers
under enabling legislation. Since Parliament can
amend an Act of Parliament only by means of
Page 26
another (amending) Act of Parliament (a long,
expensive and cumbersome process), something
that must be changed frequently and quickly needs
to be dealt with in terms of subordinate legislation.
Practical example:
The fuel price in South Africa is determined by a
number of constantly changing factors such as the
price of imported crude oil, the exchange rate, and
so on. But who may adjust the petrol price? If the
prescribed price of petrol is controlled by an Act of
Parliament it would be very difficult for Parliament
constantly to adjust such a price, because to
amend an Act of Parliament another Act (an
amendment Act) is required. Such a process is too
cumbersome, expensive and drawn-out:
Parliament cannot be recalled once a month to
adjust the fuel price. So Parliament delegates
some of these law-making powers (to deal with
issues that must be dealt with often and quickly
outside the normal democratic parliamentary
legislative process) to a designated person or
body.
In terms of s 2 of the Petroleum Products Act 120
of 1977, the Minister may prescribe the price of
petrol in South Africa:
2 Powers of Minister and others with
regard to petroleum products
 (1) The Minister may by regulation or by
notice . . .
...
(c)
prescribe the price, or a maximum or minimum
price, or a maximum and minimum price, at
which any petroleum product may be sold or
bought by any person, and conditions under
which the selling or buying of petroleum
products other than in accordance with the
prescribed, maximum or minimum price may
take place;
Page 27
But who is ‘the Minister’? Section 1 of the
Petroleum Products Act defines ‘Minister’ as the
Minister of Energy. Although the definition section
of the Act defines ‘Minister’ as the ‘Minister of
Minerals and Energy’, this designation was
changed by the President with Proclamation 44 in
Government Gazette 32367 of 1 July 2009
(transfer of administration and powers and
functions entrusted by legislation to certain
Cabinet members) in terms of s 97 of the
Constitution.
Such subordinate (delegated) legislative
enactments are known as legislative administrative
acts whose validity may be reviewed by the courts.
In each case the scope of the subordinate
legislation will depend on the provisions of the
particular enabling (authorising) legislation.

Subordinate legislation in terms of national legislation

The 1996 Constitution and an Act of Parliament

may confer delegated legislative powers on certain
persons or bodies, for example—

•
In terms of s 89 of the Defence Act 42 of 2002,
the President is authorised, subject to s 203 of
the Constitution, to declare a state of national
defence by proclamation.

•
A Minister is authorised to promulgate certain
regulations in accordance with the prescription
of the particular enabling Act (eg s 75 of the
National Road Traffic Act 93 of 1996, which
 empowers the Minister of Transport to issue
regulations dealing with—amongst others—the
use of any vehicle on public roads; or s 69 of
the Higher Education Act 101 of 1997, which
empowers the Minister of Higher Education and
Training to issue regulations on a number of
higher education-related matters).

•
A statutory body or a person may be
empowered to make regulations (eg s 32 (read
with s 33) of the Higher Education Act 101 of
1997, which authorises the Council of a
university, subject to the approval of the
Minister of Higher Education and Training, to
issue an institutional statute for the university
dealing with the general management of such a
university; or s 6 of the Rules Board for Courts
of Law Act 107 of 1985, which empowers the
Rules Board for Courts of Law—subject to the
approval of the Minister of Justice—to make,
amend or repeal the rules for the Supreme
Court of Appeal, the High Courts and the lower
courts).
 Page 28

New and existing provincial proclamations and regulations

Before the provincial councils were abolished in

1986, certain ordinances enabled members of the
various provincial executive committees to issue
regulations and proclamations. The Provincial
Government Act 69 of 1986 abolished provincial
councils and therefore any elected legislative
bodies for the provinces and its accompanying
original legislative competency. The legislative
authority for the provinces was transferred to the
Administrator of each province. The Administrator
enacted or amended or repealed provincial
legislation by proclamation and could issue
regulations under existing or new parliamentary
Acts, provincial ordinances or new proclamations.
As a result, old order provincial legislation consists
of both original and delegated legislation, which
may have to be read together.
The new provincial legislatures will, like their
parliamentary counterparts, be able to empower
other functionaries, such as the Premier or
members of a provincial Cabinet, to ‘add the flesh’
to provincial Acts through proclamations or
regulations. These will also have to satisfy the
requirements and limits set by the enabling Act.
Finally, a few general aspects of subordinate
(delegated) legislation must be borne in mind:

•
Subordinate legislation may not be in conflict
with original legislation. The persons or bodies
authorised to issue delegated legislation may
do so only within the framework of the
authority specifically bestowed on them by the
enabling legislation. If not, they have acted
ultra vires (outside the scope of their powers)
and the subordinate legislation in question
could be invalidated by a court of law.

•
Delegated (subordinate) legislation owes both
its existence and its authority to its enabling
original legislation. If the enabling Act is
declared unconstitutional by a court, the
subordinate legislation issued in terms of such
an invalidated Act will also cease to exist
 unless the court orders otherwise (Moseneke v
Master of the High Court 2001 (2) SA 18 (CC)).
If the enabling Act is repealed, all the
subordinate legislation issued in terms of the
repealed Act will also cease to exist (Hatch v
Koopoomal 1936 AD 197; Pharmaceutical
Manufacturers Association of SA; In re: Ex
parte Application of the President of the
Republic of South Africa 2000 (2) SA 674
(CC)), unless the repealing Act
Page 29
expressly provides otherwise. For example,
item 24(3) of Schedule 6 of the Constitution
expressly provides that although the interim
Constitution has been repealed, the regulations
made in terms of s 237(3) of the interim
Constitution remain in force.

•
Parliament cannot confer a power on a
delegated legislative body to amend or repeal
an Act of Parliament (Executive Council
Western Cape Legislature v President of the
RSA 1995 (4) SA 877 (CC)).
•
Although subordinate legislation must be read
and interpreted together with its enabling Act,
the enabling Act may not be interpreted on the
basis of the subordinate legislation made under
it (Freedom of Expression Institute v Chair,
Complaints and Compliance Committee
(unreported case 2009/51933) [2011]
ZAGPJHC 2 (24 January 2011)).

2.2.3 Old wine in new bags: Applying old

order legislation in the new constitutional
order
As was explained earlier, the Constitution defines
old order legislation as any legislation enacted
before the interim Constitution took effect. In
terms of item 2 of Schedule 6 of the Constitution,
all legislation that was in force when the
Constitution took effect continues to be in force,
subject to any amendment or repeal, and
consistency with the Constitution. Old order
legislation that remains in force does not have
wider application that it had before, and continues
to be administered by the authorities that
administered it when the Constitution took effect,
unless the Constitution stipulates otherwise. Item
2 of Schedule 6 ensures an orderly transition,
because this process was not yet complete when
the 1996 Constitution was enacted.
This means that the vast majority of legislative
enactments (including those of the previous four
former provinces, the large number of racially
segregated local government structures, and even
certain legislation of the six self-governing
territories and four ‘independent’ homelands)
remain on the statute book.
However, these were replaced by nine provinces
and (at the time of writing) 283 municipalities.
Each of the new provinces has its own provincial
legislature and executive, generating new original
and delegated legislation. Often the new provincial
boundaries overlap with old ones, and sometimes
neighbouring local authorities have been
amalgamated. To cloud the issue even further, it
must also be borne in mind that during the
Page 30
apartheid era local government was structured on
a racial basis. Black local authorities were
controlled by general affairs legislation, while the
white, Indian and coloured local authorities derived
their powers from own affairs legislation. The new
authorities at national, provincial and local level
have to contend with both existing and new
legislation, applicable to old and new areas of
jurisdiction. Some of the old order legislation has
been repealed fully and some merely in part, while
the greater part of existing legislation remains in
force to enable the new structures and authorities
to govern, and services to continue. New Acts of
Parliament have to be read together with other
existing original legislation as well as a vast
amount of subordinate legislation to keep the
system going (for example, officials and
administrative bodies derive their powers and
authority from existing enabling legislation). Also
note that in Ynuico Ltd v Minister of Trade and
Industry 1996 (3) SA 989 (CC) the Constitutional
Court held that the reference to ‘laws’ in s 229 of
the interim Constitution (which also provided for
old order legislation to remain in force until it was
amended, repealed or invalidated) is not limited to
primary legislation, but includes subordinate
legislation.
Existing old order legislation cannot simply
disappear. Legislation has to be repealed or
declared unconstitutional by a competent
authority. This means that a new province, for
instance, North West, will still administer existing
Transvaal ordinances in those North West areas
which were part of the Transvaal before 1994. So:
try to picture the territory of North West (mostly
old Transvaal, bits of Bophuthatswana, and a tiny
bit of the old Cape Province). The challenge is to
determine in which areas the Transvaal ordinances
will still apply by using old legislation to find out
what used to be the former Transvaal territory
(maps, magisterial districts, and so on). However,
remember that the North West legislature is
authorised to repeal existing old order legislation
at provincial level (provincial ordinances and
homeland legislation) for North West only. Those
ordinances and homeland legislation will remain in
force in other provinces until their respective
legislatures repeal them.
Page 31
Practical example:
North West province consists of parts of the former
Transvaal and Cape Province, and bits and pieces
of the former Bophuthatswana, inheriting
legislation from those territories in so far as those
applied to the province (Schedule 1A
(‘Geographical areas of provinces’) mentioned in
the Constitution, inserted by s 4 of
the Constitution Twelfth Amendment Act of 2005).
Let us pretend that a family intends to exhume the
body of a family member buried 20 years ago in
what is now the North West province, and rebury it
somewhere else. The issue of the exhumation and
reburial of bodies in North West is governed by
three sets of old order legislation:

•
the Transvaal Removal of Graves and Dead
Bodies Ordinance 7 of 1925;

•
 the Cape Province Exhumations Ordinance 12
of 1980; and

•
the Bophuthatswana Traditional Authorities Act
23 of 1978.
In terms of Proclamation 110 of 17 June, 1994, the
administration of the two provincial ordinances and
the Bophuthatswana Act have been assigned to the
North West province. In terms of the two
ordinances, permission to exhume a body has to
be obtained from the Administrator of the
province; and in terms of the Bophuthatswana Act,
permission for an exhumation has to be obtained
from the local tribal authority. So when a body is
to be exhumed, the permission necessary to do so
will depend on where the grave is located. But who
is the Administrator of the province (according to
the old order ordinance)? ‘Administrators’ of
provinces were abolished after the new
constitutional dispensation took effect. In general,
item 3 of Schedule 6 of the Constitution
(‘Interpretation of existing legislation’) deals with
old order terminology: a reference to ‘the
Administrator’ in existing legislation allocated to a
province should be construed as ‘the Premier’ of
that province. However, in terms of s 1 of the now-
repealed Local Government Transition Act 209 of
1993 ‘Administrator’ is substituted by ‘Member of
the Executive Council’ of the relevant province.
Page 32
Of course, the story does not end here. The
exhumed human remains have to be reburied
somewhere else, but by law permission for
reburials is required. ‘Cemeteries, funeral parlours
and crematoria’ fall within Schedule 5B of the
Constitution (read with s 13 of the Local
Government: Municipal Systems Act 32 of 2000),
which means that municipalities administer burials
and funerals. So: in this case, permission to
exhume is given by the relevant provincial
government (in terms of three possible sets of old
order legislation), and permission to rebury is
granted by the municipality in whose area of
jurisdiction the reburial will take place (for
instance, the Drakenstein Municipality Cemeteries
and Crematoria By-Law 2 of 2007). But there is
more! Let us assume the remains were exhumed in
the North West province, and the reburial will take
place in Limpopo. This means that the human
remains may have to be transported from North
West through Gauteng into Limpopo. Depending on
the location earmarked for the reburial there
might, in theory, be a number of different sets of
national and provincial legislation regulating the
transportation of human remains (eg regulations
made by the Minister of Health in terms of s 68 of
the National Health Act 61 of 2003; s 6(2)(dA) of
the Extension of Security of Tenure Act 62 of
1997; the Births and Deaths Registration Act 51 of
1992; the Transvaal Cemetery Ordinance 8 of
1932 for burials outside municipalities; the
Transvaal Local Government Ordinance 17 of 1939
(repealed for Gauteng by the Gauteng Local
Government Laws Amendment Act 1 of 2006)),
and so on and so forth. This is merely a
hypothetical example—apart from the cultural and
emotional issues involved in an exhumation and
subsequent reburial, this example tries to
emphasise that in the process there might be a
multitude of possible primary and subordinate legal
rules (both old and new) emanating from all three
spheres of government in a number of different
geographical areas.
Page 33
Another practical example
The Transkei Penal Code Act 9 of 1983 was
promulgated by the former Transkei for the
territory then known as the Republic of Transkei.
In 1994 the Transkei once again became part of
South Africa. In terms of s 229 of the interim
Constitution and item 2 of Schedule 6 of the
Constitution, the Transkei Penal Code remains in
force in the geographical area that used to be
Transkei. It has been amended a number of times
since: by the Justice Laws Rationalisation Act 18 of
1996 (which repealed Part 9 of the Transkei Penal
Code, which dealt with sexual offences), the
Criminal Law Amendment Act 105 of 1997 and the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007.

2.2.4 ‘Law of general application’

In terms of s 36 of the Constitution (the general
limitation clause), a fundamental right in the Bill of
Rights may be limited in terms of the law of
general application. What is ‘law of general
application’? Is it all law, or only statute law
(legislation)? For the purpose of this book it is
sufficient to note that the term ‘law of general
application’ in s 36 of the Constitution includes all
forms of legislation, as well as common law and
indigenous law (Du Plessis v De Klerk 1996 (3) SA
850 (CC)).

2.3 What is not legislation?

By now you should have a pretty good idea of what
legislation is. Legislation is written law enacted by
a body or person with the authority to do so. As
will be explained in Chapter 3, legislation must be
published in an official Gazette before in order to
take effect. However, not everything published in
an official Gazette is legislation! Before any
document can be classified as legislation, it needs
to comply with all the constitutional and other legal
requirements dealing with authority, adoption and
publication.
 Using the term ‘enacted law-text’ it is also
possible to determine which texts (including other
law-texts) are not classified as legislation:

•
Common-law rules and rules of indigenous law
also constitute law (and can in most instances
be found in texts). However, these rules are
not enacted as legislation by an authorised
lawmaker.
Page 34

•
Case law is also binding law (dealing with
interpretation, development and application of
legal rules) and is found in texts, but since this
judge-made law is not issued by lawmakers it
does not constitute legislation.

•
Policy documents such as Green and White
Papers, interpretation notes, explanatory
memoranda and practice notes also constitute
law texts (practical applications of legal rules),
 but as they were not enacted by lawmakers,
they do not constitute legislation. A wide range
of policy documents issued by government
departments in the process of formulating
public policy are published to elicit public
comment as part of a process of public
participation. In Akani Garden Route (Pty) Ltd
v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA
501 (SCA) the court explained that laws,
regulations and rules are legislative
instruments, but policy determinations are not.
Policy determinations cannot override, amend
or be in conflict with legislation, otherwise the
separation between legislature and executive
will disappear.
Paradoxically, some of these legal texts
(explanatory memoranda, commission reports and
practice notes)—although not legislation—may be
used during the interpretation of legislation (as will
be explained in Chapter 6), or may even be part of
legislation in the future (Green and White Papers
and draft Bills).
 Internal departmental memos and policy
guidelines on how government departments apply
legislation are circulated on a regular basis. These
and other official documents are not legislation.
Legislation (especially subordinate legislation)
should be distinguished from what Baxter (1984:
200) refers to as ‘administrative quasi-legislation’.
This consists of departmental memos and
directives, which, although enforceable in some
instances, do not constitute subordinate
legislation. Legal notices and even advertisements
are regularly published in the Gazette, but these
texts are not even close to being legislation.

2.4 Legislative structure and ‘codes’

To start the interpretation process, the legislation
must be read and analysed. Legislation is drafted
in a particular form and structure, according to the
drafting conventions and rules used by the state
law advisors and other legislative drafters.
Page 35
Although the language and structure of the
legislative text are not the only aspects that are
considered during statutory interpretation,
students must understand the structure of
legislation and how these structural components
interact. How and when the different components,
as well as the structural interrelatedness of
legislation, may be used during the interpretation
process will be explained in Chapter 6.
Unless otherwise indicated, the Labour Relations
Act 66 of 1995 will be used to illustrate legislative
structure:
LABOUR RELATIONS ACT 66 OF 1995
[Assented To 29 November 1995] [Date of
Commencement: 11 November 1996]
(Unless otherwise indicated)
(English text signed by the President)

List of amendments
If applicable, before the long title an Act will
include a list of Acts that have amended it since:
as amended by
Labour Relations Amendment Act 42 of 1996
Basic Conditions of Employment Act 75 of 1997
Labour Relations Amendment Act 127 of 1998
 Labour Relations Amendment Act 12 of 2002
Intelligence Services Act 65 of 2002
Electronic Communications Security (Pty) Ltd Act
68 of 2002
General Intelligence Laws Amendment Act 52 of
2003
Prevention and Combating of Corrupt Activities Act
12 of 2004
Public Service Amendment Act 30 of 2007

List of regulations
If applicable, after the list of amendments an Act
will include a list of regulations issued in terms of
the Act:
Regulations under this Act
BARGAINING COUNCILS ACCREDITED BY THE
CCMA, 2009 (1) (GenN 195 in GG 31925 of 27
February 2009)
BARGAINING COUNCILS ACCREDITED BY THE
CCMA, 2009 (2) (GenN 863 in GG 32298 of 12
June 2009)
...
 RULES FOR THE CONDUCT OF PROCEEDINGS IN
THE LABOUR COURT (GN 1665 in GG 17495 of 14
October 1996)
RULES REGULATING THE CONDUCT OF THE
PROCEEDINGS OF THE LABOUR APPEAL COURT
(GN 1666 of 14 October 1996)
Page 36
TARIFF OF FEES: COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
(GN 231 in GG 34107 of 18 March 2011)
Preamble
The preamble (if there is one) states the
circumstances of, the background to and the
reasons for the legislation. Unlike private Acts,
where a preamble is always used, its use in
ordinary Acts is usually restricted to legislation of
constitutional or national importance. It is usually
placed after the long title and is an integral part of
the legislation. The following is the preamble to the
Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998:
Preamble
 WHEREAS no one may be deprived of property
except in terms of law of general application,
and no law may permit arbitrary deprivation of
property;
AND WHEREAS no one may be evicted from
their home, or have their home demolished
without an order of court made after
considering all the relevant circumstances;
AND WHEREAS it is desirable that the law
should regulate the eviction of unlawful
occupiers from land in a fair manner, while
recognising the right of landowners to apply to
a court for an eviction order in appropriate
circumstances;
AND WHEREAS special consideration should
be given to the rights of the elderly, children,
disabled persons and particularly households
headed by women, and that it should be
recognised that the needs of those groups
should be considered; . . .
Long title
An Act always has a long title. It is not
really a title, but rather a short descriptive
summary of the subject matter of the Act.
The long title is a part of the statute
tabled for adoption by Parliament, and
always ends with an open-ended phrase
such as ‘. . . and matters incidental
thereto’.

ACT
To change the law governing labour
relations and, for that purpose—
to give effect to section 27 of the
Constitution; to regulate the
organisational rights of trade unions; to
promote and facilitate collective
bargaining at the workplace and at
sectoral level; to regulate the right to
strike and the recourse to lock-out in
conformity with the Constitution; to
promote employee participation in
decision-making through the
establishment of
Page 37
workplace forums; to provide simple
procedures for the resolution of labour
 disputes through statutory conciliation,
mediation and arbitration (for which
purpose the Commission for Conciliation,
Mediation and Arbitration is established),
and through independent alternative
dispute resolution services accredited for
that purpose; to establish the Labour
Court and Labour Appeal Court as superior
courts, with exclusive jurisdiction to
decide matters arising from the Act; to
provide for a simplified procedure for the
registration of trade unions and
employers’ organisations, and to provide
for their regulation to ensure democratic
practices and proper financial control; to
give effect to the public international law
obligations of the Republic relating to
labour relations; to amend and repeal
certain laws relating to labour relations;
and to provide for incidental matters.

Enacting provision
This acknowledges the constitutional authority of
the body that is enacting the primary legislation
(the national legislative authority is vested in
Parliament; the provincial legislative authority is
vested in the provincial legislatures; and the
municipal legislative authority is vested in the
municipal councils):
BE IT ENACTED by the Parliament of the
Republic of South Africa as follows:—
Table of contents
The table of contents is the ‘road map’ of the Act.
It not only provides a quick reference to the reader
as to where to find particular provisions, but it also
gives an initial overview of the legislative scheme:

Contents of Act
Chapter I
Purpose, Application and Interpretation
1. Purpose of this Act
2. Exclusion from application of this
Act
3. Interpretation of this Act
...
As a ‘road map’ the table of contents of the
Income Tax Act 58 of 1962 (which is amended
very frequently) is a confusing reflection of the
continuous stream of amendments (including the
numbering of repealed provisions retained as
placeholders).
Page 38

Definitions
The definitions serve as an ‘internal dictionary’ for
the particular legislation. Definitions are usually
found at the beginning of an Act, but in the case of
the Labour Relations Act they are placed at the end
of the Act:
213 Definitions
In this Act, unless the context otherwise
indicates—
‘area’ includes any number of areas, whether
or not contiguous;
‘auditor’ means any person who is
registered to practise in the Republic as a
public accountant and auditor;
 ‘bargaining council’ means a bargaining
council referred to in section 27 and includes,
in relation to the public service, the bargaining
councils referred to in section 35;
...
But in the Labour Relations Act there are also
definitions in other parts of the Act, for example:
CHAPTER V
WORKPLACE FORUMS (ss 78-94)
78 Definitions in this Chapter
In this Chapter—

(a)
‘employee’ means any person who is
employed in a workplace, except a senior
managerial employee whose contract of
employment or status confers the authority to
do any of the following in the workplace—
(i)
...
[Sub-para. (i) deleted by s. 23 of Act 42 of
1996.]
 (ii)
represent the employer in dealings with the
workplace forum; or
(iii)
determine policy and take decisions on behalf
of the employer that may be in conflict with the
representation of employees in the workplace;
...

Purpose and interpretation

Purpose and interpretation clauses are frequently
included in post-1994 legislation. These clauses
give an immediate overall picture of what the Act
wants to achieve, and they help to explain the
purpose of the Act and how it should be
interpreted, for instance:
1. Purpose of this Act
The purpose of this Act is to advance
economic development, social justice, labour
peace and the democratisation of the
workplace by fulfilling the primary objects of
this Act . . .
Page 39
 ...

Regulations & ministerial powers

207 Ministers empowered to add and
change to Schedules
(1) The Minister, after consulting NEDLAC,
by notice in the Government Gazette may
change, replace or add to Schedules 2 and 4 to
this Act and the Schedule envisaged in
subsection (3).
[Sub-s. (1) substituted by s. 50(a) of Act 42
of 1996 and by s. 26(a) of Act 127 of 1998.]
....
[Date of commencement of s. 207: 1
January 1996.]
208 Regulations
The Minister, after consulting NEDLAC and
when appropriate, the Commission, may make
regulations not inconsistent with this Act
relating to—

(a)
 any matter that in terms of this Act may or
must be prescribed; and

(b)
any matter that the Minister considers
necessary or expedient to prescribe or have
governed by regulation in order to achieve the
primary objects of this Act.
[Date of commencement of s. 208: 1
January 1996.]

Repeal/amendment of legislation
Repeals and amendments of an Act are made by
means of another Act. When a new Act is passed,
other existing Acts may need to be amended or
repealed. The new Act must contain a section that
provides for amendments and/or repeals. The
conventional way of dealing with repealed or
amended Acts is with a schedule at the end of the
Act.
211 Amendment of laws
Each of the laws referred to in items 1 and 2
of Schedule 5 is hereby amended to the extent
specified in those items.
 212 Repeal of laws, and transitional
arrangements
(1) Each of the laws referred to in the first
two columns of Schedule 6 is hereby repealed
to the extent specified opposite that law in the
third column of that Schedule.
(2) The repeal of those laws does not affect
any transitional arrangements made in
Schedule 7.
(3) The transitional arrangements in Schedule
7 must be read and applied as substantive
provisions of this Act.

Short title and commencement

The short title is the title of the Act and is usually
the last section in an Act.
Page 40
214 Short title and commencement
(1) This Act is called the Labour Relations
Act, 1995.
(2) This Act will come into operation on a
date to be determined by the President by
proclamation in the Government Gazette,
 except in the case of any provision in relation
to which some other arrangement regarding
commencement is made elsewhere in this Act.
[Sub-s. (2) substituted by s. 53 of Act 42 of
1996.]

Schedules
These are used to deal with technical detail that
will otherwise clog up the main body of an Act (eg
Schedule 1 of the Constitution, which contains a
description of the national flag). Schedules are also
used when several Acts or parts of Acts are
repealed, or for a large number of amendments.

Numbering in legislation
The following is the traditional numbering system
used in primary legislation:
Section 1—Arabic figures
Subsection (1)—Arabic figures in brackets
Paragraph (a)—italicised lowercase letter in
italicised brackets
Subparagraph (i)—Roman figures in brackets
Item (aa)—italicised lowercase letters in
italicised brackets
 Subitem (AA)—italicised uppercase letters in
italicised brackets
Where an additional section is inserted into an Act
through an amendment Act, the section to be
inserted takes the number of the section after
which it is to be inserted and gets a capital letter
after it. If, for example, you need to insert a new
section between the current ss 66 and 67, you will
insert s 66A. This system of numbering is
necessary, otherwise the whole Act would have to
be re-numbered, and such renumbering will have
to be done by means of an amendment Act.
However, in practical terms renumbering is
impossible: every cross-reference in other
legislation would have to be amended as well, but
references to the previous numbering in case law
and text books cannot be changed. In older
legislation the inserted sections were numbered
bis, ter, quat, and so on.
Page 41

For example:
200A Presumption as to who is employee
 (1) Until the contrary is proved, a person
who works for, or renders services to, any
other person is presumed, regardless of the
form of the contract, to be an employee, if any
one or more of the following factors are
present:

(a)
the manner in which the person works is
subject to the control or direction of another
person;
...
[S. 200A inserted by s. 51 of Act 12 of
2002.]
When a part of legislation (be it a chapter, section,
paragraph, and so on) is repealed, the number of
the repealed provision remains as a placeholder to
avoid wholesale renumbering. For example, in the
Income Tax Act, where a number of provisions of
the Act were repealed, the original numbers
remain as placeholders:
49 . . .
 [S. 49 repealed by s. 31(1) of Act 101 of
1990.]
50 . . .
[S. 50 repealed by s. 32(1) of Act 101 of
1990.]
51 . . .
[S. 51 repealed by s. 33(1) of Act 101 of
1990.]
52 . . .
[S. 52 repealed by s. 34(1) of Act 101 of
1990.]
53 . . .
[S. 53 repealed by s. 35(1) of Act 101 of
1990.]

General Explanatory Note

When an amendment Bill is published in the official
Gazette for public comment, there is usually a
General Explanatory Note included on the second
page, with the following explanation:
[ ] Words in bold type and in square
brackets indicate deletions from existing
enactments; and
____ Words underlined with a solid line
indicate insertions in existing
enactments.

Legislative ‘codes’
Amendments (including insertions and deletions)
are also indicated clearly in square brackets after
the relevant provisions in the amended version of
an Act. These indicators help the interpreter of the
Act in a number of ways, for example:
Page 42

•
It may indicate a particular date of
commencement for the provision.

•
It will serve as a historical paper trail should a
lawyer have to use the previous versions of the
legislation (for pending cases or as an aid to
interpreting the amended provisions). Please
bear in mind that although an amendment Act
is a separately enacted law-text in its own
right, the amendments in an amending Act will
 later be incorporated into the initial Act. The
legislative ‘codes’ serve as a route map or
cross-reference to the amending Acts. In other
words, the ‘codes’, the list of amending Acts at
the beginning of the Act and the amending Acts
themselves should correlate.

The following are examples of such ‘codes’:

•
Where a section was amended:
[S. 1 amended by s. 1 of Act 45 of 1961.]

•
Where a definition in the definition section was
first amended, then substituted and then finally
deleted:
‘dependant’ . . .
[Definition of ‘dependant’ substituted by s.4
(1)(b) of Act 88 of 1971 and by s. 4(1)(d) of
Act 85 of 1974, amended by s. 3(1)(a) of
Act 104 of 1979 and by s. 2(1)(c) of Act 104
of 1980 and deleted by s. 2(b) of Act 90 of
1988.]
•
Where a subsection was inserted without the
need for renumbering:
[Sub-s. (7) added by s. 4(b) of Act 16 of
2004.]

•
Where a paragraph was inserted without the
need for renumbering:
[Para. (c) added by s. 4(b) of Act 201 of
1993.]

•
Where a section was amended and later
repealed in full:
9 ...
[S. 9 substituted by s. 3 of Act 45 of 1961
and repealed by s. 344 (1) of Act 51 of
1977.]

•
Where a new section was inserted between ss
16 and 17:
 [S. 16A inserted by s. 13 of Act 102 of
1967.]

•
Where a new section was inserted between ss
5 and 6, amended several times and later
repealed in full:
5A . . .
[S. 5A inserted by s. 6 of Act 88 of 1971,
amended by s. 5(1) of Act 85 of 1974, by s.
5 of Act 69 of 1975, by s. 6 of Act 103 of
1976, by s. 6 of Act 113 of 1977 and by s. 5
of Act 104 of 1979 and repealed by s. 4 of
Act 104 of 1980.]
Page 43

2.5 Relationship between legislation

and common law
The Roman-Dutch common law is not sacrosanct,
untouchable or protected from constitutional
scrutiny, although some lawyers still believe
otherwise. The Constitution is the highest law in
the land, and any law (including the common law)
inconsistent with the Constitution is invalid (s 2),
and in terms of s 39(2), the courts must promote
the spirit, purport and objects of the Bill of Rights
when they develop the common law. In Carmichele
v Minister of Safety and Security (above) the
Constitutional Court stressed that a court is obliged
to develop the common law in view of the
Constitution. In Pharmaceutical Manufacturers
Association of SA; In re: Ex parte Application of
the President of the Republic of South Africa
(above) para 44 Chaskalson P very clearly placed
the common law in a constitutional framework:
I cannot accept this contention, which treats
the common law as a body of law separate and
distinct from the Constitution. There are not
two systems of law, each dealing with the
same subject-matter, each having similar
requirements, each operating in its own field
with its own highest Court. There is only one
system of law. It is shaped by the Constitution
which is the supreme law, and all law, including
the common law, derives its force from the
Constitution and is subject to constitutional
control.
This does not mean that the different legal
traditions have been abolished. We still have
Roman-Dutch common law, African customary law,
legislation and all the various sources of law and
legal cultures. However, since 1994, both
legislation and the common law are trumped
(overruled) by the supreme Constitution. The
Constitution is the highest law of the land, and
trumps both common law and legislation. Although
it is presumed that the legislature does not intend
to alter the common law more than is necessary,
common law may expressly be trumped by
legislation. It is important to note that common
law is not ‘repealed’ by legislation, but ‘trumped’ or
overruled. This means that if legislation trumps a
rule of common law, and that legislation itself is
later repealed, the common-law rule will revive
again (Rand Bank Ltd v De Jager 1982 (3) SA 418
(C)).
Legislation trumps common law . . . most of the
time. Of course it is possible for new legislation to
provide expressly that it will operate side-by-side
with existing common-law rules (for example, s
2(10) of the Consumer Protection Act):
Page 44
(10) No provision of this Act must be
interpreted so as to preclude a consumer from
exercising any rights afforded in terms of the
common law.
[Date of commencement of s. 2: 24 April
2010.]
However, just to make things really interesting,
certain common-law rules (such as presumptions)
are used to interpret legislation. The courts and
other interpreters may still rely on these common-
law maxims and presumptions in so far as they are
not in conflict with the values of the Constitution.
In the past, the common-law presumptions of
interpretation should have played a more
important role during the interpretation process.
These presumptions may be described as
preliminary assumptions as to the meaning of the
legislation. In other words, it is assumed that
legislation has a particular purpose, which should
accomplish an ideal, predefined result. In the
absence of a judicially enforceable Bill of Rights in
South Africa before 27 April 1994, one could have
referred to the presumptions as a rebuttable
‘common-law bill of rights’. The principles of
justice, fairness and individual rights were always
part of our law. Unfortunately those values were
rebutted, ousted, debased and ignored during the
era of parliamentary sovereignty.
The role and character of the presumptions of
statutory interpretation have been fundamentally
changed by the new Constitution. If one compares
these presumptions with the fundamental rights in
the Bill of Rights, it appears that many of the
values underpinning the presumptions of
interpretation are now to a large extent subsumed
in the Bill of Rights. Although these presumptions
have not been ‘abrogated’ by the Constitution,
most of the underlying principles of the rebuttable
common-law presumptions are reflected in the
Constitution. Because the fundamental rights are
entrenched in the Constitution, it must be accepted
that some of the presumptions will be applied to an
increasingly lesser extent in the future, possibly
even disappearing as a result of disuse. Some of
the more important presumptions will be discussed
in the following chapters.
 Page 45

Chapter 3
Is it in force? The
commencement of legislation

In the previous chapter the question was: Is it

legislation, and if so, what type of legislation is it?
Now the question is whether the legislation is in
operation; in other words, can it be applied?
Before the process of interpretation of legislation
can start, the interpreter has to determine whether
the legislation is actually in force. It goes without
saying that legislation which is not in force cannot
be applied; however, as will be shown below, not
to apply legislation which has commenced may be
just as costly. This chapter deals with when and
how legislation commences and takes effect.

3.1 Adoption and promulgation of

legislation
It is important to distinguish between the adoption
(passage) of legislation and its promulgation. The
adoption of legislation by the relevant legislative
body refers to the constitutionally prescribed and
other legal processes and procedures required for
the draft legislation to become law, including
preparation of a draft Bill, introduction of the Bill in
the legislature, and public participation (if
required), as well as the committee stages, voting
and assent. (The constitutional procedures to be
followed in adopting Acts of Parliament and
provincial Acts are found in Chapters 4 and 6 of
the Constitution.) Once Parliament has passed
(adopted) a Bill, the Act then has to be assented to
and signed by the President. In the case of a Bill
passed by a provincial legislature, the Premier of
that province has to sign the Act. Once assented to
and signed, such an Act (parliamentary or
provincial) becomes law (ss 81 and 123 of the
Constitution).
Page 46
However, although such an Act is now legally
enacted legislation, it is not yet in operation. For
legislation to become operational, it needs to be
promulgated. Promulgation refers to the process of
putting legislation officially and legally into
operation (the commencement or taking effect of
the law). In other words: somebody has to ‘pull
the trigger’. In the case of subordinate legislation,
the adoption and promulgation will, in practical
terms, happen nearly simultaneously, because the
adoption process is designed to be reasonably
quick and easy.

3.2 Hear Ye, hear Ye! The requirement

of publication
Legislation is promulgated by publication in the
Gazette. In terms of ss 81 and 123 of the
Constitution (and s 13 of the Interpretation Act),
Acts of Parliament and provincial Acts take effect
when published in the Gazette, or on a date
determined in terms of those Acts. In terms of s
162 of the Constitution municipal by-laws may be
enforced after they have been published in the
Gazette of the relevant province. The Constitution
does not expressly require the publication of
subordinate legislation to commence, but s 101(3)
of the Constitution provides that ‘proclamations,
regulations and other instruments of subordinate
legislation must be accessible to the public’.
However, both ss 13 and 16 of the Interpretation
Act require that subordinate legislation be
published in order to commence.
Section 2 of the Interpretation Act defines a
Gazette as the Government Gazette of the Colony
wherein that law was in force in the case of
legislation published before 31 May 1910, and in
the case of legislation published after 31 May 1910
it is either the Government Gazette of the Republic
(for national legislation) or the relevant Provincial
Gazette (for provincial legislation).
It was pointed out earlier that not everything
published in the Government Gazette is legislation.
However, be warned: as will be explained shortly,
not all legislation published in a Government
Gazette will necessarily be in operation.
The principle underlying the requirement that
legislation commences only upon publication is that
it should be made known to the population to
whom it applies. But what if the relevant Gazette
only appears days after publication in most of the
remote areas of the country? Does the particular
legislation commence on the date of publication, or
at the time when it
Page 47
actually becomes known throughout the country?
In Queen v Jizwa 11 SC 387 it was held that
legislation commences on the date of publication,
irrespective of whether it has come to the
knowledge of everybody in the remote areas.
Steyn (1981: 180-181) criticises this as an
arbitrary application of the rule, and suggests that
there should be a period (eg eight days) between
the de facto (actual) publication in the Gazette and
the de iure (legal) promulgation and taking effect
of the legislation.
But why is accessibility of the law an issue? In
President of the Republic of South Africa v Hugo
1997 (4) SA 1 (CC) para 102 the Constitutional
Court addressed this question as follows:
It can be seen then that several concerns
underlie the interpretation of ‘prescribed by
law’. The need for accessibility, precision and
general application, flow from the concept of
the rule of law. A person should be able to
 know of the law, and be able to conform his or
her conduct to the law.
Two other aspects of the publication requirement
must be noted:

•
If, for some reason beyond its control, the
Government Printer is unable to print the
Gazette, the President may by proclamation
prescribe alternative procedures for the
promulgation of legislation (s 16A of the
Interpretation Act).

•
When the President, a Minister, a Premier or a
member of the executive committee of a
province has the power to issue delegated
legislation, a list of proclamations and notices
under which such types of delegated legislation
were published must to be tabled in Parliament
(s 17 of the Interpretation Act). Certain new
legislation (eg the Promotion of Equality and
Prevention of Unfair Discrimination Act) also
requires regulations made in terms of the
 particular Act to be furnished to Parliament
before publication.

3.3 Pulling the trigger:

Commencement of legislation
3.3.1 Who promulgates?
It was explained earlier that the enacting clause of
legislation affirms the legislative authority of the
particular lawmaker. For example, an Act of
Parliament will proclaim ‘BE IT ENACTED by the
Parliament of the Republic of South Africa, as
follows . . .’; or a ministerial regulation will state
that ‘The Minister of Justice
Page 48
has made the regulations . . .’. Since it is the
lawmaker who ‘speaks’, the resulting legislation is
promulgated by the lawmaker in question. For a
number of practical reasons, in the case of Acts of
Parliament or of a provincial legislature, this is not
always possible. The authority will then be
delegated by the legislature to a member of the
executive branch (eg the President or Premier),
who will later put the original legislation into
operation by means of a proclamation. This is not a
general legislative authority to enact subordinate
legislation, but rather specific delegated authority
to put the legislation into operation on behalf of
the particular legislature. In Ex Parte Minister of
Safety and Security: In re S v Walters (above) the
court explained that the power conferred by the
legislature on the President to fix a date for
commencement is a public power and has to be
exercised lawfully for the purpose of such a power.
However, the power could not lawfully be used to
block or veto the implementation of the new law.
Case law example:
In 1998 the danger of ‘being too early out of the
starting blocks’ (prematurely putting legislation
into operation) was illustrated by the
Pharmaceuticals saga. Parliament repealed the
Medicines and Related Substances Control Act 101
of 1965 (the 1965 Act) and replaced it with the
South African Medicines and Medical Devices
Regulatory Authority Act 132 of 1998 (the 1998
Act); the commencement of the 1998 Act and the
repeal of the 1965 Act happened simultaneously.
After the new 1998 Act was put into operation—by
a presidential proclamation in terms of section 55
of the Act—it became clear that the schedules for
the new 1998 Act (to regulate certain controlled
medicines) had not been enacted to replace the
schedules which were repealed with the 1965 Act.
This meant that there was now lack of a regulatory
framework for certain controlled medicines.
The President is answerable to Parliament, and
Parliament has the power to correct the decision.
But Parliament was not in session at the time.
Page 49
The President’s authority to put the Act into
effect was not conferred by the Constitution (eg s
97) but by Parliament and for a specific purpose.
The Act was incomplete and would enter into force
when the President so determined.
Although the administrative arrangements to be
made and practical requirements to be met to
bring the Act into operation are determined by the
President, the President cannot retract his
proclamation to undo the commencement of the
new Act—only Parliament has that authority.
 In Pharmaceutical Manufacturers Association of
South Africa: In re Ex Parte President of the
Republic of South Africa (above) the Constitutional
Court invalidated the presidential proclamation
because it lacked a rational basis. It was clear that
the President had been wrongly advised and
mistakenly thought it was appropriate to bring the
Act into force. As a result of the court’s invalidation
of the President’s proclamation, the 1998 Act was
never put into operation, and the 1965 Act was still
in force. The 1998 Act was subsequently repealed
by the Medicines and Related Substances
Amendment Act 59 of 2002, and the 1965 Act
continued in force as the (renamed) Medicines and
Related Substances Act 101 of 1965.

3.3.2 When is it in force?

(a) The default setting: on the date of publication

Section 13(1) of the Interpretation Act, as well as

ss 81 and 123 of the Constitution, provide that if
the legislation does not prescribe a date of
commencement, it automatically commences on
the day of its publication in the Gazette. Under
normal circumstances the date of publication will
coincide with the day of commencement provided
for in the legislation.

(b) Delayed commencement: on a future specified date

In terms of s 13(1) of the Interpretation Act (and

ss 81 and 123 of the Constitution) the legislation
as published in the Gazette may provide for
another fixed date (other than the date of
publication) for its commencement. Since the
legislation need not be published again on the
future commencement date, it will automatically
commence on that specified date.
For example:
Page 50
Citation of Constitutional Laws Act 5 of 2005
[ASSENTED TO 23 JUNE 2005]
[DATE OF COMMENCEMENT: 27 JUNE 2005]
Another danger is ‘not hearing the gun going off’,
ie not realising that new legislation has in fact
commenced.
Practical example:
In 2009 a failure by City of Johannesburg
Metropolitan Municipality officials to take note that
s 17 of the Administrative Adjudication of Traffic
Offences Act 46 of 1998 had commenced in
Johannesburg was widely reported in the press.
The change in the law now meant that, instead of
issuing a notice to pay a fine for certain traffic
offences in terms of ss 56 or 341 of the Criminal
Procedure Act 55 of 1977, the notice had to be
issued in terms of s 17 of the Administrative
Adjudication of Road Traffic Offences Act (AARTO).
The prescribed date of commencement of s 17 of
AARTO for the City of Tshwane Metropolitan
Municipality was 1 July 2008, and in respect of the
area of the City of Johannesburg Metropolitan
Municipality it was 1 November 2008. However,
Johannesburg Metro officials failed to implement
AARTO in time: between 1 November 2008 and 11
February 2009 thousands of traffic fines were
incorrectly issued by the Metro police in terms of
the Criminal Procedure Act. This meant that the
fines were invalid, because they had been issued in
terms of the wrong legislation. Unpaid fines had to
be withdrawn, and paid fines had to be refunded,
resulting in massive financial losses for the
Johannesburg Metro.
(c) Delayed commencement: on an unspecified future date
still to be proclaimed

Where an Act is to commence on a date to be

determined by, for example, the President, the
President’s proclamation is all that is required. The
Act need not (and will not) be published again, and
will commence on the date indicated in the
proclamation. This means that since lawyers will
not know in advance when that proclamation will
be published, every Gazette has to be scrutinised.
Section 13(3) of the Interpretation Act provides
that if any Act provides for commencement on a
date to be proclaimed by the President or the
Premier of a province, there may be different
commencement dates for different provisions of
that Act.
Page 51

(d) Retroactive commencement

Retroactive commencement refers to publication

on a specific date, but the legislation is deemed to
have commenced earlier on a date prior to the
publication. As will be explained in 3.4 (below),
constitutional and common-law rules (eg due
process and fairness) make the application of
legislation with a retro-effect very difficult, which
means that this type of commencement is the
exception rather than the rule.
For example:
Repeal of Volkstaat Council Provisions Act 30
of 2001
[ASSENTED TO 12 NOVEMBER 2001
[DATE OF COMMENCEMENT: 30 APRIL 2001]

(e) A combination of the above

When it is published, there may be a confusing

combination of possible commencement options
(specified or unspecified future dates) for various
parts of the legislation. This means that
interpreters have to be very careful as to whether
a particular provision is in force.
For example—a specific commencement date (with
proviso):
Most of the Act will commence on a fixed date,
except for a number of provisions (as indicated in
the Act itself) which may commence at a later
specified date and/or later unspecified dates still to
be proclaimed.
Promotion of Access to Information Act 2 of
2000
[ASSENTED TO 2 FEBRUARY 2000]
[DATE OF COMMENCEMENT: 9 MARCH 2001]
(Unless otherwise indicated)
Another example—unspecified commencement
date in the future (with proviso):
Some provisions of the Act will commence at later
unspecified dates still to be proclaimed, while most
of the provisions will commence on specified dates
(as indicated in the Act itself). This was the way
the Children’s Act 38 of 2005 was published
initially, with the majority of the provisions
commencing on 1 July 2007:
Children’s Act 38 of 2005
[ASSENTED TO 8 JUNE 2006]
[DATE OF COMMENCEMENT: TO BE PROCLAIMED]
(Unless otherwise indicated)
However, after it was amended by the Children’s
Amendment Act 41 of 2007, the date of
commencement was changed:
Page 52
Children’s Act 38 of 2005
[ASSENTED TO 8 JUNE 2006]
[DATE OF COMMENCEMENT: 1 APRIL 2010]
(Unless otherwise indicated)
In practical terms this meant that the major part of
the Act actually commenced on 1 July 2007, and
the remainder took effect on 1 April 2010.
An example from the Constitution:
Early in 1997 the Constitution provided an
interesting mix of commencement dates for itself.
In terms of s 243 (‘Short title and
commencement’) of the Constitution, the
Constitution was to come into effect as soon as
possible on a date set by the President by
proclamation, which could not be a date later than
1 July 1997. However, the President could set
different dates before 1 July 1997 for different
provisions of the Constitution. Most of the
Constitution was then put into operation by
presidential proclamation, after which the heading
of the Constitution stated that it would commence
on 4 February 1997, unless otherwise indicated.
The ‘otherwise indicated’ was expressly provided
for in s 243(5) of the Constitution, which provided
that ten sections of the Constitution would become
operational only on 1 January 1998.

(f) When does a ‘day’ start?

In terms of s 13(2) of the Interpretation Act ‘day’

begins immediately at the end of the previous day
(ie immediately after midnight, at 00:01). This
effectively means retroactive commencement,
because by the time the Gazette is published, the
legislation could already have been in force for a
few hours.

3.3.3 Jumping the gun? Section 14 of the

Interpretation Act
Two interesting aspects of the commencement of
legislation are dealt with in s 14 of the
Interpretation Act.
 Section 315 (‘Short title and commencement’) of
the Children’s Act provides that the Act will
commence on a date to be fixed by the President
by proclamation. The Act also provides that s 315
commences on 1 July 2007, which means that
Parliament itself promulgated the provision which
authorises the President to put those remaining
provisions into force. But
Page 53
what if the entire Act has to be put into operation
by a presidential proclamation? After all,
subordinate legislation obtains its validity from
original legislation. How can the President issue a
proclamation authorised by an enabling Act that
itself is not operational yet? To avoid the possibility
of an endless circle of invalidity, s 14 of the
Interpretation Act provides that if a person has the
power to put legislation into operation, that power
may be exercised at any time after the legislation
was passed with a view to putting it into effect.
Section 14 also deals with another practical
dilemma. Sometimes the practical application and
enforcement of an Act depends on a regulatory
framework and structures being in place when that
Act commences. However, the subordinate
legislation to support the enabling Act cannot take
effect before the Act is operational. Section 14
solves that problem by providing for the making of
appointments and subordinate legislation by the
relevant functionaries, provided that the
appointments or subordinate legislation cannot be
effective before the Act is in force. This means that
the necessary preparations can be made and
structures provisionally put in place—even before
the enabling Act is operational—to ensure that the
total legislative scheme is in place and ready to be
implemented when the Act enters into force. This
is exactly what the health officials should have
done to avoid the embarrassing Pharmaceuticals
fiasco (explained above). Had the necessary
regulatory framework been prepared in advance, it
would have been ready to be put into operation at
the same time the President put the Act into effect
by proclamation.
Case law example:
The application of s 14 of the Interpretation Act
was considered in Cats Entertainment CC v
Minister of Justice; Van der Merwe v Minister of
Justice; Lucksters CC v Minister of Justice 1995 (1)
SA 869 (T). The Minister of Justice, acting in terms
of the Lotteries and Gambling Board Act 210 of
1993, invited nominations for candidates for the
Lotteries and Gambling Board (to be established in
terms of the Act). The question was whether this
could be done prior to the commencement of the
Act. Were the Minister’s actions premature and
unlawful, or necessary to bring the Lotteries and
Gambling Board Act into operation, and therefore
Page 54
lawful? The court held that the purpose of the Act
was to establish the Board which was be to
responsible for the activities set out in the Act. It
was clear from the Act, that without the Board, the
Act could not come into operation. The court held
that in terms of s 14 the Minister could only
exercise his powers between the passage of the
Act and its promulgation in so far as it might be
necessary to put the enactment into operation at
the date of commencement.
It is important to note that in R v Magana 1961
(2) SA 654 (T) the court correctly pointed out that
the ‘bringing the law into operation’ in s 14 of the
Interpretation Act also includes ‘rendering it
operative’, in other words, making it possible for
the Act to be applied fully.
Practical example:
The Jurisdiction of Regional Courts Amendment Act
31 of 2008 was published on 5 November 2008,
and the Act authorised the Minister of Justice and
Constitutional Development to put it into operation
at a later date. The Minister then determined that
the Act would come into operation on 9 August
2010. The Act furthermore provided that the
Minister could enact subordinate legislation to
determine the areas of jurisdiction of the Regional
Civil Courts, the places where the courts would sit,
as well as the monetary jurisdiction of the courts.
It goes without saying that these issues were
crucial for the operation of the courts when the Act
eventually commenced. On 29 July 2010 the
Minister published subordinate legislation (a
notice) in which these matters were dealt with. Of
course, this led to a number of arguments and
opinions in legal circles: it was incorrectly argued
by a number of lawyers that the Minister’s notice
was invalid because it was published before the
enabling Act took effect. However, in the process
two important aspects were missed. Firstly, s 14 of
the Interpretation Act does in fact make provision
for that kind of legislative preparation pending the
commencement of the enabling Act. The second
(and crucial) fact is that the Minister’s notice very
clearly stated that it would commence
Page 55
on 9 August 2010, which of course was
simultaneous with the commencement date of the
enabling Act!
3.4 Back in the time warp: The
presumption that legislation applies
only to the future
3.4.1 General principle: Let bygones be
bygones
The time-honoured principle (Transnet Ltd v
Chairman National Transport Commission 1999 (4)
SA 1 (SCA)) that legislation should only apply to
the future is one of the basic foundations of a legal
system based on the rule of law. In fact, in the old
English case of Gardner v Lucas (1878) 3 App Cas
582 it was described as a ‘general rule of every
civilised country’. This principle is reflected in the
common-law presumption that the legislature
intends to regulate future matters only, and not
the past (Transnet Ltd v Ngcezula 1995 (3) SA 538
(A)).
According to case law, this rule is based on the
prevention of unfair and unreasonable results, and
to ensure predictability and legality: individuals
must be able to know what the law is and to adapt
their conduct accordingly. It is therefore presumed
that the legislation applies only to cases or
transactions occurring after the coming into
operation of the Act in question (Principal
Immigration Officer v Purshotam 1928 AD 435), so
that vested rights are not taken away (Curtis v
Johannesburg Municipality 1906 TS 308). In S v
Mhlungu 1995 (3) SA 867 (CC) the court explained
that the presumption was not intended to exclude
the benefits of rights sanctioned by new
legislation, but rather to prevent the invasion of
rights. In Veldman v Director of Public
Prosecutions, Witwatersrand Local Division 2007
(3) SA 210 (CC) the well-established common-law
principle was given express constitutional backing.
The court affirmed that unless otherwise provided,
legislation was not to be interpreted to take away
existing rights and obligations, because this
principle was basic to the notions of fairness and
justice that are integral to the rule of law, a
foundational principle (s 1) of the Constitution.

3.4.2 The difference between retroactive and

retrospective
In practical terms the rule that legislation only
applies to the future means that legislation should
not have a retro-effect. In National Director of
Public Prosecutions v Carolus 1999 (2)
Page 56
SACR 607 (SCA) paras 33-34 the court explained
the difference between the two types of retro-
effect of legislation.

Retroactivity (‘true or strong’ retro-effect)

In this case the legislation operates as of a time

prior to its enactment, in other words, it operates
backwards in time and changes the law from what
it was.
For example:
The Terrorism Act 83 of 1967 was published on 27
June 1967, but s 9(1) of the Act provided that,
with the exception of a few provisions, the Act was
deemed to have come into operation on 27 June
1962. This means the Act was deemed to have
been in force five years before it was adopted and
published.

Retrospectivity (‘weak’ retro-effect)

In this case the legislation operates for the future

only, in line with the basic principle. The legislation
is prospective, but could impose new results in
respect of a past event. It operates forwards, but it
‘looks backwards’ in that it attaches new
consequences for the future to an event that took
place before the legislation was enacted. In other
words, it changes the law from what it otherwise
would be with respect to a prior event. The
legislation commences for the future from a
particular date, but could apply to new cases and
processes (that will start after the
commencement), based on earlier facts and
circumstances (that arose prior to the
commencement). Bear in mind that there is no
express retroactivity involved here, because there
is no commencement and application of the
legislation ‘backwards in time’. However, the
problem is that there could be future application of
the new legislation to new cases (with facts and
circumstances that originated before the
commencement): in other words, there could be a
practical retro-effect. Although retrospectivity is
not as drastic as retroactivity, the most important
consideration is still whether the future application
of the legislation to events from the past will be
unfair, take away vested (existing) rights or violate
substantive rights.
For example:
Section 7 of the Children’s Act of 2005 provides as
follows:
Page 57
17 Age of majority
A child, whether male or female, becomes a
major upon reaching the age of 18 years.
[Date of commencement of s. 17: 1 July
2007.]
When s 7 of the Children’s Act commenced, it also
repealed the Age of Majority Act 57 of 1972, which
provided that a person reached the age of majority
upon reaching the age of 21 years. After 1 July
2007 a person becomes a major immediately upon
reaching the age of 18. This is normal—the Act
operates into the future as expected. However,
what if on 1 July 2007 the person is 19 years old
and no longer a ‘child’ (in other words, already
older than 18, but not yet 21)? The person cannot
become a major in terms of the Age of Majority Act
(because it had been repealed when s 17 of the
Children’s Act became operational), but the person
was already older than 18 when s 17 became
operational. In this case the Act has retrospective
effect: as soon as the 19-year-old person moves
into the ambit of s 17 after 1 July 2007, that
person will automatically become a major. The Act
is not retroactive: persons who reached the
‘previous’ age of majority of 21 before 1 July 2007
will not be affected, and the effects of their age of
majority will not be ‘adjusted’ retroactively to that
of 18 somewhere in the past.

Enter the deeming clause

The difference between retroactivity and

retrospectivity lies in the commencement date of
the legislation in question. In the case of
retroactive legislation the commencement date is
before the date of publication. This means that the
legislation operates backwards in time, or history
is rewound. Because this kind of ‘legislative time
travel’ is physically impossible, the legislation uses
a deeming clause: the legislation is deemed to
have commenced on a date prior to publication
date. But what is a deeming clause?
•
In the case of retroactive commencement it is
a legislative exercise in ‘virtual reality’ (or legal
make-believe).

•
Since a commencement date before the
enactment of the legislation is impossible in
real physical terms, the legislation creates a
legal fiction: the legislation does not change
the fact; it makes-believe that the facts
(reality) are otherwise.
Page 58

•
In other words, the deeming clause creates a
presumption, in this case by providing that
something is ‘deemed’ to have happened.

3.4.3 What prevents legislation from

applying with retro-effect?
This time-honoured principle is not an absolute
rule. In terms of South African law three legal
‘obstacles’ need to be removed before legislation
may apply with retro-effect (ie either retroactive or
retrospective).

(a) The common-law presumption

Before the advent of constitutionalism and a

supreme Constitution, the common-law
presumption that legislation applies only to the
future was the only legal obstacle that stood in the
way of laws with a retro-effect. However, as was
explained earlier, legislation trumps common law,
which means that the legislature could trump the
presumption either expressly (eg the Terrorism Act
of 1967), or by necessary implication. Remember,
the presumption states that legislation only applies
in respect of the future, unless the legislation
provides otherwise.
‘By necessary implication’ means that the
legislature actually wanted to rebut the
presumption, but failed to express that intention
clearly in the legislation. Although not expressly
provided in the legislation, it is the only reasonable
conclusion that can be reached—the presumption
was rebutted by necessary implication. But if the
rebuttal of the presumption is not expressly stated
in the legislation, how will the courts determine
whether it is done by necessary implication? Such
a conclusion will depend on the court’s
interpretation of the legislation in question, but
remember, this principle is all about considerations
of fairness and vested rights. This means that a
court needs to be convinced that the legislation by
implication should have a retro-effect. Although
each case will depend on the legislation as a
whole, as well as the surrounding circumstances,
the courts have laid down a few guidelines which
may help to determine whether the presumption is
rebutted by necessary (reasonable) implication, for
instance:

•
Such a necessary implication could be inferred
if the legislation would result in absurd or
unfair results should it not have retro-effect
(Lek v Estate Agents Board 1978 (3) SA 160
(C)).
Page 59

•
 In Kruger v President Insurance Co Ltd 1994
(2) SA 495 (D) 503G the court held that it was
easier to decide (by necessary implication) that
legislation did not apply to the future only
when vested rights would not be affected by
the retro-effect of the legislation; or the
purpose of the legislation is to grant a benefit
or to effect even-handedness in the operation
of the law.
Case law example:
In R v Mazibuko 1958 (4) SA 353 (A) the court
heard an appeal against the death sentence
imposed for robbery. The Criminal Procedure Act
56 of 1955 was amended after the crime had been
committed but before sentence was passed. In
terms of the amended Act, the death sentence
could be imposed after a conviction for robbery
with aggravating circumstances. The court applied
the presumption that legislation only applies in
respect of the future, and found that the
legislature had not intended that the increased
penalty should apply retroactively. The earlier,
more lenient penalty was imposed. The increased
penalty could have been imposed only in respect of
crimes committed after the Amendment Act came
into effect. The court relied on the common-law
rule that if there is a difference in penalties
between the date of the crime and the date of the
trial, the date of the crime will be decisive.

(b) New offences and higher penalties

The second ‘obstacle’ is the prohibition of new

offences and higher penalties with retro-effect in s
35 of the Constitution (‘Arrested, detained and
accused persons’). Section 35(3)(l) of the
Constitution provides that a person may not be
convicted for an act that was not an offence at the
time it was committed. In other words, it is a basic
human right that a new offence may not be
created with retro-effect. Furthermore, s 35(3)(n)
of the Constitution provides that an accused
person has a right to the benefit of the least
severe of the prescribed punishments if the
prescribed punishment for the offence has been
changed between the time that the offence was
committed and the time of sentencing. The effect
of these two provisions in the Bill of Rights is that
new offences cannot be created, and existing
punishment may not be increased, either
retrospectively or retroactively.
Page 60

(c) Other constitutional rights

Should the first ‘obstacle’ (the common-law

presumption) and the second ‘obstacle’ (new
offences and higher penalties) have been
circumvented successfully, the retroactive or
retrospective application of the legislation may still
be prevented by other provisions in the supreme
Constitution (the third ‘obstacle’). Aspects such as
the right to property, the right to fair
administrative justice, the right to access to
information, et cetera, may also play a role in
determining whether the legislation only applies to
the future or not. Whether or not the legislation
passes general constitutional scrutiny in order to
have retroactive or retrospective application will
depend on the facts and rights involved in each
case.
For example, let us assume a state of emergency
is declared with express retroactive application.
Such express retroactivity will trump the first
‘obstacle’ (the common-law presumption), and
since there do not seem to be any new offences or
increased penalties, the second ‘obstacle’ (s 35(3))
may also be bypassed. But the third ‘obstacle’
cannot be breached: in terms of s 37(2)(a) of the
Constitution a state of emergency may never be
retroactive, but can only be prospective.
Case law example:
In S v Ndiki 2008 (2) SACR 252 (Ck) counsel for
the accused argued that the Electronic
Communications and Transactions Act 25 of 2002
(ECT Act) did not retrospectively apply to his
client, because it came into operation after he had
committed the offences. This was a good example
of possible retrospective application of the new
ECT Act: the Act was clearly intended for the
future and the trial of the accused only started
after the Act had commenced, but the alleged
offence was committed before the Act became
operational. On a timeline the events progressed
from when the offences were committed past the
commencement date into the ambit of the
‘forward-looking’ Act. One of the arguments raised
by the state was that the new rules of evidence
were procedural in nature and that it was one of
the exceptions to the presumption against the
retroactive or retrospective application of
legislation (see also 3.4.4 below). Although the
court in the end did not have to rule on the
retrospective application of the Act (for other
technical reasons), it did,
Page 61
however, venture an opinion on the issue. One of
the strong considerations against retrospective
operation (in this case) of a statute is that unfair
consequences might result, or that it might
interfere with existing rights. The court pointed out
that the new legislation had to be read in the light
of the Constitution to give effect to its fundamental
values. To the extent that the retrospective
application of the ECT Act allows the admission of
evidence that would otherwise not constitute legal
evidence, there is merit in the argument that it
affects the substantive right of an accused to a fair
trial in general and should not operate
retrospectively.

3.4.4 No harm done: Exceptions to the rule

There are two instances when the principle that
legislation only applies to the future will not apply:
where the legislation changes procedure or where
it grants benefits. At first glance, procedure is red
tape or a set of neutral administrative
arrangements, and of course, nobody will argue
that the retroactive granting of benefits is unfair!

(a) If the enactment deals with procedure

As a general rule, the presumption will not apply if

the legislation deals with procedure. Although
procedure may seem to be neutral and harmless,
the courts have indicated the there is a fine line
between ‘neutral’ procedure (formalities) and
substantive rights. If substantive rights and
obligations remain unimpaired and capable of
enforcement by using the newly prescribed
procedure, then the general principle does not
apply (Minister of Public Works v Haffejee 1996 (3)
SA 745 (A)). However, if new procedure violates
substantive rights, the general principle against
legislation with retro-effect will apply and the three
‘obstacles’ come into play.
In Euromarine International of Mauren v The Ship
Berg 1986 (2) SA 700 (A) the court held that a
provision in the relevant Act not only created a
new remedy, but also imposed a new obligation on
persons who had no legal obligations in the past.
This is an example where substantive (and not
merely procedural) rights are involved, and the
presumption that legislation only applies in respect
of the future will apply.

(b) If the retro-effect favours the individual

If the retrospective operation of legislation would

benefit the individual, the presumption also does
not apply. Remember, the
Page 62
reason for the principle is to avoid unfair results. If
a person would be receiving a benefit, and no
vested rights are taken away, the retroactive or
retrospective application of the legislation will be
beneficial and the presumption becomes
unnecessary.
Case law example:
In R v Sillas 1959 (4) SA 305 (A) an amending Act
reduced the existing penalty after the accused had
committed the crime, but before sentence was
passed. The court found that the presumption that
legislation only applies in respect of the future had
been rebutted by ‘other considerations’. The
amendment was applied retroactively and the new,
more lenient penalty was imposed. (One of the
‘other considerations’ might well have been the
presumption that the legislature intends to burden
its subjects as little as possible.) The court also
found that the rule that the penalty in force when
the crime was committed had to apply, only
applied to amendments which increased the
penalty. Where new legislation reduces the
penalty, the time when sentence is passed is
decisive in determining whether amended penalties
apply to an accused or not.

3.4.5 Retroactivity and other constitutional

issues
The principle that legislation should only be
prospective also applies to the Constitution. This
means that the Constitution itself is also not
retroactive:

•
As was explained earlier, all law in force when
the Constitution took effect remains in force
subject to amendment or repeal, and subject to
consistency with the Constitution (item 2
Schedule 6 of the Constitution).

•
All proceedings pending before a court when
the new Constitution took effect must be
finalised as if the new Constitution had not
been enacted, unless the interests of justice
require otherwise (item 17 Schedule 6 of the
Constitution).

•
However, any legislative process started in
terms of the interim Constitution, but not yet
finalised when the 1996 Constitution took
effect, must be finalised in terms of the 1996
Constitution (item 5 Schedule 6 of the
Constitution).
 Page 63

Chapter 4
Is it still in force? Changes to
and the demise of legislation

4.1 General
In the previous chapter the commencement of
legislation was discussed, and the question was: Is
it in force yet? Now the question is: Is it still in
force, and if so, has it since been amended? In this
chapter the ways in which legislation may be
changed or come to end will be explained.
Common-law rules can be abrogated by disuse,
but this cannot happen to legislation (R v Detody
1926 AD 168). It cannot simply disappear; it needs
to be repealed by a competent body or declared
invalid by a court. Before 1994 Parliament was
sovereign, and the courts could only invalidate
delegated legislation which did not comply with the
rules of administrative law. After 1994 the courts
could test all legislation, including Acts of
Parliament, against the supreme Constitution.
Who may amend and repeal legislation?
It is important to understand that the Constitution
is not self-executing. Although s 2 of the
Constitution expressly states that legislation which
is in conflict with the Constitution is invalid, it
merely means that legislation is potentially
unconstitutional. Legislation that is inconsistent
with the Constitution will not automatically be
unconstitutional and invalid. All legislation in force
when the Constitution took effect remains in force
until it is amended or repealed, or is declared
Page 64
unconstitutional (item 2(1) Schedule 6 of the
Constitution). To remove potentially
unconstitutional legislation, a competent body
must either amend or repeal it, or a competent
court must declare it unconstitutional.
As was pointed out earlier, legislation cannot fall
away through disuse or simply disappear; it
remains in force until amended or repealed. But
amended or repealed by whom? Legislation—
enacted law-texts—is amended or repealed by the
relevant competent lawmakers, in other words,
those bodies or persons with the legislative
authority to do so.
For original legislation the legislative authority of
the relevant legislatures includes the power to pass
or amend any legislation before them, subject of
course to the hierarchical and territorial
competencies prescribed by the Constitution (ss 44
and 55 read with s 68, in the case of Parliament;
ss 104 and 114 in the case of provincial
legislatures; and s 156 in the case of
municipalities).
In the case of subordinate legislation the
enabling Act may in some cases expressly state
that the power to enact subordinate legislation
includes the power to amend or repeal it (eg the
Rules Board for Courts of Law Act, which
empowers the Rules Board for Courts of Law to
make, amend or repeal the rules for the Supreme
Court of Appeal, the High Courts and the lower
courts). In the absence of such an express
provision that the subordinate lawmaker may also
amend or repeal the subordinate legislation, the
common-law principle of implied powers will come
into play: if a delegated lawmaker gets the power
to enact subordinate legislation, it is assumed that
such a power to make laws also by implication
includes the power to amend or repeal (revoke,
rescind or retract) such subordinate legislation.
However, to avoid legal arguments about implied
delegated legislative powers, s 10 of the
Interpretation Act expressly deals with such a
situation:
10 Construction of provisions as to
exercise of powers and performance of
duties
(1) When a law confers a power or imposes a
duty then, unless the contrary intention
appears, the power may be exercised and the
duty shall be performed from time to time as
occasion requires.
...
(3) Where a law confers a power to make
rules, regulations or by-laws, the power shall,
unless the contrary intention appears, be
construed as including a power exercisable in
like manner and
 Page 65
subject to the like consent and conditions (if
any) to rescind, revoke, amend or vary the
rules, regulations or by-laws.
...

4.2 Changes to legislation

4.2.1 Formal amendment of legislation by a
competent legislature
Legislation may be amended (changed) by a
competent legislature. That means that Parliament
may amend an Act of Parliament by means of
another Act of Parliament, a provincial legislature
may amend provincial ordinances and provincial
Acts, and so on and so forth. This means that in
the case of primary (original) legislation the
amendment of legislation is a lengthy and
expensive process.
In practice there are two types of amending
legislation: the non-textual (indirect) amendment
and the textual (direct) amendment. A non-textual
amendment occurs where there are no direct
changes to the actual wording of the principal
(initial) legislation, but the ‘amending’ legislation
merely describes the extent of the changes in the
law with reference to the provisions that will be
affected. For example (as was explained earlier),
item 3(2)(b) of Schedule 6 of the Constitution
provides that a reference in old order legislation
to—amongst other things—‘Administrator’ must be
interpreted as referring to the Premier of a
province, and so on. A textual amendment, on the
other hand, occurs where the actual wording of
principal (initial) legislation is changed with
additions, changes to the wording, et cetera.
If a number of Acts are amended at the same
time, this will usually be done by means of a
General Laws Amendment Act. Specific legislation
will be amended by means of specific amending
legislation (eg the Births and Deaths Registration
Amendment Act 1 of 2002 amended only the Births
and Deaths Registration Act 51 of 1992). Some
legislation is amended continuously—as is
illustrated by the long list of amendments for the
Income Tax Act, which is amended annually. The
Taxation Laws Amendment Act 24 of 2011 is a
very good example of a typical amendment Act: it
consists of a bewildering array of legislative codes,
insertions, additions and deletions.

4.2.2 Modificative interpretation by the

courts
Although the courts are primarily involved in the
application of the law, they also have a secondary,
law-making function. This
Page 66
involves the development of the common law to
adapt to modern circumstances, as well as giving
form, substance and meaning to particular
legislative provisions in concrete situations. This
also means that the judiciary may modify (change
or adapt) the initial meaning of a legislative
provision in such a way that it conforms to the
purpose or aim of the legislation. Although judicial
law-making involves a creative judicial discretion,
it must always be based on legal rules and
principles. However, this is the exception to the
rule; according to the doctrine of separation of
powers, the various legislatures make legislation,
and the courts interpret legislation and dispense
justice.

(a) Attempts to save legislation during constitutional review

Testing legislation (also known as constitutional

review) refers to the process whereby legislation
which is alleged to be in conflict with the
Constitution is reviewed or tested by the court. The
court therefore measures the legislation against
the provisions of the Constitution and decides
whether the legislation is valid or invalid.
If a court does declare legislation unconstitutional
(invalidating it), the legislation cannot be applied
anymore. This could create a vacuum in the legal
order. Competent courts involved in constitutional
review (the testing of legislation against the
Constitution) may try, if reasonably possible, to
modify or adapt the legislation to keep it
constitutional and alive. As will be explained in
Chapter 9 (‘Constitutional interpretation’), the
court may then employ a number of corrective
techniques or remedial correction of legislation
(so-called reading-down, reading-up, reading-in
and severance) in an attempt to keep the
legislation in question constitutional and valid.

(b) Modification of the legislative meaning during

interpretation

As will be explained in Chapter 7, courts may

under exceptional circumstances modify (change
or adapt) the initial meaning of the legislative text
to ensure that it reflects the purpose and object of
the legislation.

4.3 The demise of legislation

In terms of the doctrine of separation of powers, it
is important to distinguish between the terms
‘repeal’ and ‘invalidation’ of
Page 67
legislation, and to establish who is authorised to do
it. Repeal refers to the process whereby the
legislation is deleted, in other words, removed
from the statute book. On the other hand,
invalidation happens when the legislation is
declared to be legally unacceptable. The legislation
may no longer be applied, but remains on the
statute book until removed by a competent
lawmaker. Courts may not and do not repeal
legislation—they invalidate legislation. Elected
legislatures and persons or other bodies so enabled
by primary legislation are competent lawmakers,
and they repeal legislation. Courts invalidate
legislation on constitutional grounds (the
legislation is declared unconstitutional because it
violates some or other constitutional principle) or
because the legislation does not comply with
administrative law requirements.
Practical example:
In S v Makwanyane (above) the Constitutional
Court held that the death penalty was
unconstitutional. However, since a court cannot
repeal legislation, the invalidated legislation which
provided for the death sentence remained on the
statute books, albeit unenforceable. Parliament
subsequently repealed all legislation relating to the
death penalty with the Criminal Law Amendment
Act 105 of 1997.
4.3.1 Invalidation of legislation by the courts

(a) Unconstitutional provisions

In terms of s 172 of the Constitution, the High

Court, Supreme Court of Appeal or the
Constitutional Court may declare legislation
unconstitutional. Legislation may be declared
unconstitutional if it violates a fundamental right in
the Bill of Rights, or if it is in conflict with another
constitutional requirement.
Case law examples:
In Engelbrecht v Road Accident Fund 2007 (6) SA
96 (CC) regulation 2(1)(c) of the regulations
issued in terms of the Road Accident Fund Act 56
of 1996 was declared unconstitutional. The
regulation provided that a claimant against the
fund had 14 days to submit a supporting
Page 68
affidavit to the police, but the Constitutional Court
held that this was too little time to give the
claimant a fair opportunity to exercise the right of
access to the courts (s 34 of the Bill of Rights in
the Constitution). In Matatiele Municipality v
President of the RSA 2006 (5) SA 47 (CC) the
Constitutional Court held that part of the
Constitution Twelfth Amendment Act of 2005 and
part of the Cross-boundary Municipalities Laws
Repeal and Related Matters Act 23 of 2005 were
invalid, because the adoption process did not
comply with the requirement of public participation
in s 118 of the Constitution (‘Public access to and
involvement in provincial legislatures’).
When deciding a constitutional matter within its
power, the High Court, Supreme Court of Appeal or
Constitutional Court has to declare legislation
which is inconsistent with the Constitution to be
unconstitutional (s 172(1) of the Constitution).
However, in terms of s 167(5) read with s 172(2)
of the Constitution, a declaration of
unconstitutionality of legislation by a High Court or
the Supreme Court of Appeal has no force until
such a declaration is confirmed by the
Constitutional Court, but a High Court or the
Supreme Court of Appeal may make an order
which is just and equitable (including appropriate
interim relief). Local government legislation and
delegated legislation may also be declared
unconstitutional by the High Court or Supreme
Court of Appeal, but such invalidation need not be
confirmed by the Constitutional Court.
As was pointed out earlier, if an enabling Act is
declared unconstitutional by a competent court,
the subordinate legislation issued in terms of such
an invalidated Act will also cease to exist, unless
the court orders otherwise.

(b) Invalid subordinate legislation

Delegated legislation may be invalidated by a court

if it does not comply with the requirements of
administrative law (eg it is vague, ultra vires, etc).
Before 1994 this was the only real possible review
of legislation by the courts.
Page 69
Case law example:
But how vague does subordinate legislation need
to be before it will be invalidated? In MEC for
Public Works, Roads and Transport, Free State v
Morning Star Minibus Hiring Services 2003 (4) SA
429 (O) the court provided a number of guidelines
for determining ‘vagueness’. The law required
reasonable, not perfect, clarity—the legislation had
to be understandable to the reasonable person, not
to the fool. What is important is the mischief which
the legislation intended to curtail, as well the fact
that it could be applied with reasonable certainty in
many cases. The mere fact that some words are
vague does not necessarily lead to the whole
provision being declared void. The court will try to
uphold the general tenure of the regulation and to
separate the bad from the good.

4.3.2 Repeal of legislation by a competent

lawmaker

(a) Substitution (repeal and replace)

When a lawmaker substitutes (repeals and

replaces) legislation with another enactment, there
might be a possibility that the replacing law is not
in force when the other legislation departs from
the scene. In order to prevent this type of
‘legislative short circuit’ or gap in the law, the
repealing legislation could expressly provide for a
suitable transitional measure. In this regard item 9
Schedule 5 (‘Transitional Arrangements’) of the
Companies Act 71 of 2008 provides as follows:
9 Continued application of previous Act to
winding-up and liquidation
(1) Despite the repeal of the previous Act,
until the date determined in terms of sub-item
(4), Chapter 14 of that Act continues to apply
with respect to the winding-up and liquidation
of companies under this Act, as if that Act had
not been repealed subject to sub-items (2) and
(3).
...
(4) The Minister, by notice in the Gazette,
may—

(a)
determine a date on which this item ceases to
have effect, but no such notice may be given
until the Minister is satisfied that alternative
legislation has been brought into force
adequately providing for the winding-up and
liquidation of insolvent companies; and

(b)
 prescribe ancillary rules as may be necessary
to provide for the efficient transition from the
provisions of the
Page 70
repealed Act, to the provisions of the
alternative legislation contemplated in
paragraph (a).
However, for those cases where the legislation in
question does not provide for express transitional
arrangements, s 11 of the Interpretation Act was
enacted to deal with those unfortunate gaps in the
law if the one enactment is repealed, but the
replacement enactment has not yet become
operational:
When a law repeals wholly or partially any
former law and substitutes provisions for the
law so repealed, the repealed law shall remain
in force until the substituted provisions come
into operation.
This means that if an enactment has been repealed
and is replaced by another, but the replacement is
not yet operational (for whatever reason), the
repealed provision will remain in force—although
repealed—until the replacement is in force.
Case law example:
In S v Koopman 1991 (1) SA 474 (NC) the accused
was found guilty in the magistrate’s court of a
contravention of the Road Traffic Act 29 of 1989
and sentenced to a fine, as well as to an
endorsement of his driver’s licence. On review his
lawyer argued that the endorsement was invalid,
because the Cape Province Road Traffic Ordinance
21 of 1966 had been repealed by the Road Traffic
Act 29 of 1989. The provisions in the Act which
authorised the suspension, endorsement or
rescission of driver’s licences had not yet come
into operation. However, the court held that in
terms of s 11 of the Interpretation Act the
provision in the repealed ordinance providing for
such endorsement was still in operation. The
endorsement of the licence by magistrate’s court
was then confirmed.
Practical examples:
The Child Care Act 74 of 1983 had been repealed
in total by the new Children’s Act 38 of 2005 (s
313 read with Schedule 4). The major part of the
Children’s Act commenced on 1 July 2007, and the
remainder took effect on 1 April 2010. This meant
that a number of provisions in the 1983
Page 71
Child Care Act (although repealed) remained in
force until the corresponding replacements in the
new 2005 Children’s Act finally entered into force
on 1 April 2010.
The Human Tissue Act 65 of 1983 was repealed
and replaced by the National Health Act 61 of
2003. The National Health Act commenced on 2
May 2005, unless otherwise indicated. One of the
parts of the National Health Act that did not
commence on 2 May 2005 was Chapter 8
(‘CONTROL OF USE OF BLOOD, BLOOD PRODUCTS,
TISSUE AND GAMETES IN HUMANS’), which meant
that the corresponding Chapter 2 of the repealed
Human Tissue Act (‘TISSUE, BLOOD AND GAMETES
OF LIVING PERSONS, AND BLOOD PRODUCTS’)
remained in operation until Chapter 8 of the
National Health Act was finally put into operation.
The remainder of the National Health Act took
effect on 1 March 2012, with the exception of s 53
(which had commenced on 30 June 2008), and ss
55, 56 and 68 (which had commenced on 17 May
2010). Consequently Chapter 2 of the Human
Tissue Act (which in some form or another
remained operational through the intervention of s
11 of the Interpretation Act) was finally put to rest
on 1 March 2012, nearly seven years after the rest
of the National Health Act had commenced.

(b) Repeal (deletion)

Repeal is the revocation of legislation by the

relevant competent lawmaker. The legislation is
not changed or substituted (replaced); it is deleted
(removed) from the statute book. In the case of
individual provisions of original legislation, all that
remains will be the numbering (as placeholders)
and the legislative codes. However, what is the
effect of the repeal of legislation on pending cases?
Will the repeal revive anything previously
repealed? Section 12 of the Interpretation Act
deals with the consequences when legislation is
repealed.
Section 12(1) of the Interpretation Act

Where a law repeals and re-enacts, with or

without modifications, any provision of a
former law, references in any other law to the
provisions so repealed shall, unless the
contrary intention appears, be construed as
references to the provisions so re-enacted.
If a provision X is repealed and later re-enacted as
Y, all references to X in other existing legislation
must be interpreted as being references to Y.
Page 72

Section 12(2) of the Interpretation Act

Where a law repeals any other law, then,

unless the contrary intention appears, the
repeal shall not—

(a)
revive anything not in force or existing at the
time at which the repeal takes effect; or

(b)
 affect the previous operation of any law so
repealed or anything duly done or suffered
under the law so repealed; or

(c)
affect any right, privilege, obligation, or liability
acquired, accrued, or incurred under any law
so repealed; or

(d)
affect any penalty, forfeiture, or punishment
incurred in respect of any offence committed
against any law so repealed; or

(e)
affect any investigation, legal proceeding, or
remedy in respect of any such right, privilege,
obligation, liability, forfeiture, or punishment as
is in this sub-section mentioned;
and any such investigation, legal proceeding,
or remedy may be instituted, continued, or
enforced, any such penalty, forfeiture, or
punishment may be imposed, as if the
repealing law has not been passed.
Section 12(2) is a typical transitional provision.
Section 12(2)(a) means that a repealed Act does
not regain the force of law if the repealing Act itself
is repealed. If an Act, which declared a particular
action illegal, is repealed, the repeal does not have
retroactive effect, declaring legal that which was
illegal before the repeal; and if an amendment Act
is subsequently repealed, the amendment does not
lapse with the repeal (R v Maluma 1949 (3) SA
856 (T)).
Paragraphs (b) to (e) of s 12(2) are similar in
principle: all actions, transactions, processes,
prosecutions, enforcement of rights and remedies,
et cetera, which have been started, but not yet
completed, in terms of legislation which has
meanwhile been repealed, must be completed as if
the legislation has not been repealed. This also
means the following:

•
It forms a bridge between pending actions and
the repealed legislation; the current position is
preserved until the pending case is finished
(Transnet Ltd v Ngcezula (above)).
•
Actions executed legally and properly in
accordance with legislation, before that
legislation is repealed, remain valid and in
force after the repeal.

•
This provision deals with rights derived from
legislation only, and not with those stemming
from common law (Garydale Estate and
Investment Co (Pty) Ltd v Johannesburg
Western Rent Board 1957 (2) SA 466 (T)).
Page 73

•
The right or privilege in question needs to have
been acquired or accrued in terms of the
repealed legislation before the repeal
(Mahomed v Union Government 1911 AD 1).
Case law examples:
An excellent example is found in Estate Crosby v
Wynberg Municipality 1912 CPD 1026. A valuation
list was drawn up and an appraiser sworn in for the
intended session of a valuation court. All this was
properly done, but before the session of the court
could take place, the authorising Act was repealed
and replaced by an ordinance. The court decided
that the valuation process had to be completed in
terms of the repealed legislation as if it was not
repealed.
Another case which dealt with s 12(2)(c) and (d)
was Keagile v Attorney-General, Transvaal 1984
(2) SA 816 (T). The accused appeared in court in
June 1982 on a charge of contravening the
Internal Security Act 44 of 1950. He was refused
bail on 29 July 1982 on the grounds of a statement
by the Attorney-General of the Transvaal. Act 44 of
1950 was repealed on 2 July 1982, however, and
replaced by the Internal Security Act 74 of 1982.
The defence argued that the Attorney-General
could not issue his declaration for the refusal of
bail in terms of Act 44 of 1950, as this Act had
been repealed before the declaration was made.
Furthermore, the declaration could not be issued
by virtue of the new Act 74 of 1982, as the
accused had not committed the offence in terms of
the new Act. The court held that, in terms of s
12(2)(d) of the Interpretation Act, the accused
should still be tried under Act 44 of 1950.
Moreover, s 12(2)(c) of the Interpretation Act had
the effect that the Attorney-General’s power
(under Act 44 of 1950) to issue a statement with
regard to the refusal of bail remained effective, in
spite of the fact that Act 44 of 1950 had been
repealed in the interim. The court therefore
refused the application for review of the refusal of
bail.
Page 74
Another case law example:
Nourse v Van Heerden 1999 (2) SACR 198 (W) is a
very good example of the application of the demise
of legislation, s 12(2) of the Interpretation Act, as
well as of retroactivity. During 1992 a
gynaecologist and obstetrician from Durban was
charged in terms of the Abortion and Sterilization
Act 2 of 1975 with the performance of illegal
abortions. His trial commenced on 27 November
1992, but was not yet finished by 1997. On 1 July
1997 his legal representative brought an
application to have the charges against his client
dropped, since at that stage abortions were not
illegal anymore and as a result his client’s actions
no longer constituted crimes. The legal
representative of the physician based his
application on the following arguments:

•
The provisions of the Abortion and Sterilization
Act governing illegal abortions have not been
applied since the mid-1990s and as a result
those provisions were abrogated by disuse.

•
The Abortion and Sterilization Act was repealed
by the Choice on Termination of Pregnancy Act
92 of 1996 in so far as it relates to abortion
(the Choice on Termination of Pregnancy Act
entered into force on 1 February 1997).

•
In terms of the fundamental values referred to
in s 1 of the Constitution, as well as the Bill of
Rights (especially s 9 (the right to equality), s
12(2)(a) and (b) (the right to make decisions
 concerning reproduction and security in and
control over one’s body), s 14 (right to privacy)
and s 27(1)(a) (the right to reproductive health
care)), the prohibition of abortions is in any
event retroactively unconstitutional.
The court found that legislation could not be
abrogated by disuse, and had to be repealed by a
competent legislature. Existing legislation
remained in force until repealed or declared
unconstitutional. The trial started before the repeal
of the Abortion Act, and in terms of s 12(2) of the
Interpretation Act the trial had to be completed as
if the Abortion Act had not been repealed.
Furthermore, the trial started before either the
interim Constitution or the 1996 Constitution
Page 75
commenced. Since none of the Constitutions was
retroactive, the trial had to be completed in terms
of the law existing at the start of the trial. Finally,
legislation is not automatically unconstitutional,
and the Abortion Act was never declared
unconstitutional by any court of law.
Repeal of legislation incorporated by reference

When A repeals B, but some of the provisions of B

were also incorporated into other legislation by
reference, those incorporated provisions in the
other legislation will not automatically be repealed
by A as well, unless A contains express or implied
provisions to that effect. In Solicitor-General v
Malgas 1918 AD 489 the court held that if the
provisions of earlier legislation are incorporated
into subsequent legislation, the incorporated
provisions are not affected when the earlier
legislation is repealed. These provisions were, in
effect, adopted twice as legislation, and the repeal
of the earlier legislation did not automatically
repeal the incorporated provisions as well—the
repealing Act must indicate clearly that specific
incorporated provisions will also be repealed. In
terms of s 76 of the National Road Traffic Act 93 of
1996 certain external standards incorporated by
reference are deemed to be regulations issued
under the Act:
76 Incorporation of standards by
reference
 (1) The Minister may by notice in the
Gazette incorporate in the regulations any
standard without stating the text thereof, by
mere reference to the number, title and year of
issue of that standard or to any particulars by
which that standard is sufficiently identified.
(2) Any standard incorporated in the
regulations under subsection (1) shall for the
purposes of this Act, in so far as it is not
inconsistent with it, be deemed to be a
regulation.
(3) A notice under subsection (1) shall come
into operation on a date specified in the notice,
but not before the expiry of 30 days after the
date of publication of the notice.
(4) If any standard incorporated in the
regulations is amended or replaced, such
standard shall remain in force until such time
that the Minister by notice in the Gazette re-
incorporate the amended or replaced standard.
[Sub-s. (4) substituted by s. 21 of Act 64 of
2008.]
...
 Page 76

Sunset clauses

A sunset clause is a provision in legislation which

terminates (repeals) all or portions of the law after
a specific date, unless further legislative action is
taken to extend it. Most laws do not have sunset
clauses; under normal circumstances legislation
remains in force indefinitely until repealed at some
unknown date in the future. A sunset clause is a
date-bound repeal for the future: the legislature
has determined a date in the future when the
legislation will automatically lapse. In effect this
means that the legislature has adopted and
repealed the same legislation at the same time.
This can only happen if the legislation has a very
specific expiry date. Sunset clauses have a limited
lifespan and their continued existence is dependent
on parliamentary action, as was illustrated by s
48(6) of the Customs and Excise Act 91 of 1964:
Any amendment, withdrawal or insertion made
[by the Minister] under this section in any
calendar year shall, unless Parliament
otherwise provides, lapse on the last day of the
 next calendar year, but without detracting from
the validity of such amendment, withdrawal or
insertion before it has so lapsed.
Practical example:
The Revenue Laws Amendment Act 20 of 2006
created tax-free ‘bubbles’ around FIFA-designated
sites so that profits on certain goods sold within
these areas would be subject neither to income tax
nor to value-added tax. The periods for these
exemptions began one week before the kick-off of
the Confederations Cup and the Soccer World Cup
and automatically ended immediately after the
closing ceremonies.

Implied repeal

Where two different enactments dealing with the

same matter clash, it is presumed (by the
judiciary) that the relevant legislature by
implication intended that the later enactment
repeals the earlier enactment (see 4.5.2 below)
The two enactments both have to be on the same
hierarchical level and also on the same level of
generality. The legislation is not repealed by the
court, but it is assumed that the legislature
implicitly repealed the earlier legislation; the court
is merely the ‘messenger’ that breaks the
deadlock.
Page 77

4.4 Suspension of legislation already

in force
Legislation can also be temporarily suspended; in
other words, it remains in force, but its operation
is halted for the time being until some or other
condition is met or requirement complied with.
An example of legislation temporarily halted is
suspension by a court. The system of co-operative
government is one of the unique features of the
South African constitutional structure. In terms of
ss 40 and 41 of the Constitution this system
consists of three distinct but interrelated and
interdependent spheres of government. Schedule 4
of the Constitution sets out the matters in which
national and provincial legislatures have
concurrent law-making powers; in other words,
both Parliament and the provincial legislatures may
enact legislation on Schedule 4 matters. Where
there are conflicts, the national legislation will
sometimes prevail over the provincial legislation,
but in other cases the provincial legislation may
actually trump the national legislation. Sections
146-150 of the Constitution provide for the
intricate process of conflict resolution within this
system of co-operative government. Section 149 of
the Constitution provides for an interesting
variation on the demise of legislation:
149 Status of legislation that does not
prevail
A decision by a court that legislation prevails
over other legislation does not invalidate that
other legislation, but that other legislation
becomes inoperative for as long as the conflict
remains.
So: when legislation X conflicts with legislation Y,
the operation of legislation X is suspended until the
relevant legislature deals with the conflict.
Legislation X is not invalidated, but merely
suspended for the duration of the legislative
standoff.
Another example of suspension is the application
of the rule cessante ratione legis, cessat et ipsa lex
by the South African courts (see 7.3.2 below for a
full discussion of the rule). This is the case where a
court will exercise its discretion to suspend the
application of legislation because it has already
been complied with in another way.
It goes without saying that a competent
lawmaker may also suspend legislation for a period
of time with a formal legislative amendment,
probably containing a sunset clause. Furthermore,
an administrative agency involved with the
application and administration of legislation may
also place its application of legislation on hold, in
the process effectively suspending the legislation in
question.
Page 78
Practical example:
An interesting combination of legislative and
administrative suspension occurred during 2011.
On 2 June 2011 the National Treasury published
the Draft Taxation Amendment Bills. Amongst
other things, these draft Bills proposed the
suspension of s 45 of the Income Tax Act in order
to investigate interest deductions from excessive
debt, but on 3 June 2011 the National Treasury in
any event decided to go ahead with a temporary
suspension of the operation of s 45 for 18 months.
The proposed legislative suspension of s 45 of the
Income Tax Act was never introduced and
adopted, and in October 2011 the Minister of
Finance lifted this administrative suspension.
Following this, the Taxation Laws Amendment Act
24 of 2011 inserted s 23K into the Income Tax Act
in order to deal with those issues which were
subject to investigation during the administrative
suspension. To cover the conduct of the Treasury,
s 23K was retroactively deemed to have
commenced on 3 June 2011, the date on which the
Treasury’s administrative suspension started.

4.5 The presumption that legislation

does not intend to change the existing
law more than is necessary
This presumption means that legislation should be
interpreted in such a way that it is in accordance
with existing law (legislation, common law and
customary law) and changes it as little as possible.
4.5.1 Common law
This presumption reflects an inherent respect and
esteem for our common law heritage. Solomon J in
Johannesburg Municipality v Cohen’s Trustees
1909 TS 811 823 put it as follows:
It is a sound rule to construe a statute in
conformity with the common law rather than
against it, except where and so far as the
statute is plainly intended to alter the course of
the common law.
It is presumed that legislation does not alter the
common law, but this presumption is rebutted if
legislation clearly provides that the common law
(on a particular point) is being altered (Gordon v
Standard Merchant Bank 1983 (3) SA 68 (A)).
Page 79

4.5.2 Legislation
With regard to legislation, the presumption means
that in interpreting a subsequent Act it is assumed
that the legislature did not intend to repeal or
modify the earlier Act (Kent v SA Railways and
Harbours 1946 AD 405). Any repeal or amendment
has to be indicated expressly or by necessary
implication. An attempt should be made to read
the earlier and subsequent legislation together in
an effort to reconcile them (Wendywood
Development (Pty) Ltd v Rieger 1971 (3) SA 28
(A)). In Shozi v Minister of Justice, Kwazulu 1992
(2) SA 338 (NPD) 343B the court stated that-
if two apparently contradictory provisions are
capable of a sensible interpretation which
would reconcile the apparent contradiction,
that interpretation should be preferred.
If such reconciliation is impossible, it has to be
presumed by necessary implication that the later
of the two provisions prevails, resulting in the
amendment or repeal of the earlier one (Entabeni
Hospital Ltd v Van der Linde; First National Bank of
SA v Puckriah 1994 (2) SA 422 (N)).
Case law example:
An interesting example of the repeal of an earlier
Act by necessary implication concerned the
Ingwavuma/KwaZulu land issue during the
apartheid era. The State President proclaimed that
the Ingwavuma territory, which had belonged to
the KwaZulu homeland, would no longer be part of
that territory. The question arose whether the
State President should have consulted the KwaZulu
government or not. In Government of the Republic
of South Africa v Government of KwaZulu 1983 (1)
SA 164 (A) the Appellate Division heard the appeal
against a decision of the Supreme Court which
invalidated the proclamation, because the South
African government had not consulted the KwaZulu
homeland authorities. The appellants argued that
the proclamation had been promulgated correctly
in terms of the Black Administration Act 38 of
1927, which did not require consultation prior to
the alteration of the territories of the national
states. However, the court found that s 25(1)
Page 80
of Act 38 of 1927 conflicted with s 1(2) of the Self-
Governing Territories Constitution Act 21 of 1971,
which provided that the territory of a homeland
could only be altered after consultation with that
particular homeland. As the two provisions could
not be reconciled, it was presumed that the earlier
provisions in the 1927 Act had, by necessary
implication, been repealed by the later provisions
of the 1971 Act.
Obviously this rule only applies if the objects of the
two conflicting provisions are in pari materia
(essentially the same). Legislative repeal, by
implication, will only be accepted by the court if
the subsequent legislation manifestly contradicts
the earlier legislation (Minister of Police v Haunawa
1991 (2) SA 542 (Nm)). Furthermore, according to
the rule generalia specialibus non derogant, it is
presumed that a provision in a subsequent general
Act does not repeal an earlier specific provision
(Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992
(3) SA 306 (A)).
 Page 81

Part 2
How legislation is
interpreted

5
Theoretical foundations

6
A practical, inclusive methodology: The five
interrelated dimensions of interpretation
 Page 83

Chapter 5
Theoretical foundations

5.1 Introduction
Most law students dislike profound philosophical
discourses about the theoretical foundations of any
legal subject. Unfortunately, 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 the subject.
The aim of this chapter is to provide a very brief
introduction to the theoretical basis of statutory
interpretation in general, and in South Africa in
particular. This chapter deals with what Eskridge
(2001: 200) refers to as ‘legisprudence’: the
jurisprudence of interpreting legislation.
5.2 Jurisprudential perspectives on
statutory interpretation
5.2.1 The general principles of hermeneutics
Lategan (1980: 107) defines hermeneutics as the
science of understanding, or more specifically, as
the theory of the interpretation of texts. Baxter
(1984: 315) describes it as the understanding and
explanation of texts to reveal their inherent
meaning. It is the art of understanding the
techniques, methods or approaches used to
interpret texts. In its broader sense, hermeneutics
applies to all forms of written or spoken
communication. Every day, each one of us has to
interpret symbols; not only texts, but also facial
expressions, films, traffic signs, et cetera. In fact,
interpretation is one of the most basic human
activities. We are constantly trying to ‘read
between the lines’.
The word ‘hermeneutics’ is derived from the
Greek word hermeneuein which means ‘to
interpret’. Hermeneuein is in
Page 84
turn derived from the name Hermes, the
messenger god of ancient Greece, who had to
explain the messages of the gods to the mortals on
earth. This means that hermeneutics is a very old
discipline, used by the Greeks of antiquity—
Aristotle addressed the science of interpretation in
his discourses. Throughout history it became an
important and useful tool in both Christian
theology and jurisprudence. Biblical hermeneutics
(scriptural exegesis) and legal hermeneutics
(interpretation of statutes) developed as separate
fields, although they had a great deal in common,
since both had very strong normative
characteristics. In the case of Biblical hermeneutics
(especially after the Reformation), the message of
the Scriptures has to be constantly reinterpreted to
adapt to changing circumstances and to retain its
relevance for the modern believer. Likewise, the
legislature cannot provide a set of exhaustive
descriptions and regulations for all possible
concrete situations. Therefore, it is the task of the
courts to concretise the general precepts of the
legislature through interpretation of legislation.
Lategan (1980: 108-110) points out a number of
similarities and differences between Christian
theological and legal hermeneutics. Some of the
similarities are the following:

•
Both disciplines aim to interpret established
authoritative texts with regard to current
concrete situations.

•
Both have an existential urgency: it is the
purpose of interpretation of the Scriptures to
offer a liberating message of salvation to
sinners, while statutory interpretation is aimed
at legal certainty and order.

•
In both disciplines the interpreter has to deal
with the demands of changing situations and
circumstances.

•
The interpretation of both the Scriptures and
legislation are influenced by history.
However, there are also a number of distinct
differences:

•
Legislation is a distinct style, with its own rules,
which is aimed at the legal regulation of
society.

•
The biblical text is closed (ie the text is
complete); legislation, on the other hand, is
characterised by continuous development and
change.
Labuschagne (1986: 370) distinguishes between
exegesis (that which the author originally wanted
to say to the readers), and hermeneutics (that
which the author wants to say to present-day
readers).
Page 85
It was only during the second half of the
nineteenth century that hermeneutics as a general
method of understanding for the human sciences
gained prominence. In this regard the work of the
German philosopher Dilthey was of decisive
importance. In contemporary hermeneutics the
German philosophers Hans-Georg Gadamer,
Ricoeur and Schleiermacher and the Italian Betti
are the leading figures. Gadamer’s hermeneutics
emphasised the importance of the socio-historical
situation or context of the interpreter, and is closer
to a contextual approach to texts than to a literal
one. Scholars of hermeneutics emphasised that
words and phrases do not have inherent meaning,
but that meaning is derived from the total
structure of language, including the context in
which it is used. Perhaps the greatest contribution
made by the hermeneutical theory is its emphasis
of the role of the interpreter during the
interpretation process, and that the science of
understanding is not a mechanical exercise, but
also involves value judgements. Baxter (1984:
319) argues that this supports the argument that
interpreters of legislation inevitably have to
exercise a judicial discretion.
But what is the practical relevance of
hermeneutics for the interpretation of legislation?
Du Plessis (1980: 29) explains it with the so-called
‘hermeneutical circle’—every part of a text must be
understood in terms of the whole, and in turn, the
whole in terms of its parts. This is a continuous
process during which both the whole and the parts
are progressively explained. This part-whole
approach underlines the importance of the context
of a specific phrase or sentence.
Context and interpretation
According to the well-known saying, every picture
tells a story, and that is true. Famous photographs
and paintings have been telling stories for
centuries. Assume that a painting is a unique type
of text, with the brush strokes on the canvas like
words on paper. However, to make sense of the
picture and what it wants to say, its context
(background) needs to be considered as well.
Page 86
Practical example:
Picasso’s famous painting Guernica (now in the
Museum of Modern Art, New York) consists of a
disturbing mix of violent images. Amongst other
things we see a screaming woman; a horse,
pierced by a spear, collapsing to its knees; a dead
fighter; a woman with a senseless child in her
arms; a burning house; and so on. To understand
the images, some research about the painting’s
context is necessary. On a time line the painting is
situated in 1937, during the Spanish civil war. It is
named after the Basque town Guernica which,
while under Republican control, was totally
destroyed by Franco’s Nationalist fascist forces
(supported by the German and Italian air forces)
during the indiscriminate aerial bombing of the
town. With other more conventional anti-war texts
(for instance, the poetry of Siegfried Sassoon and
Wilfred Owen, or the protest music of Bob Dylan) it
has since become a universal symbol of the horrors
and atrocities of war. To cut a long story short:
text (painting) plus context (background) equals
understanding (or at least the beginning of a
process of understanding).

5.2.2 The influence of certain modern critical

theories
As was pointed out by Botha (1996: 60-79),
Devenish (1992: 25-55) and Du Plessis (2002: vii-
xviii, 89-119), to name only a few, there are
numerous, sometimes overlapping theoretical
approaches to statutory interpretation (eg
textualism, purposivism, intentionalism or original-
intent theory, et cetera), as well as the ever-
increasing number of contemporary schools of
legal thought (such as critical race and gender, law
and literature, feminist jurisprudence, law and
economics, and Marxist theory of law), all of which
have an influence on modern ‘legisprudence’. An
in-depth discussion of all these theories, schools
and approaches is best left to courses in legal
theory, jurisprudence and legal philosophy, but a
brief introduction to a number of modern critical
(or progressive) theories will suffice.
Critical legal scholars reject the formalist position
that law is rational, objective and neutral. They
argue that not all law is rational: it is subjective
and ideological. Many modern discourses about
interpretation of statutes, as well as the knowledge
and understanding of texts, involve the usual
debates about either literal or contextual
interpretation.
Page 87
However, critical scholars argue that these last
mentioned approaches are characterised by
formalism, which believes that the law is
autonomous: all the answers to legal questions
and problems are to be found in the law.
Modern theoretical schools of thought study and
examine the law together with other disciplines
such as economics, political science, linguistics,
philosophy, literature, and so on. These modern
theoretical schools must be understood in the spirit
of postmodernism. What is postmodernism? It is
not a school of thought, but rather an intellectual
style or a condition or a spirit of the times.
Postmodernism accepts that everything is relative,
and in the process it welcomes problems,
paradoxes and contradictions. As a result, it defies
a complete definition, because postmodernism
rejects preconceived ideas, definitions and
categories.

•
Postmodernism argues that the utopian
promises of the modern world-view came to
nothing. The modernists tried to explain and
 order the world with macro-arguments such as
liberalism, Marxism and fascism. These macro-
arguments (the so-called ‘big picture’) could
not solve global problems, because the
problems (questions) were too big, too wide,
and too abstract. These macro-arguments were
based on a naive humanism, a mistaken belief
in science and technology, and a false
optimism about the ability of language to
compile, disseminate and interpret information.

•
Postmodernism rejects the idea that
classifications and categories can be correct
and final, and the notions of both objectivity
and subjectivity are questioned; ultimately
everything (including knowledge) is relative,
temporary and incomplete. Therefore any
argument, no matter how logical it may seem,
is only as good as its preconceptions and
presuppositions.
Two postmodern theories will be discussed very
briefly. However, these are not the only modern
critical schools of thought. Theories such as critical
race theory, feminism, law and literature, and law
and economics are not even touched upon.

(a) The Critical Legal Studies movement (CLS)

The Critical Legal Studies movement (CLS)

originated in reaction to the inability of liberalism
to solve social problems such as poverty, racism,
pluralism and oppression. In the process, the
outcasts and disadvantaged of society are pushed
further and further to the ‘margins’. Admittedly,
CLS does not
Page 88
have an alternative programme of action to solve
the problems, but is rather an attempt to unmask
the liberal argument that the law is objective and
neutral. According to CLS, the Western liberal legal
tradition is an instrument of social and economic
oppression; existing power structures are merely
reinforced by the legal system. These power
relationships are reinforced by rights rhetoric
(hollow promises about human rights), which
conceals the political role of the legal system. The
courts play an important part in this political role,
since the existing order (status quo) is maintained
by a mechanical ‘his master’s voice’ method of
statutory interpretation. As a result, law and
politics have merged, and power is disguised by
the legal system.
The CLS movement has raised the following
criticism of the existing legal order:

•
Within the liberal legal tradition the
determination of legal rules is based on hidden
political and ideological considerations. Rules
and principles only change as a result of
changes in the political arena.

•
The liberal legal tradition is based on individual
autonomy, which does not take
communitarianism and community involvement
into account. Existing rights favour the
individual. The liberal jurisprudence entrenches
the position of the individual and reinforces the
unequal distribution of power in society.
Ultimately the entire world-view is ‘encoded’
 and interpreted in terms of the liberal legal
tradition.

•
With regard to interpretation of statutes in
particular, CLS argues that legal theories and
legal reasoning are supported by political
considerations, and the existing political and
social balance of power is consolidated.

(b) Deconstruction

Deconstruction should be understood as a reaction

against structuralism. Structuralism argues that
the meaning of language can be ascertained and
pinned down from its grammatical structure.
Structuralism supports literal interpretation and
legal positivism: rules acquire legal value and
meaning as a result of their position within the
legal system as well as their relationship with other
rules. Deconstruction, on the other hand,
challenges the modern person to consider and
reconsider, and ultimately to reformulate,
dominant theories and opinions about society.
Page 89
Generally it focuses on those forgotten aspects of
humanity which were pushed aside and
marginalised by the dominance of certain
conceptions of law.
The fundamentals (deconstructionists would
immediately counter ‘if something like that exists
at all!’) of deconstruction can be summarised as
follows:

•
It is impossible to obtain knowledge of the real
objective world. All meaning takes place within
the framework of language (symbols). The
meaning of each symbol (word) depends on
the differences from, as well as the similarities
between, other symbols in the system:
meaning depends not only on the differences
between symbols, but also on the continuous
reference to other symbols in the system. No
symbol is ever complete but it acquires
meaning from this never-ending circle of
mutual difference and dependence. Meaning is
indefinitely deferred, because inherently each
symbol refers to other symbols as well. A text
 is never closed or finished, but consists of a
network of interlinked symbols which infinitely
refer to each other.

•
The meaning of a text is not determined by its
author, but by the relationship between texts,
and between text and reader. The fact that the
text is liberated from the author (the so-called
‘death of the author’), enables the reader to
read the symbols in the text (as well as other
texts) in an unbiased and impartial manner.

•
A text can never acquire one fixed and final
meaning, because each text refers to another
text. Meaning depends on a set of codes (eg
social, cultural and political) inherent in each
text and each reader. Each reader will have
different texts interacting with one another.
Consequently, any valid meaning depends on
the social, cultural and political circumstances
of each reader. Meaning is not inherently
embedded in the text, and consequently a text
 may lead to any number of subjective
interpretations and meanings. In other words,
what we did not say is just as important as that
which we did say. By definition the
interpretation of a text is subjective. According
to deconstruction theory, meaning is always
disputable. The reading of a text does not end
with the fixing of a final meaning, but it ends
merely with a temporary undecidability, which
in turn is open to reinterpretations.

•
During the interpretation of statutes, different
texts are simultaneously in interaction with
each other: other legislative texts, the common
law, case law, and so on. The
Page 90
interpreter is informed not only by the
interacting texts, but also by other extra-legal
factors (codes) such as cultural and ideological
background. Thus interpretation of statutes has
to do with the relationship between the
interpreter and the text. The legislature cannot
control the manner in which the interpreter will
 interpret the legislative text. The text-based
methods of statutory interpretation (literal
interpretation and the intention theory) cannot
explain the nature of the interpretation
process. Statutory interpretation requires an
ongoing reinterpretation of the past, as well as
a continuous open-mindedness about future
reinterpretations of the legislative text.

•
Contextual interpretation is also criticised. A
text can only acquire a fixed meaning through
its context if the context has a fixed content.
Context does not have boundaries, and there is
no limit to what is necessarily relevant for the
context.

•
Deconstruction shifts the focus to judicial
choices and accountability; interpretation is not
neutral and value-free. The interpreter is in a
sense controlled by personal, cultural and
ideological value systems. During statutory
interpretation the interpreter makes certain
 ‘choices’ which are explicit and conscious. Each
interpreter has to accept personal responsibility
for the choices that are made. Even if the
choice is in favour of the status quo (the
existing order), it is still a conscious choice,
one that should not be disguised by references
to clear texts and the intention of the
legislature. The interpreter cannot hide behind
value-free and mechanical methods of
interpretation, and is responsible for the
ideological values underlying each
interpretation.

(c) The linguistic turn

Students inevitably ask what the relevance of

these critical theories is for the practical application
of legislation in concrete situations. This is not the
forum for a discourse about theory and reality
(that could be dealt with in courses in Legal
Philosophy or Jurisprudence), but law students
(and lawyers) must be exposed to critical
reflections about the law. Only by questioning
existing dogmas, beliefs and orthodoxies will the
law be able to adapt and change. This applies to
statutory interpretation as well. Du Plessis (2002:
7-9) refers to this critical thinking about language,
meaning and interpretation as the ‘linguistic turn’,
and summarises it as follows (at 8):
Page 91
The linguistic turn—in legal interpretation, at
any rate—amounts to this: meaning is not
discovered in a text, but is made in dealing
with the text . . . [M]eaning is never, at any
given point in time, a fixed and stable presence
. . . [T]he possibilities for meaning are
boundless. Language is the hyper-complex,
boundlessly open system that makes such a
proliferation of meaning possible.

5.3 South African theories of

interpretation
For the purpose of this part the various theories
and approaches to interpretation in South Africa
will be condensed into two main approaches to (or
schools of thought about) interpretation of
legislation: the text-based approach and the text-
in-context approach; next the influence of the
supreme Constitution and the new constitutional
order on interpretation of legislation will be
explained; and finally an inclusive methodology
based on the five aspects of interpretation will be
suggested for a practical interpretation
methodology.

5.3.1 The orthodox text-based approach

In terms of this approach the interpreter should
concentrate primarily on the literal meaning of the
provision to be interpreted, and the interpretation
process should proceed along the following lines:

•
It is the primary rule of interpretation that, if
the meaning of the text is clear (the plain
meaning), it should be applied, and, indeed,
equated with the legislature’s intention
(Principal Immigration Officer v Hawabu 1936
AD 26).

•
If the ‘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
(Venter v R 1907 TS 910 914). This is also
known as the ‘golden rule’ of interpretation.
Then the court will turn to the so-called
‘secondary aids’ to interpretation to find the
intention of the legislature (eg the long title of
the statute, headings of chapters and sections,
the text in the other official language, etc).

•
Only when these ‘secondary aids’ to
interpretation prove insufficient to ascertain the
intention, will the courts have recourse to the
so-called ‘tertiary aids’ to construction (ie the
common-law presumptions).
This approach was popular in legal systems
influenced by
Page 92
English law. Generally speaking, four factors
led to the adoption of the textual approach in
England:

•
 Misconceptions about the doctrines of the
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 to be found in the words of
the legislation.

•
The doctrine of legal positivism influenced the
literal approach in England. The positivist idea
is based on the validity of the decree
(command): that which is decreed by the state
is law, and consequently the essence of the law
is to be found in the command or decree. The
role of the court is limited to the analysis of the
law as it is and to find the intention of the
legislature, and should not be a speculation
about what the law ought to be. A strict
distinction is made between ‘black-letter law’
and morality, because value judgements by the
 courts would lead to the justiciability of policy
issues.

•
England has a common-law tradition, in which
the courts have traditionally played a very
creative role in regard to common-law
principles. Legislation was viewed as the
exception to the rule, altering the traditional
common law as little as possible.

•
English legislation was drafted to be as precise
and as detailed as possible, for the sake of
legal certainty and to cover any number of
possible future cases. The well-known maxim
that the legislature has prescribed everything it
wishes to prescribe is derived from this
approach.
This text-based approach was introduced into the
South African legal system in a roundabout way
from English law. In De Villiers v Cape Divisional
Council 1875 Buch 50, Chief Justice De Villiers
decided that legislation that had been adopted
after the British had taken over the Cape should be
interpreted in accordance with the English rules of
statutory interpretation. This was a strange
decision: in terms of English law, a conquered
territory continued to apply its own legal system
(in this case, Roman-Dutch law). Traditionally, the
Roman-Dutch rules of statutory interpretation were
based on a functional or purpose-oriented
approach, but after the British occupation of the
Cape, the English law rules of interpretation
started to play an increasingly important role.
Page 93
The text-based methodology is based on the
‘predominance of the word’, and the intention of
the legislature is demoted to the status of the
literal meaning of the text. Over the years the
courts came to regard the clear, literal meaning as
identical to what the legislature intended. In cases
such as Union Government v Mack 1917 AD 731
and Farrar’s Estate v CIR 1926 TPD 501 it was held
that the intention of the legislature should be
deduced from the words used in the legislation; in
other words, the plain meaning of the text in an
intentional disguise. As a result, only lip-service
was paid to the principle of legislative intent,
because the courts automatically elevated the so-
called ‘clear and unambiguous meaning of the
words’ to the status of the will and intention of the
legislature: if the legislature had a specific
intention, it would be reflected in the clear and
unambiguous words of the text (eg Ensor v Rensco
Motors (Pty) Ltd 1981 (1) SA 815 (A)).
Case law examples:
The following dictum of Stratford JA in Bhyat v
Commissioner for Immigration 1932 AD 125 129 is
probably the classic formulation of the orthodox
text-based method of interpretation employed by
South African courts:
The cardinal rule of construction of a statute is
to endeavour 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 its
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.
The Appellate Division in Swanepoel v
Johannesburg City Council 1994 (3) SA 789 (A)
794B again referred with approval to the orthodox
‘plain meaning’ approach to statutory
interpretation:
[T]he rules of statutory [exegesis] are
intended as aids in resolving any doubts as to
the Legislature’s true intention. Where this
intention is proclaimed in clear terms either
expressly or by necessary implication the
assistance of these rules need not be sought.
Page 94
More recently in Commissioner, SARS v Executor,
Frith’s Estate 2001 (2) SA 261 (SCA) 273 the
Supreme Court of Appeal reiterated the well-
known traditional rule of interpretation:
The primary rule in construction of a statutory
provision is (as is well established) to
ascertain the intention of the legislator and (as
is equally well established) one seeks to
 achieve this, in the first instance, by giving the
words under consideration their ordinary
grammatical meaning, unless to do so would
lead to an absurdity so glaring that the
Legislature could not have contemplated it.
These three judgments have two things in
common: all three emanate from the Appellate
Division/Supreme Court of Appeal, and all three
were based on a formalistic and text-based view of
statutory interpretation. The foundations of a text-
based (literal) method of interpretation are many:
legal positivism (the essence of law is in the
decree, and law and morality should be
separated), sovereignty of Parliament (the will of
Parliament is expressed in the legislation), as well
as certain formalistic ideas about law, language
and understanding. Bhyat is understandable: it
was decided during the era of sovereignty of
Parliament, sixty-odd years before the
commencement of a new constitutional order
under a supreme and justiciable constitution.
Perhaps we can condone Swanepoel as well, since
judgment was given on 27 May 1994, exactly one
month after the interim Constitution took effect.
However, Frith’s Estate was decided four years
after the 1996 Constitution took effect, or roughly
seven years into the new constitutional era: after
Qozeleni v Minister of Law and Order 1994 (3) SA
625 (E) and Matiso v Commanding Officer, Port
Elizabeth Prison 1994 (4) SA 592 (SE) and S v
Makwanyane (above) and a host of other
influential decisions by the High Courts and the
Constitutional Court.
Criticism of the text-based (literal) approach to
statutory interpretation may be summarised as
follows:

•
In the first instance, the normative role of the
common-law presumptions during the
interpretation process is reduced to a mere
‘last resort’, to be applied only if the legislative
text is ambiguous.

•
 Another point of criticism of this narrow
approach is that words (their literal meaning)
are regarded as the primary
Page 95
index to legislative meaning. According to the
court in R v Hildick-Smith 1924 TPD 68 81—
there is only one kind of interpretation with
one definite object, and that is to ascertain
the true intention of the legislature as
expressed in the Act.

•
Other important internal and external aids to
interpretation, which could be applied to
establish the meaning of text-in-context, are
ignored. The context of the legislation is only
used if the text is not clear. Unless the textual
meaning is ambiguous or unclear, the
interpreter will not have recourse to the wide
range of aids to interpretation at his disposal.

•
As a result, the ‘intention of the legislature’ is
ultimately dependent on how clear the
 language used in the legislation may be to the
particular court!

•
Very few texts are so clear that only one final
interpretation is possible. The mere fact that a
discipline such as interpretation of statutes
exists would, by implication, suggest that
legislation is seldom clear and unambiguous.

•
The text-based approach leaves very little
room for judicial law-making, and the courts
are seen as mere mechanical interpreters of
the law (the so-called ‘his master’s voice’ role).
This view creates the impression that once the
legislature has spoken, the courts cease to
have any law-making function. According to
the text-based approach, the legislature has
enacted everything it wanted to, and is aware
of the existing law. As a result of a slavish and
rigid adherence to the doctrine of the
separation of powers, the courts may only
interpret the law, not make it. The legislature
creates the legislation, and the courts have no
law-making capacity with regard to legislation,
except in very exceptional cases, where the
courts deviate from ‘the literal meaning’ of the
legislation to apply some sort of corrective
interpretation. Generally speaking, it is the
function of the legislature to correct omissions
and bad drafting in legislation. The well-known
maxims (iudicis est ius dicere sed non dare and
the casus omissus rule) form the basis of the
general principle that no addition to or
subtraction from the legislative text is possible.
According to the maxim iudicis est ius dicere
sed non dare it is the function of the court to
interpret and not to make the law (Harris v Law
Society of the Cape of Good Hope 1917 CPD
449). A rigid obsession with this rule is the
result of a misunderstanding of the separation
of powers doctrine, with
Page 96
the result that this principle was conveniently
used to justify the text-based approach to
statutory interpretation. The casus omissus
 rule (courts may not supply omissions in
legislation) is also derived from the principle
that the function of the courts is to interpret
law and not to make it (Ex Parte Slater, Walker
Securities (SA) Ltd 1974 (4) SA 657 (W)).
Case law examples:
Within the confines of sovereignty of Parliament
prior to 1994, which resulted in a blinkered ‘his
master’s voice’ role of the judiciary, the application
of an orthodox text-based approach had another,
darker side. In the absence of a justiciable bill of
rights under apartheid rule, the clear, plain
meaning of obnoxious legislation not only became
the justification for executive-minded decisions by
the courts, but was also used as a convenient
excuse for avoiding inconvenient moral dilemmas,
as two (in)famous cases dealing with the Group
Areas Act 36 of 1966 illustrate.
The following remark of King J in S v Adams
1979 (4) SA 793 (T) 801 illustrates the moral
dilemma of a judge trapped in the ‘black-letter’
confines of parliamentary sovereignty, and
confronted by the harsh effects of the letter of the
law:
An Act of Parliament creates law but not
necessarily equity. As a Judge in a Court of
law I am obliged to give effect to the
provisions of an Act of Parliament. Speaking
for myself and if I were sitting as a court of
equity, I would have come to the assistance of
the appellant. Unfortunately, and on an
intellectually honest approach, I am compelled
to conclude that the appeal must fail.
On the other hand, Holmes JA in Minister of the
Interior v Lockhat 1961 (2) SA 587 (A) 602 clearly
did not experience the same ethical soul-searching
in deciding whether to follow the ‘plain meaning’ of
the legislation (emphasis added):
Page 97
The Group Areas Act represents a colossal social
experiment and a long term policy. It necessarily
involves the movement out of Group Areas of
numbers of people throughout the country.
Parliament must have envisaged that compulsory
population shifts of persons occupying certain
areas would inevitably cause disruption and, within
the foreseeable future, substantial inequalities.
Whether all this will ultimately prove to be for the
common weal of all the inhabitants, is not for the
Court to decide . . . the question before this Court
is the purely legal one whether this piece of
legislation impliedly authorises, towards the
attainment of its goal, the more immediate and
foreseeable discriminatory results complained of in
this case. In my view . . . it manifestly does.
This text-based approach was the predominant
approach to interpretation in South Africa prior to
1994, and regrettably many of the courts still
follow the traditional plain meaning approach. In
Public Carriers Association v Toll Road
Concessionaries (Pty) Ltd 1990 (1) SA 925 (A)
934J 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.
5.3.2 The text-in-context approach
The legislative function is a purposive activity. In
terms of the text-in-context approach, the purpose
or object of the legislation (the legislative scheme)
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.
In contrast to the exaggerated emphasis on the
legislative text, the mischief rule (see 6.4.4 below)
is regarded as the forerunner of a text-in-context
approach to interpretation (Du Plessis 2002: 96).
The mischief rule acknowledges the application of
external aids: the common law prior to the
enactment of the legislation, defects in the law not
provided for by the common law, whatever new
remedies (solutions) the legislature provides, and
the true reason for the remedies. The search for
the purpose of legislation requires a purpose-
orientated approach which recognises the
contextual framework of the legislation right from
the outset, and not only
Page 98
in cases where a literal, text-based approach has
failed. The text-in-context approach provides a
balance between grammatical and overall
contextual meaning. The interpretation process
cannot be complete until the object and scope of
the legislation (ie its contextual environment) are
taken into account. In this way the flexibilities and
peculiarities of language, and all the intra-textual
and extra-textual factors, are accommodated in
the continuing time-frame within which legislation
operates.
Case law example:
In his famous minority decision in Jaga v Dönges
1950 (4) SA 653 (A), Schreiner JA identified the
following guidelines for interpretation of statutes:

•
Right from the outset the interpreter may take
the wider context of provision (eg its ambit and
purpose) into consideration with the legislative
text in question.

•
 Irrespective of how clear or unambiguous the
grammatical meaning of the legislative text
may seem to be, the relevant contextual
factors (eg the practical effects of different
interpretations, as well as the background of
the provision) must be taken into account.

•
Sometimes this wider context may even be
more important than the legislative text.

•
Once the meaning of the text and context
(language in context) is determined, it must be
applied, irrespective of whether the interpreter
is of the opinion that the legislature intended
something else.
This was one of the first concrete efforts in South
African law to utilise the wider context to move
beyond the plain grammatical meaning to ascertain
the legislative purpose. After that, a few courts
were more prepared to interpret the text of
legislation in the light of the wider contextual
framework.
 During the 1970s Cowen (1976 and 1980)
started to question the theoretical foundations of
literalism and the ‘intention of the legislature’.
Unfortunately, this process of change proved slow,
with progression alternating with regression. In
University of Cape Town v Cape Bar Council 1986
(4) SA 903 (A) Rabie CJ held that the court had to
examine all the contextual factors in ascertaining
the intention of the
Page 99
legislature, irrespective of whether or not the
words of the legislation were clear and
unambiguous.
According to the text-in-context approach, the
judiciary has inherent law-making discretion during
statutory interpretation; although an exception to
the rule, the courts may modify or adapt the initial
meaning of the text to harmonise it with the
purpose of the legislation. The role of the courts is
therefore far more flexible, and is not limited to
mere textual analysis and mechanical application
of the legislation. However, this discretion is
qualified by the prerequisite that modification of
the meaning of the text is possible (and
admissible) only if and when the scope and
purpose of the legislation is clear and supports
such a modification. Such a law-making function of
the judiciary is not an infringement of the
legislature’s legislative function, but merely a
logical extension of the powers of the court during
the interpretation and application of the relevant
legislation in each practical instance. For the text-
in-context approach the use of the common-law
presumptions, as well as all the various aids to
interpretation, are very important tools in the
quest for the scope and purpose of legislation.

5.3.3 The influence of the supreme

Constitution
Although most academics in South Africa before
1994 propagated a text-in-context (purposive)
method of statutory interpretation that recognised
the vital importance of the legislative context, few
of the courts actually adopted a less formalistic
approach to interpretation. However, since 27 April
1994 the (largely academic) debate about a text-
based approach versus a text-in-context approach
to statutory interpretation has become irrelevant.
Since both the interim Constitution (s 35(3)) and
the 1996 Constitution (s 39(2)) included an
express and mandatory interpretation provision,
statutory interpretation (like all law in South
Africa) now has to be conducted within the value-
laden framework of the supreme Constitution
which is the highest law of the land. Apart from the
constitutional values, the interpretation of statutes
was transformed by six provisions of the
Constitution, in particular: s 1 (the foundational
provision); s 2 (supremacy of the Constitution); s
7 (the obligation clause); s 8 (the application
clause); s 36 (the limitation clause) and s 39 (the
interpretation clause).

Constitutional supremacy

Section 1 of the Constitution is the foundational

clause:
Page 100
The Republic of South Africa is one, sovereign,
democratic state founded on the following
values:
(a)
Human dignity, the achievement of equality
and the advancement of human rights and
freedoms.

(b)
Non-racialism and non-sexism.

(c)
Supremacy of the constitution and the rule of
law.

(d)
Universal adult suffrage, a national common
voters roll, regular elections and a multi-party
system of democratic government, to ensure
accountability, responsiveness and openness.
Section 2 is the constitutional supremacy clause.
According to Du Plessis (1997: 812) s 1(c)
(referring to the supremacy of the Constitution and
the rule of law) merely anticipates the supremacy
of the Constitution; s 2 unambiguously confirms it:
This Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is
 invalid, and the obligations imposed by it must
be fulfilled.
Section 2 must be read with s 7 of the
Constitution, which states that the Bill of Rights is
the cornerstone of the South African democracy,
and that the state must respect, protect, promote
and fulfil the rights in the Bill of Rights, s 8(1),
which states that the Bill of Rights applies to all
law, and binds the legislature, the executive, the
judiciary and all organs of state, as well as s 8(2),
which provides that the Bill of Rights applies to
both natural and juristic persons; and s 237, which
states that all constitutional obligations must be
performed diligently and without delay. If all these
provisions are read together, one principle is
indisputable: the Constitution is supreme, and
everything and everybody are subject to it. This
means that the Constitution cannot be interpreted
in the light of the Interpretation Act or the Roman-
Dutch common law or traditional customary law.
Everything and everybody, all law and conduct, all
cultural traditions and legal dogmas and religious
perceptions, all rules and procedures, and all
theories, canons and maxims of interpretation are
influenced and ultimately qualified by the
Constitution. In Holomisa v Argus Newspapers Ltd
1996 (2) SA 588 (W) 618 Cameron J summarised
this principle very well:
The Constitution has changed the ‘context’ of
all legal thought and decision-making in South
Africa.

The interpretation clause

Section 39(2) of the Constitution (the

interpretation of statutes in general) provides:
Page 101
When interpreting any legislation, and when
developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and objects of the Bill of
Rights.
Section 39(2) deals with the interpretation of
legislation other than the Bill of Rights. The
Constitution does not expressly prescribe a
contextual (purposive) approach to statutory
interpretation. However, s 39(2) is a peremptory
provision, which means that all courts, tribunals or
forums must review the aim and purpose of
legislation in the light of the Bill of Rights: plain
meanings and so-called clear, unambiguous texts
are no longer sufficient. Even before a particular
legislative text is read, s 39(2) ‘forces’ the
interpreter to promote the values and objects of
the Bill of Rights. This inevitably means that the
interpreter is consulting extra-textual factors
before the legislative text is even considered.
Factors and circumstances outside the legislative
text are immediately involved in the interpretation
process. In short, interpretation of statutes starts
with the Constitution and not with the legislative
text! Is this a typical academic flight of fancy? No,
I am merely quoting the Constitutional Court:
Ngcobo J said the following in Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and
Tourism 2004 (4) SA 490 (CC) paras 72, 80 and
90 (emphasis added):
The Constitution is . . . the starting point in
interpreting any legislation. . . . first, the
interpretation that is placed upon a statute
 must, where possible, be one that would
advance at least an identifiable value enshrined
in the Bill of Rights; and, second, the statute
must be capable of such interpretation . . . The
emerging trend in statutory construction is to
have regard to the context in which the words
occur, even where the words to be construed
are clear and unambiguous.
In Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd: In
re Hyundai Motor Distributors (Pty) Ltd v Smit
2001 (1) SA 545 (CC) para 21 Langa DP explained
the constitutional foundation of this ‘new’
interpretation methodology as follows (emphasis
added):
Section 39(2) of the Constitution . . . means
that all statutes must be interpreted through
the prism of the Bill of Rights. All law-making
authority must be exercised in accordance with
the Constitution. The Constitution is located in
a history which involves a transition from a
society based on division, injustice and
exclusion from the democratic process to one
 which respects the dignity of all citizens, and
includes all in the process of governance. As
such, the process of
Page 102
interpreting the Constitution must recognise
the context in which we find ourselves and the
Constitution’s goal of a society based on
democratic values, social justice and
fundamental human rights. This spirit of
transition and transformation characterises the
constitutional enterprise as a whole.

Constitutional values

As was explained earlier, the traditional South

African approach to statutory interpretation was
characterised by a strict devotion to the legislative
text, and by the sovereignty of Parliament. Now
the supreme Constitution, underpinned by
universally accepted values and norms, is the
fundamental law of the land. It is the ultimate
value-laden yardstick against which nearly
everything is viewed and reviewed. To quote
Mokgoro J in S v Makwanyane (above) 498H-I:
 With the entrenchment of the Bill of
Fundamental Rights and Freedoms in a
supreme Constitution, however, the
interpretive task frequently involves making
constitutional choices by balancing competing
fundamental rights and freedoms. This can
often only be done by reference to a system of
values extraneous to the constitutional text
itself, where these principles constitute the
historical context in which the text was adopted
and which help to explain the meaning of the
text. The Constitution makes it particularly
imperative for courts to develop the
entrenched fundamental rights in terms of a
cohesive set of values, ideal to an open and
democratic society. To this end common values
of human rights protection the world over and
foreign precedent may be instructive.
The preamble to the Constitution refers to a
society based on democratic values, social justice
and fundamental human rights. What are these
democratic values? They are, amongst others,
freedom, equality and human dignity (s 7(1)), the
achievement of equality, the advancement of
human rights and freedoms, non-racialism and
non-sexism. Sections 36(1) and 39(1) refer to an
open and democratic society based on freedom,
equality and human dignity. It appears as if these
are the three core values on which the Constitution
rests: freedom, equality and human dignity. The
spirit, purport and objects of the Bill of Rights have
to be promoted during the process of statutory
interpretation. In other words, the courts are the
guardians and enforcers of the values underlying
the Constitution. As a matter of fact, in terms of
the official oath of judicial officers (item 6(1) of
Schedule 2 of the Constitution)
Page 103
the courts have to uphold and protect the
Constitution and the human rights in it. This
means that the courts will have to make certain
value judgements during the interpretation and
application of all legislation. Since the values
underlying the Constitution are not absolute, the
interpretation of legislation is also an exercise in
the balancing of conflicting values and rights.
Consequently, the interpretation of statutes can no
longer be a mechanical reiteration of what was
supposedly ‘intended’ by Parliament, but is rather
what is permitted by the Constitution.

The impact of constitutionalism

A supreme constitution is not merely another

legislative document, but the supreme law (lex
fundamentalis) of the land. A constitutional state
(which has a supreme constitution) is underpinned
by two foundations: a formal one (which includes
aspects such as the separation of powers, checks
and balances on the government, and the principle
of legality: in other words, the institutional power
map of the country); and a material or substantive
one (which refers to a state bound by a system of
fundamental values such as justice and equality).
In S v Makwanyane (above) para 262 the late
Mahomed J referred to a supreme constitution in
the following ringing tones (emphasis added):
All constitutions seek to articulate, with
differing degrees of intensity and detail, the
shared aspirations of a nation; the values
which bind its people, and which discipline its
government and its national institutions; the
basic premises upon which judicial, legislative
and executive power is to be wielded; the
constitutional limits and the conditions upon
which that power is to be exercised; the
national ethos which defines and regulates that
ethos; and the moral and ethical direction
which that nation has identified for its future.
In some countries, the Constitution only
formalises, in a legal instrument, a historical
consensus of values and aspirations evolved
incrementally from a stable and unbroken past
to accommodate the needs of the future. The
South African Constitution is different: it
retains from the past only what is defensible
and represents a decisive break from, and a
ringing rejection of, that part of the past which
is disgracefully racist, authoritarian, insular,
and repressive and a vigorous identification of
and commitment to a democratic,
universalistic, caring and aspirationally
egalitarian ethos, expressly articulated in the
Constitution.
The preamble to the interim Constitution stated
that the Republic of South Africa is a constitutional
state (regstaat), but
Page 104
the Constitution of 1996 does not expressly refer
to a constitutional state. Nevertheless, there are a
number of provisions in the Constitution which
imply a constitutional state: the preamble refers
to a society based on democratic values, social
justice and fundamental human rights; s 1 states
that South Africa is, amongst other things, a
democratic state founded on the supremacy of the
Constitution and the rule of law; and s 7
entrenches the Bill of Rights as the cornerstone of
the democracy. As the supreme law of the land,
the Constitution not only deals with the
institutional structures of government and formal
checks on state power, but is first and foremost a
value-laden document. It is underpinned by a
number of express and implied values and norms.
These fundamental principles are not only the
ideals to which the South African society has
committed itself, but they form the material
(substantive) guidelines which must regulate all
the activities of the state. The spirit of the Bill of
Rights (s 39(2)) is a reflection of these
fundamental principles. Apart from in the
Constitution itself, these values are found in
various sources: eg the principles of international
human rights law and foreign case law dealing with
similar constitutions (s 39(1)), the African concept
of ubuntu (see also 6.3.2 below) and our common-
law heritage.
Froneman J explained the demands of the
supreme Constitution on statutory interpretation as
follows in Qozeleni v Minister of Law and Order
(above) at 635 and 637:
The only material difference between that
common-law approach and the present
approach is the recognition that the previous
constitutional system of this country was the
fundamental ‘mischief’ to be remedied by the
application of the new Constitution. That
Rubicon needs to be crossed not only
intellectually, but also emotionally, before the
interpretation and application of the present
 Constitution is fully to come into its own right
. . . For the Constitution, and particularly
chapter 3 thereof, however, to fulfil its purpose
it needs to become, as far as possible, a living
document, and its contents a way of thinking,
for all citizens of this country. The
establishment of a culture of constitutionality
can hardly succeed if the Constitution is not
applied daily in our courts, from the highest to
the lowest.
Unfortunately, not all the courts in South Africa
hold this view, and some continue to follow a
literalist approach to interpretation, without
reference to the supreme Constitution and its
values. In Kalla v The Master 1995 (1) SA 261 (T)
269C-G the court held that the traditional rules of
statutory
Page 105
interpretation still formed part of the law of the
land and that they were not affected by the interim
Constitution. Consequently, the orthodox plain
meaning rule was applied: if the text is ambiguous,
the traditional rules of interpretation of statutes
may be applied to find the ‘intention of the
legislature’. In other words, the traditional
common-law rules of statutory interpretation
trumped the supreme Constitution! Other courts
still follow judgments such as this, which means
that for many courts statutory interpretation is still
a mechanical and formalistic exercise. In Geyser v
Msunduzi Municipality 2003 (5) SA 19 (N) 32D-E
the court still emphasised the orthodox primary
rule of interpretation is that the courts must give
effect to the literal or grammatical meaning of the
legislation, and that deviation from this rule will be
allowed only in exceptional circumstances. In
similar vein the court in Mateis v Ngwathe Plaaslike
Munisipaliteit 2003 (4) SA 361 (SCA) held that in
the light of the clear wording of the Act, the word
‘state’ in ss 1 and 3 of State Liability Act 20 of
1957 does not include a municipality. An
interpretation otherwise would mean that the court
will not interpret the Act, but rather amend it. The
court reasoned that it did not have such powers in
cases where the constitutionality of the relevant
statutory provision was not in dispute, or—in
typical orthodox text-based tradition—where the
meaning of the Act under consideration was clear.

5.3.4 Practical, inclusive method of

interpretation
Interpretation of statutes is a process, but it is not
a predetermined mechanical process consisting of
mutually exclusive steps based on aspects such the
clarity of the text (eg the text-based contention
that context becomes important only if and when
the text seems unclear, and so on). Examples of
such incremental ‘only if’ mind-sets are still doing
the rounds. Kellaway (1995: 187) suggests a so-
called ‘triple-synthesis’ of literalism, intentionalism
and purposivism, calling for a ‘careful
appraisement of each of these determining factors
or guides.’ The problem with this approach is that
the foundations of the three factors are so
irreconcilable that the synthesis (amalgamation)
will necessarily result in the usual text-based,
formalistic, step-by-step method of legal
reasoning; only if the literal meaning of the text is
not clear may the interpreter embark on a search
for the legislature’s intention and the legislative
purpose.
Page 106
Case law example:
A text-based, hybrid approach was used by the
Western Cape High Court in Shackleton Credit
Management (Pty) Ltd v Scholtz (unreported case
12611/2010, Western Cape High Court). The court
had to decide whether a close corporation was to
be regarded as a company within the meaning of s
13(1)(g) of the Prescription Act 68 of 1969, and
considered three interpretation approaches:

•
the golden rule (the plain meaning of the text
must be followed unless it leads to an absurdity
or a result not intended by the legislature);

•
the purposive approach (the words must be
read in context); and

•
 reading-in in an attempt to make sense of the
legislation (the creative role of the court).
There are two problems with this reasoning: first,
it is also based on a mutually exclusive way of
thinking: if method A does not work the court will
try method B, and so on; and second, to argue
that a court will use ‘reading in’ (a form of
corrective interpretation) as a method to make
sense of the legislation is to put the cart before the
horse. After all (as will be discussed in Chapter 7
below), the legislative purpose must be clear
before a court may apply corrective interpretation;
it is ludicrous to suggest that a court may read
words into the legislation in order to understand it
(make sense of it)!
In Govender v Minister of Safety and Security 2001
(4) SA 273 (SCA) the court acknowledged that
interpretation of legislation under the Constitution
requires a new mind-set: the court has to sail
between the dangers of the Scylla of the old-style
literalism and the Charybdis of judicial law-making.
It would seem that the court was trying to suggest
that interpretation involves a journey between an
orthodox text-based approach and free-floating
judicial law-making, and that the correct course is
to be plotted somewhere between the two.
However, it is not entirely clear whether the court
was in actual fact trying to propagate a particular
approach to interpretation—the phrase ‘between
Scylla and Charybdis’ does not refer to avoiding
both possible dangers by trying to find some safe
middle ground, but rather to having to choose the
lesser of two evils.
Page 107
Please note:
In Greek mythology, Scylla and Charybdis were
two monsters who lurked on opposite sides of the
Strait of Messina (between Italy and Sicily). Scylla
was a six-headed monster and Charybdis was a
dangerous whirlpool, and a ship sailing the strait
was bound to be destroyed by one of the
monsters. The legend of the monsters gave rise to
a number of phrases: ‘between Scylla and
Charybdis’; ‘between the devil and the deep blue
sea’; and ‘between a rock and a hard place’—
meaning a situation where one has to choose
between two equally unattractive options.
Fortunately there is a practical, sensible and
theoretically correct alternative. Du Plessis &
Corder (1994: 73-74) originally suggested five
practical interrelated techniques for constitutional
interpretation. However, Du Plessis (2002: 197-
274) has applied this practical and inclusive
method for statutory interpretation as well. These
suggested techniques form the basis of a practical,
inclusive method of interpretation which is used in
the following chapter of this book. These
components of a practical methodology are
complementary and interrelated, and should be
applied in conjunction with one another.
Eskridge (2001: 207) also describes a pragmatic
approach to interpretation which is based on a—
grab bag of different techniques, including not
just textual analysis, but also sophisticated
appreciation of the goals underlying the legal
text and the consequences of adopting
different interpretations. Law involves a
 balance between form and substance, tradition
and innovation, text and context.
However, the Du Plessis model is much more than
that. As a result of the influence of the Constitution
and the constitutional values, this suggested
practical, inclusive method of interpretation also
includes a strong normative component. This
practical and inclusive method consists of the
following components:

Words and phrases: the language aspect

This aspect acknowledges the importance of the

role of the language of the legislative text. It
focuses on the linguistic and grammatical meaning
of the words, phrases, punctuation,
Page 108
sentences and other structural components of the
text, and on the rules of syntax (the rules dealing
with the order of words in a sentence). However,
this does not imply a return to literalism and the
orthodox text-based interpretation. It merely
acknowledges the importance of the legislative text
in the complex process of interpretation.
Structure and context: the systematic aspect

This method is concerned with the clarification of

the meaning of a particular legislative provision in
relation the legislative text as a whole. This is also
known as a holistic approach, and refers to the
principle that words, phrases and provisions cannot
be read in isolation. The emphasis on the
‘wholeness’ is not restricted to the other provisions
and parts of the legislation, but also takes into
account all other contextual considerations (eg the
social and political environments) in which the
legislation operates.

Teleological interpretation: the value-based aspect

This aspect emphasises fundamental constitutional

values and value-coherent interpretation. The aim
and purpose of the legislation must be ascertained
against the fundamental constitutional values; in
other words, s 39(2) of the Constitution. The
fundamental values in the Constitution form the
foundation of a normative, value-laden
jurisprudence during which legislation and actions
are evaluated against (and filtered through) those
constitutional values.
Historical aspect

This method refers to the use of the historical

context of the legislation. The historical context
includes factors such as the circumstances which
gave rise to the adoption of the legislation
(mischief rule) and the legislative history (prior
legislation and preceding discussions). Although it
is an important aspect of interpretation, the
historical perspective cannot be decisive on its
own.

Comparative aspect

This aspect refers to the process (if possible and

necessary) during which the court examines the
interpretation of similar legislation by foreign
courts, as well as international law.
This inclusive method of interpretation is not
really new or radical. It merely brings together all
the different aspects or
Page 109
techniques necessary for interpretation: the
enacted law-text with all the linguistic complexities
of grammar, syntax and spelling; the context of
the text, including the relationship of different
parts of the text with another, other texts outside
the legislation (such as the Constitution, other
legislation as well as relevant surrounding
circumstances); the purpose (legislative scheme)
of the legislation, as well the important substantive
element of fundamental constitutional values; the
historical context of the legislation such as the
discussions and deliberations preceding the
passing of the legislation, the mischief rule,
explanatory memoranda and policy documents;
and the comparative dimension (foreign case law
and international law). It is not just another
template for a mechanical application of words and
phrases with passing reference to values and
context. It is a total, integrated framework with
which (and within which) interpretation of statutes
as a process should take place; a practical, all-
encompassing methodology to deal with the
complexities and nuances of statutory
interpretation.
Case law example:
These techniques are not merely academic
exercises. Although the courts do not expressly
apply this inclusive method of interpretation, some
(or most) of these components could be identified
in certain judgments. For instance, with the
exception of comparative interpretation, the other
components may be identified in the following
dictum from Minister v Land Affairs v Slamdien
1999 (4) BCLR 413 (LCC) 422 para 17 (emphasis
added):
The purposive approach as elucidated in the
decisions of the Constitutional Court and this
Court requires that one must:

(i)
in general terms, ascertain the meaning of the
provision to be interpreted by an analysis of its
purpose and, in doing so;

(ii)
have regard to the context of the provision in
the sense of its historical origins;

(iii)
have regard to its context in the sense of the
statute as a whole, the subject matter and
broad objects of the statute and the values
which underlie it;
Page 110

(iv)
have regard to its immediate context in the
sense of the particular part of the statute in
which the provision appears or those provisions
with which it is interrelated;

(v)
have regard to the precise wording of the
provision . . .
 Page 111

Chapter 6
A practical, inclusive
methodology: The five
interrelated dimensions of
interpretation

6.1 The language dimension

6.1.1 Basic principles

(a) The initial meaning of the text

The text-based approach no longer has any place

in statutory interpretation. Of course the reading of
the text is necessary, but, as has been pointed
out, the legislation as a whole and its context play
an equally important role in the interpretation
process. It also has to be borne in mind that the
purpose of the legislation will still qualify the
meaning of the text. The basic language principles
about the meaning of the text may therefore be
regarded as, at best, initial and merely tentative
rules. In the final instance, it is the purpose of the
legislation, viewed against the fundamental rights
contained in the Constitution, which will qualify the
meaning of the text.
The interpretation process begins with the
reading of the legislation concerned. The ordinary
meaning must be attached to the words (Union
Government v Mack (above)). Most readers will
agree that this is a pretty standard starting point
for reading a text. Unfortunately, what was once a
basic principle of language was subsequently
elevated to the primary
Page 112
rule of interpretation. For example, in Volschenk v
Volschenk 1946 TPD 486, it was held that the most
important rule of interpretation was to give words
their ordinary, literal meaning. In Sigcau v Sigcau
1941 CPD 334 the court argued that ‘ordinary
meaning’ includes the ordinary grammatical
meaning. Furthermore, in Association of
Amusement and Novelty Machine Operators v
Minister of Justice 1980 (2) SA 636 (A) the court
held that ‘ordinary meaning’ means colloquial
(everyday conversational) speech.
 Remember, the principle that the ordinary
meaning should be given to the words of the
legislation is only the starting point of the
interpretation process. It means that the
interpreter should not attach an artificial (strained
or unnatural) meaning to the text. However, the
context of the legislation, including all the factors
both inside and outside the text, which could
influence and qualify the initial meaning of the
provision, has to be taken into account right from
the outset. In the case of technical legislation
dealing with a specific trade or profession, words
that have a specific technical meaning in that field
which is different from the ordinary colloquial
meaning have to be given that specialised meaning
(Kommissaris van Doeane en Aksyns v Mincer
Motors 1959 (1) SA 114 (A)).

(b) Every word is important

The principle that a meaning has to be assigned to

every word derives from the rule that words are to
be understood according to their ordinary
meaning. Strictly speaking, this is a principle which
applies when any text is read. Legislation should
be interpreted in such a way that no word or
sentence is regarded as redundant (superfluous or
unnecessary). In Keyter v Minister of Agriculture
1908 NLR 522, it was pointed out that the court’s
function is to give effect to every word, unless it is
absolutely essential to regard it as unwritten. In
practice, however, a court will not easily decide
that words contained in legislation are superfluous
(Commissioner for Inland Revenue v Golden
Dumps (Pty) Ltd 1993 (4) SA 110 (A)).
Sometimes, however, it is impossible to assign a
meaning to every word in a statute, as tautological
(unnecessarily repetitive) provisions are often
added as a result of excessive caution (ex
abundanti cautela). Overlapping and repetition
often occur, because the drafters of legislation are
overcautious in guarding against anything
important being omitted. The resulting redundancy
may be ignored in the interpretation of a clause (R
v Herman 1937 AD 168). Steyn (1981: 20) points
out
Page 113
that if superfluous words help to ascertain the
meaning of other words, they are not really
unwanted and the provision should be read as a
whole in order to obtain the meaning. In Secretary
for Inland Revenue v Somers Vine 1968 (2) SA
138 (A), the court stated clearly that the principle
that a meaning should be assigned to every word
is not absolute. This is correct, because the
purpose of the legislation should be the deciding
factor in determining whether a word is
superfluous or not. This principle is also related to
the presumption that legislation does not contain
futile or nugatory provisions (see 6.2.4 below).

(c) No addition or subtraction

It is a basic rule of interpretation that there may

be no additions to or subtractions from the words
used in the legislation. This is a default setting,
based on the separation of powers principle.
However, this is only a basic default principle,
because in the final analysis, the purpose of the
legislation is the qualifier of the meaning of the
text. Unfortunately, the courts have elevated this
principle to another so-called ‘primary rule’. For all
practical purposes, it is sufficient to know that the
courts may not supply omissions in legislation at
will. If, however, the purpose of the legislation is
clear, the court is the last link in the legislative
process, and should (according to Labuschagne
(1985: 60)) ensure that the legislative process
reaches a just and meaningful conclusion. (This
aspect of interpretation will be discussed in greater
detail in Chapter 7 below.)

(d) The continuing time-frame of legislation: the law is

always speaking

If words bear their ordinary meaning—initially at

least—the question is whether words in existing
legislation should interpreted according to their
present-day meaning, or whether they should
retain the meaning they had when the legislation
was passed. Cowen (1980: 391) questioned the
principle that words should retain their original
meaning: it indicates a tendency to glance over
one’s shoulder, based on an incorrect
reconstruction of an historical legislature’s
thoughts (the original intent principle), and
negates the future-oriented frame of reference of
legislation.
Initially the courts followed the general rule. In
Finbro Furnishers (Pty) Ltd v Registrar of Deeds,
Bloemfontein 1985 (4) SA 773 (A), the Appellate
Division held that unless later legislation expressly
provided otherwise, words in legislation
Page 114
had to be construed according to their meaning on
the day on which the legislation was adopted. This
judgment was confirmed in Minister of Water
Affairs and Forestry v Swissborough Diamond
Mines (Pty) Ltd 1999 (2) SA 345 (T): the intention
of the legislature had to be determined in view of
the meaning of the provision at the time when it
was enacted.
However, it would seem that the courts might in
future be less rigid. In Golden China TV Game
Centre v Nintendo Co Ltd 1997 (1) SA 405 (A) it
was held that the general scheme (purpose) of an
Act suggested that the definitions in that Act were
to be interpreted flexibly in order to deal with new
technologies on a continuous basis, rather than to
interpret the provisions narrowly, forcing the
legislature periodically to update the Act. In Fourie
v Minister of Home Affairs 2005 (3) SA 429 (SCA)
paras 136-137 Farlam JA (albeit in a minority
judgment) refers to a presumption of updating
interpretation: an updated interpretation should be
given to ‘ongoing Acts’ (legislation that will
continue to apply in the future), except in the case
of those rare statutes intended to be of unchanging
effect (so-called ‘fixed-time Acts’).
When considering this continuing time-frame of
legislation it must be borne in mind that all
legislation has to be interpreted so as to promote
the spirit and scope of the Bill of Rights, but that a
supreme constitution is not a static document, nor
are the values underpinning it static. In Nyamakazi
v President of Bophuthatswana 1992 (4) SA 540
(BGD) 567H Friedman J stated that a supreme
constitution must be interpreted in the context and
setting existing at the time when a case is heard,
and not when the legislation was passed, otherwise
the growth of society will not be taken into
account:
 These are the objectives of the rights contained
therein, the circumstances operating at the
time when the interpretation has to be
determined, the future implications of the
construction, the impact of the said
construction on future generations, the taking
into account of new developments and changes
in society.
In Baloro v University of Bophuthatswana 1995 (4)
SA 197 (B) 241B Friedman J once again explained
this constitutional dynamic (emphasis added):
This Constitution has a dynamic tension
because its aims and purport are to
metamorphose South African society in
accordance with the aims and objects of the
Constitution. In this regard it cannot be viewed
as an inert and stagnant
Page 115
document. It has its own inner dynamism, and
the Courts are charged with effecting and
generating changes.
However, an enactment cannot automatically be
reinterpreted to keep up with the winds of change
in society. The rule of law principle means that
courts will always need to balance the dimension of
futurity with legality issues such as offences,
penalties and vested rights, as well with legal
certainty.

6.1.2 Internal language aids to interpretation

(a) The legislative text in another official language

Prior to the commencement of the interim

Constitution, legislation in South Africa was drafted
in two official languages, and the text in the other
language was used to clarify obscurities. Devenish
(1992: 144) refers to this as ‘statutory
bilingualism’.

Original legislation

The signing of legislation is part of the prescribed

procedure during the passing of original legislation.
Old order legislative texts were signed alternately
(in turn) in the languages in which they were
drafted, and the signed text was enrolled for
record at the Appellate Division. In case of an
irreconcilable conflict between the various
legislative texts, the signed one prevailed. This
principle was expressly included in the 1961 and
1983 Constitutions, as well as in the interim
Constitution. The 1996 Constitution does not refer
to irreconcilable conflicts between texts of other
legislation. In Du Plessis v De Klerk (above) para
44 the Constitutional Court referred, with apparent
approval, to the existing legal position regarding
conflicting versions of the same legislative text. In
terms of item 27 of Schedule 6, these provisions
do not affect the safekeeping of legislation passed
before the 1996 Constitution came into operation.
It should also be noted that s 126 of the
Constitution (‘Publication of municipal by-laws’)
does not mention the signing of new municipal
legislation.
With regard to the 1996 Constitution itself, s 240
of the Constitution states that the English text will
prevail in the event of any inconsistency between
the different texts. The Constitution also provides
(ss 82 and 124) that the versions of all new
national and provincial legislation which have been
signed by the President or a provincial premier
respectively, has to be entrusted to the
Constitutional Court for safekeeping. The signed
version will be conclusive evidence of the
provisions of that legislation.
Page 116
The signed version of the legislative text does not
carry more weight simply because that is the one
which was signed:

•
The signed version is conclusive only when
there is an irreconcilable conflict between the
versions (Handel v R 1933 SWA 37). In other
words, the signed version is used as a last
resort to avoid a stalemate.

•
If the one version of the text is wider than the
other (eg one version prescribes a penalty of
imprisonment and a fine, and the other only a
fine), then the common-denominator rule is
followed, and only a fine will be imposed. The
texts are read together to establish the
common denominator (Jaffer v Parow Village
Management Board 1920 CPD 267).
•
If the versions differ but there is no conflict,
the versions complement one another and they
have to be read together. An attempt should
be made to reconcile the texts with reference
to the context and the purpose of the
legislation (Zulu v Van Rensburg 1996 (4) SA
1236 (LC)).

•
Even the unsigned version of the legislative
text may be used to determine the intention of
the legislature (Commissioner of Inland
Revenue v Witwatersrand Association of Racing
Clubs 1960 (3) SA 291 (A) 302A–B).

•
Because statutes are signed using alternate
languages, amendment Acts may create a
problem. Suppose the Afrikaans version of a
statute was signed but the English version of
the amendment Act was signed. Which one of
the signed versions of the amendment Act will
prevail in case of an irreconcilable conflict?
 There are conflicting answers to this question,
but the most acceptable solution was put
forward in R v Silinga 1957 (3) SA 354 (A). The
court suggested that the amendment Act be
regarded as part of the original statute. The
version of the statute signed originally will
prevail in the case of an irreconcilable conflict.

Subordinate legislation

There are no statutory or constitutional rules about

conflicting language versions of subordinate
legislation. In practice all the versions of
subordinate legislation will be signed, and the
signed text cannot be relied on to resolve conflicts
between texts. If the texts do differ, they must be
read together (Du Plessis v Southern Zululand
Rural Licensing Board 1964 (4) SA 168 (D)). If
there is an irreconcilable conflict between the
various texts, the court will give preference to the
one that benefits the person concerned (Bolnik v
Chairman of the Board appointed by the SA Council
of Architects 1982 (2) SA 397 (C)).
Page 117
This approach is based on the presumption that
the legislature does not intend legislation that is
futile or nugatory (R v Shoolman 1937 CPD 183).
If the irreconcilable conflict leads to subordinate
legislation that is vague and unclear, the court
may declare it invalid (Kock v Scottburgh Town
Council 1957 (1) SA 213 (D)).
Criticism
All versions of the legislative text should be read
together from the outset, as they all are part of
the structure of the same enacted law-text. The
arbitrary manner of conflict resolution (ie that the
signed version automatically prevails) is merely a
statutory confirmation of a text-based approach,
because the purpose of the legislation is ignored if
there is an irreconcilable conflict between the two
versions of the legislative text. It could well be that
the unsigned version reflects the true purpose of
the provision, and that the signed text is the
incorrect one. In following the signed version
‘blindly’, the purpose of the legislation could be
defeated by the court! In the light of the
interpretation clause in the Constitution (s 39(2)),
as well as of the principle that legislation should as
far as possible be interpreted to render it
constitutional, the following solution is suggested:
in the case of an irreconcilable conflict between
versions of the same legislative text, the text
which best reflects the spirit and purport of the Bill
of Rights must prevail.
Of course, the rules explained above will apply to
old order legislation. If the existing Act was
published in, say, Afrikaans and English, all future
amendment Acts will still have to be adopted and
published in Afrikaans and English (because those
amendments will eventually be incorporated into
the Act). Furthermore, in theory at least,
subordinate legislation issued in terms of an
enabling Act originally published in Afrikaans and
English will also need to be in Afrikaans and
English.
However, South Africa now has 11 official
languages. For a number of practical reasons the
legislation cannot be promulgated in all 11
languages. Since 1998 new Acts of Parliament
have been promulgated only in English. Section
59(1)(a) of the Constitution obliges Parliament to
‘facilitate public involvement in the legislative and
other processes’. One way of doing that is to
publish translations of Bills introduced in
Page 118
Parliament. In addition, the Joint Rules of
Parliament require that a translated version of a
Bill that has been adopted must be submitted
together with the Bill to be signed into law. In
practical terms this means that new Acts of
Parliament are promulgated only in English.

(b) The preamble

Although old order legislation with a preamble is

rare, some private Acts, the new generation public
Acts (eg the South African Schools Act 84 of 1996)
and the Constitution have preambles. The
preamble usually contains a programme of action
or a declaration of intent with regard to the broad
principles contained in the particular statute.
Preambles tend to be programmatic and couched
in general terms, but they may be used during
interpretation of legislation since the text as a
whole should be read in its context. Although a
preamble on its own can never provide the final
meaning of the legislative text, post-1994
preambles should provide the interpreter with a
starting point—it is the key that unlocks the first
door in the process of statutory interpretation.
In Jaga v Dönges (above) Schreiner JA
considered the preamble to be part of the context
of the statute. In a number of recent cases (eg
Qozeleni v Minister of Law and Order (above) 79D-
E and Khala v The Minister of Safety and Security
1994 (4) SA 218 (W) 221) the courts
acknowledged the unqualified application of the
Constitution’s preamble. In National Director of
Public Prosecutions v Seevnarayan 2003 (2) SA
178 (C) 194 the court rejected the argument that
a preamble may be considered only if the text of
the legislation is not clear and ambiguous as an
outdated approach to interpretation.

(c) The long title

The long title provides a short description of the

subject matter of the legislation (see also the
example of an Act in Chapter 2). It forms part of
the statute considered by the legislature during the
legislative process. The role played by the long title
in helping to ascertain the purpose of the
legislation will in each case depend on the
information it contains. The courts are entitled to
refer to the long title of a statute to establish the
purpose of the legislation (Bhyat v Commissioner
for Immigration (above)).
Page 119

(d) The definition clause

Almost all statutes contain a definition clause. This

is an explanatory list of terms in which certain
words or phrases used in the legislation are
defined (see also the example of an Act in Chapter
2 (above)). A definition section is an internal
dictionary for that Act only—the definition section
always starts with the phrase ‘In this Act, unless
the context indicates otherwise . . .’.
A definition in the definition section is conclusive,
unless the context in which the word appears in
the legislation indicates another meaning. In that
case, the court will follow the ordinary meaning of
the word (Brown v Cape Divisional Council 1979
(1) SA 589 (A)). In Kanhym Bpk v Oudtshoorn
Municipality 1990 (3) SA 252 (C) it was held that a
deviation from the meaning in the definition clause
will be justified only if the defined meaning is not
the correct interpretation within the context of the
particular provision.
Practical example:
Let us assume a 17-year-old person applies to be
funded for adult education and training in terms of
the Adult Basic Education and Training Act 52 of
2000. Section 1 of the Act provides the following
definition of ‘adult’:
In this Act, unless the context indicates
otherwise—
“adult” means a person who is sixteen
years or older;
But how can it be that a person of 17 is considered
to be an ‘adult’? After all, s 1 of the Children’s Act
38 of 2005 defines a child as a person under the
age of 18 years, and in terms of s 17 a person only
becomes a major (adult) at the age of 18;
furthermore, in terms of s 28 of the supreme
Constitution a person under the age of 18 is still a
child.
 However, it should be remembered that a
definition in legislation only applies for that
particular legislation. Definitions in other legislation
do not apply, and the definitions in the Children’s
Act and Constitution will apply only to the
Children’s Act and the Constitution respectively—
not to the Adult Basic Education and Training Act.
The aim of the Adult Basic Education and Training
Act is
Page 120
very specific, as it deals with basic education for
older learners; on the other hand, the Children’s
Act deals with (amongst other things) the age of
majority, while s 28 of the Constitution focuses on
the protection of children’s rights.

(e) Express purpose clauses and interpretation guidelines

While a preamble is formulated in wide and general

terms, and the long title is nothing more than a
summary of the contents of an Act, the express
purpose clause and interpretation guidelines
contain more detail and are more focused, and
should be more valuable during the interpretation
process. However, by itself none of them can be
decisive. To take such a view would merely create
a new and sophisticated version of text-based
interpretation. The interpreter must still analyse
the legislative text (as a whole) together with all
internal and external aids.
Examples of a purpose clause and interpretation
guidelines are ss 1 and 3 of the Labour Relations
Act:
1 Purpose of this Act.
The purpose of this Act is to advance
economic development, social justice, labour
peace and the democratisation of the
workplace by fulfilling the primary objects of
this Act, which are—

(a)
to give effect to and regulate the fundamental
rights conferred by section 27 of the
Constitution;

(b)
to give effect to obligations incurred by the
Republic as a member state of the
International Labour Organisation;
(c)
to provide a framework within which
employees and their trade unions, employers
and employers’ organisations can—
(i)
collectively bargain to determine wages, terms
and conditions of employment and other
matters of mutual interest; and
(ii)
formulate industrial policy; and

(d)
to promote—
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee participation in decision-making in
the workplace; and
(iv)
the effective resolution of labour disputes.
 Page 121
3 Interpretation of this Act
Any person applying this Act must interpret
its provisions—

(a)
to give effect to its primary objects;

(b)
in compliance with the Constitution; and

(c)
in compliance with the public international law
obligations of the Republic.

(f) Headings to chapters and sections

Headings to chapters or sections may be regarded

as introductions to those chapters or sections.
Within the framework of text-in-context, headings
may be used to determine the purpose of the
legislation. In the past the courts held the literal
viewpoint that headings may be used by the courts
to establish the purpose of the legislation only
when the rest of the provision is not clear
(Chotabhai v Union Government 1911 AD 24). In
Turffontein Estates v Mining Commissioner
Johannesburg 1917 AD 419 the court pointed out
that the value attached to headings will depend on
the circumstances of each case.
Practical example:
The value of headings to sections and chapters will
differ from one to the other, depending on the
information they contain. A heading stating
‘Regulations’ merely states that the following
section is the enabling clause which authorises a
subordinate lawmaker to issue subordinate
legislation—what you see is what you get. But
headings are also pieces in the bigger jigsaw
puzzle, and they could possibly provide some
important information an interpreter will need. For
example, take Chapter 2 and ss 18 and 19 of the
(since repealed) Human Tissue Act 65 of 1983. The
chapter heading reads ‘TISSUE, BLOOD AND
GAMETES OF LIVING PERSONS, AND BLOOD
PRODUCTS’, and the section headings provide
‘Consent to removal of tissue, blood or gametes
from bodies of living persons’ and ‘Purposes for
which tissue, blood or gametes of bodies of living
persons may be used’. The chapter clearly deals
with the donation of three different things: blood,
tissue and gametes. Now the warning bells should
start to ring: What is the difference
Page 122
between these three, and what are gametes? Back
to the definition section we go. A ‘gamete’ is
defined as either of the two generative cells
essential for human reproduction, and ‘tissue’
means any human tissue, including any flesh,
bone, organ, gland or body fluid, but excluding any
blood or gamete. In practical terms the headings
would have alerted the interpreter to be aware of
the difference between blood, tissue and
gametes—important, since they are very different
as regards both the legal requirements and
consequences associated with the donation of
blood, tissue and gametes respectively.

(g) Schedules

Schedules serve to shorten and simplify the

content matter of sections in legislation. The value
of a schedule during interpretation depends on the
nature of the schedule, its relation to the rest of
the legislation, and the language in which the
legislation refers to it. The general rule is that
schedules, which expound sections of an Act,
should have the same force of law as a section in
the main Act. An example of a schedule is
Schedule 1 of the Constitution (which contains the
description of the national flag). It should be clear
that schedules have to be consulted when
interpreting provisions in the main part of the Act.
In the case of conflict between the schedule and
a section in the main legislation, the section
prevails (African and European Investment Co v
Warren 1924 AD 360). One notable exception to
this rule was s 232(4) of the 1993 Constitution,
which stated that for all purposes the schedules
were deemed to form part of the substance of the
1993 Constitution. In certain cases the particular
schedule will state that it is not part of the Act and
that it does not have the force of law, in which
case it is an external aid and it may be considered
as part of the context. An example of this is
Schedule 4 of the Labour Relations Act, which
consists of flow diagrams which explain the
procedures for dispute resolution set out in the
Act.
As was pointed out in Chapter 2, the names and
types of legislation can be confusing. Sometimes a
schedule is a type of subordinate legislation, and
not a part of the Act (as primary legislation). For
example, s 207 of the Labour Relations Act
empowers the Minister of Labour—after
consultation with NEDLAC—to change, add to or
replace certain schedules in the Act by notice in
the Government Gazette.
Page 123

6.1.3 External language aids to

interpretation

(a) Dictionaries and linguistic evidence

In an era in which legislation is becoming ever

more technical and highly specialised, courts often
use dictionaries during interpretation. In Transvaal
Consolidated Land and Exploration Co Ltd v
Johannesburg City Council 1972 (1) SA 88 (W)
94G the court used dictionaries in a contextual
framework:
 Dictionary definitions serve to mark out the
scope of the meanings available for a word, but
the task remains of ascertaining the particular
meaning and sense of the language intended in
the context of the statute under consideration.
In De Beers Industrial Diamond Division (Pty) Ltd v
Ishizuka 1980 (2) SA 191 (T) the court reiterated
that the meaning of a word cannot be determined
conclusively by its dictionary meaning. The
dictionary meaning is only a guideline. A dictionary
cannot prescribe which of several possible
meanings of a particular word should prevail—the
context in which a word is used should be the
decisive factor. In Fundstrust (Pty) Ltd (in
liquidation) v Van Deventer 1997 (1) SA 710 (A)
the court reiterated that the use of authoritative
dictionaries is a permissible and helpful method
available to the courts during interpretation of
statutes. However, interpretation of statutes
cannot be done by ‘excessive peering at the
language to be interpreted without sufficient
attention to the contextual scene’. After all, the
interpreter has to ascertain the meaning of words
or expressions in the particular context of the
statute in which it appears.
Case law example:
In S v Makhubela 1981 (4) SA 210 (B), the
accused was charged with being behind the wheel
of a vehicle that was being pushed by a group of
people on a public road, without having a driver’s
licence. He was found guilty of driving a vehicle on
a public road without a valid driver’s licence. On
review, the court decided that the definition of the
word ‘drive’, as found in the Road Traffic Act 7 of
1973, was inadequate, and it consulted a
dictionary as well. The court held that the word
‘drive’ should not be construed only according to
its dictionary meaning, but should be
Page 124
understood within the context of the Act as a
whole. The legislature had meant that a person
driving a vehicle driven by its own mechanical
power should be in possession of a driver’s licence.
The conviction and sentence were set aside.
In Association of Amusement and Novelty Machine
Operators v Minister of Justice (above) the
meaning of the word ‘pin-tables’ was in dispute.
The court held that the testimony of language
experts was not admissible as an aid in construing
legislation. In the same vein, in Metro Transport
(Pty) Ltd v National Transport Commission 1981
(3) SA 114 (W) the court decided that
supplementary linguistic evidence to interpret a
statutory provision was not admissible.

(b) Examples and footnotes

The use of footnotes in legislation is a new trend,

used to facilitate better and more streamlined
cross-references (eg the Labour Relations Act).
Although the Acts in which footnotes are used
expressly state that they do not form part of the
Act, they may be used as external aids during the
interpretation process.

(c) Definitions in the Constitution and the Interpretation Act

There is a large number of definitions in other

legislation that expressly have a wider application.
For instance, when interpreting old order
legislation the definitions in item 3 Schedule 6 of
the Constitution will be indispensable.
Furthermore, the definitions in s 2 of the
Interpretation Act will apply to all other legislation
unless expressly provided otherwise.

(d) The clock is ticking: computation of time

Lawyers and courts like ‘clear lines to be drawn in

the sand’. One of those ‘lines in the sand’ is time
limits. Legal documents must be filed within a
certain time; a debt has to be settled or a fine
must be paid before a certain date, and so on. The
matter of the computation of time is very
important, because a large number of statutory
enactments and contractual provisions prescribe a
time or period in which or after which certain
actions are to begin, or be executed, abandoned or
completed. The failure to discharge obligations
within a prescribed period may have dire
consequences. How do we construe time clauses?
What is a month, or a week? So, when does the
‘legal
Page 125
clock’ start ticking and when does it stop? Although
s 4 of the Interpretation Act deals with
computation of time, it is more complicated than
that. There are also common-law methods of
computation of time, as well as time clauses in
other legislation (eg the Rules of the High Court
and the Magistrate’s Court).

The meaning of time units

Year:
A year consists of a cycle of 365 days (366 days
every fourth or leap year), and is based on the
Gregorian calendar. Every year commences on 1
January and ends on 31 December.

Month:
The term ‘month’ could have three possible
meanings:

•
according to s 2 of the Interpretation Act
‘month’ means a calendar month (not a lunar
month); in other words, the twelve unequal
named periods which make up a year on the
calendar (s 1 of the Value-Added Tax Act 89 of
1991 defines a month as ‘any of the twelve
portions into which a calendar year is divided’);
or
•
a lunar month of 28 days; or

•
a period of time stretching between two
corresponding dates in succeeding months of
the year (eg 9 June to 9 July).
The last meaning is the one used the most
frequently in law. However, it would be more
appropriate to use the term ‘calendar month’ for
the first alternative and ‘month’ for the last one.

Day:
Normally a day will be one of the 24-hour units of
a week stretching from midnight to midnight, or it
could be the hours of daylight (s 1 of the Criminal
Procedure Act 51 of 1977 defines a day as the
space of time between sunrise and sunset).
Week:
Traditionally a week as a part of a calendar runs
from midnight on a Saturday to midnight on the
next Saturday. For the purpose of computation of
time the courts regard a week as any period of
seven successive days.
Page 126

Computation of time

The statutory method (s 4 of the

Interpretation Act):
When any particular number of days is
prescribed for the doing of any act, or for any
other purpose, the same shall be reckoned
exclusively of the first and inclusively of the
last day, unless the last day happens to fall on
a Sunday or any public holiday, in which case
the time shall be reckoned exclusively of the
first day and exclusively also of every such
Sunday or public holiday.
Section 4 refers to days and not to periods of
months or years. So the default method of
calculation for days (and weeks as units of days) is
the statutory method. The first day is excluded
(the counting starts on the next day) and the last
day is included, unless the last day falls on a
Sunday or a public holiday, in which case the
period will move on to the next day. Please note
that Sundays and public holidays falling within the
time period will be counted. Section 1 of the
Interpretation Act provides that s 4 will apply
unless the contrary intention is clear from the
particular legislation (Kleynhans v Yorkshire
Insurance Co Ltd 1957 (3) SA 544 (A)).
In two instances the general principle of ‘first day
excluded, last day included’ for days will not apply
(only if the intention to deviate from the default
principle is clear): first, the rules of court provide
that where a number of ‘court days’ are referred to
in a contract or legislation, the computation will
not include Saturdays, Sundays and public
holidays, nor can the period end on those days;
and second, where there is a reference to a
number of ‘clear days’ or ‘at least’ a number of
days between two events, those days will be
calculated with the exclusion of both the first and
the last days (eg if it is a statutory requirement
that notice of eight clear days be given for a
meeting, both the day the notice is delivered and
the day of the meeting are not counted as part of
the eight days).
Off course, legislation may at any time change
the default time calculation methods. For instance,
the Income Tax Act: both s 83(23) (referring to
Part III of the Act dealing with objections and
appeals) and s 89sex(1) expressly provide that a
Saturday will also not be counted during the
calculation of prescribed time periods:
(23) Any reference in this Part and the rules
to “day” means any day other than a
Saturday, Sunday or public holiday: Provided
that the days between 16 December of a year
and 15 January of the
Page 127
following year, both inclusive, shall not be
taken into account in determining days or the
period allowed for complying with any
provision in this Part or the rules.
89sex. Determination of day and time for
payment of tax, interest or penalties.
 (1) Where any day specified for any payment
to be made under the provisions of this Act, or
the last day of any period within which
payment under any provision of this Act shall
be made, falls on a Saturday, Sunday or a
public holiday, such payment shall be made not
later than the last business day falling prior to
such Saturday, Sunday or public holiday.

Common-law methods
Three common-law methods of computation of
time will be discussed briefly. Although part of
common law, these methods complement s 4 of
the Interpretation Act (the statutory method):

•
Ordinary civil method (computatio civilis):
Unless clearly indicated otherwise, this method
is the default method for the calculation of
months and years and is the opposite of the
statutory method (used for days). The first day
of the prescribed period is included and the last
day excluded. The last day is regarded as
 ending at the very moment it begins, as it were
(at midnight of the previous day).
Case law examples:
A very interesting example of the ordinary civil
method is Minister van Polisie v De Beer 1970 (2)
SA 712 (T). The case dealt with a claim for
damages after a police vehicle had collided with a
private motor-car. In terms of s 32 of the Police
Act 7 of 1958, a claim for damages against the
police as a result of an action executed in terms of
the Police Act had to be instituted within six
months. The collision took place on 5 August 1967.
The summons was served on 5 February 1968. On
appeal the Supreme Court found that the ordinary
civil method should be used to calculate the time.
The last day was therefore excluded and the
summons was therefore served one day too late.
As a result the action was refused.
Page 128
However, in Pivot Point SA (Pty) Ltd v Registrar of
Companies 1980 (4) SA 74 (T) the issue was the
time period prescribed in s 45 of the Companies
Act 61 of 1973, which provided that the Registrar
may ‘within one month after the date of such
decision or order, apply to the Court for relief’. The
court held that the language of the Act clearly
indicated that the ordinary civil method of
calculating time was not to be used, because the
provision stated ‘after the date of such decision’. If
time is to run ‘after’ a day or date, then clearly
that day or date must be excluded from the
reckoning of time.

•
Natural method (computatio naturalis): Where
this method is used, the prescribed period is
calculated from the hour (or even minute) of
an occurrence to the corresponding hour or
minute on the last day of the period in
question.

•
Extraordinary civil method (computatio
extraordinaria): Both the first and the last day
of the period concerned are included. This
method of time calculation is obsolete and is no
longer used by the courts.
An important note:
The issue of time limits and computation of time is
far more complicated than it may seem from the
brief introduction above. The large number of
cases, legislation and exceptions to rules cannot be
dealt with fully in this book. Remember: whichever
method of computation of time is used, the
purpose of the legislation will remain the decisive
factor.

6.2 The holistic (contextual and

structural) dimension: Don’t miss the
wood for the trees
6.2.1 Legislation must be construed within
the total legal picture
As was pointed out in Chapter 1, the interpretation
of legislation involves more than analysing the
particular provision in question. To interpret a text
in its context includes the intra-textual context
(the enactment as a whole, including its unique
structure and legislative ‘codes’), as well as the
extra-textual context (the rest of the existing law
and other
 Page 129
contextual considerations that might be
applicable). Currently one of the more serious
practical problems is arguably the fact that many
practitioners fail to see the bigger legal picture
when they interpret legislation.
The interpreter has to study the legislation as a
whole. In Nasionale Vervoerkommissie van Suid-
Afrika v Salz Gossow Transport (Edms) Bpk 1983
(4) SA 344 (A), the court pointed out that when
interpreting certain provisions, a statute must be
studied in its entirety.
Practical example:
Let us assume Bela-Bela (one of the local
municipalities within the Waterberg district
municipality) intends to pass a by-law on a
particular subject (say, abattoirs). The question is
whether the municipal council has the authority to
enact a by-law about abattoirs. Their lawyer only
consults the Constitution (Schedule 4B and 5B),
and it seems straightforward—abattoirs clearly fall
within the legislative competencies of a
municipality. However, it turns out to be much
more complicated. The Constitution cannot be read
in isolation.
Chapter 6 of the Local Government: Municipal
Structures Act 117 of 1998 provides for the
division of powers and functions between district
municipalities and local municipalities. Section
84(1) of the Municipal Structures Act provides for
all the powers and functions of a district
municipality, and in terms of s 84(2), a local
municipality would only have the powers and
functions provided for by the Constitution minus
the s 84(1) powers and functions of the district
municipality. Consequently the Bela-Bela local
municipality may only adopt by-laws (in terms of
ss 155, 156 and 229 of the Constitution, read with
Schedules 4B and 5B of the Constitution, as well as
with ss 83 and 84(1) and (2) of the Local
Government: Municipal Structures Act of 1998) on
those topics left after the Waterberg district
municipality has exercised its choice.
A part from the legislation to be construed, the
bigger picture includes the Constitution and all
other relevant law (including old order legislation
and the common law). Du Plessis (1986:
Page 130
127-128) refers to this principle as the ‘structural
wholeness of the enactment’, and Devenish (1992:
101) describes it as follows:
Interpretation should be ex visceribus actus, ie
from the bowels of the Act or, to paraphrase,
‘within the four corners of the Act’.
Practical example:
The term ‘organ of state’ is used throughout the
Constitution. Section 8(1) (application clause)
provides that the Bill of Rights applies to all law,
and binds the legislature, the executive, the
judiciary and all organs of state; s 195(2)(c)
provides that the principles of basic values and
principles governing public administration
contained in s 195(1) also apply to all organs of
state; in terms of s 55(2)(b)(ii) the National
Assembly must provide for mechanisms to
maintain oversight of any organ of state; s
41(1)(d) states that all organs of state within each
sphere of government must be loyal to the
Constitution; and so on. However, who and what is
an organ of state?
That should not be too difficult to determine.
Section 239 of the Constitution defines it as
follows:
‘organ of state’ means—
(a)
any department of state or administration in
the national, provincial or local sphere of
government; or
(b)
any other functionary or institution—
(i)
exercising a power or performing a function in
terms of the Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a
public function in terms of any legislation,
but does not include a court or a judicial
officer;
So far, so good. But what about higher education
institutions such as universities, or state
enterprises such as Eskom and Transnet? Other
legislation also refers to an organ of state: s 1 of
the Promotion of Administrative Justice Act defines
an administrator as (amongst other things) an
organ of state taking administrative action; and
the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002 offers yet another
definition. So no clarity yet . . .
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There is also a lot of case law on what an organ of
state is. For example, in Van Rooyen v The State
2001 (4) SA 396 (T) the court held that to all
intents and purposes the Magistrates Commission
is an organ of state; Goodman Bros (Pty) Ltd v
Transnet Ltd 1998 (4) SA 989 (W) held that
Transnet performs a public function in terms of
legislation, and it is an organ of state; in Hoffmann
v South African Airways 2001 (1) SA 1 (CC) the
court decided that Transnet is a statutory body,
under the control of the state, which has public
powers and performs public functions in the public
interest. It is well known that South African
Airways is a business unit of Transnet, which
means that SAA is an organ of state and bound by
the provisions of the Bill of Rights; according to
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC) a Cabinet Minister
is an organ of state; in Directory Advertising v
Minister for Posts and Telecoms 1996 (3) SA 800
(TPD) it was held that Telkom is an organ of state;
and so on. Bekink (2012: 548—551) explains that
s 239 refers to all departments and
administrations, their agencies, divisions and
officials; the President, Cabinet, Parliament,
Premiers, municipal councils, the South African
Human Rights Commission, the Public Protector,
the Auditor-General and the Electoral Commission.
Just to complicate matters even more, in
Independent Electoral Commission v Langeberg
Municipality 2001 (3) SA 925 (CC) the court
defined the Independent Electoral Commission as
an organ of state (as defined in s 239 of the
Constitution), but stated that it was not an organ
of state within the national sphere of government
(for the purposes of the dispute resolution
requirements of s 41(3) of the Constitution). The
term ‘organ of state’ may have different meanings,
depending on the context; clearly there is more to
interpretation of legislation than meets the eye!

6.2.2 Balance between text and context

As was explained earlier, the courts had long held
the view that if the text of the legislation was clear
and unambiguous, effect should be given to it. The
context of the legislation was only taken into
account if the language of the legislation was
deemed to be ambiguous. In Jaga v Dönges
(above) Schreiner JA rejected this narrow view and
stated that the interpreter could examine the
broader context even when the text was
Page 132
quite clear. As Kruger (1991: 251) points out,
legislation cannot be construed properly if text and
context are separated. The meaning of the words
of the text should be weighed up against the
context of the legislation. From the outset the
legislation as a whole, the surrounding
circumstances, constitutional values and the text
have to be considered to ascertain the purpose of
the legislation. Quoting from the Schreiner
decision, Wessels JA in Stellenbosch Farmers’
Winery v Distillers Corporation (SA) Ltd 1962 (1)
SA 458 (A) 476E-F described this balancing
process as follows:
In my opinion it is the duty of the Court to read
the section of the Act which requires
interpretation sensibly, ie with due regard, on
the one hand, to the meaning or meanings
which permitted grammatical usage assigns to
the words used in the section in question and,
on the other hand, to the contextual scene,
which involves consideration of the language of
the rest of the statute as well as the ‘matter of
the statute, its apparent scope and purpose,
and, within limits, its background’. In the
ultimate result the Court strikes a proper
balance between these various considerations
and thereby ascertains the will of the
Legislature and states its legal effect with
reference to the facts of the particular case
which is before it.
In Diepsloot Residents’ and Landowners’
Association v Administrator, Transvaal 1994 (3) SA
336 (A) the court recognised the importance of
legislative context. It held that it is permissible to
interpret the provisions of legislation against the
background of the dismantling of apartheid. These
political developments were sufficiently well known
for the court to take judicial notice of them.
Supporters of the orthodox text-based approach
to interpretation frequently accuse supporters of a
text-in-context approach that they indulge in ‘free-
floating’ methods of interpretation, which ignore
the text of the legislation. That is simply not true.
The fact that there needs to be a balance between
the text and context does not mean that the
legislative text may be ignored. After all, the
context has to be anchored to the particular text in
question.

6.2.3 Structure of legislation

Structural aspects such as the table of contents,
paragraphing, layout of the text and punctuation
could play a meaningful role during the
interpretation process.
 It is a grammatical fact that punctuation can
affect the meaning of the text. In R v Njiwa 1957
(2) SA 5 (N) the court
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stated that punctuation must be considered during
interpretation. In S v Yolelo 1981 (1) SA 1002 (A)
the Appellate Division held that an interpretation
based on the purpose of the legislation prevails
over an interpretation based only on the division
into paragraphs. Finally, in Skipper International v
SA Textile and Allied Workers’ Union 1989 (2) SA
612 (W) a court held that since the punctuation
was considered by the legislature during the
passing of the legislation, it had to be used during
interpretation.

6.2.4 Conflicting legislation

(a) Legislation has a purpose: the presumption that

legislation does not contain futile or nugatory provisions

Unless the contrary is clear, it is presumed that the

legislature does not intend legislation which is
futile or nugatory. Hahlo & Kahn (1973: 210) call it
the principle of ‘effectual and purposeful
legislation’. In a sense this presumption
encapsulates the basis of the most important
principle of interpretation: the court has to
determine the purpose of the legislation and give
effect to it. Since statutory interpretation is a
purpose-seeking activity, this presumption is an
acknowledgement that legislation has a functional
purpose and object. In other words, if reasonably
possible, try to keep the system running smoothly!
In Ex parte the Minister of Justice: In re R v
Jacobson and Levy 1931 AD 466 the court held
that if the intention of the legislature is clear, it
should not be defeated merely because of vague or
obscure language. The court must, as far as
possible, attach a meaning to the words which will
promote the aim of the provision. In SA Medical
Council v Maytham 1931 TPD 45 the court
emphasised that futile (useless) legislation must be
avoided and that an attempt should be made to
promote the ‘business efficacy’ of a provision, and
in Prokureur-Generaal v Van Zyl 1961 (1) SA 729
(C) the court favoured a practical, purposive
interpretation. So: if there are two possible
interpretations, the court must try, if it is
reasonably possible, to adopt an interpretation that
will render the legislation effective. In Esselman v
Administrateur SWA 1974 (2) SA 597 (SWA) the
court emphasised an ‘effective and purposive’
interpretation over one which would defeat the
provision, leaving it useless. In South African
Transport Services v Olgar 1986 (2) SA 684 (A)
the Appellate Division held that if a
Page 134
provision is capable of two meanings, the meaning
which is more consistent with the purpose of the
legislation should be accepted:
[T]he second interpretation . . . is more
consistent with the smooth working of the
system which the Act has been designed to
regulate than the first interpretation.
Case law example:
A notorious example of the application of this
presumption is R v Forlee 1917 TPD 52. Forlee was
found guilty of contravening Act 4 of 1909 for
selling opium. On appeal his lawyer argued that
Forlee had not committed an offence since the Act
in question prescribed no punishment. The court
relied on the presumption against futility, finding
that a specific offence had been created by the
legislature. The court then argued that the absence
of a prescribed penal clause did not render the Act
ineffective, since the court had discretion in
imposing such a suitable form of punishment as it
deemed fit. This decision gave rise to widespread
criticism, because the rule nulla poena sine lege (if
there is no penalty, there is no crime) was not
adhered to. Although both the presumption and
the nulla poena sine lege rule applied in this case,
the nulla poena sine lege rule forms an essential
part of the principle of legality. The principle of
legality aims, as far as the criminal law is
concerned, to prevent the arbitrary punishment of
people and to ensure that criminal liability and the
imposition of punishment are in line with existing
and clear rules of law. This rule should have
trumped the presumption against futile results.
Devenish (1992: 80) is of the opinion that this was
a case where the court should have applied the
casus omissus rule. The nulla poena sine lege
principle has since been reaffirmed in S v Dodo
2001 (3) SA 382 (CC) para 13.
Another recent case law example:
The issue of statutory crimes without prescribed
penalties recently came to the fore again. A certain
Mr Prins was charged in the Regional Court with
contravening s 5(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32
of 2007. He objected to the charge,
Page 135
arguing that neither s 5(1) itself, nor any other
provision of the Act, provides for a penalty for the
offence created by s 5(1). The Regional Court
upheld the objection. The Director of Public
Prosecutions, Western Cape then appealed to the
Western Cape High Court against the decision of
the Regional Court. The Western Cape High Court
held that, since the Act did not specify a penalty
clause, s 5(1) of the Act did not create an offence
and dismissed the appeal. The Director of Public
Prosecutions, Western Cape thereupon appealed to
the Supreme Court of Appeal. In Director of Public
Prosecutions, Western Cape v Prins (2012 (2)
SACR 183 (SCA)) the Supreme Court of Appeal
upheld the appeal, arguing that s 276 of the
Criminal Procedure Act 51 of 1977 is a general
empowering provision authorising courts to impose
sentences in all cases, whether in terms of the
common law or legislation, where no other
provision governs the imposition of sentence.
Consequently the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
did not violate the principle of legality by not
prescribing the penalties for those offences. Two
other aspects of this decision must be noted:

•
The common-law presumption against futile
and nugatory legislation was never raised.

•
It is a good example of reading different sets of
legislation together in order to solve an
interpretation problem.
This decision has since been confirmed by the
legislature. Parliament has passed the Criminal
Law (Sexual Offences and Related Matters)
Amendment Act 6 of 2012, which expressly
provides that the powers of courts with regard to
sentences for the offences in Chapters 2, 3 and 4
of the Act are the same as those specified in s 276
of the Criminal Procedure Act.
In Sekretaris van Binnelandse Inkomste v Lourens
Erasmus (Edms) Bpk 1966 (4) SA 434 (A) the
court held that if possible the interpretation that
avoids uncertainty, confusion and conflict must be
adopted. Furthermore, the presumption enables
courts to try to interpret legislation in such a
manner that evasion of its provisions is prevented
(Dadoo Ltd v Krugersdorp Municipal Council 1920
AD 530). In Dhanabakium v Subramanian 1943 AD
160, the court found that as far as possible,
legislation should be interpreted in such a way that
a
Page 136
casus omissus (omission) is avoided. As will be
discussed later (Chapter 7 below), the courts may
indeed modify (adapt) the initial meaning of the
legislation (in the light of the presumption against
futile provisions and within the framework of the
purpose of the legislation). However, this
presumption applies only if there is more than one
possible interpretation, and cannot be used by a
court to reinterpret legislation at will. In other
words, this presumption cannot be used to
hammer a square peg into a round hole.
The presumption also applies to subordinate
legislation. Here, the maxim ut res magis valeat
quam pereat applies. This means that an
interpretation which will not leave the subordinate
legislation ultra vires (and invalid), but rather intra
vires and valid must be preferred (R v Vayi 1946
NPD 792). The ut res magis valeat quam pereat
rule applies only where two interpretations of a
provision are possible. The presumption cannot be
used to rescue an administrative act (conduct)
which is defective and invalid from the outset
(Mamogalie v Minister van Naturellesake 1961 (1)
SA 467 (A)). Consequently, any subordinate
legislation in conflict with the enabling Act (or any
other original legislation, for that matter) will also
be invalidated.
(b) Conflicts with other legislation

Legislation which is in conflict with the Constitution

is arguably the ultimate example of conflicting
legislation. However, in an attempt to avoid
unconstitutionality, competent courts involved in
constitutional review may try, if reasonably
possible, to employ a number of corrective
techniques or remedial correction of legislation
(so-called reading-down, reading-up, reading-in
and severance) in an attempt to keep the
legislation in question constitutional and ‘alive’
(see Chapter 9 below). If such efforts at remedial
interpretation are unsuccessful, unconstitutionality
(invalidity) is the only alternative.
As was explained earlier (see 4.4 above) if there
is a conflict between legislation and the system of
co-operative government, the national legislation
will generally prevail over the provincial legislation,
but in some cases the provincial legislation may
actually trump the national legislation. Sections
146-150 of the Constitution provide for the
intricate process of conflict resolution within this
system of co-operative government.
 If two different pieces of legislation are in
conflict, they must be read together in an effort to
solve the problem. If the conflict
Page 137
cannot be resolved and both enactments deal with
the same issue, the earlier one will be repealed by
implication by the later one (see 4.3 above).
Where conflicting sets of legislation do not deal
with the same topics, they will have to be read and
applied (co-exist) together. If they cannot be
reconciled in one way or another, the inevitable
result is a ‘legislative short circuit’, since original
legislation cannot be invalidated because it is
vague or confusing (as is the case with subordinate
legislation). This means that there could be a gap
in the law. One solution—albeit drastic and the
exception to the rule—could be the application of
modificative interpretation, if the purpose of the
respective legislation permits it (see Chapter 7
below). If that cannot be done, another possibility
is to apply s 39(2) of the Constitution to ensure
that the enactment which best promotes the spirit
and purport of the Bill of Rights prevails.
Case law example:
In Maccsand (Pty) Ltd v City of Cape Town,
Minister for Water Affairs and Environment, MEC
for Local Government, Environmental Affairs and
Development Planning, Western Cape Province,
Minister for Rural Development and Land Reform,
and Minister for Mineral Resources 2012 (4) SA
181 (CC) the issue was the potential conflict and
interplay between different sets of legislation in the
mining sector: the Mineral and Petroleum
Resources Development Act 28 of 2002 (MPRDA)
on the one hand and, on the other, the Land Use
Planning Ordinance (Cape) 15 of 1985 (LUPO).
The MPRDA empowers the Minister for Mineral
Resources to grant mineral rights if certain
requirements are met. LUPO is an old order
provincial ordinance still in force in the Western
Cape. LUPO authorises the provincial government
to make scheme regulations which determine the
use of land in accordance with the applicable
zoning of the land. Therefore in terms of LUPO,
mining may only be undertaken on land if the
zoning scheme permits it. If it does not, rezoning
of the land must be conducted before the
commencement of mining operations. However,
the zoning that permits that land to be used for
mining does not license mining nor does it
determine mining rights; the MPRDA governs
mining, and LUPO regulates the use of land.
Page 138
Maccsand obtained a mining permit in terms of the
MPRDA and started mining in 2008. In 2009 the
City of Cape Town sought an interdict to stop
Maccsand’s mining activities, because it had not
obtained the necessary rezoning permission as
required by LUPO. Which legislation should prevail,
MPRDA (national legislation) or LUPO (provincial
legislation)? The Constitutional Court ruled that the
conflict resolution mechanism in ss 146-150 of the
Constitution did not apply, because there was no
conflict between LUPO and the MPRDA. Each was
concerned with different subject matter, and the
the two laws had to continue to operate alongside
each other. This means that although a mining
right must be granted in terms of the MPRDA, the
exercise of such a mining right is subject to the
required rezoning of the land in terms of LUPO. In
other words, although Maccsand obtained a valid
mining licence in terms of the MPRDA, it still had to
apply for the rezoning of the land (where the
mining takes) in terms of LUPO. Off course, if that
rezoning application in terms of LUPO should fail,
the validly obtained mining licence (in terms of the
MPRDA) will not mean a thing.
Some legislation will expressly provide for potential
future conflicts with other legislation. For example,
s 2(8) of the Consumer Protection Act 68 of 2008
provides as follows:
(8) If there is an inconsistency between any
provision of Chapter 5 of this Act and a
provision of the Public Finance Management
Act, 1999 (Act 1 of 1999), or the Public Service
Act, 1994 (Proclamation 103 of 1994), the
provisions of the Public Finance Management
Act, 1999, or of the Public Service Act, 1994,
as the case may be, prevail.
As was explained in Chapter 2 (above), some
legislation—such as the so-called ‘constitutional
Acts’—contain clauses proclaiming their superiority
over other legislation (except the Constitution),
which should avoid most legislative conflicts.

6.2.5 The King can do no wrong: The

presumption that government bodies are not
bound by their own legislation
As a general rule it is presumed that government
bodies are not bound by their own legislation,
unless the legislation
Page 139
expressly or by necessary implication provides
otherwise (eg s 24 of the Interpretation Act). The
presumption is trumped not only by the wording of
the legislation, but also by the surrounding
circumstances and other indications (Union
Government v Tonkin 1918 AD 533). Hahlo & Kahn
(1973: 204) describe the presumption as follows:
An enactment does not apply to the state or its
executive arm or to a provincial council, local
authority or other public body from which it
emanates.
Students usually associate this presumption with
unbridled lawlessness by government agencies
similar to the old English-law principle The King
can do no wrong. However, it does not mean that
the state operates above the law, but is rather a
principle of effectiveness to ensure that the state is
not hampered in its government functions.
According to Du Plessis (1986: 79):
The presumption is first and foremost a
functional means to the end of ensuring that
the execution of the typical functions of
government—in as far as they are aimed at
enhancing the public good and welfare—is not
unduly hampered. Proper care should therefore
also be exercised in order to ensure that the
presumption is invoked in such a way that it
serves the purpose of maintaining a public
order of law, in contradistinction to personal
whims and fancies or sectional interests.
This explanation still does not remove or dispel
fears of abuse of power by the government.
Wiechers (1985: 332) suggested that the state
should rather always be bound by its own
legislation, except in those instances where it
would be hindered in the performance of its
government functions. In S v De Bruin 1975 (3) SA
56 (T) the court rejected this viewpoint in the light
of earlier precedents. The application of this
presumption was later confirmed by the Appellate
Division in Administrator, Cape v Raats Rontgen &
Vermeulen (Pty) Ltd 1992 (1) SA 245 (A)—the
purpose of the presumption is to ensure that
execution of the typical functions of government
(those aimed at enhancing the public good and
welfare) is not unduly hampered.
In Evans v Schoeman 1949 (1) SA 571 (A) the
court mentioned the following indicators when the
state will not be bound:

•
if the state would be rendered subject to the
authority of or interference by its own officials;
and
Page 140

•
if the state would be affected by penal
provisions (as in S v Huyser 1968 (3) SA 490
(GW) (see below)).
The question whether the state is bound depends
on the particular legislation and specific
circumstances, and each case has to be judged on
its own merits. The following are examples of the
practical application of the presumption:

•
Government bodies and state-controlled
agencies are bound by town planning schemes
(Drakensberg Administration Board v Town
Planning Appeals Board 1983 (4) SA 42 (N)
and Boiler Efficiency Services CC v Coalcor
(Cape)(Pty) Ltd 1989 (3) SA 460 (C)).

•
A security official who contravenes a statutory
provision when acting outside the scope of his
duties cannot rely on the presumption against
the state being bound (S v Reed 1972 (2) SA
34 (RA)).

•
The driver of a fire engine may disregard a red
traffic light while fire-fighting (S v Labuschagne
1979 (3) SA 1320 (T)).
•
An agricultural official who combats stock
diseases and from time to time has to cull
animals is not bound by statutory requirements
regarding hunting permits (S v Huyser
(above)).
Case law example:
S v De Bruin (above) is a rather interesting case,
to put it mildly. The accused was charged with and
convicted of exceeding the statutory speed limit.
On appeal, De Bruin (a state prosecutor) claimed
that he was a public servant who, on the day in
question, had been running late for an on-site
inspection on the state’s behalf. If he had arrived
late at the inspection premises, this could have
been detrimental to the state’s case. The court
found that being bound by the provisions in
question could have obstructed essential state
services and jeopardised state security. The court
found that De Bruin’s decision to exceed the speed
limit was reasonable, and set aside the conviction.
Steyn (1981: 77) correctly points out that this
presumption applies to both original and
subordinate legislation. Furthermore Labuschagne
(1978: 54) indicates, with reference to R v Thomas
1954 (1) SA 185 (SWA), that strictly speaking
Page 141
this presumption deals with the state being bound
by particular provisions; the state might be bound
by one provision of the legislation, but not by
another.
Another distinction is necessary. Not being bound
by legislation (as a result of the presumption) does
not mean that state liability is also automatically
excluded. If police officers in hot pursuit of
criminals ignore a red traffic light (on the face of it
quite lawfully), but they do so at break-neck
speeds, not slowing down at intersections and
without taking pedestrians and other motorists into
consideration during the chase, they cannot rely on
this presumption to escape any possible delictual
liability resulting from their actions.
Criticism:
Since s 39(2) of the Constitution clearly stipulates
that rules of common law have to be developed in
the light of the fundamental rights in the
Constitution, it is submitted that this particular
presumption should in future no longer apply
under the new constitutional order:

•
Section 8(1) of the Constitution expressly
provides that government organs at all levels
are bound by the Bill of Rights. The
Constitution is the supreme law of the
Republic, and all law and government conduct
must be tested against the spirit, purport and
objects of the fundamental rights entrenched in
the Bill of Rights. In a system based on
constitutionalism it would not make sense that
government bodies are bound by the
Constitution (as the supreme law), but at the
same time are presumed not to be bound by
their own legislation, which legislation is also
subject to the supreme Constitution.

•
 The Constitution abounds with references to
principles such as accountability and openness
(the preamble and s 1(d)); supremacy of the
Constitution (ss 1(a) and 2); the values
underlying an open and democratic society
based on freedom, equality and human dignity
(ss 7(1) and 39(2)); the state being bound by
the Constitution
Page 142
(ss 2 and 8(1)); the requirement that the state
must respect, protect, promote and fulfil the
Constitution and the Bill of Rights (s 7(2); and
the official oath of judicial officers (item 6 of
Schedule 2)). All of these support the
argument that this presumption should no
longer be applied.
As Du Plessis (2002: 177) points out, the view of
Wiechers that this presumption should be applied
the other way round has now been vindicated after
all these years:
In short, a state defined by its own constitution
as a ‘democratic state founded on the . . .
values’ of ‘[s]upremacy of the Constitution and
 the rule of law’ most certainly is a
constitutional state (Rechtsstaat) heedful of the
principle of legality. This observation is
confirmed by the constitutional demand for the
accountability of the public administration. The
moment for what Wiechers foresaw more than
a decade and a half ago, has probably come.
In Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
(above) para 58 the Constitutional Court explained
the principle of legality in the new constitutional
order as follows:
It seems central to the conception of our
constitutional order that the Legislature and
Executive in every sphere are constrained by
the principle that they may exercise no power
and perform no function beyond that conferred
upon them by law. At least in this sense, then,
the principle of legality is implied within the
terms of the interim Constitution. Whether the
principle of the rule of law has greater content
than the principle of legality is not necessary
for us to decide here. We need merely hold
 that fundamental to the interim Constitution is
a principle of legality.
Since the constitutionality of this common-law
presumption has not yet been tested in court, it
still applies in South Africa. However, the correct
legal position in future should rather be as follows:
government agencies and organs of state should
always be bound by their own legislation, unless
they can prove that they would be hampered in the
execution of their duties and functions if bound by
the legislation. Admittedly such a new principle will
have to be prospective only, since retroactively
undoing the vested rights and interests obtained
by the state as a result of the application of this
presumption in the past could prove to be
impossible.
Page 143
6.3 The value-laden (teleological)
dimension: The ghost in the machine
6.3.1 The new constitutional approach to
statutory interpretation, or, moving from
bumper stickers to substantive interpretation
In Sidumo v Rustenburg Platinum Mines Ltd 2008
(2) SA 24 (CC) para 149 Sachs J described the
constitutional values as follows (emphasis added):
The values of the Constitution are strong,
explicit and clearly intended to be considered
part of the very texture of the constitutional
project. They are implicit in the very structure
and design of the new democratic order. The
letter and the spirit of the Constitution cannot
be separated; just as the values are not free-
floating, ready to alight as mere adornments
on this or that provision, so is the text not self-
supporting, awaiting occasional evocative
enhancement. The role of constitutional values
is certainly not simply to provide a patina of
virtue to otherwise bald, neutral and discrete
legal propositions. Text and values work
 together in integral fashion to provide the
protections promised by the Constitution.
However, the value-based dimension of statutory
interpretation is not easy to implement. Since
1994 the South African legal fraternity has had to
face the dreaded V-word: values. These lawyers,
judges and law teachers were schooled in and
indoctrinated by a positivist idea of the law: iudicis
est ius dicere sed non dare; Parliament knows best
and has spoken; lawyers are not philosophers;
plain meanings, clear texts and black letter law;
formalism and his master’s voice; and so on.
Indeed, we now have a supreme Constitution,
brimming with references to fundamental values:
freedom (including religious freedom, freedom of
speech, and so on), equality (both formal and
substantive), human dignity, all the trimmings of a
multi-party democracy, good governance (s 195 of
the Constitution), openness, transparency, non-
racism, non-sexism, tolerance, and so on and so
forth. These values form the basis of a more
mature society (S v Makwanyane (above)) trying
to be the better society alluded to by former Chief
Justice Mahomed in S v Acheson 1991 (2) SA 805
(Nm) 813, when he said that a supreme
Constitution is the mirror reflecting the national
soul. But what are we doing in practical terms to
animate those values through, amongst other
things, the interpretation of legislation? Is s 39(2)
of the Constitution nothing more than an empty
gesture, mere hollow rhetoric?
Page 144
The value-based dimension of interpretation is
more than simply paying lip-service, but involves
making those values real; animating them through
the making, interpretation, and application of the
law, as well as ensuring that the law is respected
and adhered to. It involves a willingness to keep
those values in mind, right from the outset; a mind
shift that law comprises more than ideologies,
power structures, politics, policies and the meaning
of the words on paper.
As was pointed out earlier, s 39(2) of the
Constitution ensures that interpretation of statutes
also occurs within the value-laden (teleological and
normative) constitutional framework. But s 39(2)
cannot be merely window-dressing or hollow
rhetoric. In Holomisa v Argus Newspaper Ltd
(above) 844 the court referred to s 35(3) of the
interim Constitution (the forerunner of s 39(2) of
the 1996 Constitution), stating that the
interpretation clause in the Constitution is
[not] merely an interpretive directive, but a
force that informs all legal institutions and
decisions with the new power of constitutional
values.
In Coetzee v Government of the Republic of South
Africa; Matiso v Commanding Officer, Port
Elizabeth Prison 1995 (4) SA 631 (CC) para 46
Sachs J explained the teleological dimension of
interpretation even better (emphasis added):
The values that must suffuse the whole process
are derived from the concept of an open and
democratic society based on freedom and
equality, several times referred to in the
Constitution. The notion of an open and
democratic society is thus not merely
aspirational or decorative, it is normative,
furnishing the matrix of ideals within which we
 work, the source from which we derive the
principles and rules we apply, and the final
measure we use for testing the legitimacy of
impugned norms and conduct . . . [W]e should
not engage in purely formal or academic
analysis, nor simply restrict ourselves to ad hoc
technicism, but rather focus on what has been
called the synergetic relation between the
values underlying the guarantees of
fundamental rights and the circumstances of
the particular case.
This means that the constitutional values are not
there to be used as fridge magnets or bumper
stickers, or to be quoted and insisted on when it
suits you, but instantly forgotten when it does not.
In Harksen v President of The RSA 2000 (5) SA
478 (CC) para 18 the court emphasised that since
the Constitution is the supreme law of the land and
that all legislation must be
Page 145
read subject to it, it is unnecessary for legislation
expressly to incorporate terms of the Constitution,
and as a result constitutional provisions or values
or principles are part of the implied contents of
statutes. But by the same token these values
should not be used as a show of smoke and
mirrors as a cover-up for bad governance, like
hiding a badly baked cake under layers of nice-
looking icing.
Maybe it should be said: if we choose to ignore
the V-word; if these values are not taken seriously
and borne in mind constantly during (amongst
other things) interpretation of legislation; and if we
are not prepared to succumb to constitutionalism,
we might as well get rid of the supreme
Constitution, the justiciable Bill of Rights and rights
rhetoric, and return to the former bad old days of
sovereignty of Parliament and executive-minded
interpretation of legislation. Otherwise we need to
become serious about the rights and values in the
Constitution—including a new ‘constitutional’
approach to statutory interpretation—in other
words, moving from bumper stickers to
substantive justice.
But how do we animate and concretise those
values? How does freedom influence no-parking
signs? What is the link between having to pay your
income tax before the due date and human
dignity? How can values influence the black letter
of the law? A starting point for that is always using
the Constitution as a point of departure for legal
analysis, interpretation and application, something
which was not done by the court in the following
example:
Case law example:
In S v F 1999 (1) SACR 571 (C) the court had to
decide whether the 17-year-old rape victim could
testify from a room adjoining the court. This
required an interpretation of s 158(3) of the
Criminal Procedure Act 51 of 1977:
158 Criminal proceedings to take place in
presence of accused
...
(3) A court may make an order
contemplated in subsection (2) only if facilities
therefor are readily available or obtainable and
if it appears to the court that to do so
would. . .
(a)
prevent unreasonable delay;
(b)
save costs;
Page 146
(c)
be convenient;
(d)
be in the interest of the security of the State or
of public safety or in the interests of justice or
the public; or
(e)
prevent the likelihood that prejudice or harm
might result to any person if he or she testifies
or is present at such proceedings.
The court held that s 158(3) cannot be read
disjunctively (paras (a), (b), (c), (d) or (e)), but it
should rather be read conjunctively, in other
words, in order to testify via CCTV, the applicant
had to comply with the requirements set forth in
paragraphs (a), (b) and (c), as well as any of the
requirements set forth in either paragraph (d) or
(e) of s 158(3). This was a poor decision based on
an incorrect interpretation of the law, which meant
that all the lower courts in the Western Cape had
to apply the ridiculously strict requirements. In
practical terms the decision meant that it was
virtually impossible for a witness to be allowed not
to testify in the presence of the alleged rapist
(even six-year-old rape victims).
But why was this a bad interpretation? It was a
purely text-based analysis of s 158(3), dealing
with semi-colons and other rules of punctuation.
The judge referred to the common-law
presumption that legislature does not intend harsh
or unreasonable results; since the victim would not
be in court (if allowed to testify via CCTV) the
accused’s right to cross-examination would be
infringed; the court relied on a 1920 case (Dadoo
Ltd v Krugersdorp Municipal Council 1920 AD 530),
as well as English-law textbooks on interpretation
and procedure (R K Soonavala Advocacy: Its
Principles and Practice, and Maxwell Interpretation
of Statutes).
 This was a 1999 decision—at least two years
after the 1996 Constitution took effect. However,
there is no reference to the Constitution, which
means there is no reference to human dignity (s
10); no reference to s 39(2); since the victim was
17 years old, no reference to s 28 (rights of the
child); no critical discussion about the struggle
between competing rights (in this case the s 28
children’s rights versus the s 35 rights of the
accused); no fundamental
Page 147
values—just a text-based analysis based on a
conjunctive grammatical reading of the provision
(plain meaning approach). This is a striking
example of what may happen if the value-based
dimension of statutory interpretation is ignored.
This decision was eventually held to be incorrect (S
v Staggie 2003 (1) SACR 232 (C)).
In fact, S v F was not the last case in the Western
Cape that failed to get to grips with the new
‘constitutional approach’ to interpretation. In
Winckler v Minister of Correctional Services 2001
(2) SA 747 (C) the court still followed the
discredited text-based approach:
The golden rule governing the interpretation of
a statute is to determine the intention of the
Legislature. Such intention is established, in
the first place, by the plain language of the
statute before resorting to other canons of
construction. The primary supposition is that
the Legislature intends what it says.
Fortunately there are examples of substantive
interpretation of statutes. In Ngxuza v Permanent
Secretary, Department of Welfare, Eastern Cape
2001 (2) SA 609 (E) Froneman J was aware of the
changes brought about by the new constitutional
order. The case dealt with a flexible and generous
approach to the issue of locus standi (including a
class action under s 38 of the Constitution) to
make it easier for disadvantaged and poor people
to approach courts on public issues to ensure that
public administration adheres to fundamental
principle of legality in exercising public power. His
substantive approach to statutory interpretation
and legal reasoning is clear from the following
excerpts from the judgment (at 619):
There is a broader social context in which law
is applied to particular facts in any given case.
Where that terrain is familiar and the law to be
applied is not new that context is often
assumed and not articulated. Here the position
is different. The law is new and the social
setting has changed. [T]he starting place to
determine our assumptions is the Constitution
. . . it is necessary in this case, because of the
relatively new legal position and the changed
social context in which it is to be applied, to be
open about one’s own views of that context.
The reality is that the outcome of this case is
not dictated by precedent or deductive legal
reasoning alone: my interpretation of s 38 of
the Constitution is inevitably also influenced by
my own views of the context in which it is to be
Page 148
interpreted and applied. This is a truth that, I
think, is now generally accepted by legal
theorists.
6.3.2 Ubuntu
The postamble of the English text of the 1993
Constitution referred to ubuntu:
There is a need for understanding but not for
vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for
victimisation . . .
Ubuntu is an indigenous African concept and refers
to a practical humanist disposition towards the
world, including compassion, tolerance and
fairness. (It is interesting to note that the African
Charter on Human and Peoples’ Rights also
includes a positive duty to tolerate.) The concept
was applied and explained by the Constitutional
Court in S v Makwanyane (above) 501D-E:
Generally, ubuntu translates as ‘humaneness’.
In its most fundamental sense, it translates as
‘personhood’ and ‘morality’ . . . While it
envelops the key values of group solidarity,
compassion, respect, human dignity,
conformity to basic norms and collective unity,
in its fundamental sense it denotes humanity
and morality. Its spirit emphasises respect for
 human dignity, marking a shift from
confrontation to conciliation.
The concept of ubuntu is not expressly mentioned
in the Constitution of 1996. That does not mean
that ubuntu will disappear from the South African
legal stage. Since ubuntu was used in the
Makwanyane case (above), it forms part of the
new South African constitutional jurisprudence. It
may also be argued that ubuntu lives on in the
numerous references to human dignity in the
Constitution. It forms an important bridge between
the communal African traditions and Western
traditions, which focus on the individual, and could
be a very useful extra-textual aid to statutory and
constitutional interpretation.

6.4 The historical dimension: Lest we

forget
6.4.1 Preamble to the Constitution
In S v Mhlungu (above) para 112 the constitutional
preamble was described as follows:
Page 149
 The Preamble in particular should not be
dismissed as a mere aspirational and throat-
clearing exercise of little interpretive value. It
connects up, reinforces and underlies all of the
text that follows.
In Mkontwana v Nelson Mandela Metropolitan
Municipality; Bissett v Buffalo City Municipality;
Transfer Rights Action Campaign v MEC, Local
Government and Housing, Gauteng 2005 (1) SA
530 (CC) the court stressed the fact that the
Constitution is a document committed to social
transformation. In other words, it is a key that
may help to unlock the secrets of other legislative
texts. The preamble to the Constitution reads:
PREAMBLE
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and
freedom in our land;
Respect those who have worked to build and
develop our country; and
 Believe that South Africa belongs to all who
live in it, united in our diversity.
We therefore, through our freely elected
representatives, adopt this Constitution as the
supreme law of the Republic so as to—
Heal the divisions of the past and establish a
society based on democratic values, social
justice and fundamental human rights;
Lay the foundations for a democratic and
open society in which government is based on
the will of the people and every citizen is
equally protected by law;
Improve the quality of life of all citizens and
free the potential of each person; and
Build a united and democratic South Africa
able to take its rightful place as a sovereign
state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrica. Morena boloka setjhaba
sa heso.
God seën Suid-Afrika. God bless South Africa.
 Mudzimu fhatutshedza Afurika. Hosi katekisa
Afrika.

6.4.2 Prior legislation

In Morake v Dubedube 1928 TPD 632 it was held
that if legislation had been partially repealed, the
remaining provisions had to be interpreted in their
context, which included the repealed provisions.
Although the repealed provisions can no longer be
applied, they may be used as part of the context of
the remaining legislation.
Page 150

6.4.3 Preceding discussions

Debates about a Bill before Parliament, the
debates and reports of the various committees
which form part of the legislative process, and the
reports of commissions of inquiry constitute
preceding discussions. The question as to whether
the courts may use such preceding discussions in
construing legislation, and to what extent, has
been the subject of lively debate in recent years.
One should distinguish between debates during the
legislative process on the one hand and the reports
of commissions of inquiry which preceded the
passing of legislation on the other.

(a) Debates during the legislative process

Steyn (1981: 134) refers to the common-law

writer Eckhard, who believed that the debates
preceding the acceptance of a Bill are important in
establishing the intention of the legislature,
especially when this is not evident from the
wording of the legislation. However, in the past the
use of debates was not accepted by the courts. In
Bok v Allen 1884 SAR 137 and Mathiba v Moschke
1920 AD 354, the use of preceding discussions in
the interpretation process was rejected outright,
although the court a quo in the Moschke case had,
in fact, taken preceding debates into account.
The opposition to these debates may be
disappearing. In Ngcobo v Van Rensburg 1999 (2)
SA 525 (LCC) para 27 the court referred to the use
of explanatory memoranda during the
interpretation of statutes:
The weight of authority is very much against
allowing such documents to be called in [to]
aid in the interpretation of a statute. This
 authority has received considerable academic
criticism. There are also a few authorities which
seem to suggest a softening of attitudes by
South African Courts to certain of the
documents which precede the passing of an
Act.
For instance, in De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division 2003
(3) SA 389 (W) the court used parliamentary
debates, reports of task teams and the views of
academics when it had to interpret the Films and
Publications Act 65 of 1996; in Western Cape
Provincial Government: In re DVB Behuising (Pty)
Ltd 2001 (1) SA 500 (CC) the Constitutional Court
used parliamentary debates during interpretation;
in Case v Minister of Safety and Security; Curtis v
Minister of Safety and Security 1996 (3) SA 617
(CC)
Page 151
the Constitutional Court referred to the speech by
a Minister during the second reading of a Bill; and
in S v Dzukuda; S v Tilly; S v Tshilo 2000 (3) SA
229 (W) 233 the court referred to a report of the
South African Law Commission and a ministerial
speech in Parliament during the interpretation of a
statute.

(b) Commission reports

In Hopkinson v Bloemfontein District Creamery

1966 (1) SA 159 (O) the court held that the
prevailing law prevented the use of a commission
report about the Companies Act. However, in Rand
Bank Ltd v De Jager 1982 (3) SA 418 (C) the court
decided that the report of the commission of
enquiry, which later resulted in the Prescription Act
68 of 1969, was an admissible aid in construing
the Act. In Westinghouse Brake and Equipment
(Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2)
SA 555 (A) the Appellate Division held that the
report of a commission of enquiry which preceded
the passing of an Act may be used to establish the
purpose of the Act, if a clear link exists between on
the one hand the subject matter of the inquiry and
recommendations of the report, and on the other,
the legislation under consideration.
In Dilokong Chrome Mines (Edms) Bpk v
Direkteur-Generaal, Departement van Handel en
Nywerheid 1992 (4) SA 1 (A) the court had to
decide whether or not to use a report of a member
of the Standing Committee, which did not table an
official report. The court found that the evidence of
a single member of the committee was
inadmissible, since it merely represented his own
subjective opinion of the deliberations.
The reasons given by the courts for not admitting
such material are not very convincing (eg not all
debates might be relevant or useful during the
interpretation of legislation). After all, the courts
are expected to use their discretion in imposing
punishment, and to reach conclusions amidst
conflicting evidence. During statutory
interpretation the judiciary should be able to
separate the good and bad in parliamentary
debates. A speech by the Minister during the
second reading of a Bill, as well as the explanatory
memoranda provided to members of Parliament
may be useful in aiding understanding. If readily
available, the deliberations and reports of the large
number of standing, ad hoc, joint and portfolio
committees of legislative bodies (which play an
important role during the legislative process) could
be used to help ascertain the purpose of the
resulting legislation.
Page 152

6.4.4 The mischief rule

The historical context of the particular legislation is
used to place the provision in question in its proper
perspective. This historical context is also known
as the mischief rule. The mischief rule was laid
down in the 16th century by Lord Coke in the
famous Heydon’s Case (1584) 3 Co Rep 7a (76 ER
637) and forms one of the cornerstones of a text-
in-context approach to interpretation. It poses four
questions that will help to establish the meaning of
legislation:

•
What was the existing law (the legal position)
before the legislation in question was adopted?

•
Which problem (mischief or defect) was not
adequately addressed by the existing law
before the new legislation was adopted?
•
What remedy (solution) is proposed by the new
legislation to solve this problem?

•
What is the true reason for the proposed
remedy?
The aim of the rule is to examine the
circumstances that lead to the adoption of the
legislation in question. The mischief rule has been
applied on numerous occasions by the courts. For
example, as a result of the incomprehensible
language used in the Compulsory Motor Vehicle
Insurance Act 56 of 1972, the court in Santam
Insurance Ltd v Taylor (above) examined the
historical background of the Act in order to
ascertain its purpose.

6.4.5 Contemporanea expositio

This is an explanation of the legislation which is
given by persons in some or other way involved in
the adoption of the legislation, or shortly
afterwards during its first application. Explanatory
memoranda issued by government departments
and state law advisors, as well as the first
application of the new legislation are all examples
of contemporanea expositio.
The publication of a Bill is often accompanied by
the publication of an explanatory memorandum
from its drafters. Such a memorandum may help
to determine the purpose of statutory provisions of
the Act resulting from the Bill. In National Union of
Mineworkers of SA v Driveline Technologies 2002
(4) SA 645 (LAC) and Shoprite Checkers (Pty) Ltd
v Ramdaw 2001 (3) SA 68 (LC) the courts used
the explanatory memorandum to interpret the
Labour Relations Act.
Page 153

6.4.6 Subsecuta observatio

This category of external aids to interpretation
refers to established administrative usage (or
custom) over a period of time. The way legislation
has been applied in practice—by the very agencies
and departments entrusted with its
administration—may be a very good indication of
its aim and purpose. Although the long-term use of
legislation cannot dictate a particular interpretation
to the courts, it may just be the deciding factor
where two interpretations are possible. Typical
examples of administrative usage are
interpretation notes, circulars and explanatory
notes issued by the South African Revenue Service
or the Registrar of Pension Funds.
Case law example:
In Nissan SA (Pty) Ltd v Commissioner for Inland
Revenue 1998 (4) SA 860 (SCA) court had to
decide on the possible use of commission reports
and subsecuta observatio. The plaintiff, a
manufacturer, distributor and exporter of motor
vehicles, relied on the exemption afforded by s
10(1)(zA) of the Income Tax Act 58 of 1962 (as
amended). The plaintiff relied on reports of
commissions of inquiry and administrative practice
(reports of the Board of Trade and Industry and
the way in which the provision had been
interpreted by the Department of Internal
Revenue). The court ruled that it could not be
taken into account: the reports did not show which
of the Board’s findings had been accepted, and the
Commissioner’s interpretation had been discarded
too quickly to be used as part of subsecuta
observatio and contemporanea expositio.
The purpose of the Interpretation Notes is to
provide guidelines to SARS employees and
taxpayers regarding the interpretation and
application of the provisions of the various laws
administered by SARS. These Notes will ultimately
replace all the existing Practice Notes and internal
Circular Minutes, to the extent that they relate to
the interpretation of the various laws. The Notes
will be amended from time to time in line with
policy developments and changes in the legislation.
Pension Fund Circulars constitute best practice
with regard to retirement funds as prescribed by
the Registrar of Pension Funds from time to time
and reflect the Registrar’s interpretation, discretion
or requirements in respect of various issues.
Although the provisions of these circulars are
adhered
Page 154
to by the industry ‘by agreement’ with the
Financial Services Board, they do not necessarily
have any legal status as such and are not
enforceable in any formal manner.
The following is an abbreviated example of a
typical SARS interpretation note:
GENERAL NOTE GN 37
GENERAL SUBJECT: SECOND SCHEDULE
TO THE INCOME TAX ACT, NO 58 OF
1962
SPECIFIC ASPECT: MAINTENANCE
AWARDS
STATUS: OPINION
PURPOSE: To convey the view of the
South African Revenue Service regarding
the tax treatment of a retirement fund
maintenance order of court.
...
ISSUED BY—
LEGAL AND POLICY DIVISION
SOUTH AFRICAN REVENUE SERVICE
Date: 31 October 2008
6.5 The comparative dimension
6.5.1 Foreign law
In the past, South African courts could refer to
foreign law and foreign case law during the
interpretation of legislation. For instance,
sometimes the courts have to interpret a section of
an English statute that has been incorporated
word-for-word into South African legislation. The
question is whether the South African courts may
follow the interpretation given to the English
legislation by the English courts. South African
courts may use the interpretation of the English
courts as a guideline—if the South African
legislation is identical to the original English
legislation and the interpretation of the English
courts is not in conflict with South African
common-law principles, the South African courts
may take cognisance of the English decided cases.
This is now further qualified by the Constitution.
Section 39(2) provides that, when our common law
is developed by any court, tribunal or forum, the
spirit, purport and objects of the Bill of Rights must
be promoted. Now it is not only the rules of
common law that determine whether our courts
refer to foreign law, but the supreme Constitution
as well. Since the interpretation of legislation
begins and ends with the Constitution, foreign law
and comparable case law from other jurisdictions
should be applied with circumspection (S v Zuma
1995 (2) SA 642 (CC)).
Page 155

6.5.2 International law

Section 233 of the Constitution is another
interpretation clause, but also deals with the
relationship between the Constitution (and all
South African law) and public international law:
When interpreting any legislation, every court
must prefer any reasonable interpretation of
the legislation that is consistent with
international law over any alternative
interpretation that is inconsistent with
international law.
Section 233 is a peremptory provision, and is the
constitutional confirmation of the common-law
presumption that legislation does not violate
international law. It states that a court must prefer
a reasonable interpretation that is not in conflict
with international law. Any interpretation of s 233
is subject to s 1(c) (the foundation clause); s 2
(the supremacy clause); and s 8(1) (the
application clause). Of course, it could be argued
that s 233 in effect strengthens s 39(2) of the
Constitution; any reasonable construction which is
consistent with international law (international
human rights law in particular), will promote the
spirit, purport and objects of the Bill of Rights.
Section 233 is qualified by the two provisions
which also deal with international law: in terms of
s 231 an international agreement (a treaty)
becomes law in the Republic when it is enacted
into law by national legislation; and s 232 provides
that customary international law is law in the
Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
Practical examples:
In terms of s 3 of the Implementation of the Rome
Statute of the International Criminal Court Act 27
of 2002 (which commenced on 16 August 2002),
the objects of the Act are to create a framework to
ensure that the Statute is effectively implemented
in the Republic, and that anything done in terms of
the Act conforms with the obligations of the
Republic in terms of the Statute, and to provide for
the crimes of genocide, crimes against humanity
and war crimes.
Page 156
Section 3(c) of the Labour Relations Act 66 of 1995
provides that the Act must be interpreted in such a
way that it is in compliance with the public
international law obligations incumbent on the
Republic.
 Page 111

Chapter 6
A practical, inclusive
methodology: The five
interrelated dimensions of
interpretation

6.1 The language dimension

6.1.1 Basic principles

(a) The initial meaning of the text

The text-based approach no longer has any place

in statutory interpretation. Of course the reading of
the text is necessary, but, as has been pointed
out, the legislation as a whole and its context play
an equally important role in the interpretation
process. It also has to be borne in mind that the
purpose of the legislation will still qualify the
meaning of the text. The basic language principles
about the meaning of the text may therefore be
regarded as, at best, initial and merely tentative
rules. In the final instance, it is the purpose of the
legislation, viewed against the fundamental rights
contained in the Constitution, which will qualify the
meaning of the text.
The interpretation process begins with the
reading of the legislation concerned. The ordinary
meaning must be attached to the words (Union
Government v Mack (above)). Most readers will
agree that this is a pretty standard starting point
for reading a text. Unfortunately, what was once a
basic principle of language was subsequently
elevated to the primary
Page 112
rule of interpretation. For example, in Volschenk v
Volschenk 1946 TPD 486, it was held that the most
important rule of interpretation was to give words
their ordinary, literal meaning. In Sigcau v Sigcau
1941 CPD 334 the court argued that ‘ordinary
meaning’ includes the ordinary grammatical
meaning. Furthermore, in Association of
Amusement and Novelty Machine Operators v
Minister of Justice 1980 (2) SA 636 (A) the court
held that ‘ordinary meaning’ means colloquial
(everyday conversational) speech.
 Remember, the principle that the ordinary
meaning should be given to the words of the
legislation is only the starting point of the
interpretation process. It means that the
interpreter should not attach an artificial (strained
or unnatural) meaning to the text. However, the
context of the legislation, including all the factors
both inside and outside the text, which could
influence and qualify the initial meaning of the
provision, has to be taken into account right from
the outset. In the case of technical legislation
dealing with a specific trade or profession, words
that have a specific technical meaning in that field
which is different from the ordinary colloquial
meaning have to be given that specialised meaning
(Kommissaris van Doeane en Aksyns v Mincer
Motors 1959 (1) SA 114 (A)).

(b) Every word is important

The principle that a meaning has to be assigned to

every word derives from the rule that words are to
be understood according to their ordinary
meaning. Strictly speaking, this is a principle which
applies when any text is read. Legislation should
be interpreted in such a way that no word or
sentence is regarded as redundant (superfluous or
unnecessary). In Keyter v Minister of Agriculture
1908 NLR 522, it was pointed out that the court’s
function is to give effect to every word, unless it is
absolutely essential to regard it as unwritten. In
practice, however, a court will not easily decide
that words contained in legislation are superfluous
(Commissioner for Inland Revenue v Golden
Dumps (Pty) Ltd 1993 (4) SA 110 (A)).
Sometimes, however, it is impossible to assign a
meaning to every word in a statute, as tautological
(unnecessarily repetitive) provisions are often
added as a result of excessive caution (ex
abundanti cautela). Overlapping and repetition
often occur, because the drafters of legislation are
overcautious in guarding against anything
important being omitted. The resulting redundancy
may be ignored in the interpretation of a clause (R
v Herman 1937 AD 168). Steyn (1981: 20) points
out
Page 113
that if superfluous words help to ascertain the
meaning of other words, they are not really
unwanted and the provision should be read as a
whole in order to obtain the meaning. In Secretary
for Inland Revenue v Somers Vine 1968 (2) SA
138 (A), the court stated clearly that the principle
that a meaning should be assigned to every word
is not absolute. This is correct, because the
purpose of the legislation should be the deciding
factor in determining whether a word is
superfluous or not. This principle is also related to
the presumption that legislation does not contain
futile or nugatory provisions (see 6.2.4 below).

(c) No addition or subtraction

It is a basic rule of interpretation that there may

be no additions to or subtractions from the words
used in the legislation. This is a default setting,
based on the separation of powers principle.
However, this is only a basic default principle,
because in the final analysis, the purpose of the
legislation is the qualifier of the meaning of the
text. Unfortunately, the courts have elevated this
principle to another so-called ‘primary rule’. For all
practical purposes, it is sufficient to know that the
courts may not supply omissions in legislation at
will. If, however, the purpose of the legislation is
clear, the court is the last link in the legislative
process, and should (according to Labuschagne
(1985: 60)) ensure that the legislative process
reaches a just and meaningful conclusion. (This
aspect of interpretation will be discussed in greater
detail in Chapter 7 below.)

(d) The continuing time-frame of legislation: the law is

always speaking

If words bear their ordinary meaning—initially at

least—the question is whether words in existing
legislation should interpreted according to their
present-day meaning, or whether they should
retain the meaning they had when the legislation
was passed. Cowen (1980: 391) questioned the
principle that words should retain their original
meaning: it indicates a tendency to glance over
one’s shoulder, based on an incorrect
reconstruction of an historical legislature’s
thoughts (the original intent principle), and
negates the future-oriented frame of reference of
legislation.
Initially the courts followed the general rule. In
Finbro Furnishers (Pty) Ltd v Registrar of Deeds,
Bloemfontein 1985 (4) SA 773 (A), the Appellate
Division held that unless later legislation expressly
provided otherwise, words in legislation
Page 114
had to be construed according to their meaning on
the day on which the legislation was adopted. This
judgment was confirmed in Minister of Water
Affairs and Forestry v Swissborough Diamond
Mines (Pty) Ltd 1999 (2) SA 345 (T): the intention
of the legislature had to be determined in view of
the meaning of the provision at the time when it
was enacted.
However, it would seem that the courts might in
future be less rigid. In Golden China TV Game
Centre v Nintendo Co Ltd 1997 (1) SA 405 (A) it
was held that the general scheme (purpose) of an
Act suggested that the definitions in that Act were
to be interpreted flexibly in order to deal with new
technologies on a continuous basis, rather than to
interpret the provisions narrowly, forcing the
legislature periodically to update the Act. In Fourie
v Minister of Home Affairs 2005 (3) SA 429 (SCA)
paras 136-137 Farlam JA (albeit in a minority
judgment) refers to a presumption of updating
interpretation: an updated interpretation should be
given to ‘ongoing Acts’ (legislation that will
continue to apply in the future), except in the case
of those rare statutes intended to be of unchanging
effect (so-called ‘fixed-time Acts’).
When considering this continuing time-frame of
legislation it must be borne in mind that all
legislation has to be interpreted so as to promote
the spirit and scope of the Bill of Rights, but that a
supreme constitution is not a static document, nor
are the values underpinning it static. In Nyamakazi
v President of Bophuthatswana 1992 (4) SA 540
(BGD) 567H Friedman J stated that a supreme
constitution must be interpreted in the context and
setting existing at the time when a case is heard,
and not when the legislation was passed, otherwise
the growth of society will not be taken into
account:
 These are the objectives of the rights contained
therein, the circumstances operating at the
time when the interpretation has to be
determined, the future implications of the
construction, the impact of the said
construction on future generations, the taking
into account of new developments and changes
in society.
In Baloro v University of Bophuthatswana 1995 (4)
SA 197 (B) 241B Friedman J once again explained
this constitutional dynamic (emphasis added):
This Constitution has a dynamic tension
because its aims and purport are to
metamorphose South African society in
accordance with the aims and objects of the
Constitution. In this regard it cannot be viewed
as an inert and stagnant
Page 115
document. It has its own inner dynamism, and
the Courts are charged with effecting and
generating changes.
However, an enactment cannot automatically be
reinterpreted to keep up with the winds of change
in society. The rule of law principle means that
courts will always need to balance the dimension of
futurity with legality issues such as offences,
penalties and vested rights, as well with legal
certainty.

6.1.2 Internal language aids to interpretation

(a) The legislative text in another official language

Prior to the commencement of the interim

Constitution, legislation in South Africa was drafted
in two official languages, and the text in the other
language was used to clarify obscurities. Devenish
(1992: 144) refers to this as ‘statutory
bilingualism’.

Original legislation

The signing of legislation is part of the prescribed

procedure during the passing of original legislation.
Old order legislative texts were signed alternately
(in turn) in the languages in which they were
drafted, and the signed text was enrolled for
record at the Appellate Division. In case of an
irreconcilable conflict between the various
legislative texts, the signed one prevailed. This
principle was expressly included in the 1961 and
1983 Constitutions, as well as in the interim
Constitution. The 1996 Constitution does not refer
to irreconcilable conflicts between texts of other
legislation. In Du Plessis v De Klerk (above) para
44 the Constitutional Court referred, with apparent
approval, to the existing legal position regarding
conflicting versions of the same legislative text. In
terms of item 27 of Schedule 6, these provisions
do not affect the safekeeping of legislation passed
before the 1996 Constitution came into operation.
It should also be noted that s 126 of the
Constitution (‘Publication of municipal by-laws’)
does not mention the signing of new municipal
legislation.
With regard to the 1996 Constitution itself, s 240
of the Constitution states that the English text will
prevail in the event of any inconsistency between
the different texts. The Constitution also provides
(ss 82 and 124) that the versions of all new
national and provincial legislation which have been
signed by the President or a provincial premier
respectively, has to be entrusted to the
Constitutional Court for safekeeping. The signed
version will be conclusive evidence of the
provisions of that legislation.
Page 116
The signed version of the legislative text does not
carry more weight simply because that is the one
which was signed:

•
The signed version is conclusive only when
there is an irreconcilable conflict between the
versions (Handel v R 1933 SWA 37). In other
words, the signed version is used as a last
resort to avoid a stalemate.

•
If the one version of the text is wider than the
other (eg one version prescribes a penalty of
imprisonment and a fine, and the other only a
fine), then the common-denominator rule is
followed, and only a fine will be imposed. The
texts are read together to establish the
common denominator (Jaffer v Parow Village
Management Board 1920 CPD 267).
•
If the versions differ but there is no conflict,
the versions complement one another and they
have to be read together. An attempt should
be made to reconcile the texts with reference
to the context and the purpose of the
legislation (Zulu v Van Rensburg 1996 (4) SA
1236 (LC)).

•
Even the unsigned version of the legislative
text may be used to determine the intention of
the legislature (Commissioner of Inland
Revenue v Witwatersrand Association of Racing
Clubs 1960 (3) SA 291 (A) 302A–B).

•
Because statutes are signed using alternate
languages, amendment Acts may create a
problem. Suppose the Afrikaans version of a
statute was signed but the English version of
the amendment Act was signed. Which one of
the signed versions of the amendment Act will
prevail in case of an irreconcilable conflict?
 There are conflicting answers to this question,
but the most acceptable solution was put
forward in R v Silinga 1957 (3) SA 354 (A). The
court suggested that the amendment Act be
regarded as part of the original statute. The
version of the statute signed originally will
prevail in the case of an irreconcilable conflict.

Subordinate legislation

There are no statutory or constitutional rules about

conflicting language versions of subordinate
legislation. In practice all the versions of
subordinate legislation will be signed, and the
signed text cannot be relied on to resolve conflicts
between texts. If the texts do differ, they must be
read together (Du Plessis v Southern Zululand
Rural Licensing Board 1964 (4) SA 168 (D)). If
there is an irreconcilable conflict between the
various texts, the court will give preference to the
one that benefits the person concerned (Bolnik v
Chairman of the Board appointed by the SA Council
of Architects 1982 (2) SA 397 (C)).
Page 117
This approach is based on the presumption that
the legislature does not intend legislation that is
futile or nugatory (R v Shoolman 1937 CPD 183).
If the irreconcilable conflict leads to subordinate
legislation that is vague and unclear, the court
may declare it invalid (Kock v Scottburgh Town
Council 1957 (1) SA 213 (D)).
Criticism
All versions of the legislative text should be read
together from the outset, as they all are part of
the structure of the same enacted law-text. The
arbitrary manner of conflict resolution (ie that the
signed version automatically prevails) is merely a
statutory confirmation of a text-based approach,
because the purpose of the legislation is ignored if
there is an irreconcilable conflict between the two
versions of the legislative text. It could well be that
the unsigned version reflects the true purpose of
the provision, and that the signed text is the
incorrect one. In following the signed version
‘blindly’, the purpose of the legislation could be
defeated by the court! In the light of the
interpretation clause in the Constitution (s 39(2)),
as well as of the principle that legislation should as
far as possible be interpreted to render it
constitutional, the following solution is suggested:
in the case of an irreconcilable conflict between
versions of the same legislative text, the text
which best reflects the spirit and purport of the Bill
of Rights must prevail.
Of course, the rules explained above will apply to
old order legislation. If the existing Act was
published in, say, Afrikaans and English, all future
amendment Acts will still have to be adopted and
published in Afrikaans and English (because those
amendments will eventually be incorporated into
the Act). Furthermore, in theory at least,
subordinate legislation issued in terms of an
enabling Act originally published in Afrikaans and
English will also need to be in Afrikaans and
English.
However, South Africa now has 11 official
languages. For a number of practical reasons the
legislation cannot be promulgated in all 11
languages. Since 1998 new Acts of Parliament
have been promulgated only in English. Section
59(1)(a) of the Constitution obliges Parliament to
‘facilitate public involvement in the legislative and
other processes’. One way of doing that is to
publish translations of Bills introduced in
Page 118
Parliament. In addition, the Joint Rules of
Parliament require that a translated version of a
Bill that has been adopted must be submitted
together with the Bill to be signed into law. In
practical terms this means that new Acts of
Parliament are promulgated only in English.

(b) The preamble

Although old order legislation with a preamble is

rare, some private Acts, the new generation public
Acts (eg the South African Schools Act 84 of 1996)
and the Constitution have preambles. The
preamble usually contains a programme of action
or a declaration of intent with regard to the broad
principles contained in the particular statute.
Preambles tend to be programmatic and couched
in general terms, but they may be used during
interpretation of legislation since the text as a
whole should be read in its context. Although a
preamble on its own can never provide the final
meaning of the legislative text, post-1994
preambles should provide the interpreter with a
starting point—it is the key that unlocks the first
door in the process of statutory interpretation.
In Jaga v Dönges (above) Schreiner JA
considered the preamble to be part of the context
of the statute. In a number of recent cases (eg
Qozeleni v Minister of Law and Order (above) 79D-
E and Khala v The Minister of Safety and Security
1994 (4) SA 218 (W) 221) the courts
acknowledged the unqualified application of the
Constitution’s preamble. In National Director of
Public Prosecutions v Seevnarayan 2003 (2) SA
178 (C) 194 the court rejected the argument that
a preamble may be considered only if the text of
the legislation is not clear and ambiguous as an
outdated approach to interpretation.

(c) The long title

The long title provides a short description of the

subject matter of the legislation (see also the
example of an Act in Chapter 2). It forms part of
the statute considered by the legislature during the
legislative process. The role played by the long title
in helping to ascertain the purpose of the
legislation will in each case depend on the
information it contains. The courts are entitled to
refer to the long title of a statute to establish the
purpose of the legislation (Bhyat v Commissioner
for Immigration (above)).
Page 119

(d) The definition clause

Almost all statutes contain a definition clause. This

is an explanatory list of terms in which certain
words or phrases used in the legislation are
defined (see also the example of an Act in Chapter
2 (above)). A definition section is an internal
dictionary for that Act only—the definition section
always starts with the phrase ‘In this Act, unless
the context indicates otherwise . . .’.
A definition in the definition section is conclusive,
unless the context in which the word appears in
the legislation indicates another meaning. In that
case, the court will follow the ordinary meaning of
the word (Brown v Cape Divisional Council 1979
(1) SA 589 (A)). In Kanhym Bpk v Oudtshoorn
Municipality 1990 (3) SA 252 (C) it was held that a
deviation from the meaning in the definition clause
will be justified only if the defined meaning is not
the correct interpretation within the context of the
particular provision.
Practical example:
Let us assume a 17-year-old person applies to be
funded for adult education and training in terms of
the Adult Basic Education and Training Act 52 of
2000. Section 1 of the Act provides the following
definition of ‘adult’:
In this Act, unless the context indicates
otherwise—
“adult” means a person who is sixteen
years or older;
But how can it be that a person of 17 is considered
to be an ‘adult’? After all, s 1 of the Children’s Act
38 of 2005 defines a child as a person under the
age of 18 years, and in terms of s 17 a person only
becomes a major (adult) at the age of 18;
furthermore, in terms of s 28 of the supreme
Constitution a person under the age of 18 is still a
child.
 However, it should be remembered that a
definition in legislation only applies for that
particular legislation. Definitions in other legislation
do not apply, and the definitions in the Children’s
Act and Constitution will apply only to the
Children’s Act and the Constitution respectively—
not to the Adult Basic Education and Training Act.
The aim of the Adult Basic Education and Training
Act is
Page 120
very specific, as it deals with basic education for
older learners; on the other hand, the Children’s
Act deals with (amongst other things) the age of
majority, while s 28 of the Constitution focuses on
the protection of children’s rights.

(e) Express purpose clauses and interpretation guidelines

While a preamble is formulated in wide and general

terms, and the long title is nothing more than a
summary of the contents of an Act, the express
purpose clause and interpretation guidelines
contain more detail and are more focused, and
should be more valuable during the interpretation
process. However, by itself none of them can be
decisive. To take such a view would merely create
a new and sophisticated version of text-based
interpretation. The interpreter must still analyse
the legislative text (as a whole) together with all
internal and external aids.
Examples of a purpose clause and interpretation
guidelines are ss 1 and 3 of the Labour Relations
Act:
1 Purpose of this Act.
The purpose of this Act is to advance
economic development, social justice, labour
peace and the democratisation of the
workplace by fulfilling the primary objects of
this Act, which are—

(a)
to give effect to and regulate the fundamental
rights conferred by section 27 of the
Constitution;

(b)
to give effect to obligations incurred by the
Republic as a member state of the
International Labour Organisation;
(c)
to provide a framework within which
employees and their trade unions, employers
and employers’ organisations can—
(i)
collectively bargain to determine wages, terms
and conditions of employment and other
matters of mutual interest; and
(ii)
formulate industrial policy; and

(d)
to promote—
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee participation in decision-making in
the workplace; and
(iv)
the effective resolution of labour disputes.
 Page 121
3 Interpretation of this Act
Any person applying this Act must interpret
its provisions—

(a)
to give effect to its primary objects;

(b)
in compliance with the Constitution; and

(c)
in compliance with the public international law
obligations of the Republic.

(f) Headings to chapters and sections

Headings to chapters or sections may be regarded

as introductions to those chapters or sections.
Within the framework of text-in-context, headings
may be used to determine the purpose of the
legislation. In the past the courts held the literal
viewpoint that headings may be used by the courts
to establish the purpose of the legislation only
when the rest of the provision is not clear
(Chotabhai v Union Government 1911 AD 24). In
Turffontein Estates v Mining Commissioner
Johannesburg 1917 AD 419 the court pointed out
that the value attached to headings will depend on
the circumstances of each case.
Practical example:
The value of headings to sections and chapters will
differ from one to the other, depending on the
information they contain. A heading stating
‘Regulations’ merely states that the following
section is the enabling clause which authorises a
subordinate lawmaker to issue subordinate
legislation—what you see is what you get. But
headings are also pieces in the bigger jigsaw
puzzle, and they could possibly provide some
important information an interpreter will need. For
example, take Chapter 2 and ss 18 and 19 of the
(since repealed) Human Tissue Act 65 of 1983. The
chapter heading reads ‘TISSUE, BLOOD AND
GAMETES OF LIVING PERSONS, AND BLOOD
PRODUCTS’, and the section headings provide
‘Consent to removal of tissue, blood or gametes
from bodies of living persons’ and ‘Purposes for
which tissue, blood or gametes of bodies of living
persons may be used’. The chapter clearly deals
with the donation of three different things: blood,
tissue and gametes. Now the warning bells should
start to ring: What is the difference
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between these three, and what are gametes? Back
to the definition section we go. A ‘gamete’ is
defined as either of the two generative cells
essential for human reproduction, and ‘tissue’
means any human tissue, including any flesh,
bone, organ, gland or body fluid, but excluding any
blood or gamete. In practical terms the headings
would have alerted the interpreter to be aware of
the difference between blood, tissue and
gametes—important, since they are very different
as regards both the legal requirements and
consequences associated with the donation of
blood, tissue and gametes respectively.

(g) Schedules

Schedules serve to shorten and simplify the

content matter of sections in legislation. The value
of a schedule during interpretation depends on the
nature of the schedule, its relation to the rest of
the legislation, and the language in which the
legislation refers to it. The general rule is that
schedules, which expound sections of an Act,
should have the same force of law as a section in
the main Act. An example of a schedule is
Schedule 1 of the Constitution (which contains the
description of the national flag). It should be clear
that schedules have to be consulted when
interpreting provisions in the main part of the Act.
In the case of conflict between the schedule and
a section in the main legislation, the section
prevails (African and European Investment Co v
Warren 1924 AD 360). One notable exception to
this rule was s 232(4) of the 1993 Constitution,
which stated that for all purposes the schedules
were deemed to form part of the substance of the
1993 Constitution. In certain cases the particular
schedule will state that it is not part of the Act and
that it does not have the force of law, in which
case it is an external aid and it may be considered
as part of the context. An example of this is
Schedule 4 of the Labour Relations Act, which
consists of flow diagrams which explain the
procedures for dispute resolution set out in the
Act.
As was pointed out in Chapter 2, the names and
types of legislation can be confusing. Sometimes a
schedule is a type of subordinate legislation, and
not a part of the Act (as primary legislation). For
example, s 207 of the Labour Relations Act
empowers the Minister of Labour—after
consultation with NEDLAC—to change, add to or
replace certain schedules in the Act by notice in
the Government Gazette.
Page 123

6.1.3 External language aids to

interpretation

(a) Dictionaries and linguistic evidence

In an era in which legislation is becoming ever

more technical and highly specialised, courts often
use dictionaries during interpretation. In Transvaal
Consolidated Land and Exploration Co Ltd v
Johannesburg City Council 1972 (1) SA 88 (W)
94G the court used dictionaries in a contextual
framework:
 Dictionary definitions serve to mark out the
scope of the meanings available for a word, but
the task remains of ascertaining the particular
meaning and sense of the language intended in
the context of the statute under consideration.
In De Beers Industrial Diamond Division (Pty) Ltd v
Ishizuka 1980 (2) SA 191 (T) the court reiterated
that the meaning of a word cannot be determined
conclusively by its dictionary meaning. The
dictionary meaning is only a guideline. A dictionary
cannot prescribe which of several possible
meanings of a particular word should prevail—the
context in which a word is used should be the
decisive factor. In Fundstrust (Pty) Ltd (in
liquidation) v Van Deventer 1997 (1) SA 710 (A)
the court reiterated that the use of authoritative
dictionaries is a permissible and helpful method
available to the courts during interpretation of
statutes. However, interpretation of statutes
cannot be done by ‘excessive peering at the
language to be interpreted without sufficient
attention to the contextual scene’. After all, the
interpreter has to ascertain the meaning of words
or expressions in the particular context of the
statute in which it appears.
Case law example:
In S v Makhubela 1981 (4) SA 210 (B), the
accused was charged with being behind the wheel
of a vehicle that was being pushed by a group of
people on a public road, without having a driver’s
licence. He was found guilty of driving a vehicle on
a public road without a valid driver’s licence. On
review, the court decided that the definition of the
word ‘drive’, as found in the Road Traffic Act 7 of
1973, was inadequate, and it consulted a
dictionary as well. The court held that the word
‘drive’ should not be construed only according to
its dictionary meaning, but should be
Page 124
understood within the context of the Act as a
whole. The legislature had meant that a person
driving a vehicle driven by its own mechanical
power should be in possession of a driver’s licence.
The conviction and sentence were set aside.
In Association of Amusement and Novelty Machine
Operators v Minister of Justice (above) the
meaning of the word ‘pin-tables’ was in dispute.
The court held that the testimony of language
experts was not admissible as an aid in construing
legislation. In the same vein, in Metro Transport
(Pty) Ltd v National Transport Commission 1981
(3) SA 114 (W) the court decided that
supplementary linguistic evidence to interpret a
statutory provision was not admissible.

(b) Examples and footnotes

The use of footnotes in legislation is a new trend,

used to facilitate better and more streamlined
cross-references (eg the Labour Relations Act).
Although the Acts in which footnotes are used
expressly state that they do not form part of the
Act, they may be used as external aids during the
interpretation process.

(c) Definitions in the Constitution and the Interpretation Act

There is a large number of definitions in other

legislation that expressly have a wider application.
For instance, when interpreting old order
legislation the definitions in item 3 Schedule 6 of
the Constitution will be indispensable.
Furthermore, the definitions in s 2 of the
Interpretation Act will apply to all other legislation
unless expressly provided otherwise.

(d) The clock is ticking: computation of time

Lawyers and courts like ‘clear lines to be drawn in

the sand’. One of those ‘lines in the sand’ is time
limits. Legal documents must be filed within a
certain time; a debt has to be settled or a fine
must be paid before a certain date, and so on. The
matter of the computation of time is very
important, because a large number of statutory
enactments and contractual provisions prescribe a
time or period in which or after which certain
actions are to begin, or be executed, abandoned or
completed. The failure to discharge obligations
within a prescribed period may have dire
consequences. How do we construe time clauses?
What is a month, or a week? So, when does the
‘legal
Page 125
clock’ start ticking and when does it stop? Although
s 4 of the Interpretation Act deals with
computation of time, it is more complicated than
that. There are also common-law methods of
computation of time, as well as time clauses in
other legislation (eg the Rules of the High Court
and the Magistrate’s Court).

The meaning of time units

Year:
A year consists of a cycle of 365 days (366 days
every fourth or leap year), and is based on the
Gregorian calendar. Every year commences on 1
January and ends on 31 December.

Month:
The term ‘month’ could have three possible
meanings:

•
according to s 2 of the Interpretation Act
‘month’ means a calendar month (not a lunar
month); in other words, the twelve unequal
named periods which make up a year on the
calendar (s 1 of the Value-Added Tax Act 89 of
1991 defines a month as ‘any of the twelve
portions into which a calendar year is divided’);
or
•
a lunar month of 28 days; or

•
a period of time stretching between two
corresponding dates in succeeding months of
the year (eg 9 June to 9 July).
The last meaning is the one used the most
frequently in law. However, it would be more
appropriate to use the term ‘calendar month’ for
the first alternative and ‘month’ for the last one.

Day:
Normally a day will be one of the 24-hour units of
a week stretching from midnight to midnight, or it
could be the hours of daylight (s 1 of the Criminal
Procedure Act 51 of 1977 defines a day as the
space of time between sunrise and sunset).
Week:
Traditionally a week as a part of a calendar runs
from midnight on a Saturday to midnight on the
next Saturday. For the purpose of computation of
time the courts regard a week as any period of
seven successive days.
Page 126

Computation of time

The statutory method (s 4 of the

Interpretation Act):
When any particular number of days is
prescribed for the doing of any act, or for any
other purpose, the same shall be reckoned
exclusively of the first and inclusively of the
last day, unless the last day happens to fall on
a Sunday or any public holiday, in which case
the time shall be reckoned exclusively of the
first day and exclusively also of every such
Sunday or public holiday.
Section 4 refers to days and not to periods of
months or years. So the default method of
calculation for days (and weeks as units of days) is
the statutory method. The first day is excluded
(the counting starts on the next day) and the last
day is included, unless the last day falls on a
Sunday or a public holiday, in which case the
period will move on to the next day. Please note
that Sundays and public holidays falling within the
time period will be counted. Section 1 of the
Interpretation Act provides that s 4 will apply
unless the contrary intention is clear from the
particular legislation (Kleynhans v Yorkshire
Insurance Co Ltd 1957 (3) SA 544 (A)).
In two instances the general principle of ‘first day
excluded, last day included’ for days will not apply
(only if the intention to deviate from the default
principle is clear): first, the rules of court provide
that where a number of ‘court days’ are referred to
in a contract or legislation, the computation will
not include Saturdays, Sundays and public
holidays, nor can the period end on those days;
and second, where there is a reference to a
number of ‘clear days’ or ‘at least’ a number of
days between two events, those days will be
calculated with the exclusion of both the first and
the last days (eg if it is a statutory requirement
that notice of eight clear days be given for a
meeting, both the day the notice is delivered and
the day of the meeting are not counted as part of
the eight days).
Off course, legislation may at any time change
the default time calculation methods. For instance,
the Income Tax Act: both s 83(23) (referring to
Part III of the Act dealing with objections and
appeals) and s 89sex(1) expressly provide that a
Saturday will also not be counted during the
calculation of prescribed time periods:
(23) Any reference in this Part and the rules
to “day” means any day other than a
Saturday, Sunday or public holiday: Provided
that the days between 16 December of a year
and 15 January of the
Page 127
following year, both inclusive, shall not be
taken into account in determining days or the
period allowed for complying with any
provision in this Part or the rules.
89sex. Determination of day and time for
payment of tax, interest or penalties.
 (1) Where any day specified for any payment
to be made under the provisions of this Act, or
the last day of any period within which
payment under any provision of this Act shall
be made, falls on a Saturday, Sunday or a
public holiday, such payment shall be made not
later than the last business day falling prior to
such Saturday, Sunday or public holiday.

Common-law methods
Three common-law methods of computation of
time will be discussed briefly. Although part of
common law, these methods complement s 4 of
the Interpretation Act (the statutory method):

•
Ordinary civil method (computatio civilis):
Unless clearly indicated otherwise, this method
is the default method for the calculation of
months and years and is the opposite of the
statutory method (used for days). The first day
of the prescribed period is included and the last
day excluded. The last day is regarded as
 ending at the very moment it begins, as it were
(at midnight of the previous day).
Case law examples:
A very interesting example of the ordinary civil
method is Minister van Polisie v De Beer 1970 (2)
SA 712 (T). The case dealt with a claim for
damages after a police vehicle had collided with a
private motor-car. In terms of s 32 of the Police
Act 7 of 1958, a claim for damages against the
police as a result of an action executed in terms of
the Police Act had to be instituted within six
months. The collision took place on 5 August 1967.
The summons was served on 5 February 1968. On
appeal the Supreme Court found that the ordinary
civil method should be used to calculate the time.
The last day was therefore excluded and the
summons was therefore served one day too late.
As a result the action was refused.
Page 128
However, in Pivot Point SA (Pty) Ltd v Registrar of
Companies 1980 (4) SA 74 (T) the issue was the
time period prescribed in s 45 of the Companies
Act 61 of 1973, which provided that the Registrar
may ‘within one month after the date of such
decision or order, apply to the Court for relief’. The
court held that the language of the Act clearly
indicated that the ordinary civil method of
calculating time was not to be used, because the
provision stated ‘after the date of such decision’. If
time is to run ‘after’ a day or date, then clearly
that day or date must be excluded from the
reckoning of time.

•
Natural method (computatio naturalis): Where
this method is used, the prescribed period is
calculated from the hour (or even minute) of
an occurrence to the corresponding hour or
minute on the last day of the period in
question.

•
Extraordinary civil method (computatio
extraordinaria): Both the first and the last day
of the period concerned are included. This
method of time calculation is obsolete and is no
longer used by the courts.
An important note:
The issue of time limits and computation of time is
far more complicated than it may seem from the
brief introduction above. The large number of
cases, legislation and exceptions to rules cannot be
dealt with fully in this book. Remember: whichever
method of computation of time is used, the
purpose of the legislation will remain the decisive
factor.

6.2 The holistic (contextual and

structural) dimension: Don’t miss the
wood for the trees
6.2.1 Legislation must be construed within
the total legal picture
As was pointed out in Chapter 1, the interpretation
of legislation involves more than analysing the
particular provision in question. To interpret a text
in its context includes the intra-textual context
(the enactment as a whole, including its unique
structure and legislative ‘codes’), as well as the
extra-textual context (the rest of the existing law
and other
 Page 129
contextual considerations that might be
applicable). Currently one of the more serious
practical problems is arguably the fact that many
practitioners fail to see the bigger legal picture
when they interpret legislation.
The interpreter has to study the legislation as a
whole. In Nasionale Vervoerkommissie van Suid-
Afrika v Salz Gossow Transport (Edms) Bpk 1983
(4) SA 344 (A), the court pointed out that when
interpreting certain provisions, a statute must be
studied in its entirety.
Practical example:
Let us assume Bela-Bela (one of the local
municipalities within the Waterberg district
municipality) intends to pass a by-law on a
particular subject (say, abattoirs). The question is
whether the municipal council has the authority to
enact a by-law about abattoirs. Their lawyer only
consults the Constitution (Schedule 4B and 5B),
and it seems straightforward—abattoirs clearly fall
within the legislative competencies of a
municipality. However, it turns out to be much
more complicated. The Constitution cannot be read
in isolation.
Chapter 6 of the Local Government: Municipal
Structures Act 117 of 1998 provides for the
division of powers and functions between district
municipalities and local municipalities. Section
84(1) of the Municipal Structures Act provides for
all the powers and functions of a district
municipality, and in terms of s 84(2), a local
municipality would only have the powers and
functions provided for by the Constitution minus
the s 84(1) powers and functions of the district
municipality. Consequently the Bela-Bela local
municipality may only adopt by-laws (in terms of
ss 155, 156 and 229 of the Constitution, read with
Schedules 4B and 5B of the Constitution, as well as
with ss 83 and 84(1) and (2) of the Local
Government: Municipal Structures Act of 1998) on
those topics left after the Waterberg district
municipality has exercised its choice.
A part from the legislation to be construed, the
bigger picture includes the Constitution and all
other relevant law (including old order legislation
and the common law). Du Plessis (1986:
Page 130
127-128) refers to this principle as the ‘structural
wholeness of the enactment’, and Devenish (1992:
101) describes it as follows:
Interpretation should be ex visceribus actus, ie
from the bowels of the Act or, to paraphrase,
‘within the four corners of the Act’.
Practical example:
The term ‘organ of state’ is used throughout the
Constitution. Section 8(1) (application clause)
provides that the Bill of Rights applies to all law,
and binds the legislature, the executive, the
judiciary and all organs of state; s 195(2)(c)
provides that the principles of basic values and
principles governing public administration
contained in s 195(1) also apply to all organs of
state; in terms of s 55(2)(b)(ii) the National
Assembly must provide for mechanisms to
maintain oversight of any organ of state; s
41(1)(d) states that all organs of state within each
sphere of government must be loyal to the
Constitution; and so on. However, who and what is
an organ of state?
That should not be too difficult to determine.
Section 239 of the Constitution defines it as
follows:
‘organ of state’ means—
(a)
any department of state or administration in
the national, provincial or local sphere of
government; or
(b)
any other functionary or institution—
(i)
exercising a power or performing a function in
terms of the Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a
public function in terms of any legislation,
but does not include a court or a judicial
officer;
So far, so good. But what about higher education
institutions such as universities, or state
enterprises such as Eskom and Transnet? Other
legislation also refers to an organ of state: s 1 of
the Promotion of Administrative Justice Act defines
an administrator as (amongst other things) an
organ of state taking administrative action; and
the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002 offers yet another
definition. So no clarity yet . . .
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There is also a lot of case law on what an organ of
state is. For example, in Van Rooyen v The State
2001 (4) SA 396 (T) the court held that to all
intents and purposes the Magistrates Commission
is an organ of state; Goodman Bros (Pty) Ltd v
Transnet Ltd 1998 (4) SA 989 (W) held that
Transnet performs a public function in terms of
legislation, and it is an organ of state; in Hoffmann
v South African Airways 2001 (1) SA 1 (CC) the
court decided that Transnet is a statutory body,
under the control of the state, which has public
powers and performs public functions in the public
interest. It is well known that South African
Airways is a business unit of Transnet, which
means that SAA is an organ of state and bound by
the provisions of the Bill of Rights; according to
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC) a Cabinet Minister
is an organ of state; in Directory Advertising v
Minister for Posts and Telecoms 1996 (3) SA 800
(TPD) it was held that Telkom is an organ of state;
and so on. Bekink (2012: 548—551) explains that
s 239 refers to all departments and
administrations, their agencies, divisions and
officials; the President, Cabinet, Parliament,
Premiers, municipal councils, the South African
Human Rights Commission, the Public Protector,
the Auditor-General and the Electoral Commission.
Just to complicate matters even more, in
Independent Electoral Commission v Langeberg
Municipality 2001 (3) SA 925 (CC) the court
defined the Independent Electoral Commission as
an organ of state (as defined in s 239 of the
Constitution), but stated that it was not an organ
of state within the national sphere of government
(for the purposes of the dispute resolution
requirements of s 41(3) of the Constitution). The
term ‘organ of state’ may have different meanings,
depending on the context; clearly there is more to
interpretation of legislation than meets the eye!

6.2.2 Balance between text and context

As was explained earlier, the courts had long held
the view that if the text of the legislation was clear
and unambiguous, effect should be given to it. The
context of the legislation was only taken into
account if the language of the legislation was
deemed to be ambiguous. In Jaga v Dönges
(above) Schreiner JA rejected this narrow view and
stated that the interpreter could examine the
broader context even when the text was
Page 132
quite clear. As Kruger (1991: 251) points out,
legislation cannot be construed properly if text and
context are separated. The meaning of the words
of the text should be weighed up against the
context of the legislation. From the outset the
legislation as a whole, the surrounding
circumstances, constitutional values and the text
have to be considered to ascertain the purpose of
the legislation. Quoting from the Schreiner
decision, Wessels JA in Stellenbosch Farmers’
Winery v Distillers Corporation (SA) Ltd 1962 (1)
SA 458 (A) 476E-F described this balancing
process as follows:
In my opinion it is the duty of the Court to read
the section of the Act which requires
interpretation sensibly, ie with due regard, on
the one hand, to the meaning or meanings
which permitted grammatical usage assigns to
the words used in the section in question and,
on the other hand, to the contextual scene,
which involves consideration of the language of
the rest of the statute as well as the ‘matter of
the statute, its apparent scope and purpose,
and, within limits, its background’. In the
ultimate result the Court strikes a proper
balance between these various considerations
and thereby ascertains the will of the
Legislature and states its legal effect with
reference to the facts of the particular case
which is before it.
In Diepsloot Residents’ and Landowners’
Association v Administrator, Transvaal 1994 (3) SA
336 (A) the court recognised the importance of
legislative context. It held that it is permissible to
interpret the provisions of legislation against the
background of the dismantling of apartheid. These
political developments were sufficiently well known
for the court to take judicial notice of them.
Supporters of the orthodox text-based approach
to interpretation frequently accuse supporters of a
text-in-context approach that they indulge in ‘free-
floating’ methods of interpretation, which ignore
the text of the legislation. That is simply not true.
The fact that there needs to be a balance between
the text and context does not mean that the
legislative text may be ignored. After all, the
context has to be anchored to the particular text in
question.

6.2.3 Structure of legislation

Structural aspects such as the table of contents,
paragraphing, layout of the text and punctuation
could play a meaningful role during the
interpretation process.
 It is a grammatical fact that punctuation can
affect the meaning of the text. In R v Njiwa 1957
(2) SA 5 (N) the court
Page 133
stated that punctuation must be considered during
interpretation. In S v Yolelo 1981 (1) SA 1002 (A)
the Appellate Division held that an interpretation
based on the purpose of the legislation prevails
over an interpretation based only on the division
into paragraphs. Finally, in Skipper International v
SA Textile and Allied Workers’ Union 1989 (2) SA
612 (W) a court held that since the punctuation
was considered by the legislature during the
passing of the legislation, it had to be used during
interpretation.

6.2.4 Conflicting legislation

(a) Legislation has a purpose: the presumption that

legislation does not contain futile or nugatory provisions

Unless the contrary is clear, it is presumed that the

legislature does not intend legislation which is
futile or nugatory. Hahlo & Kahn (1973: 210) call it
the principle of ‘effectual and purposeful
legislation’. In a sense this presumption
encapsulates the basis of the most important
principle of interpretation: the court has to
determine the purpose of the legislation and give
effect to it. Since statutory interpretation is a
purpose-seeking activity, this presumption is an
acknowledgement that legislation has a functional
purpose and object. In other words, if reasonably
possible, try to keep the system running smoothly!
In Ex parte the Minister of Justice: In re R v
Jacobson and Levy 1931 AD 466 the court held
that if the intention of the legislature is clear, it
should not be defeated merely because of vague or
obscure language. The court must, as far as
possible, attach a meaning to the words which will
promote the aim of the provision. In SA Medical
Council v Maytham 1931 TPD 45 the court
emphasised that futile (useless) legislation must be
avoided and that an attempt should be made to
promote the ‘business efficacy’ of a provision, and
in Prokureur-Generaal v Van Zyl 1961 (1) SA 729
(C) the court favoured a practical, purposive
interpretation. So: if there are two possible
interpretations, the court must try, if it is
reasonably possible, to adopt an interpretation that
will render the legislation effective. In Esselman v
Administrateur SWA 1974 (2) SA 597 (SWA) the
court emphasised an ‘effective and purposive’
interpretation over one which would defeat the
provision, leaving it useless. In South African
Transport Services v Olgar 1986 (2) SA 684 (A)
the Appellate Division held that if a
Page 134
provision is capable of two meanings, the meaning
which is more consistent with the purpose of the
legislation should be accepted:
[T]he second interpretation . . . is more
consistent with the smooth working of the
system which the Act has been designed to
regulate than the first interpretation.
Case law example:
A notorious example of the application of this
presumption is R v Forlee 1917 TPD 52. Forlee was
found guilty of contravening Act 4 of 1909 for
selling opium. On appeal his lawyer argued that
Forlee had not committed an offence since the Act
in question prescribed no punishment. The court
relied on the presumption against futility, finding
that a specific offence had been created by the
legislature. The court then argued that the absence
of a prescribed penal clause did not render the Act
ineffective, since the court had discretion in
imposing such a suitable form of punishment as it
deemed fit. This decision gave rise to widespread
criticism, because the rule nulla poena sine lege (if
there is no penalty, there is no crime) was not
adhered to. Although both the presumption and
the nulla poena sine lege rule applied in this case,
the nulla poena sine lege rule forms an essential
part of the principle of legality. The principle of
legality aims, as far as the criminal law is
concerned, to prevent the arbitrary punishment of
people and to ensure that criminal liability and the
imposition of punishment are in line with existing
and clear rules of law. This rule should have
trumped the presumption against futile results.
Devenish (1992: 80) is of the opinion that this was
a case where the court should have applied the
casus omissus rule. The nulla poena sine lege
principle has since been reaffirmed in S v Dodo
2001 (3) SA 382 (CC) para 13.
Another recent case law example:
The issue of statutory crimes without prescribed
penalties recently came to the fore again. A certain
Mr Prins was charged in the Regional Court with
contravening s 5(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32
of 2007. He objected to the charge,
Page 135
arguing that neither s 5(1) itself, nor any other
provision of the Act, provides for a penalty for the
offence created by s 5(1). The Regional Court
upheld the objection. The Director of Public
Prosecutions, Western Cape then appealed to the
Western Cape High Court against the decision of
the Regional Court. The Western Cape High Court
held that, since the Act did not specify a penalty
clause, s 5(1) of the Act did not create an offence
and dismissed the appeal. The Director of Public
Prosecutions, Western Cape thereupon appealed to
the Supreme Court of Appeal. In Director of Public
Prosecutions, Western Cape v Prins (2012 (2)
SACR 183 (SCA)) the Supreme Court of Appeal
upheld the appeal, arguing that s 276 of the
Criminal Procedure Act 51 of 1977 is a general
empowering provision authorising courts to impose
sentences in all cases, whether in terms of the
common law or legislation, where no other
provision governs the imposition of sentence.
Consequently the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
did not violate the principle of legality by not
prescribing the penalties for those offences. Two
other aspects of this decision must be noted:

•
The common-law presumption against futile
and nugatory legislation was never raised.

•
It is a good example of reading different sets of
legislation together in order to solve an
interpretation problem.
This decision has since been confirmed by the
legislature. Parliament has passed the Criminal
Law (Sexual Offences and Related Matters)
Amendment Act 6 of 2012, which expressly
provides that the powers of courts with regard to
sentences for the offences in Chapters 2, 3 and 4
of the Act are the same as those specified in s 276
of the Criminal Procedure Act.
In Sekretaris van Binnelandse Inkomste v Lourens
Erasmus (Edms) Bpk 1966 (4) SA 434 (A) the
court held that if possible the interpretation that
avoids uncertainty, confusion and conflict must be
adopted. Furthermore, the presumption enables
courts to try to interpret legislation in such a
manner that evasion of its provisions is prevented
(Dadoo Ltd v Krugersdorp Municipal Council 1920
AD 530). In Dhanabakium v Subramanian 1943 AD
160, the court found that as far as possible,
legislation should be interpreted in such a way that
a
Page 136
casus omissus (omission) is avoided. As will be
discussed later (Chapter 7 below), the courts may
indeed modify (adapt) the initial meaning of the
legislation (in the light of the presumption against
futile provisions and within the framework of the
purpose of the legislation). However, this
presumption applies only if there is more than one
possible interpretation, and cannot be used by a
court to reinterpret legislation at will. In other
words, this presumption cannot be used to
hammer a square peg into a round hole.
The presumption also applies to subordinate
legislation. Here, the maxim ut res magis valeat
quam pereat applies. This means that an
interpretation which will not leave the subordinate
legislation ultra vires (and invalid), but rather intra
vires and valid must be preferred (R v Vayi 1946
NPD 792). The ut res magis valeat quam pereat
rule applies only where two interpretations of a
provision are possible. The presumption cannot be
used to rescue an administrative act (conduct)
which is defective and invalid from the outset
(Mamogalie v Minister van Naturellesake 1961 (1)
SA 467 (A)). Consequently, any subordinate
legislation in conflict with the enabling Act (or any
other original legislation, for that matter) will also
be invalidated.
(b) Conflicts with other legislation

Legislation which is in conflict with the Constitution

is arguably the ultimate example of conflicting
legislation. However, in an attempt to avoid
unconstitutionality, competent courts involved in
constitutional review may try, if reasonably
possible, to employ a number of corrective
techniques or remedial correction of legislation
(so-called reading-down, reading-up, reading-in
and severance) in an attempt to keep the
legislation in question constitutional and ‘alive’
(see Chapter 9 below). If such efforts at remedial
interpretation are unsuccessful, unconstitutionality
(invalidity) is the only alternative.
As was explained earlier (see 4.4 above) if there
is a conflict between legislation and the system of
co-operative government, the national legislation
will generally prevail over the provincial legislation,
but in some cases the provincial legislation may
actually trump the national legislation. Sections
146-150 of the Constitution provide for the
intricate process of conflict resolution within this
system of co-operative government.
 If two different pieces of legislation are in
conflict, they must be read together in an effort to
solve the problem. If the conflict
Page 137
cannot be resolved and both enactments deal with
the same issue, the earlier one will be repealed by
implication by the later one (see 4.3 above).
Where conflicting sets of legislation do not deal
with the same topics, they will have to be read and
applied (co-exist) together. If they cannot be
reconciled in one way or another, the inevitable
result is a ‘legislative short circuit’, since original
legislation cannot be invalidated because it is
vague or confusing (as is the case with subordinate
legislation). This means that there could be a gap
in the law. One solution—albeit drastic and the
exception to the rule—could be the application of
modificative interpretation, if the purpose of the
respective legislation permits it (see Chapter 7
below). If that cannot be done, another possibility
is to apply s 39(2) of the Constitution to ensure
that the enactment which best promotes the spirit
and purport of the Bill of Rights prevails.
Case law example:
In Maccsand (Pty) Ltd v City of Cape Town,
Minister for Water Affairs and Environment, MEC
for Local Government, Environmental Affairs and
Development Planning, Western Cape Province,
Minister for Rural Development and Land Reform,
and Minister for Mineral Resources 2012 (4) SA
181 (CC) the issue was the potential conflict and
interplay between different sets of legislation in the
mining sector: the Mineral and Petroleum
Resources Development Act 28 of 2002 (MPRDA)
on the one hand and, on the other, the Land Use
Planning Ordinance (Cape) 15 of 1985 (LUPO).
The MPRDA empowers the Minister for Mineral
Resources to grant mineral rights if certain
requirements are met. LUPO is an old order
provincial ordinance still in force in the Western
Cape. LUPO authorises the provincial government
to make scheme regulations which determine the
use of land in accordance with the applicable
zoning of the land. Therefore in terms of LUPO,
mining may only be undertaken on land if the
zoning scheme permits it. If it does not, rezoning
of the land must be conducted before the
commencement of mining operations. However,
the zoning that permits that land to be used for
mining does not license mining nor does it
determine mining rights; the MPRDA governs
mining, and LUPO regulates the use of land.
Page 138
Maccsand obtained a mining permit in terms of the
MPRDA and started mining in 2008. In 2009 the
City of Cape Town sought an interdict to stop
Maccsand’s mining activities, because it had not
obtained the necessary rezoning permission as
required by LUPO. Which legislation should prevail,
MPRDA (national legislation) or LUPO (provincial
legislation)? The Constitutional Court ruled that the
conflict resolution mechanism in ss 146-150 of the
Constitution did not apply, because there was no
conflict between LUPO and the MPRDA. Each was
concerned with different subject matter, and the
the two laws had to continue to operate alongside
each other. This means that although a mining
right must be granted in terms of the MPRDA, the
exercise of such a mining right is subject to the
required rezoning of the land in terms of LUPO. In
other words, although Maccsand obtained a valid
mining licence in terms of the MPRDA, it still had to
apply for the rezoning of the land (where the
mining takes) in terms of LUPO. Off course, if that
rezoning application in terms of LUPO should fail,
the validly obtained mining licence (in terms of the
MPRDA) will not mean a thing.
Some legislation will expressly provide for potential
future conflicts with other legislation. For example,
s 2(8) of the Consumer Protection Act 68 of 2008
provides as follows:
(8) If there is an inconsistency between any
provision of Chapter 5 of this Act and a
provision of the Public Finance Management
Act, 1999 (Act 1 of 1999), or the Public Service
Act, 1994 (Proclamation 103 of 1994), the
provisions of the Public Finance Management
Act, 1999, or of the Public Service Act, 1994,
as the case may be, prevail.
As was explained in Chapter 2 (above), some
legislation—such as the so-called ‘constitutional
Acts’—contain clauses proclaiming their superiority
over other legislation (except the Constitution),
which should avoid most legislative conflicts.

6.2.5 The King can do no wrong: The

presumption that government bodies are not
bound by their own legislation
As a general rule it is presumed that government
bodies are not bound by their own legislation,
unless the legislation
Page 139
expressly or by necessary implication provides
otherwise (eg s 24 of the Interpretation Act). The
presumption is trumped not only by the wording of
the legislation, but also by the surrounding
circumstances and other indications (Union
Government v Tonkin 1918 AD 533). Hahlo & Kahn
(1973: 204) describe the presumption as follows:
An enactment does not apply to the state or its
executive arm or to a provincial council, local
authority or other public body from which it
emanates.
Students usually associate this presumption with
unbridled lawlessness by government agencies
similar to the old English-law principle The King
can do no wrong. However, it does not mean that
the state operates above the law, but is rather a
principle of effectiveness to ensure that the state is
not hampered in its government functions.
According to Du Plessis (1986: 79):
The presumption is first and foremost a
functional means to the end of ensuring that
the execution of the typical functions of
government—in as far as they are aimed at
enhancing the public good and welfare—is not
unduly hampered. Proper care should therefore
also be exercised in order to ensure that the
presumption is invoked in such a way that it
serves the purpose of maintaining a public
order of law, in contradistinction to personal
whims and fancies or sectional interests.
This explanation still does not remove or dispel
fears of abuse of power by the government.
Wiechers (1985: 332) suggested that the state
should rather always be bound by its own
legislation, except in those instances where it
would be hindered in the performance of its
government functions. In S v De Bruin 1975 (3) SA
56 (T) the court rejected this viewpoint in the light
of earlier precedents. The application of this
presumption was later confirmed by the Appellate
Division in Administrator, Cape v Raats Rontgen &
Vermeulen (Pty) Ltd 1992 (1) SA 245 (A)—the
purpose of the presumption is to ensure that
execution of the typical functions of government
(those aimed at enhancing the public good and
welfare) is not unduly hampered.
In Evans v Schoeman 1949 (1) SA 571 (A) the
court mentioned the following indicators when the
state will not be bound:

•
if the state would be rendered subject to the
authority of or interference by its own officials;
and
Page 140

•
if the state would be affected by penal
provisions (as in S v Huyser 1968 (3) SA 490
(GW) (see below)).
The question whether the state is bound depends
on the particular legislation and specific
circumstances, and each case has to be judged on
its own merits. The following are examples of the
practical application of the presumption:

•
Government bodies and state-controlled
agencies are bound by town planning schemes
(Drakensberg Administration Board v Town
Planning Appeals Board 1983 (4) SA 42 (N)
and Boiler Efficiency Services CC v Coalcor
(Cape)(Pty) Ltd 1989 (3) SA 460 (C)).

•
A security official who contravenes a statutory
provision when acting outside the scope of his
duties cannot rely on the presumption against
the state being bound (S v Reed 1972 (2) SA
34 (RA)).

•
The driver of a fire engine may disregard a red
traffic light while fire-fighting (S v Labuschagne
1979 (3) SA 1320 (T)).
•
An agricultural official who combats stock
diseases and from time to time has to cull
animals is not bound by statutory requirements
regarding hunting permits (S v Huyser
(above)).
Case law example:
S v De Bruin (above) is a rather interesting case,
to put it mildly. The accused was charged with and
convicted of exceeding the statutory speed limit.
On appeal, De Bruin (a state prosecutor) claimed
that he was a public servant who, on the day in
question, had been running late for an on-site
inspection on the state’s behalf. If he had arrived
late at the inspection premises, this could have
been detrimental to the state’s case. The court
found that being bound by the provisions in
question could have obstructed essential state
services and jeopardised state security. The court
found that De Bruin’s decision to exceed the speed
limit was reasonable, and set aside the conviction.
Steyn (1981: 77) correctly points out that this
presumption applies to both original and
subordinate legislation. Furthermore Labuschagne
(1978: 54) indicates, with reference to R v Thomas
1954 (1) SA 185 (SWA), that strictly speaking
Page 141
this presumption deals with the state being bound
by particular provisions; the state might be bound
by one provision of the legislation, but not by
another.
Another distinction is necessary. Not being bound
by legislation (as a result of the presumption) does
not mean that state liability is also automatically
excluded. If police officers in hot pursuit of
criminals ignore a red traffic light (on the face of it
quite lawfully), but they do so at break-neck
speeds, not slowing down at intersections and
without taking pedestrians and other motorists into
consideration during the chase, they cannot rely on
this presumption to escape any possible delictual
liability resulting from their actions.
Criticism:
Since s 39(2) of the Constitution clearly stipulates
that rules of common law have to be developed in
the light of the fundamental rights in the
Constitution, it is submitted that this particular
presumption should in future no longer apply
under the new constitutional order:

•
Section 8(1) of the Constitution expressly
provides that government organs at all levels
are bound by the Bill of Rights. The
Constitution is the supreme law of the
Republic, and all law and government conduct
must be tested against the spirit, purport and
objects of the fundamental rights entrenched in
the Bill of Rights. In a system based on
constitutionalism it would not make sense that
government bodies are bound by the
Constitution (as the supreme law), but at the
same time are presumed not to be bound by
their own legislation, which legislation is also
subject to the supreme Constitution.

•
 The Constitution abounds with references to
principles such as accountability and openness
(the preamble and s 1(d)); supremacy of the
Constitution (ss 1(a) and 2); the values
underlying an open and democratic society
based on freedom, equality and human dignity
(ss 7(1) and 39(2)); the state being bound by
the Constitution
Page 142
(ss 2 and 8(1)); the requirement that the state
must respect, protect, promote and fulfil the
Constitution and the Bill of Rights (s 7(2); and
the official oath of judicial officers (item 6 of
Schedule 2)). All of these support the
argument that this presumption should no
longer be applied.
As Du Plessis (2002: 177) points out, the view of
Wiechers that this presumption should be applied
the other way round has now been vindicated after
all these years:
In short, a state defined by its own constitution
as a ‘democratic state founded on the . . .
values’ of ‘[s]upremacy of the Constitution and
 the rule of law’ most certainly is a
constitutional state (Rechtsstaat) heedful of the
principle of legality. This observation is
confirmed by the constitutional demand for the
accountability of the public administration. The
moment for what Wiechers foresaw more than
a decade and a half ago, has probably come.
In Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
(above) para 58 the Constitutional Court explained
the principle of legality in the new constitutional
order as follows:
It seems central to the conception of our
constitutional order that the Legislature and
Executive in every sphere are constrained by
the principle that they may exercise no power
and perform no function beyond that conferred
upon them by law. At least in this sense, then,
the principle of legality is implied within the
terms of the interim Constitution. Whether the
principle of the rule of law has greater content
than the principle of legality is not necessary
for us to decide here. We need merely hold
 that fundamental to the interim Constitution is
a principle of legality.
Since the constitutionality of this common-law
presumption has not yet been tested in court, it
still applies in South Africa. However, the correct
legal position in future should rather be as follows:
government agencies and organs of state should
always be bound by their own legislation, unless
they can prove that they would be hampered in the
execution of their duties and functions if bound by
the legislation. Admittedly such a new principle will
have to be prospective only, since retroactively
undoing the vested rights and interests obtained
by the state as a result of the application of this
presumption in the past could prove to be
impossible.
Page 143
6.3 The value-laden (teleological)
dimension: The ghost in the machine
6.3.1 The new constitutional approach to
statutory interpretation, or, moving from
bumper stickers to substantive interpretation
In Sidumo v Rustenburg Platinum Mines Ltd 2008
(2) SA 24 (CC) para 149 Sachs J described the
constitutional values as follows (emphasis added):
The values of the Constitution are strong,
explicit and clearly intended to be considered
part of the very texture of the constitutional
project. They are implicit in the very structure
and design of the new democratic order. The
letter and the spirit of the Constitution cannot
be separated; just as the values are not free-
floating, ready to alight as mere adornments
on this or that provision, so is the text not self-
supporting, awaiting occasional evocative
enhancement. The role of constitutional values
is certainly not simply to provide a patina of
virtue to otherwise bald, neutral and discrete
legal propositions. Text and values work
 together in integral fashion to provide the
protections promised by the Constitution.
However, the value-based dimension of statutory
interpretation is not easy to implement. Since
1994 the South African legal fraternity has had to
face the dreaded V-word: values. These lawyers,
judges and law teachers were schooled in and
indoctrinated by a positivist idea of the law: iudicis
est ius dicere sed non dare; Parliament knows best
and has spoken; lawyers are not philosophers;
plain meanings, clear texts and black letter law;
formalism and his master’s voice; and so on.
Indeed, we now have a supreme Constitution,
brimming with references to fundamental values:
freedom (including religious freedom, freedom of
speech, and so on), equality (both formal and
substantive), human dignity, all the trimmings of a
multi-party democracy, good governance (s 195 of
the Constitution), openness, transparency, non-
racism, non-sexism, tolerance, and so on and so
forth. These values form the basis of a more
mature society (S v Makwanyane (above)) trying
to be the better society alluded to by former Chief
Justice Mahomed in S v Acheson 1991 (2) SA 805
(Nm) 813, when he said that a supreme
Constitution is the mirror reflecting the national
soul. But what are we doing in practical terms to
animate those values through, amongst other
things, the interpretation of legislation? Is s 39(2)
of the Constitution nothing more than an empty
gesture, mere hollow rhetoric?
Page 144
The value-based dimension of interpretation is
more than simply paying lip-service, but involves
making those values real; animating them through
the making, interpretation, and application of the
law, as well as ensuring that the law is respected
and adhered to. It involves a willingness to keep
those values in mind, right from the outset; a mind
shift that law comprises more than ideologies,
power structures, politics, policies and the meaning
of the words on paper.
As was pointed out earlier, s 39(2) of the
Constitution ensures that interpretation of statutes
also occurs within the value-laden (teleological and
normative) constitutional framework. But s 39(2)
cannot be merely window-dressing or hollow
rhetoric. In Holomisa v Argus Newspaper Ltd
(above) 844 the court referred to s 35(3) of the
interim Constitution (the forerunner of s 39(2) of
the 1996 Constitution), stating that the
interpretation clause in the Constitution is
[not] merely an interpretive directive, but a
force that informs all legal institutions and
decisions with the new power of constitutional
values.
In Coetzee v Government of the Republic of South
Africa; Matiso v Commanding Officer, Port
Elizabeth Prison 1995 (4) SA 631 (CC) para 46
Sachs J explained the teleological dimension of
interpretation even better (emphasis added):
The values that must suffuse the whole process
are derived from the concept of an open and
democratic society based on freedom and
equality, several times referred to in the
Constitution. The notion of an open and
democratic society is thus not merely
aspirational or decorative, it is normative,
furnishing the matrix of ideals within which we
 work, the source from which we derive the
principles and rules we apply, and the final
measure we use for testing the legitimacy of
impugned norms and conduct . . . [W]e should
not engage in purely formal or academic
analysis, nor simply restrict ourselves to ad hoc
technicism, but rather focus on what has been
called the synergetic relation between the
values underlying the guarantees of
fundamental rights and the circumstances of
the particular case.
This means that the constitutional values are not
there to be used as fridge magnets or bumper
stickers, or to be quoted and insisted on when it
suits you, but instantly forgotten when it does not.
In Harksen v President of The RSA 2000 (5) SA
478 (CC) para 18 the court emphasised that since
the Constitution is the supreme law of the land and
that all legislation must be
Page 145
read subject to it, it is unnecessary for legislation
expressly to incorporate terms of the Constitution,
and as a result constitutional provisions or values
or principles are part of the implied contents of
statutes. But by the same token these values
should not be used as a show of smoke and
mirrors as a cover-up for bad governance, like
hiding a badly baked cake under layers of nice-
looking icing.
Maybe it should be said: if we choose to ignore
the V-word; if these values are not taken seriously
and borne in mind constantly during (amongst
other things) interpretation of legislation; and if we
are not prepared to succumb to constitutionalism,
we might as well get rid of the supreme
Constitution, the justiciable Bill of Rights and rights
rhetoric, and return to the former bad old days of
sovereignty of Parliament and executive-minded
interpretation of legislation. Otherwise we need to
become serious about the rights and values in the
Constitution—including a new ‘constitutional’
approach to statutory interpretation—in other
words, moving from bumper stickers to
substantive justice.
But how do we animate and concretise those
values? How does freedom influence no-parking
signs? What is the link between having to pay your
income tax before the due date and human
dignity? How can values influence the black letter
of the law? A starting point for that is always using
the Constitution as a point of departure for legal
analysis, interpretation and application, something
which was not done by the court in the following
example:
Case law example:
In S v F 1999 (1) SACR 571 (C) the court had to
decide whether the 17-year-old rape victim could
testify from a room adjoining the court. This
required an interpretation of s 158(3) of the
Criminal Procedure Act 51 of 1977:
158 Criminal proceedings to take place in
presence of accused
...
(3) A court may make an order
contemplated in subsection (2) only if facilities
therefor are readily available or obtainable and
if it appears to the court that to do so
would. . .
(a)
prevent unreasonable delay;
(b)
save costs;
Page 146
(c)
be convenient;
(d)
be in the interest of the security of the State or
of public safety or in the interests of justice or
the public; or
(e)
prevent the likelihood that prejudice or harm
might result to any person if he or she testifies
or is present at such proceedings.
The court held that s 158(3) cannot be read
disjunctively (paras (a), (b), (c), (d) or (e)), but it
should rather be read conjunctively, in other
words, in order to testify via CCTV, the applicant
had to comply with the requirements set forth in
paragraphs (a), (b) and (c), as well as any of the
requirements set forth in either paragraph (d) or
(e) of s 158(3). This was a poor decision based on
an incorrect interpretation of the law, which meant
that all the lower courts in the Western Cape had
to apply the ridiculously strict requirements. In
practical terms the decision meant that it was
virtually impossible for a witness to be allowed not
to testify in the presence of the alleged rapist
(even six-year-old rape victims).
But why was this a bad interpretation? It was a
purely text-based analysis of s 158(3), dealing
with semi-colons and other rules of punctuation.
The judge referred to the common-law
presumption that legislature does not intend harsh
or unreasonable results; since the victim would not
be in court (if allowed to testify via CCTV) the
accused’s right to cross-examination would be
infringed; the court relied on a 1920 case (Dadoo
Ltd v Krugersdorp Municipal Council 1920 AD 530),
as well as English-law textbooks on interpretation
and procedure (R K Soonavala Advocacy: Its
Principles and Practice, and Maxwell Interpretation
of Statutes).
 This was a 1999 decision—at least two years
after the 1996 Constitution took effect. However,
there is no reference to the Constitution, which
means there is no reference to human dignity (s
10); no reference to s 39(2); since the victim was
17 years old, no reference to s 28 (rights of the
child); no critical discussion about the struggle
between competing rights (in this case the s 28
children’s rights versus the s 35 rights of the
accused); no fundamental
Page 147
values—just a text-based analysis based on a
conjunctive grammatical reading of the provision
(plain meaning approach). This is a striking
example of what may happen if the value-based
dimension of statutory interpretation is ignored.
This decision was eventually held to be incorrect (S
v Staggie 2003 (1) SACR 232 (C)).
In fact, S v F was not the last case in the Western
Cape that failed to get to grips with the new
‘constitutional approach’ to interpretation. In
Winckler v Minister of Correctional Services 2001
(2) SA 747 (C) the court still followed the
discredited text-based approach:
The golden rule governing the interpretation of
a statute is to determine the intention of the
Legislature. Such intention is established, in
the first place, by the plain language of the
statute before resorting to other canons of
construction. The primary supposition is that
the Legislature intends what it says.
Fortunately there are examples of substantive
interpretation of statutes. In Ngxuza v Permanent
Secretary, Department of Welfare, Eastern Cape
2001 (2) SA 609 (E) Froneman J was aware of the
changes brought about by the new constitutional
order. The case dealt with a flexible and generous
approach to the issue of locus standi (including a
class action under s 38 of the Constitution) to
make it easier for disadvantaged and poor people
to approach courts on public issues to ensure that
public administration adheres to fundamental
principle of legality in exercising public power. His
substantive approach to statutory interpretation
and legal reasoning is clear from the following
excerpts from the judgment (at 619):
There is a broader social context in which law
is applied to particular facts in any given case.
Where that terrain is familiar and the law to be
applied is not new that context is often
assumed and not articulated. Here the position
is different. The law is new and the social
setting has changed. [T]he starting place to
determine our assumptions is the Constitution
. . . it is necessary in this case, because of the
relatively new legal position and the changed
social context in which it is to be applied, to be
open about one’s own views of that context.
The reality is that the outcome of this case is
not dictated by precedent or deductive legal
reasoning alone: my interpretation of s 38 of
the Constitution is inevitably also influenced by
my own views of the context in which it is to be
Page 148
interpreted and applied. This is a truth that, I
think, is now generally accepted by legal
theorists.
6.3.2 Ubuntu
The postamble of the English text of the 1993
Constitution referred to ubuntu:
There is a need for understanding but not for
vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for
victimisation . . .
Ubuntu is an indigenous African concept and refers
to a practical humanist disposition towards the
world, including compassion, tolerance and
fairness. (It is interesting to note that the African
Charter on Human and Peoples’ Rights also
includes a positive duty to tolerate.) The concept
was applied and explained by the Constitutional
Court in S v Makwanyane (above) 501D-E:
Generally, ubuntu translates as ‘humaneness’.
In its most fundamental sense, it translates as
‘personhood’ and ‘morality’ . . . While it
envelops the key values of group solidarity,
compassion, respect, human dignity,
conformity to basic norms and collective unity,
in its fundamental sense it denotes humanity
and morality. Its spirit emphasises respect for
 human dignity, marking a shift from
confrontation to conciliation.
The concept of ubuntu is not expressly mentioned
in the Constitution of 1996. That does not mean
that ubuntu will disappear from the South African
legal stage. Since ubuntu was used in the
Makwanyane case (above), it forms part of the
new South African constitutional jurisprudence. It
may also be argued that ubuntu lives on in the
numerous references to human dignity in the
Constitution. It forms an important bridge between
the communal African traditions and Western
traditions, which focus on the individual, and could
be a very useful extra-textual aid to statutory and
constitutional interpretation.

6.4 The historical dimension: Lest we

forget
6.4.1 Preamble to the Constitution
In S v Mhlungu (above) para 112 the constitutional
preamble was described as follows:
Page 149
 The Preamble in particular should not be
dismissed as a mere aspirational and throat-
clearing exercise of little interpretive value. It
connects up, reinforces and underlies all of the
text that follows.
In Mkontwana v Nelson Mandela Metropolitan
Municipality; Bissett v Buffalo City Municipality;
Transfer Rights Action Campaign v MEC, Local
Government and Housing, Gauteng 2005 (1) SA
530 (CC) the court stressed the fact that the
Constitution is a document committed to social
transformation. In other words, it is a key that
may help to unlock the secrets of other legislative
texts. The preamble to the Constitution reads:
PREAMBLE
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and
freedom in our land;
Respect those who have worked to build and
develop our country; and
 Believe that South Africa belongs to all who
live in it, united in our diversity.
We therefore, through our freely elected
representatives, adopt this Constitution as the
supreme law of the Republic so as to—
Heal the divisions of the past and establish a
society based on democratic values, social
justice and fundamental human rights;
Lay the foundations for a democratic and
open society in which government is based on
the will of the people and every citizen is
equally protected by law;
Improve the quality of life of all citizens and
free the potential of each person; and
Build a united and democratic South Africa
able to take its rightful place as a sovereign
state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrica. Morena boloka setjhaba
sa heso.
God seën Suid-Afrika. God bless South Africa.
 Mudzimu fhatutshedza Afurika. Hosi katekisa
Afrika.

6.4.2 Prior legislation

In Morake v Dubedube 1928 TPD 632 it was held
that if legislation had been partially repealed, the
remaining provisions had to be interpreted in their
context, which included the repealed provisions.
Although the repealed provisions can no longer be
applied, they may be used as part of the context of
the remaining legislation.
Page 150

6.4.3 Preceding discussions

Debates about a Bill before Parliament, the
debates and reports of the various committees
which form part of the legislative process, and the
reports of commissions of inquiry constitute
preceding discussions. The question as to whether
the courts may use such preceding discussions in
construing legislation, and to what extent, has
been the subject of lively debate in recent years.
One should distinguish between debates during the
legislative process on the one hand and the reports
of commissions of inquiry which preceded the
passing of legislation on the other.

(a) Debates during the legislative process

Steyn (1981: 134) refers to the common-law

writer Eckhard, who believed that the debates
preceding the acceptance of a Bill are important in
establishing the intention of the legislature,
especially when this is not evident from the
wording of the legislation. However, in the past the
use of debates was not accepted by the courts. In
Bok v Allen 1884 SAR 137 and Mathiba v Moschke
1920 AD 354, the use of preceding discussions in
the interpretation process was rejected outright,
although the court a quo in the Moschke case had,
in fact, taken preceding debates into account.
The opposition to these debates may be
disappearing. In Ngcobo v Van Rensburg 1999 (2)
SA 525 (LCC) para 27 the court referred to the use
of explanatory memoranda during the
interpretation of statutes:
The weight of authority is very much against
allowing such documents to be called in [to]
aid in the interpretation of a statute. This
 authority has received considerable academic
criticism. There are also a few authorities which
seem to suggest a softening of attitudes by
South African Courts to certain of the
documents which precede the passing of an
Act.
For instance, in De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division 2003
(3) SA 389 (W) the court used parliamentary
debates, reports of task teams and the views of
academics when it had to interpret the Films and
Publications Act 65 of 1996; in Western Cape
Provincial Government: In re DVB Behuising (Pty)
Ltd 2001 (1) SA 500 (CC) the Constitutional Court
used parliamentary debates during interpretation;
in Case v Minister of Safety and Security; Curtis v
Minister of Safety and Security 1996 (3) SA 617
(CC)
Page 151
the Constitutional Court referred to the speech by
a Minister during the second reading of a Bill; and
in S v Dzukuda; S v Tilly; S v Tshilo 2000 (3) SA
229 (W) 233 the court referred to a report of the
South African Law Commission and a ministerial
speech in Parliament during the interpretation of a
statute.

(b) Commission reports

In Hopkinson v Bloemfontein District Creamery

1966 (1) SA 159 (O) the court held that the
prevailing law prevented the use of a commission
report about the Companies Act. However, in Rand
Bank Ltd v De Jager 1982 (3) SA 418 (C) the court
decided that the report of the commission of
enquiry, which later resulted in the Prescription Act
68 of 1969, was an admissible aid in construing
the Act. In Westinghouse Brake and Equipment
(Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2)
SA 555 (A) the Appellate Division held that the
report of a commission of enquiry which preceded
the passing of an Act may be used to establish the
purpose of the Act, if a clear link exists between on
the one hand the subject matter of the inquiry and
recommendations of the report, and on the other,
the legislation under consideration.
In Dilokong Chrome Mines (Edms) Bpk v
Direkteur-Generaal, Departement van Handel en
Nywerheid 1992 (4) SA 1 (A) the court had to
decide whether or not to use a report of a member
of the Standing Committee, which did not table an
official report. The court found that the evidence of
a single member of the committee was
inadmissible, since it merely represented his own
subjective opinion of the deliberations.
The reasons given by the courts for not admitting
such material are not very convincing (eg not all
debates might be relevant or useful during the
interpretation of legislation). After all, the courts
are expected to use their discretion in imposing
punishment, and to reach conclusions amidst
conflicting evidence. During statutory
interpretation the judiciary should be able to
separate the good and bad in parliamentary
debates. A speech by the Minister during the
second reading of a Bill, as well as the explanatory
memoranda provided to members of Parliament
may be useful in aiding understanding. If readily
available, the deliberations and reports of the large
number of standing, ad hoc, joint and portfolio
committees of legislative bodies (which play an
important role during the legislative process) could
be used to help ascertain the purpose of the
resulting legislation.
Page 152

6.4.4 The mischief rule

The historical context of the particular legislation is
used to place the provision in question in its proper
perspective. This historical context is also known
as the mischief rule. The mischief rule was laid
down in the 16th century by Lord Coke in the
famous Heydon’s Case (1584) 3 Co Rep 7a (76 ER
637) and forms one of the cornerstones of a text-
in-context approach to interpretation. It poses four
questions that will help to establish the meaning of
legislation:

•
What was the existing law (the legal position)
before the legislation in question was adopted?

•
Which problem (mischief or defect) was not
adequately addressed by the existing law
before the new legislation was adopted?
•
What remedy (solution) is proposed by the new
legislation to solve this problem?

•
What is the true reason for the proposed
remedy?
The aim of the rule is to examine the
circumstances that lead to the adoption of the
legislation in question. The mischief rule has been
applied on numerous occasions by the courts. For
example, as a result of the incomprehensible
language used in the Compulsory Motor Vehicle
Insurance Act 56 of 1972, the court in Santam
Insurance Ltd v Taylor (above) examined the
historical background of the Act in order to
ascertain its purpose.

6.4.5 Contemporanea expositio

This is an explanation of the legislation which is
given by persons in some or other way involved in
the adoption of the legislation, or shortly
afterwards during its first application. Explanatory
memoranda issued by government departments
and state law advisors, as well as the first
application of the new legislation are all examples
of contemporanea expositio.
The publication of a Bill is often accompanied by
the publication of an explanatory memorandum
from its drafters. Such a memorandum may help
to determine the purpose of statutory provisions of
the Act resulting from the Bill. In National Union of
Mineworkers of SA v Driveline Technologies 2002
(4) SA 645 (LAC) and Shoprite Checkers (Pty) Ltd
v Ramdaw 2001 (3) SA 68 (LC) the courts used
the explanatory memorandum to interpret the
Labour Relations Act.
Page 153

6.4.6 Subsecuta observatio

This category of external aids to interpretation
refers to established administrative usage (or
custom) over a period of time. The way legislation
has been applied in practice—by the very agencies
and departments entrusted with its
administration—may be a very good indication of
its aim and purpose. Although the long-term use of
legislation cannot dictate a particular interpretation
to the courts, it may just be the deciding factor
where two interpretations are possible. Typical
examples of administrative usage are
interpretation notes, circulars and explanatory
notes issued by the South African Revenue Service
or the Registrar of Pension Funds.
Case law example:
In Nissan SA (Pty) Ltd v Commissioner for Inland
Revenue 1998 (4) SA 860 (SCA) court had to
decide on the possible use of commission reports
and subsecuta observatio. The plaintiff, a
manufacturer, distributor and exporter of motor
vehicles, relied on the exemption afforded by s
10(1)(zA) of the Income Tax Act 58 of 1962 (as
amended). The plaintiff relied on reports of
commissions of inquiry and administrative practice
(reports of the Board of Trade and Industry and
the way in which the provision had been
interpreted by the Department of Internal
Revenue). The court ruled that it could not be
taken into account: the reports did not show which
of the Board’s findings had been accepted, and the
Commissioner’s interpretation had been discarded
too quickly to be used as part of subsecuta
observatio and contemporanea expositio.
The purpose of the Interpretation Notes is to
provide guidelines to SARS employees and
taxpayers regarding the interpretation and
application of the provisions of the various laws
administered by SARS. These Notes will ultimately
replace all the existing Practice Notes and internal
Circular Minutes, to the extent that they relate to
the interpretation of the various laws. The Notes
will be amended from time to time in line with
policy developments and changes in the legislation.
Pension Fund Circulars constitute best practice
with regard to retirement funds as prescribed by
the Registrar of Pension Funds from time to time
and reflect the Registrar’s interpretation, discretion
or requirements in respect of various issues.
Although the provisions of these circulars are
adhered
Page 154
to by the industry ‘by agreement’ with the
Financial Services Board, they do not necessarily
have any legal status as such and are not
enforceable in any formal manner.
The following is an abbreviated example of a
typical SARS interpretation note:
GENERAL NOTE GN 37
GENERAL SUBJECT: SECOND SCHEDULE
TO THE INCOME TAX ACT, NO 58 OF
1962
SPECIFIC ASPECT: MAINTENANCE
AWARDS
STATUS: OPINION
PURPOSE: To convey the view of the
South African Revenue Service regarding
the tax treatment of a retirement fund
maintenance order of court.
...
ISSUED BY—
LEGAL AND POLICY DIVISION
SOUTH AFRICAN REVENUE SERVICE
Date: 31 October 2008
6.5 The comparative dimension
6.5.1 Foreign law
In the past, South African courts could refer to
foreign law and foreign case law during the
interpretation of legislation. For instance,
sometimes the courts have to interpret a section of
an English statute that has been incorporated
word-for-word into South African legislation. The
question is whether the South African courts may
follow the interpretation given to the English
legislation by the English courts. South African
courts may use the interpretation of the English
courts as a guideline—if the South African
legislation is identical to the original English
legislation and the interpretation of the English
courts is not in conflict with South African
common-law principles, the South African courts
may take cognisance of the English decided cases.
This is now further qualified by the Constitution.
Section 39(2) provides that, when our common law
is developed by any court, tribunal or forum, the
spirit, purport and objects of the Bill of Rights must
be promoted. Now it is not only the rules of
common law that determine whether our courts
refer to foreign law, but the supreme Constitution
as well. Since the interpretation of legislation
begins and ends with the Constitution, foreign law
and comparable case law from other jurisdictions
should be applied with circumspection (S v Zuma
1995 (2) SA 642 (CC)).
Page 155

6.5.2 International law

Section 233 of the Constitution is another
interpretation clause, but also deals with the
relationship between the Constitution (and all
South African law) and public international law:
When interpreting any legislation, every court
must prefer any reasonable interpretation of
the legislation that is consistent with
international law over any alternative
interpretation that is inconsistent with
international law.
Section 233 is a peremptory provision, and is the
constitutional confirmation of the common-law
presumption that legislation does not violate
international law. It states that a court must prefer
a reasonable interpretation that is not in conflict
with international law. Any interpretation of s 233
is subject to s 1(c) (the foundation clause); s 2
(the supremacy clause); and s 8(1) (the
application clause). Of course, it could be argued
that s 233 in effect strengthens s 39(2) of the
Constitution; any reasonable construction which is
consistent with international law (international
human rights law in particular), will promote the
spirit, purport and objects of the Bill of Rights.
Section 233 is qualified by the two provisions
which also deal with international law: in terms of
s 231 an international agreement (a treaty)
becomes law in the Republic when it is enacted
into law by national legislation; and s 232 provides
that customary international law is law in the
Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
Practical examples:
In terms of s 3 of the Implementation of the Rome
Statute of the International Criminal Court Act 27
of 2002 (which commenced on 16 August 2002),
the objects of the Act are to create a framework to
ensure that the Statute is effectively implemented
in the Republic, and that anything done in terms of
the Act conforms with the obligations of the
Republic in terms of the Statute, and to provide for
the crimes of genocide, crimes against humanity
and war crimes.
Page 156
Section 3(c) of the Labour Relations Act 66 of 1995
provides that the Act must be interpreted in such a
way that it is in compliance with the public
international law obligations incumbent on the
Republic.
 Page 157

Part 3
Some practical issues
and tricks of the trade:
Judicial law-making
during interpretation,
and peremptory and
directory provisions

7
Judicial law-making during concretisation

8
Peremptory and directory provisions
 Page 159

Chapter 7
Judicial law-making during
concretisation

7.1 What is concretisation?

According to Du Plessis (1986: 149) concretisation
is the final stage in the interpretation process. The
legislation is realised (becomes a reality). During
concretisation the legislative text and purpose, as
well as the facts of a particular situation are
brought together to reach a conclusion. Synonyms
for concretisation are correlation, harmonisation,
and actualisation.
Concretisation is the process through which the
interpreter moves from the abstract to the
practical reality to apply the particular legislation.
After the text has been studied and all the
presumptions, aids and principles to contextualise
and to determine the aim and purpose of the
legislation employed, the result is applied to the
facts of the case to reach the correct solution. All
the loose threads are gathered together to finalise
the process. The concretisation phase always takes
place, irrespective of the approach to
interpretation employed by the interpreter.
However, the text-in-context supporters argue that
contextualisation provides more data to the
interpreter with which to exercise a better
discretion during the interpretation and application
of the legislation. In other words, the interpreter is
better equipped to concretise accurately. Two
commentators provide more insight into the
process of concretisation:

•
Du Toit (1977: 11) points out that the essence
of successful interpretation lies in the current
realisation of the possible meanings of the
original legislation. The meaning of the text is
tantamount to its application in a given
concrete situation.
Page 160

•
 Lategan (1980: 107) defines interpretation as
the concretisation of the meaning of a text in a
concrete, present situation during the last
stage of the interpretation process. Such a
process is not simply the application of the
provisions of the legislation, but rather the
process of transition from interpretation to
application.

•
During concretisation the abstract text of the
legislation and the purpose of the legislation
(which was determined earlier in the process)
are correlated with the concrete facts of the
case within the framework of the prescribed
constitutional principles and guidelines.

7.2 The law-making function of the

courts
Not only do the supporters of the text-based and
text-in-context approaches have different
viewpoints about the use of text and context
during interpretation, but the law-making role of
the courts during statutory interpretation is
another bone of contention between them.

7.2.1 The text-based viewpoint

The classic formulation of literalism insists that the
clear and unambiguous text of legislation is
equated with the intention of the legislature, as per
Kotzé J in Bulawayo Municipality v Bulawayo
Waterworks Ltd 1915 CPD 435 445:
The intention of the legislature can alone be
gathered from what it has actually said, and
not from what it may have intended to say, but
has not said.
Only if the words seem ambiguous and
inconsistent may the court use the secondary and
tertiary aids to interpretation. The court should
interpret legislation only within the framework of
the words used by the legislature. Any
modifications, corrections or additions should be
left to the relevant legislature (the iudicis est ius
dicere sed non dare principle). This orthodox
viewpoint was explained by Hannah J in Engels v
Allied Chemical Manufacturers (Pty) Ltd 1993 (4)
SA 45 (Nm) 54A-B:
 The basic reasoning behind this approach is
that by remedying a defect which the
Legislature could have remedied, the court is
usurping the function of the Legislature and
making law, not interpreting it.

7.2.2 The text-in-context viewpoint

The text-in-context school claims that the court
does have a creative law-making function during
statutory interpretation.
Page 161
Such a creative role by the courts does not mean
that they take over the legislative powers of the
legislature. Du Plessis (1986: 143) explains this as
follows:
The interpretation of statutes invariably—and
by its very nature—involves much more than
the mere reproduction of either the (supposed)
plain meaning of language or the (supposed)
intention of a legislature. It is much rather a
reconstruction of the generally framed
provisions of an enactment with a view to their
actual and specific application to and in a
particular (and unique) concrete situation. This
 can still be done with due respect for the
authority of the legislature, as long as the court
bears in mind that its function is to interpret (ie
to creatively reconstruct) the enactment
without repromulgating it (ie making a ‘new’
one instead).
Labuschagne explains the theoretical foundations
of this sometimes inevitable (but limited) law-
making role of the judiciary follows:

•
He points out (1978: 62) that the court has a
peripheral and subordinate law-making
function and inevitably forms part of the
legislative process in concrete cases, aimed at
the fulfilment of needs in society (the reason
for the legislation).

•
Later he states (1985: 60) that the court is the
final link in the legislative chain and that it
should be its task to ensure that the legislative
process has a meaningful and just end.
•
Furthermore, he also explains (1983: 422) and
(1982: 402) that the legislation contained in
the document is incomplete and only
represents the initial structure of the statute.
Only when the court applies the legislation
does it become real and completely functional.
The legislation is situation-bound and the
process passes through stages—from the
generality of the structural statute to the
particularity of the functional statute. It is an
ongoing case-to-case process. So, in reality
legislation is not interpreted, but shaped or
moulded. The legislative process invariably
begins with a need for legal order and ends
every time with the fulfilment of that need by
the court. The purpose of the legislation is the
directing principle throughout the process.

7.2.3 The myth that courts merely interpret

the law
Modification or adaptation of the initial meaning of
the text involves the exercise of a creative judicial
discretion. This discretion is nothing more than the
authoritative application of legal principles: not an
arbitrary expression of personal preferences, but
the exercise of a legal discretion within the
Page 162
boundaries and parameters of the purpose of the
legislation. The courts are confronted with the
exercise of discretions on a daily basis when they
have to deal with criminal jurisdiction and the
evaluation of evidence, as well as with judge-made
law as a result of the ongoing development of the
common law.
Because of the limitations inherent in language,
statutory interpretation necessarily involves a type
of delegation by the legislature to the judiciary
about the final, specific application of a general
rule. Although the legislature has the main
legislative powers, those powers are not exclusive,
since the courts play a supporting role—the
legislature and judiciary are partners in the law-
making process. This principle was explained very
well in Zimnat Insurance Co Ltd v Chawanda 1991
(2) SA 825 (ZSC) 832H-I:
 It sometimes happens that the goal of social
and economic changes is reached more quickly
through legal development by the judiciary
than by the legislature. This is because judges
have a certain amount of freedom or latitude in
the process of interpretation and application of
the law. It is now acknowledged that judges do
not merely discover the law, but they also
make law. They take part in the process of
creation. Law-making is an inherent and
inevitable part of the judicial process.
When referring to the modification of the meaning
during interpretation (corrective interpretation),
some of the older sources and case law refer to it
as ‘modification of the language’ (woordwysigende
uitleg). However, this is incorrect. As will be
explained below, it is not the language of
legislation that is physically modified, but the
meaning of the legislation which is adapted
(reconstructed) during interpretation to give effect
to the legislative purpose. The provision is not
amended and repromulgated by the court, because
that may be done only by the competent legislative
body. The particular provision remains as it was
originally promulgated by the legislative body; the
meaning of the particular legislation is modified
only for that specific, concrete situation. Devenish
(1992: 96) puts it as follows:
Such modification does not amount to a
usurpation of the legislator’s function, but to
the legitimate exercise of judicial law-making
of a complementary nature in order to give
effect to intention or the presumed intention of
the legislature.
Furthermore, Du Plessis (1986: 37) points out that
the orthodox (text-based) viewpoint prohibiting
any form of
Page 163
modification could result in an incorrect and
unjustifiable form of judicial law-making. When the
court adopts an interpretation that does not give
effect to the purpose of the legislation, legislation
is concretised (ie law is made) that is in conflict
with the legislative purpose.
The Constitution should bring about more
flexibility in this regard. The principle of
parliamentary sovereignty has been replaced by
that of constitutional supremacy. The aim and
purpose of the legislation within the framework of
the Constitution is the paramount rule of statutory
interpretation. In Matiso v Commanding Officer,
Port Elizabeth Prison (above) 597 and 598 the
court dealt with the contentious issue of judicial
law-making:
In terms of the Constitution the Courts bear
the responsibility of giving specific content to
those values and principles in any given
situation. In doing so, Judges will invariably
‘create’ law . . . This does not mean that
Judges should now suddenly enter into an orgy
of judicial law-making, but that they should
recognise that their function of judicial review,
based on the supremacy of the Constitution,
should not be hidden under the guise of simply
seeking and giving expression to the will of the
majority in Parliament.
7.2.4 Factors which support and limit judicial
law-making during statutory interpretation
When the issue of judicial law-making is raised, the
next inevitable question is: Where do you draw the
line? Of course, another interesting question—
maybe better suited for a course in critical
jurisprudence—should be: Who is drawing the
lines? The law-making powers of the judiciary are
neither based on personal whims, guess-work or
gut feelings, nor do they imply a free-floating and
unbridled ‘remodelling’ of legislation. There are a
number of important factors that both support and
restrict the law-making discretion of the courts.
These factors should ensure that courts apply their
law-making function within the boundaries set by
the core principle underlying modificative
interpretation; the aim and purpose of the
legislation (intention of the legislature or legislative
scheme) must support the modification within the
framework of the Constitution.
Page 164
(a) Restrictions on the law-making discretion of the courts

The judicial law-making discretion of the judiciary

is the exception to the rule, and is based on a
number of fundamental principles:

•
The principle of democracy (the preamble and
s 1 of the Constitution) reminds us that
democracy is one of the fundamental
constitutional values. As a matter of fact, the
preamble of the Constitution refers to a
democratic and open society in which
government is based on the will of the people.
Although the courts are the guardians of the
constitutional values, they are not allowed to
take over the constitutional role of the
legislature. Sachs J explained this complex
constitutional balance between court and
legislature in Du Plessis v De Klerk (above)
para 18:
The function of the courts, I believe, is, in
the first place, to ensure that legislation
does not violate fundamental rights,
secondly, to interpret legislation in a
 manner that furthers the values expressed
in the Constitution, and thirdly, to ensure
that common law and custom outside of the
legislative sphere is developed in such a
manner as to harmonise with the
Constitution.

•
The important principle of separation of powers
ensures that state power is shared between the
three branches of government, resulting in
formal built-in checks and balances to curb
abuse of power by the government (eg s 43 of
the Constitution deals with the legislative
authority in the RSA).

•
A common-law presumption holds that the
legislature does not intend to change the
existing law more than is necessary.

•
The rule of law principle, including the principle
of legality, should apply throughout.
•
Froneman (1996: 15–22) points out that
judicial law-making is not unbridled. Judicial
officers are accountable and responsible for
their actions on three levels: firstly, personal
responsibility, because they have to take
personal moral responsibility for their
decisions; secondly, formal responsibility,
consisting of the formal constitutional and
other legislative controls over the judiciary;
and thirdly, substantive accountability, in that
judicial decisions are open to public debate and
academic criticism (with reference to the
constitutional values of accountability,
responsiveness and openness expressed in s
1(d) of the Constitution);

•
Penal provisions or restrictive provisions in the
legislation,
Page 165
as well as the presumption against
infringement of existing rights, are also factors
 which limit the discretion of the courts to
modify the initial meaning of the text.

(b) Factors which support judicial law-making

A number of factors (constitutional and otherwise)

support the law-making discretion of the courts
during the interpretation of legislation. Some of
these are the following:

•
The reading-down principle: ss 35(3) and
232(3) of the interim Constitution (the so-
called ‘reading down’ clauses) provided that if
legislation is on the face of it unconstitutional
(because it conflicts with the fundamental
rights and the rest of the Constitution
respectively) but is reasonably capable of a
more restricted interpretation which would be
constitutional and valid, such restricted
interpretation should be followed. These
provisions have not been repeated in the
Constitution of 1996. However, the principle
that courts should, as far as possible, try to
keep legislation constitutional (and therefore
 valid) is a well-known principle of constitutional
interpretation.

•
Section 39(2) of the Constitution states that
during interpretation the courts must try to
reconcile the aim and purpose of the legislation
with the spirit and purport of the Bill of Rights
in particular.

•
The Bill of Rights is the cornerstone of the
South African democracy and the state must
respect, protect, promote and fulfil the rights in
the Bill of Rights (s 7 of the Constitution), and
it applies to all law and binds the judiciary as
well (s 8(1) of the Constitution).

•
The Constitution is the supreme law of the land
(s 2 of the Constitution), which means the end
of sovereignty of Parliament and the slavish
‘his master’s voice’ role of the courts.

•
 The common-law presumption is that the
legislature does not intend futile, meaningless
and nugatory legislation.

•
The independence of the judiciary (s 165(2) of
the Constitution) also strengthens the
argument in favour of judicial law-making
during interpretation.

7.3 Possibilities during concretisation

Concretisation is the last stage in the interpretation
process, when the facts of the case and the
relevant legislation are harmonised (correlated)
with the purpose of the legislation.
Page 166
The various possibilities during the concretisation
phase of interpretation may also be influenced by
the Constitution, because the final ‘result’ or
outcome of the interpretation process may not be
in conflict with the Constitution. In other words,
the concretisation has to be constitutional.
Modificative interpretation (restrictive or extensive
interpretation) may be applied only if it is
permitted by the purpose of the legislation. That
legislative purpose, however, may not be in
conflict with the Constitution.

7.3.1 No problems with correlation

There are no difficulties applying the provision to
the facts within the framework of the purpose and
the prescribed constitutional guidelines, and the
process is completed. This is what happens in
practice in the majority of cases. Interpretation
and application appear to occur unconsciously and
automatically. These cases in fact create the wrong
impression that interpretation comes into play only
if the so-called ‘plain meaning’ of the text is
ambiguous or obscure.

7.3.2 Modification of the meaning is

necessary
Modificative interpretation (modification of the
meaning) occurs when the initial meaning of the
text does not correspond fully to the purpose of
the legislation; in other words, when the text
provides either more or less than its purpose, or
when the initial meaning of the text is in conflict
with the Constitution. So: if the purpose indicates
that modification is necessary (and possible), there
are only two possibilities—either the initial
meaning of the text is reduced (restrictive
interpretation) or the initial meaning of the text is
extended (extensive interpretation). These, in
turn, may be subdivided into various forms of
modification to be discussed below in detail.
When and why may the courts modify the initial
meaning of the text? The sources cite various
grounds such as ambiguity and absurdity, which
may be combined in a single principle: if it appears
that the initial meaning of the text will not give
effect to the aim and purpose of the legislation. For
example, in 6.2.4 (above) modification of the
meaning was mentioned as one possible solution
to conflicting provisions. Ambiguity, vagueness and
absurdity are the indicators that the initial textual
meaning should probably be modified. However,
the purpose of the legislation (within the
framework of the Constitution) constitutes the
qualifier. In other words, the purpose of the
Page 167
legislation in question must be determined in each
case, even if the initial meaning of the text at first
glance seems to be clear. The initial textual
meaning must always be compared with the
purpose of the legislation to ensure that effect will
be given to the aim of the legislation concerned
(Cowen 1980: 394). Only if there can be no doubt
about the purpose of the legislation and if the text,
context and Constitution are compatible with the
modified meaning, will the court be entitled to
deviate from the initial textual meaning. Ultimately
these factors boil down to one thing: judicial law-
making, in the guise of modificative (corrective)
interpretation, is the exception to the rule.

(a) Restrictive interpretation

As has been mentioned, restrictive interpretation is

applied when the words of the particular legislation
embrace more than its purpose. The meaning of
the provision is then modified to give effect to the
true purpose. Restrictive interpretation in general,
as well as two specific forms of restrictive
interpretation, will be discussed below.
Restrictive interpretation in general

Although the courts traditionally refer to two

specific forms of restrictive interpretation, it is not
limited to eiusdem generis and cessante ratione
legis, cessat et ipsa lex (see below). Any
interpretation which reduces (limits) a wider initial
meaning of the text to the narrower purpose of the
legislation, is by definition restrictive
interpretation. In Skinner v Palmer 1919 WLD 39
the court substituted ‘fifty-eight’ for ‘fifty-nine’,
thus restricting the scope of the provision. A more
fundamental change was effected in Trivett & Co
(Pty) Ltd v W M Brandt’s Sons & Co 1975 (3) SA
423 (A), when the court restricted the meaning of
the phrase ‘every court of law in a British
possession’ in s 2(1) of the 1890 Colonial Courts of
Admiralty Act to read ‘every court of the Republic
of South Africa’.
Case law example:
A very interesting example of restrictive
interpretation in general occurred in Klipriviersoog
Properties (Edms) Bpk v
Gemeenskapsontwikkelingsraad 1984 (3) SA 768
(T). The plaintiff claimed compensation for
properties expropriated by the defendant in terms
of the Expropriation Act 63 of
Page 168
1975. The expropriation was not the issue, but the
court had to determine the date on which interest
became payable on the amount of compensation.
Section 12(3) of the Expropriation Act provides
that interest on the amount of compensation is
. . . [p]ayable from the date on which the
state takes possession of the property in
question in terms of section 8(3) or (5).
The plaintiff argued that the words ‘takes
possession’ in s 12(3) referred to ‘being able to
take possession’, but the defendant countered that
the provision clearly refers to actual physical
possession. The court held that it could never have
been the intention of the legislature to allow the
state to evade its liability to pay interest in a case
such as this by simply not taking possession of the
expropriated properties. The court decided that, in
the light of the intention of the legislature, it could
‘read’ the words ‘is able to’ into the meaning of the
Act. Section 12(3) would then in effect have the
following meaning:
Interest on the amount of compensation
is payable from the date on which the
state is able to take possession of the
property in question.
The plaintiff’s claim was upheld by the court.
Although the court supplied an omission, in effect
the ambit of the particular provision was restricted,
because the nearly unlimited options available to
the state were reduced.

Cessante ratione legis, cessa et ipsa lex

This maxim literally means that if the reason for

the law ceases (falls away), the law itself also falls
away. Since legislation cannot be abolished by
custom or altered circumstances, this rule is not
applied in South African law in its original form.
Legislation remains in force until repealed by the
legislature concerned (R v Detody (above)). On the
other hand, abrogation of common law by disuse is
possible. In Green v Fitzgerald 1914 AD 88, the
court found that the common-law rule that
adultery is a crime no longer applies in South
Africa. In this case the cessante ratione rule was
not applicable, because it dealt with common law,
not statute law.
Page 169
The courts have from time to time applied the
cessante ratione rule in an adapted form. In these
cases the provisions were merely suspended as the
purpose of the legislation had already been
complied with in some or another way. Under the
circumstances it would have been futile or
unnecessary to apply the legislation.
Case law example:
A few examples of the application of this rule have
occurred in respect of s 10(1) of the previous
Stock Theft Act 26 of 1923, which provided for a
compensatory fine in addition to the other penalty.
In some cases the courts were faced with the
problem of whether the compensatory fine still had
to be paid even when the stolen stock had been
returned to its owner. In R v Maleka 1929 OPD 171
the court found that the object of the Act (ie
compensation) had been complied with, and that
the compensatory fine was unnecessary. This
decision was followed in R v Nteto 1940 EDL 304,
where the court held that since the complainant
had already been compensated, the purpose of the
provision had been achieved in a different way,
and a compensatory fine was unnecessary.
In fact, the court merely suspends the operation
(application) of the legislation—it is not invalidated
(there is nothing wrong with the legislation), nor is
it repealed (courts cannot repeal legislation). The
legislation remains on the statute book, and will
provide for future application where the purpose
has not yet been complied with. However, this rule
must be distinguished from, for instance, the case
where someone did pay a traffic fine, but is
wrongly accused of failing to pay the fine; here the
cessante ratione rule will not apply. The legislation
was correctly complied with, and the correct
defence will simply be to submit the proof of
payment in court.
Case law example:
Another interesting example of the cessante
ratione rule occurred in S v Mujee 1981 (3) SA 800
(Z). In terms of a court order (issued in terms of a
maintenance Act) the accused had to pay a
monthly maintenance fee for his child in an
institution. The child was discharged from the
Page 170
institution before the order lapsed. The accused
promptly stopped the payment of maintenance,
and was charged with violation of the court order.
The court held that the cessante ratione rule also
applies to a court order in terms of an Act, since it
cannot be said that it is the intention of the
legislature to keep an order in force if the reason
for it has fallen away. The accused was acquitted.

Eiusdem generis

The term eiusdem generis literally means ‘of the

same kind’ and is based on the principle noscitur a
sociis (words are known by those with which they
are associated, or, more colloquially, ‘birds of a
feather flock together’). This means that the
meaning of words is qualified by their relationship
to other words—the meaning of general words is
determined when they are used together with
specific words.
 Apart from the general requirements to be met
before the initial meaning of the text may be
modified, other prerequisites for the application of
this rule must also be satisfied:

•
The eiusdem generis rule can only be applied if
the specific words refer to a definite genus or
category. In Colonial Treasurer v Rand Water
Board 1907 TS 479 the court referred to such a
genus as a ‘common quality’ or ‘common
denominator’.
Case law example:
In Skotnes v South African Library 1997 (2) SA
770 (SCA) the court had to interpret s 2(1)(b) of
the Legal Deposit of Publications Act 17 of 1982
which required that a copy of every publication
published in the Republic be supplied free of
charge to every legal deposit library if copies of
such a publication are intended to be sold to
members of the public. The definition of
‘publication’ in the Act included ‘a printed book,
newspaper, magazine, periodical, journal,
pamphlet, brochure, sheet, card or portion thereof
or any other similar printed matter’.
Page 171
The appellant refused to supply a free copy of a
publication to the respondent, a legal deposit
library, arguing that it was not a ‘printed book’ as
defined in the Act. Counsel for the appellant
argued that the words following ‘printed book’ in
the definition restrict its meaning. Since these
items were all mass produced, inexpensive,
machinery-produced publications involving
essentially commercial printing, it created a
distinct category (genus). As a result of the distinct
category, the eiusdem generis rule applies, the
Skotnes book falls outside that category and the
Act does not apply to it.
However, the court took the other view. It
pointed out that unless there is a distinct category
formed by the specific words the eiusdem generis
rule cannot be applied. The court held that the
words following ‘printed book’ in the definition
section did not clearly indicate a genus of printed
material which would—through the application of
the eiusdem generis rule—restrict the meaning of
‘printed book’ to some species of that genus. The
intention of the legislature with the Act was to
build up a national collection of books providing a
record of cultural and scientific activities. The
scope and purpose of the Act did not support such
a restrictive interpretation, and the eiusdem
generis rule did not apply.

•
The specific words must not have exhausted
the genus (Carlis v Oldfield 4 HCG 379). In
such a case, it is assumed that the general
words refer to a broader genus and therefore
cannot be interpreted restrictively.

•
The rule can be applied even when a single
specific word precedes the general words. In
Director of Education, Transvaal v McCagie
1918 AD 616, the court found that the general
words ‘other evidence’ in the provision ‘a
university degree or other evidence of the
necessary qualifications’ had to be interpreted
 eiusdem generis. ‘Other evidence’ refers to
something else in the same category as a
university degree.

•
In Bugler’s Post (Pty) Ltd v Secretary for Inland
Revenue 1974 (3) SA 28 (A) it was held that
the order in which the words occur is not
important: the general words may precede,
appear amongst or follow the specific words.

•
In PMB Armature Winders v Pietermaritzburg
City Council 1981 (2) SA 129 (A), the Appellate
Division stressed the
Page 172
requirement that the eiusdem generis rule
should be applied only if the ‘legislature’s
intention’ supports such a restrictive
interpretation. As a result the courts apply this
rule with circumspection.
Case law example:
In S v Kohler 1979 (1) SA 861 (T), the court heard
an appeal against the decision of a magistrate’s
court. Kohler was found guilty of contravening a
municipal by-law because he kept a peacock within
the municipal boundaries without the required
licence. The by-law required a licence for keeping
any fowl, duck, goose, turkey, guinea fowl,
partridge, pheasant, pigeon or the chickens
thereof, or any other bird on municipal premises.
Read in its literal sense the words ‘any other bird’
in the by-law would have meant that even a
budgie or parakeet required a licence. The defence
argued that the specific words in the by-law
created the category of poultry. Therefore eiusdem
generis had to apply, and since a peacock was not
a species of poultry, the municipal by-law did not
apply to peacocks.
The court agreed that the specific words did
indeed form the category of poultry, but the
dictionaries consulted by the court referred to
peacocks as ‘chicken-like decorative birds’. Since
there was a definite genus (ie poultry), the general
words ‘any other bird’ were restricted to that
genus. A peacock is a species of that genus, and
Kohler’s appeal against his conviction was
dismissed by the court.

(b) Extensive interpretation

Extensive interpretation is the opposite of

restrictive interpretation. What we have here are
those instances where the purpose is broader than
the initial textual meaning of the legislation. The
meaning of the text is then extended (stretched or
widened) to give effect to the purpose of the
enactment. Du Plessis (2002: 237) points out that
traditionally the courts were wary of extending the
initial meaning of the text, because the
conventional common-law tradition of legislative
drafting was aimed at exhaustive and
comprehensive enactments, without loopholes, to
cater for as many future situations as possible. The
two main categories of extensive interpretation are
discussed below.
Page 173

Interpretation by implication

Interpretation by implication involves extending

the textual meaning on the ground of a reasonable
and essential implication which is evident from the
legislation. Express provisions are therefore
extended by implied provisions. There are various
grounds on which the provisions of the legislation
may be extended by implication. However, they
remain no more than indications; the legislation in
its entirety and its purpose continue to be the
decisive test as to whether provisions may be
extended. These grounds overlap, and largely deal
with powers and authority, and are not always
easy to prove:

•
Ex contrariis: Here the implications arise from
opposites. If the legislation provides for a
particular circumstance, by implication it
provides the contrary provision for the opposite
circumstance. This overlaps with the principle
‘expression of the one thing by implication
means the exclusion of the other’ (expressio
unius est exclusio alterius), which is not a hard
and fast rule but merely a prima facie indicator
of meaning.
•
Ex consequentibus: If legislation demands or
allows a certain result or consequence,
everything which is reasonably necessary to
bring about that result or consequence may be
implied (in other words, instances where
additional powers or authority are implied as a
result of the initial express power or authority).
The test is not usefulness or convenience, but
necessity.
Case law example:
In Bloemfontein Town Council v Richter 1938 AD
195 the court found that where a municipality has
a statutory right to contain a river for the purposes
of water supply, it also, by implication, has a right
to remove washed-up silt from the dam. In each
instance the underlying principle is whether the
conferred power can be exercised effectively.

•
Ex accessorio eius de quo verba loquuntur: If a
principal thing is forbidden or permitted, the
accessory thing is also forbidden or permitted.
•
Anatura ipsius rei: This refers to implied
inherent relationships—for example, the power
to issue a regulation implies the power to
withdraw it.
Page 174

•
Ex correlativis: This arises from mutual or
reciprocal relationships (eg prohibiting the
purchase of certain things includes the
prohibition of the sale of such goods).

Interpretation by analogy

This method of interpretation involves extending

legislative provisions expressly applicable to
particular circumstances to other analogous cases
not expressly mentioned. In other words, if
legislation applies to certain mentioned instances
and its purpose can apply equally to other
unspecified instances, the legislation may be
extended to such other instances on the basis of
sameness of reason. Interpretation by analogy is
seldom applied by the courts and as such is of
mere academic interest. In Joint Liquidators of
Glen Anil Development Corporation Ltd (in
liquidation) v Hill Samuel (SA) Ltd 1982 (1) SA 103
(A), the court confirmed that an omission may not
be supplied through interpretation by analogy.

7.3.3 No modification of the meaning is

possible
Clearly the discretion of the judiciary to modify or
adapt the initial ordinary meaning of the text is
limited. If the purpose of the legislation is not
sufficiently clear or if it does not support a
modification or adaptation of the initial meaning of
the text, the legislature has to rectify errors or to
supply omissions in the legislation. If no
modification of the meaning is possible, the court
will have to apply the legislation as it reads. In
such a case concretisation would inevitably be
defective, because the text, purpose and the
particular facts would not be fully harmonised. The
law-making discretion of the judiciary is limited to
the frame of reference of the purpose and no
further. If the court cannot supply an omission in
the particular legislation, the common law may, if
necessary, be used to complete the concretisation
process.

Page 175

Chapter 8
Peremptory and directory
provisions

8.1 General introduction

In many cases legislation prohibits an act
(conduct) or prescribes the manner in which it
must be performed. If the legislation in question
expressly prescribes what the consequences will be
if the legislative requirements are not followed,
there is no problem. Difficulties arise, however, if
the legislation fails to spell out what the
consequences will be of a failure to comply with
the prescribed formal requirements.
Hypothetical example:
You are in the process of renewing your driver’s
licence, and you have complied with all the
prescribed statutory requirements: two recent
photographs, application forms completed in
triplicate, compulsory eye test results, and proof of
payment of the prescribed fees. However, instead
of the application forms being completed with a
black pen, it is done in blue. If complete (exact)
compliance with the prescribed requirements is
rigidly enforced, your application could be thrown
out, with the result that the process has to be
started right from the beginning. However, if
substantial compliance is sufficient, the fact that
application forms were completed in blue instead
of in black might be condoned, leaving your
application process intact and on course.
A statutory provision that requires exact
compliance is peremptory (obligatory or
mandatory). Failure to comply with a peremptory
provision will leave the ensuing act (action or
Page 176
conduct) null and void. A statutory provision
requiring substantial compliance only is merely
directory. Non-compliance (or defective or partial
compliance) with a directory provision will not
result in the ensuing act being null and void; in
other words, exact compliance is not a prerequisite
Case law example:
In terms of the Motor Vehicle Insurance Act 29 of
1942 a claim for compensation, accompanied by a
medical certificate, had to be sent by registered
post or delivered by hand. What would the position
be if a claim were sent by ordinary post? In
Commercial Union Assurance Co v Clarke 1972 (3)
SA 508 (A) the court found that there was
substantial compliance with the provision. It was
not necessary to follow the requirements to the
finest detail—as long as the purpose of the
provision has been complied with.
Strictly speaking it is incorrect to refer to
peremptory and directory provisions. As Wiechers
(1985: 198) points out, in principle all legislative
provisions are peremptory. If this were not the
case, they would not be binding legal rules, but
merely ‘non-obligatory suggestions for desirable
conduct’. The question is rather whether the
prescribed formal requirements were complied with
exactly or merely substantially. Unfortunately, the
distinction between peremptory and directory has
become firmly entrenched in practice.
However, in Weenen Transitional Council v Van
Dyk 2002 (4) SA 653 (SCA) para [13] the court
emphasised that these categories are merely
guidelines: what is important is the purpose of the
provisions in question, as well as the consequences
if the statutory requirements are not strictly
adhered to. The question is not whether
mechanical (formal) compliance with the statutory
requirements is required, but rather substantial
compliance. Full compliance is not necessarily
literal compliance (Comrie v Liquor Licensing Board
for Area 31 1975 (2) SA 494 (N) 496E-F), but
substantial compliance (Commercial Union Co of
SA v Clarke (above)). In other words, substance
over form: compliance with the aim and purpose of
the legislation within the context of the legislation
as a whole. In Unlawful Occupiers, School Site v
City of Johannesburg 2005 (4) SA 199 (SCA) para
22 the court pointed out that—
 Page 177
it is clear from the authorities that even where
the formalities required by statute are
peremptory it is not every deviation from the
literal prescription that is fatal. Even in that
event, the question remains whether, in spite
of the defects, the object of the statutory
provision had been achieved.
It is also interesting to compare the courts’
approach to the interpretation of peremptory and
directory provisions with the approach adopted in
other cases. The courts generally follow a text-in-
context (purposive) approach to the interpretation
of peremptory and directory provisions. The
language of the provision is read in its context, and
all intra- and extra-textual aids are used to
determine the purpose of the legislation. As
Devenish (1992: 327-328) points out, in the
process the courts also draw on interpretative
factors such as the principles of justice, fair play,
convenience, logic, effectiveness and morality.
8.2 Some guidelines
Although the purpose of the relevant legislation
remains the deciding factor, the courts have
developed a series of guidelines as initial tests or
indicators of the purpose, almost like mini-
presumptions. As a matter of fact, Devenish
(1992: 234-237) does refer to some of these
guidelines as presumptions. As Wiechers (1985:
198) points out, these guidelines are not binding
legal rules but merely pragmatic solutions with
persuasive force. Any guideline, test or indication
will only be tentative. In Nkisimane v Santam
Insurance Co Ltd 1978 (2) SA 430 (A) the court
held that the intention of the legislature is always
the decisive factor. In Sentrale Kunsmis Korporasie
(Edms) Bpk v NKP Kunsmisverspreiders (Edms)
Bpk 1970 (3) SA 367 (A) it was stressed that the
form in which a requirement is set out will not
necessarily be decisive. The context of the words
and other relevant considerations also play a part
when it is to be determined whether an apparently
peremptory provision is, in fact, peremptory.
 The examples listed below are not binding rules
but merely guidelines. The purpose of the
legislation will always be the decisive factor in
establishing whether a requirement is peremptory
or directory. The general outline used by Devenish
(1992: 229-237) is followed in the rest of this
chapter.

8.2.1 Semantic guidelines

The courts have formulated a number of semantic
guidelines. These are based on the grammatical
meaning of the language used in the provision:
Page 178

•
A word or words with an imperative or
affirmative character indicate a peremptory
provision (eg the words ‘shall’ or ‘must’)
(Messenger of the Magistrate’s Court, Durban v
Pillay 1952 (3) SA 678 (A)). In Bezuidenhout v
AA Mutual Insurance Association Ltd 1978 (1)
SA 703 (A), for example, the court found that
‘shall’ is a strong indication that the provision is
peremptory. In S v Takaendesa 1972 (4) SA 72
 (RAD) 78C–D this principle was explained as
follows:
Where a statute prohibits the doing of
something unless something else is done as
a precedent to doing the thing prescribed,
it is a general rule of interpretation that the
provisions of the Act are obligatory and not
directory.
On the other hand, in
Motorvoertuigassuransiefonds v Gcwabe 1979
(4) SA 986 (A) the court held that ‘shall’ does
not necessarily indicate a peremptory meaning.

•
Permissive words (such as ‘may’) indicate a
discretion and will be interpreted as being
directory, unless the purpose of the provision
indicates otherwise (Amalgamated Packaging
Industries v Hutt 1975 (4) SA 943 (A)).

•
Words in negative form indicate a peremptory
connotation (Samuel Thomas Meyers v
Pretorius & Etc 1944 OPD 144).
•
Positive language suggests that the provision is
merely directory (R v Sopete 1950 (3) SA 796
(E)).

•
If the provision is formulated in flexible or
vague terms, it is an indication that it is
directory (Leibrandt v SA Railways 1941 AD 9).

8.2.2 Jurisprudential guidelines

Jurisprudential guidelines are tests based on legal
principles which have been developed and
formulated by the courts. In Sutter v Scheepers
1932 AD 165 and Pio v Franklin 1949 (3) SA 442
(C), certain tests or guidelines were proposed to
determine whether provisions are peremptory or
directory. These guidelines are more influential
than the semantic guidelines and involve an
examination of the consequences, one way or
another, of the interpretation of the provisions:

•
 If the wording of the provision is in positive
terms, and no penal sanction (punishment) is
included for non-compliance with the
requirements, it is an indication that the
provision in question should be regarded as
being merely directory (ie in favour of validity
of the ensuing act). Steyn (1981: 197)
questions this ‘test’, because without a penalty,
the only sanction to prevent the defeat of the
legislative scheme is to declare the act null and
void.
Page 179

•
If strict compliance with the provisions would
lead to injustice and even fraud (and the
legislation contains neither an express
provision as to whether the action would be
null and void nor a penalty), it is presumed
that the provision is directory (Johannesburg
City Council v Arumugan 1961 (3) SA 748
(W)).

•
 In some instances, the historical context of the
legislation (in other words, the mischief rule)
will provide a reliable indication as to whether
the provision is peremptory or merely
directory.

•
Adding a penalty to a prescription or
prohibition is a strong indication that the
provision is peremptory (Rooiberg Minerals and
Development Co Ltd v Du Toit 1953 (2) SA 505
(T)). Nevertheless, this prima facie
presumption was rebutted by the purpose of
the legislation in Standard Bank v Estate van
Rhyn 1925 AD 266. On the other hand, the
addition of a penal clause may be an indication
that the legislature intended the penalty to be
sufficient and that the act should not be
declared null and void as well (Eland Boerdery
(Edms) Bpk v Anderson 1966 (4) SA 400 (T)).

•
If the validity of the act would defeat the
purpose of the legislation, this is an indication
 that the act (conduct) should be null and void
(R v Lewinsohn 1922 TPD 336).

8.2.3 Presumptions about specific

circumstances
The courts have also developed a number of mini-
presumptions relating to specific practical
circumstances. Like the guidelines mentioned
above, these are nothing more than initial
assumptions—the purpose of the legislation may
well prove otherwise:

•
Where legislation protects the public revenue
(ie rates, taxes and levies due to the state), a
presumption against nullity exists, even if a
penal clause has been added (McLoughlin v
Turner 1921 AD 537).

•
Where legislation confers a right, privilege or
immunity, the requirements are peremptory
and the right, privilege or immunity cannot be
validly obtained unless the prescribed
formalities are fully complied with (Orpen v
 Cilliers 20 SC 264). Where the freedom of an
individual is at stake, the court will stress the
peremptory nature of a requirement.

•
If other provisions in the legislation could
become superfluous (meaningless) when non-
compliance with prescribed requirements
results in the nullity of the act, there is a
presumption that the requirements are merely
Page 180
directory. In Hurwitz v SA Mining and General
Insurance Co Ltd 1958 (4) SA 136 (W) the
court found that s 3(2) of the Motor Vehicle
Insurance Act 29 of 1942 was merely directory,
since ss 24 and 31 would otherwise be
superfluous.

•
If a provision requires that a certain act must
be performed within a prescribed time, and the
court has not been empowered to grant an
extension of the time limit, the requirement is
 presumed to be peremptory (Le Roux v Grigg-
Spall 1946 AD 244).
The courts have developed a large number of
guidelines to assist them to determine whether
exact compliance or merely substantive compliance
with prescribed statutory requirements is
necessary. However, the supreme Constitution as
well as specific requirements in important
legislation (such as the Promotion of Access to
Information and the Promotion of Administrative
Justice Act) must always be borne in mind when
the issue of exact compliance or substantive
compliance is considered during statutory
interpretation. The Constitution itself also contains
a number of peremptory provisions. Some of the
most important of these are s 2 (‘This Constitution
is the supreme law of the Republic . . . and the
obligations imposed by it must be fulfilled’), s 7(2)
(‘The state must respect, protect, promote and
fulfil the rights in the Bill of Rights’) and s 39(2)
(‘every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights’).
 Page 181

Part 4
Constitutional
interpretation

9
Constitutional interpretation
 Page 183

Chapter 9
Constitutional interpretation

9.1 Introduction
Why is constitutional interpretation an issue?
Interpretation is interpretation is interpretation, is
it not? You just read the text, follow the well-
known rules of statutory interpretation and apply
the maxims. However, it is not that simple: by now
it should be clear that interpretation of legislation
(including a constitution), is not mechanical and
formalistic, but a comprehensive analysis of the
text-in-context.

9.1.1 Constitutional interpretation and

‘ordinary’ statutory interpretation
Section 39(2) of the Constitution prescribes the
filtering of legislation through the fundamental
rights during the ordinary (run of the mill or
conventional) interpretation process. Constitutional
interpretation refers to the authoritative
interpretation of the supreme Constitution by the
judiciary during judicial review of the
constitutionality of legislation and government
action in terms of s 172 of the Constitution. This
difference between constitutional and ordinary
interpretation was explained by Froneman J in
Matiso v Commanding Officer, Port Elizabeth Prison
(above) 597G-H:
The interpretation of the Constitution will be
directed at ascertaining the foundational values
inherent in the Constitution, whilst the
interpretation of the particular legislation will
be directed at ascertaining whether that
legislation is capable of an interpretation which
conforms with the fundamental values or
principles of the Constitution.
Du Plessis & Corder (1994: 88) point out that the
differences between constitutional and ordinary
interpretation must not be over-emphasised. Both
deal with the interpretation of
Page 184
legislative instruments. Because both forms of
legislative interpretation are interrelated, it is
preferable that both are members of the same
broad interpretive family. In other words, it would
be problematic to reconcile a text-in-context
(purposive) method of constitutional interpretation
with a text-based method of ordinary
interpretation. Section 39(2) ensures that,
generally speaking, ordinary statutory
interpretation should also be based on a text-in-
context method similar to that used in
constitutional interpretation. De Ville (2000: 60)
puts it as follows:
The constitutional theory which inspires the
interpretation of the Constitution should . . .
also inform statutory interpretation. The
principles for the interpretation of statutes are
to be derived from the Constitution.
Some commentators (for instance, Le Roux 2005:
526) argue that the distinction between the
ordinary interpretation of legislation (in terms of s
39(2) of the Constitution) and the remedial
correction of legislation (during constitutional
review in terms of s 172 of the Constitution) will
reinforce the traditional text-based approach to
interpretation in South Africa. In essence this view
is correct, but since the argument for a text-in-
context approach for all forms of statutory
interpretation in South Africa is made strongly in
this book, the distinction between ordinary
interpretation and constitutional interpretation will
be retained, at least for the purpose of a basic and
initial understanding of interpretation of legislation.

9.1.2 The supreme Constitution and ordinary

legislation
The status of the supreme Constitution in the legal
order is the main reason for the difference
between constitutional interpretation and ‘ordinary’
interpretation. The old system of parliamentary
sovereignty is no more. The Constitution is now
the frame of reference within which everything
must function, and against which all actions must
be tested. It is the prism through which everything
and everybody must be viewed (Investigating
Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: In re Hyundai Motor
Distributors (Pty) Ltd v Smit (above)). The
Constitution is the lex fundamentalis (fundamental
law) of the South African legal order. As such, it
embodies the values of society, as well as the
aspirations, dreams and fears of the nation, and
should in fact be the most important national
symbol. It does more than describe the
institutional framework of government.
Page 185

9.2 Why is a supreme Constitution

different?
A supreme constitution is not merely another
legislative document, but the supreme law (lex
fundamentalis) of the land. A constitutional state
(which has a supreme constitution) is underpinned
by two foundations, namely, a formal one (which
includes aspects such as the separation of powers,
checks and balances on the government, and the
principle of legality; in other words, the
institutional power map of the country) and a
material or substantive one (which refers to a state
bound by a system of fundamental values such as
justice and equality). Karpen (1988: 173)
describes the formal and substantive components
of a constitutional state as—
 the value-oriented, concerned with intensely
human and humane aspirations of personality,
conscience and freedom; the structure-
oriented, concerned with vastly more mundane
and mechanical matters like territorial
boundaries, local government, institutional
arrangements.

9.2.1 A constitution as a formal power map

Any constitution of a country has a formal power
map. It deals with the institutional and
organisational structures and procedures of the
state: the type of state and government (eg
unitary or federal state, democracy or one-party
state, and so on) in the country; the powers and
functions of the various persons and institutions;
the different branches and tiers of government
(separation of powers); checks and balances on
the government (if any); the electoral system;
symbols of the country (flags and national
anthems); elections and appointments; financial
arrangements; the judicial system; security forces,
etc. These formal and institutional aspects of a
constitution are dealt with in subjects such as
constitutional law, administrative law and local
government law. The South African constitutions
prior to 1994 were formal ‘power maps’, because
they did not provide for a system of constitutional
review by which the courts could test legislation
and government conduct against a set of
constitutional principles. The 1996 Constitution
also contains an extensive ‘power map’. As a
matter of fact, most of the Constitution deals with
practical institutional arrangements of
government; for instance, co-operative
government (Chapter 3), Parliament (Chapter 4),
the President and the executive (Chapter 5), the
provinces (Chapter 6), local government (Chapter
7), the judicial system (Chapter 8), institutions
supporting democracy (Chapter 9), public
administration (Chapter 10), security services
(Chapter
Page 186
11), traditional leaders (Chapter 12) and finance
(Chapter 13). It also includes a number of
schedules dealing with aspects such as national
symbols, elections and (concurrent and exclusive)
areas of national and provincial powers.

9.2.2 Substantive constitutionalism

A supreme constitution contains more than a
formal power map. It also contains a material or
substantive foundation, which includes a justiciable
bill of rights. The Constitution is the supreme law,
and the state (including the government) is bound
by a system of fundamental values such as justice
and equality. The preamble of the interim
Constitution expressly referred to South Africa as a
constitutional state.
In a constitutional state (Rechtsstaat in German,
regstaat in Afrikaans) the Constitution reigns
supreme. This means that the government may
only govern in terms of the prescribed structural
limitations and procedural guarantees entrenched
in the Constitution. These formal characteristics of
the constitutional state are supplemented by the
fact that the legal order must be substantively
just. In other words, the state authority is bound
by a set of higher, substantive legal norms (Ex
parte Attorney-General, Namibia: In re The
Constitutional Relationship between the Attorney-
General and the Prosecutor-General 1995 (8) BCLR
1070 (NmS) 1078H-I and 1086H-I).
In S v Makwanyane (above) para 262 Mahomed J
explained the formal and substantive foundations
of a constitutional state, and a supreme
constitution, in the following ringing tones:
All constitutions seek to articulate, with
differing degrees of intensity and detail, the
shared aspirations of a nation; the values
which bind its people, and which discipline its
government and its national institutions; the
basic premises upon which judicial, legislative
and executive power is to be wielded; the
constitutional limits and the conditions upon
which that power is to be exercised; the
national ethos which defines and regulates that
ethos; and the moral and ethical direction
which that nation has identified for its future.
In some countries, the Constitution only
formalises, in a legal instrument, a historical
consensus of values and aspirations evolved
incrementally from a stable and unbroken past
 to accommodate the needs of the future. The
South African Constitution is different: it
retains from the past only what is defensible
and represents a decisive break from, and a
ringing rejection of, that part of the past which
is disgracefully racist,
Page 187
authoritarian, insular, and repressive and a
vigorous identification of and commitment to a
democratic, universalistic, caring and
aspirationally egalitarian ethos, expressly
articulated in the Constitution.
However, not all public law academics agreed that
the new South Africa was a complete constitutional
state, both formally and substantively. Strydom
(1996: 1) questions the reference to post-
apartheid South Africa as a constitutional state. He
argues that what is missing is the very nature of a
constitutional state: the implication of the state
being bound to an inherent substantive juridically
qualified limitation. He argued that this substantive
qualification—
 [m]anifests itself in the primary (and limited)
function of the constitutional state . . . namely
to realise the equal status of its citizens in both
the public and private law spheres regardless
of race, culture, origin, religion, gender or
political persuasion. This is the essence of the
principle of constitutional justice and requires
governance in the interests of all, underpinned
by constitutional safeguards for human rights
and freedoms.
He bases his argument (that the post-apartheid
state does not fully comply with the substantive
notion of a constitutional state) on the absence of
(at least) three core issues: administration of
justice, legal certainty and personal security of the
person.

9.2.3 Constitutional symbolism

The South African Constitution is rich in
symbolism, and a number of commentators have
explained the special status of the supreme
Constitution in a number of symbolic references.
According to Mureinik (1994: 32) the Constitution
forms a bridge in a divided society, a bridge from a
culture of authority (based on sovereignty of
Parliament) to a culture of justification (based on a
supreme constitution). Du Plessis (2000: 385-394)
points out that the Constitution is both a
monument which celebrates and a memorial which
commemorates. In S v Acheson (above) 813A-C
former Chief Justice Mahomed referred to a
supreme constitution as a mirror:
[T]he Constitution of a nation is not simply a
statute which mechanically defines the
structures of government and the relations
between the government and the governed. It
is a ‘mirror reflecting the national soul’, the
identification of the ideals and aspirations of a
nation; the articulation of the
Page 188
values bonding its people and disciplining its
government. The spirit and tenor of the
Constitution must therefore preside and
permeate the processes of judicial
interpretation and judicial discretion.
However, the Constitution is more than symbolic
window-dressing. It is also a transformative
document, a commitment to positive action (eg the
inclusion of the socio-economic rights in the Bill of
Rights). Furthermore, s 7(2) of the Constitution
obliges the state to engage in positive action:
The state must respect, protect, promote and
fulfil the rights in the Bill of Rights.
In other words, the Constitution is both a shield
against abuse (the classic first-generation
‘negative’ rights), and a positive instrument to
transform society in view of the fundamental rights
and values. Furthermore, a supreme constitution
has the following characteristics: it is open-ended,
value-laden and has a dimension of futurity. In
Nortje v Attorney General of the Cape 1995 (2) SA
460 (C) the supreme Constitution was described
as—
not a finely tuned statute designed ad hoc to
deal with one particular subject, or to amend or
repeal another specifically named statute, or a
specifically identified rule of the common-law.
It is sui generis. It provides, in the main, a set
of societal values to which other statutes and
rules of the common-law must conform, and
 with which government and its agencies must
comply, in carrying out their functions. It is
short on specifics and long on generalisation.

9.3 How to interpret the constitution

In Nortje v Attorney-General of the Cape (above)
472F-G, Marais J questioned the categorisation of
theories and canons of constitutional
interpretation:
[T]he approaches adopted by other Courts and
constitutional lawyers to the interpretation,
limitation and application of constitutionally
entrenched rights are undoubtedly a valuable
aid to understanding what is entailed in those
processes. Logically structured and systematic
approaches have an inherent appeal for
lawyers. However, they remain what they are,
not holy writ, but simply methodological
approaches which are not necessarily the only
legitimate approaches to the task . . . I regard
it as unwise to settle too dogmatically now
upon one methodology at this very early and
embryonic stage
Page 189
 of applying our newly devised Constitution to
concrete situations. Indeed, it is questionable
whether it would be wise to do so at any stage.

9.3.1 Constitutional guidelines

What does the Constitution say about its
interpretation? Section 39(1) of the Constitution
provides the following with regard to interpretation
of the Bill of Rights:
When interpreting the Bill of Rights, a court,
tribunal or forum—

(a)
Must promote the values which underlie an
open and democratic society based on human
dignity, equality and freedom;

(b)
Must consider international law; and

(c)
May consider foreign law.
The first part of the provision is peremptory: when
interpreting the Bill of Rights, a court, tribunal or
forum must make value judgements (ie promote
the values which underlie an open and democratic
society based on human dignity, equality and
freedom) and must have regard to international
law (international human rights law in particular).
This is a set of universal rules and norms dealing
with the protection of fundamental human rights
and consists of a number of international
documents and rules of customary international
law.
Furthermore, a court, tribunal or forum may also
refer to foreign law when interpreting the Bill of
Rights. The rules of foreign law applicable here are
those legal principles (in particular case law) which
do not conflict with the South African legal order (s
35(1) of the interim Constitution referred to
‘comparable foreign case law’); in other words,
those legal principles applied in a democratic legal
order based on constitutionalism.
The interpretation clause of the Bill of Rights
must be read with the supremacy clause, as well
as with s 1. Section 1 is arguably one of the most
important provisions in the supreme Constitution:
 The Republic of South Africa is one, sovereign,
democratic state founded on the following
values:

(a)
Human dignity, the achievement of equality
and the advancement of human rights and
freedoms.

(b)
Non-racialism and non-sexism.

(c)
Universal adult suffrage, a national common
voters roll,
Page 190
regular elections and a multi-party system
of democratic government, to ensure
accountability, responsiveness and
openness.
An in-depth discussion of all the rules and
principles of constitutional interpretation is a
subject on its own. The following are some of the
general principles formulated by Southern African
courts:

•
A supreme constitution must be given a
generous and purposive interpretation
(Shabalala v The Attorney-General of Transvaal
1996 (1) SA 725 (CC) 740 para 26). In
Nyamakazi v President of Bophuthatswana
(above) 567H it was held that a purposive
interpretation of the Constitution is necessary,
since it enables the court to take into account
more than legal rules:
These are the objectives of the rights
contained therein, the circumstances
operating at the time when the
interpretation has to be determined, the
future implications of the construction, the
impact of the said construction on future
generations, the taking into account of new
developments and changes in society.

•
 Case law also refers to a liberal interpretation
of the Constitution. A liberal interpretation does
not have a political connotation, but refers to
flexibility and generosity. The Constitution
must be liberally construed, taking into account
its terms and spirit, the intention of the
framers and the objectives of and reasons for
the legislation. In the process, the ordinary
rules of statutory interpretation must give way
to this more adaptable and flexible method.

•
During the interpretation of the Constitution,
its spirit and tenor must be adhered to (S v
Acheson (above)). This means that the values
and moral standards underpinning the
Constitution must be taken into account
throughout the entire interpretation process.

•
A provision in the Constitution cannot be
interpreted in isolation, but must be read in the
context as a whole. The context includes the
historical factors that led to the adoption of the
 Constitution in general, and the fundamental
rights in particular (S v Makwanyane (above)).

•
Respect must be paid to the language
employed in the Constitution. Although the text
is balanced and qualified by various contextual
factors, the context is anchored to the
particular constitutional text. In other words,
historical context and comparative
interpretation can never reflect a
Page 191
purpose that is not supported by the
constitutional text as a legal instrument.
However, this does not imply a mechanical
adherence to the strict austerity of literal
legalism (Shabalala v The Attorney-General of
Transvaal (above) 740 para 27). In Nyamakazi
v President of Bophuthatswana (above) 566G
this method was referred to as an open-ended
process of elucidation and commentary which
explores, reads into, derives and attaches
significance to every word, section or clause in
relation to the whole context.
•
In S v A Juvenile 1990 (4) SA 151 (ZSC) 176B,
the court stressed the fact that the
Constitution, as the supreme law of the land,
has bestowed on the court the sacred trust of
protecting human rights.

•
The Constitution was drafted with a view to the
future, providing a continuing framework for
the legitimate exercise of government power
and the protection of individual rights and
freedoms (Khala v The Minister of Safety and
Security (above) 122D–E). The Constitution
has to be interpreted in the context and setting
existing at the time when the case is heard,
and not when it was passed, otherwise the
growth of society will not be taken into
account. The Constitution must be interpreted
so that it gives clear expression to the values
the Constitution intends to nurture for the
future (Qozoleni v Minister of Law and Order
(above)).
•
Some die-hard supporters of the orthodox text-
based approach who do not understand a
system of constitutional supremacy refer to
constitutional interpretation as a free-floating
exercise. This is simply not correct. Ultimately,
constitutional interpretation is a question of
law: if the particular legislation is consistent
with the Constitution, it is valid and in force; if
not, the court which exercises a judicial check
in terms of the Constitution will declare it
unconstitutional and strike it down.
Constitutional interpretation is an exercise in
the balancing of various societal interests and
values.

•
These methods and principles of constitutional
interpretation do not constitute a closed set of
hard and fast rules. Constitutional
interpretation is an inherently flexible process.
It is not a dogmatic and mechanical application
of predefined approaches and rules. Allowance
 must be made for changing circumstances
(Nortje v Attorney-General of the Cape (above)
472F–473C).
Page 192

•
The principles of international human rights law
and foreign law must be applied with due
regard for the South African context (S v Zuma
1995 (2) SA 642 (CC) 651H–I). In other words,
constitutional interpretation must start and end
with the South African Constitution (S v
Makwanyane (above) 406E–407C, Du Plessis v
De Klerk (above) para 123).

•
All judges and judicial officers are obliged to
interpret and apply legislation so as to give
effect to the fundamental values and rights in
the supreme Constitution. This role is not a
mechanical reiteration of the mythical intent of
the lawgiver, but is rather an ongoing, value-
based struggle between competing rights and
values. This struggle (engagement) with the
constitutional text, context, law and society in
transformation is eloquently described (with
reference to the limitation of rights) by Sachs J
in Prince v Cape Law Society 2002 (2) SA 794
(CC) para 155:
What it requires is the maximum
harmonisation of all the competing
considerations, on a principled yet nuanced
and flexible case-by-case basis, located in
South African reality yet guided by
international experience, articulated with
appropriate candour and accomplished
without losing sight of the ultimate values
highlighted by our Constitution. In
achieving this balance, this Court may
frequently find itself faced with complex
problems as to what properly belongs to
the discretionary sphere which the
Constitution allocates to the Legislature and
the Executive, and what falls squarely to be
determined by the Judiciary.
9.3.2 A comprehensive methodology
But how do we concretise these principles and
guidelines? How do we make it practical in the real
world of racism and politics and poverty and crime
and aspirations and so on? As was pointed out
earlier (Chapter 5), Du Plessis & Corder (1994: 73-
74) discuss five techniques of interpretation. These
complementary techniques apply to constitutional
interpretation as well.

(a) Grammatical interpretation

This aspect acknowledges the importance of the

role 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. This includes
the rules of syntax, which are the rules dealing
with the order of words in a sentence. However,
this does not imply a return to
Page 193
literalism and the orthodox ‘plain meaning rule’. It
merely accepts the authoritative constitutional text
as a very important piece in the jigsaw puzzle of
constitutional interpretation. According to Du
Plessis (1996: 223):
The completed [constitutional] text posits, with
great authority, a starting point for
interpretation, and eventually application, but
it invites, with equal authority, improvisation,
thereby recognising its own inconclusiveness.

(b) Systematic (or contextual) interpretation

This method is concerned with the clarification of

the meaning of a particular constitutional provision
in conjunction with the Constitution as a whole.
The emphasis on the ‘wholeness’ is not restricted
to the other provisions and parts of the
Constitution, but also takes into account all
contextual considerations such as the social and
political environments in which the Constitution
operates. In Ferreira v Levin 1996 (2) SA 984
(CC), the Constitutional Court used the structure of
the interim Constitution, as well as the formulation
of other fundamental rights, to interpret the right
to freedom of the person.
(c) Teleological (value-based) interpretation

This entails a value-coherent construction—the aim

and purpose of the provision must be ascertained
against the fundamental constitutional values. The
fundamental values in the Constitution form the
foundation of a normative constitutional
jurisprudence during which legislation and actions
are evaluated against (and filtered through) those
constitutional values. In Coetzee v Government of
the Republic of South Africa; Matiso v
Commanding Officer, Port Elizabeth Prison (above)
para 46 Sachs J explained the teleological
dimension of constitutional interpretation:
The values that must suffuse the whole process
are derived from the concept of an open and
democratic society based on freedom and
equality, several times referred to in the
Constitution. The notion of an open and
democratic society is thus not merely
aspirational or decorative, it is normative,
furnishing the matrix of ideals within which we
work, the source from which we derive the
principles and rules we apply, and the final
 measure we use for testing the legitimacy of
impugned norms and conduct . . . [W]e should
not engage in purely formal or academic
analysis, nor simply restrict ourselves to ad hoc
technicism, but rather focus on what has been
called the synergetic relation between the
values
Page 194
underlying the guarantees of fundamental
rights and the circumstances of the particular
case.

(d) Historical interpretation

The term travaux préparatoires refers to the

discussions during the drafting of an international
treaty, but it is also increasingly used with regard
to the deliberations of the drafters of a supreme
constitution. A supreme constitution, which
includes a bill of fundamental rights, has been
described as a ‘living tree’. It is a dynamic
document, which must be interpreted in the light
of ever-changing circumstances, values and
perceptions. However, if the deliberations of the
constitutional drafters (the so-called ‘original
intent’) become the deciding factor during the
interpretation of such a constitution, there will be
no development and adaptability. The result will be
that future generations will be bound by a single
stroke of constitution-making, with no growth,
dialogue, discourse, changes or flexibility possible.
This means that the travaux préparatoires of the
Constitution may be consulted as an external aid,
but they cannot be the deciding factor. In S v
Makwanyane (above) para 17 the court explained
that the Multi-Party Negotiating Process was
advised by technical committees, and the reports
of those committees on the drafts are the
equivalent of the travaux préparatoires relied upon
by international tribunals. Such background
material can provide a context for the
interpretation of the Constitution and, where it
serves that purpose, it may be used.

(e) Comparative interpretation

This refers to the process (such as that prescribed

by s 39(1) of the Constitution) during which the
court examines international law and the
constitutional decisions of foreign courts. This must
be done with due regard to the unique domestic
context of the Constitution under consideration, as
was pointed out by Chaskalson P in S v
Makwanyane (above) para 39:
In dealing with comparative law we must bear
in mind that we are required to construe the
South African Constitution, and not an
international instrument or the constitution of
some foreign country, and that this has to be
done with due regard to our legal system, our
history and circumstances, and the structure
and language of our own Constitution. We can
derive assistance from public international law
and foreign case law, but we are in no way
bound to follow it.
Page 195
These five aspects of constitutional interpretation
are not mere theoretical reflections, but all of them
can be identified in judgments of the Constitutional
Court, as illustrated by Mahomed J para 266 of S v
Makwanyane (above) [emphasis added]:
What . . . is required to do in order to resolve
an issue is to examine the relevant provisions
 of the Constitution, their text and their
context; the interplay between the different
provisions; legal precedent relevant to the
resolution of the problem both in South Africa
and abroad; the domestic common-law and
public international law impacting on its
possible solution; factual and historical
considerations bearing on the problem; the
significance and meaning of the language used
in the relevant provisions; the content and
sweep of the ethos expressed in the structure
of the Constitution; the balance to be struck
between different and sometimes potentially
conflicting considerations reflected in its text;
and by a judicious interpretation and
assessment of all these factors to determine
what the Constitution permits and what it
prohibits.

9.4 Avoiding unconstitutional

legislation
As was pointed out in Chapter 4, when a court
declares legislation unconstitutional and invalidates
it, the legislation can no longer be applied. This
could create a vacuum in the legal order.
Competent courts involved in constitutional review
(the testing of legislation against the Constitution)
may try, if reasonably possible, to modify or adapt
the legislation to keep it constitutional and alive.
The court may then employ a number of corrective
techniques (so-called ‘reading-down’, ‘reading-up’,
‘reading-in’ and severance) in an attempt to keep
the legislation in question constitutional and valid.

9.4.1 The limits of corrective interpretation

during constitutional review
In National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC) the
Constitutional Court laid down a number of
principles to be considered and followed before
‘reading-in’ is applied. However, these factors will
also apply to severance:

•
The results of reading-in/severance/reading-up
must be consistent with the Constitution and
its values.

•
 The result achieved should interfere with the
existing law as little as possible.
Page 196

•
The courts must be able to define with
sufficient precision how the legislative meaning
ought to be modified to comply with the
Constitution.

•
The court should endeavour to be as faithful as
possible to the legislative scheme (ie
aim/purpose) within the constraints of the
Constitution.

•
The remedy of reading-in ought not to be
granted where this would result in an
unsupportable budgetary intrusion.

9.4.2 Reading-down
Sections 35(2) and 232(2) of the interim
Constitution provided that if legislation is on the
face of it unconstitutional (because it conflicts with
the fundamental rights and the rest of the
Constitution respectively), but is reasonably
capable of a more restricted interpretation which
would be constitutional and valid, such restricted
interpretation should be followed (ie ‘reading-
down’). These provisions have not been repeated
in the Constitution of 1996, but the principle that
courts should as far as possible try to keep
legislation constitutional—and therefore valid—is a
well-known principle of constitutional interpretation
(in Germany it is called Verfassungskonforme
Auslegung). This principle is similar to the common
law presumption that the legislation does not
contain futile or meaningless provisions (see
Chapter 6 above).

9.4.3 Reading-up
Reading-up takes place when there is more than
one possible reading of the legislative text, and a
more extensive reading is adopted in order to keep
the legislation in question constitutional.
Case law example:
In Daniels v Campbell 2004 (5) SA 331 (CC) the
court held that a person who is party to a
monogamous Muslim marriage is not included
under the terms ‘spouse’ and ‘spouses’ in the
Intestate Succession Act 81 of 1987 and the
Maintenance of Surviving Spouses Act 27 of 1990.
In order to avoid unconstitutionality of the
legislation, the court interpreted the words in a
broad and inclusive way to include persons married
according to Muslim rites.
Page 197

9.4.4 Reading-in
Reading-in is a more drastic remedy used by the
courts in order to change legislation in order to
keep it constitutional. In exceptional circumstances
the court will ‘read’ something into the meaning of
a provision in order to rescue a provision, or a part
of it. Reading-in should be applied with caution,
since the court will change the meaning of the
legislation, and after all, the legislative function is
entrusted to bodies and persons authorised to
enact legislation.
Case law example:
In Gory v Kolver (Starke and Others Intervening)
2007 (4) SA 97 (CC) the court found that the
provisions of s 1(1) of the Intestate Succession Act
81 of 1987 were unconstitutional, and it was
reasonably possible to interpret the provision as if
the words ‘or partner in a permanent same-sex life
partnership in which the partners have undertaken
reciprocal duties of support’ appeared after the
word ‘spouse’ in the section.

9.4.5 Severance
In practical terms ‘severance’ is the opposite of
‘reading-in’. Here the court will try to rescue a
provision from the fate of unconstitutionality by
‘cutting out’ a part of the provision from the rest of
the text to keep the remainder constitutional and
valid. Before severance can be applied, the two
requirements must be met: First, it must be
possible to separate (sever or cut out) the
unconstitutional (bad) part of the provision from
the rest (the good). Secondly, what remains of the
provision must still be able to give effect to the
purpose of the legislation (Coetzee v Government
of the Republic of South Africa (above)).
9.5 Contemporary challenges, or,
whose Constitution is it anyway?
So: after nearly two decades of rainbow democracy
and constitutionalism, the question of
constitutional interpretation and application has
been sorted out, right? The Constitution and the
Bill of Rights require a purposive interpretation,
with due regard to the values and aspirations
expressed in the constitutional text, right? Now
that the philosophical issues
Page 198
have been addressed, we can concentrate on real
issues, right?
It is not that simple and final. Constitutional
interpretation is a dynamic process which can
never be finished, since circumstances and
perceptions and values will change. There can
never be one final interpretation which is cast in
stone. No understanding of the Constitution is holy
writ, and there are many unanswered questions
and unsolved problems that need to be addressed.
After all, the Constitution is supposed to be a living
document, and unless we understand and accept
the indeterminacy and evolving nature of
constitutional interpretation and constitutional
jurisprudence, there is a danger of falling back into
other new rigid orthodoxies: not sovereignty of
Parliament (‘Parliament has spoken’), but maybe
this time series of executive-minded
pronouncements by the Constitutional Court (the
Oracle of Braamfontein), or government’s
oligarchical obstinacy in Pretoria. In S v Mhlungu
1995 (3) SA 867 (CC) para 129, Sachs J explained
this ever-changing process of interpretation as
follows:
I regard the question of interpretation to be
one to which there can never be an absolute
and definitive answer and that, in particular
. . . how to balance out competing provisions,
will always take the form of a principled judicial
dialogue, in the first place between members of
this Court, then between our Court and other
Courts, the legal profession, law schools,
parliament, and indirectly, with the public at
large.
9.5.1 The counter-majoritarian difficulty
There is still a lingering tension between the
testing right of the judiciary and the will of the
people: Is it acceptable and legitimate for an
unelected court to thwart the democratic wishes of
the majority (as expressed in the measures taken
by the elected government)? On the one hand the
Constitution is also the product of a negotiated
settlement involving the people. This Constitution
(including a Bill of Rights) must serve, amongst
other things, as a shield to protect the
fundamental rights of the people and to promote
the values expressed in the Constitution. According
to Michelman (1988: 1537) the judiciary has a
‘situational advantage over the people at large in
listening to the voices from the margins’. On the
other hand, however, the principles of democracy
and the separation of powers are also some of the
fundamental values underlying a constitutional
state. Any court involved in constitutional review
(the so-called testing right of the judiciary) has to
walk
Page 199
a very fine and sometimes precarious line.
Suddenly, policy issues seem to be justiciable. Du
Plessis & De Ville (1993: 81) explain:
[A] bill of rights judicialises politics because it
requires the judiciary to act as an independent
referee who keeps (party) political actors to the
basic ‘rules of the (political) game’ enshrined in
the bill of rights. This in turn calls for political
skills on the part of the ‘referee itself’—a
politicisation of the judiciary in other words.
But what are the boundaries of constitutional
review? The courts may have a ‘sacred duty’ to
protect the rights in the Constitution, but is the
Constitution what the judges say it is? What about
the inputs of civil society and the other participants
in the democratic process? The court is the
guardian of constitutional rights and values, but it
is not a super legislature. Where to draw the line,
and who draws that line during interpretation and
application, are some of the vexing questions still
facing the courts in a constitutional state.
9.5.2 The constitutional values
With the establishment of the new constitutional
order on 27 April 1994, South Africa underwent a
number of fundamental changes. In the process,
South Africans made the choice in favour of a
constitutional state, underpinned by express
fundamental values (including human dignity,
freedom and equality). The Constitution enjoins
the judiciary to consider, respect, protect, promote
and fulfil these constitutional values (ss 2, 7(2)
and 39(2)). In short, these fundamental values are
in the Constitution and have to be applied.
However, the question is: What is to be done
with these values? Are these constitutional values
merely high-sounding and impressive references to
human dignity, justice, and so on, which are only
used from time to time as moral embroidery for
case law? It has already been mentioned that the
Critical Legal Studies movement criticises these
hollow promises and empty rhetoric about rights. If
supporters of the constitutional state do not wish
to be guilty of the accusations by CLS that only lip
service is paid to fundamental rights, the judiciary
must adopt a more ‘activist’ role with regard to the
fundamental values during constitutional
interpretation.
What is activist constitutional interpretation? It
deals primarily with the active and positive
promotion and strengthening of the fundamental
constitutional values. The
Page 200
substantive (value-laden) component of the
constitutional state must be activated and
concretised by the courts. Not only the rights and
values of the individual must be emphasised, but
those of the community (including the
marginalised and disadvantaged) as well.
The Constitution is a value-laden document, and
these values (or the spirit of the Bill of Rights)
must be promoted and nurtured and applied. But
whose values are we talking about? From whose
point of view are these values identified and
interpreted? What about cultural relativism? For
example: different cultures and ethnic groups have
very different ideas about non-sexism and the
place of women in society. Put another way, there
is a diverse community of constitutional
interpreters involved in the constitutional discourse
in South Africa. Linked to this challenge is the role
of dominant cultures and groups in the
interpretation process. How open-ended concepts
such as open and democratic society or non-
sexism or human dignity are concretised in
practice, would to some degree depend on who the
interpreters are. For example, if the interpreters in
a given situation are only men, the concretised
meaning of non-sexism will inevitably be biased,
influenced by culture, pre-understanding and
preconceived ideas about sex and gender.
Hypothetical example:
As was pointed out in Chapter 5 above, the
consideration of fundamental values during
interpretation is not easy, but by the same token it
cannot be ignored. However, as the Critical Legal
Studies scholars point out, we all have
preconceived ideas and perceptions based on our
culture, history, religion and other factors. We all
have our personal baggage; a monkey on our
backs. We should not deny it but be aware of it
during the interpretation process. But that begs
the question: When will whose personal
perceptions about race and gender and rights and
values prevail? For instance, take the following
hypothetical scenario. An illiterate black woman
lives in a poverty-stricken rural area. She cannot
read, does not know a thing about a supreme
constitution and equality and all the wonderful
rights guaranteed in the Bill of Rights. She lives
the typical life of a
Page 201
black woman in a traditional patriarchal and male-
dominated society, governed by the age-old tribal
customs, culture and rules of an indigenous
people. She is also constantly abused by her often-
drunk husband—both sexually and physically.
During one vicious attack, she kills her husband
(probably in self-defence). Nonetheless, she is
accused of murder, and on a particular day she
appears in court. She cannot read, and does not
understand the strange and frightening
surroundings. And guess who the presiding officer
is? None other than a middle-aged white man.
Whose values and which values will be considered?
Yes, of course, the fundamental values in the
supreme Constitution must be applied. But in the
process the clash of languages, traditions, cultures,
and all the other baggage of all the role-players
will have to be dealt with. The values must be
used, but how that is to be accomplished during
interpretation and application of the law is not as
easy as it may seem.
The question during interpretation is not only who
the ‘others’ are, but also who speaks for the
‘others’. In other words, will weak and
marginalised groups be given the opportunity to
take part in the interpretive discourse? Will they be
heard? Will they be taken seriously? In a diverse
society (such as South Africa), with a history of
oppression, racism, sexism and discrimination, this
issue cannot be ignored. Tully (1995: 34) explains
the problems as follows:
To respond to the strange multiplicity of
culturally diverse voices that have come
forward . . . to demand a hearing . . . it is
necessary to call into question and amend a
 number of unexamined conventions . . . that
continue to inform the language of
constitutionalism in which the demands are
taken up and adjudicated.

9.5.3 Fostering a rights culture

The promotion and implementation of a rights
culture in South Africa is another crucial
constitutional function of the judiciary. It is all very
well to refer to South Africa as a constitutional
state, and to emphasise fundamental values. But
we are a very young (and fragile) democracy, and
the discourse about concepts such as openness
and transparency and human dignity and
substantive justice also needs to grow. What role
should the judiciary and the Constitution play
during the transformation process in South Africa?
One function should be
Page 202
the establishment of the Constitution as a revered
symbol of nationhood, cutting across racial,
cultural, language, gender and ethnic barriers, and
to foster a respect for constitutionalism, the rule of
law and a rights culture.
 During the inauguration of a new president of the
United States of America, the taking of the official
oath is a very poignant moment:
I do solemnly swear that I will faithfully
execute the Office of the President of the
United States, and will to the best of my
ability, preserve, protect and defend the
Constitution of the United States.
According to Miller (1985: 24), the American
Constitution is more than the supreme law of the
United States:
For many Americans, the Document has a
mystical significance; it is an object of awe and
reverence that projects a religious fervour to
secular life, a unifying symbol around which
Americans can rally.
In fact, the American Constitution is more than a
constitutional document—it had been elevated to
something similar to a religious symbol, as pointed
out by Grey (1984: 3):
Beyond that, Americans have never regarded
the United States Constitution simply as a
hierarchically superior statute, which is, by and
 large, how they view their state constitutions.
Rather, it has been, virtually from the moment
of its ratification, a sacred symbol, the most
potent emblem (along with the flag) of the
nation itself.
However, South Africans have not reached that
stage yet. It would seem that our supreme
Constitution is used and abused by all and sundry
when it suits them, just to be ignored when it does
not. The old joke comes to mind: a liberal is a
right-winger who has just been arrested, and a
right-winger is a liberal who has just been
hijacked. The Constitution cannot become a handy
little book of instant quotes selectively applied to
support sectional interests.
There is another danger in South Africa: reality
seems to indicate that while the constitutional
values form the substantive ‘window-dressing’ of
this new constitutional state, the crucial centre is
imploding in a formal sense of the word—the
absence of accountability, lack of respect for the
rule of law, the collapse of essential services and
the lack of a vibrant, active and vocal civil society,
all seem to indicate an erosion of the central tenets
of the constitutional state and
Page 203
democracy. In the process the following comment
by Griffin (1996: 43-44) about the American
Constitution has an eerily South African relevance:
Lawyers intend to regard the Constitution as a
set of ultimate normative standards
appropriate for judging any political practice.
The Constitution occupies so much normative
space that it is hard to see anything else.
The apartheid regime of yesteryear operated in a
public law system devoid of substantive higher-law
norms, but it tried very hard to comply with the
positivist (formal) aspects of the law.
Paradoxically, we might now have the situation
where the post-apartheid government seems to be
ignoring certain formal aspects of the constitutional
power map under the convenient cloak of pseudo-
substantive constitutionalism and constitutional
supremacy. Are we now slowly moving towards
just another authoritarian and centralised de facto
one-party oligarchy conveniently operating as a
democracy under the smokescreen of the supreme
Constitution and constitutional values?

9.5.4 Constitutional interpretation and social

justice
The challenges relating to socio-economic rights
need to be pointed out in relation to the
interpretation of fundamental rights. Should socio-
economic rights be interpreted differently from the
other rights? It is an effort to strike a balance
between judicial activism and self-restraint.
However, in very difficult and ‘hard’ socio-
economic cases before a court, a person in an
affluent neighbourhood may prefer judicial self-
restraint, but the poorest of the poor in a squatter
settlement will no doubt prefer a more activist and
generous interpretation. True, there is a fine line
between reviewing law and influencing policy, but
in the final analysis the problem is not only about
application, but fundamentally about
interpretation.
Should a court second-guess the legislature on
policy issues? A court of law is not equipped to
decide such matters, and it should never usurp the
role of the legislature. But by the same token,
courts in a constitutional democracy may not
become the rubber stamps of the legislature. If the
legislature and the executive are allowed to impair
constitutional rights in a manner which goes too
far, or, in the case of socio-economic rights, not far
enough, our Bill of Rights would become just
another piece of paper.
The modern democratic state has changed
considerably during this century: from the liberal
democratic state (the night
Page 204
watchman or non-interfering state), to the
administrative (regulating) state, to the welfare
state, to the benefactor state, and finally, to the
post-industrial state as agent of empowerment.
The rise of the welfare state and the empowering
state means that the constitutional state is not
only involved in upholding and protecting the
traditional individual rights and values, but it also
has to establish and reaffirm community rights and
values. The modern constitutional state cannot
only take, but has to give as well—the state as
protector of the individual and provider of the
community. This means that the judiciary not only
has to protect the traditional liberal rights of the
individual against encroachment by the state, but
also has to ensure that the state meets its positive
obligations with regard to the social advancement
of the community. The state must act as the agent
of empowerment to ensure that people do not
remain helpless and disempowered. In the modern
state, preventing people from enjoying
opportunities and benefits may be a more serious
infringement of fundamental rights than
governmental abuse of power. A bill of rights is not
only a shield against government intervention, but
also a positive guide to opportunities, services,
resources and empowerment.
In terms of its preamble the Constitution is the
driving force that serves to create a society based
on democratic values, social justice and
fundamental human rights, as well as to improve
the quality of life of all citizens and free the
potential of every person. In other words, the
Constitution is also an instrument of reconstruction
and transformation. For the poor and illiterate
sectors of society, the legitimacy of the new
constitutional order is inextricably linked to socio-
economic rights, rather than to high-sounding
theoretical explanations and intricate
interpretations. Herein lies the new challenge for
constitutional interpretation—to activate and
animate the fundamental constitutional values in
general, and to concretise social justice in
particular. A fundamental rights dispensation is not
only about the entrenchment of certain rights, but
also involves the maintenance and strengthening
of the necessary prerequisites for the proper (and
dignified) exercise of those rights. In other words,
all those who were pushed to the margins of
society (the poor, the disempowered and the
disadvantaged) must also be in the position to
enjoy the benefits of a Bill of Rights.
 Page 205

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SALJ South African Law Journal
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THRHR Tydskrif vir Hedendaagse Romeins-
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TRW Tydskrif vir Regswetenskap
TSAR Tydskrif vir die Suid-Afrikaanse
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 Page 209

Table of Cases
A
Administrator, Cape v Raats Rontgen & Vermeulen
(Pty) Ltd 1992 (1) SA 245 (A)
— 139
African and European Investment Co v Warren
1924 AD 360
— 122
Akani Garden Route (Pty) Ltd v Pinnacle Point
Casino (Pty) Ltd 2001 (4) SA 501 (SCA)
— 34
Amalgamated Packaging lndustries v Hutt 1975 (4)
SA 943 (A)
— 178
Association of Amusement & Novelty Machine
Operators v Minister of Justice 1980 (2) SA 636
(A)
— 112

B
Baloro v University of Bophuthatswana 1995 (4)
SA 197 (B)
— 114
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs 2004 (4) SA 490 (CC)
— 101
Bezuidenhout v AA Mutual Insurance Association
Ltd 1978 (1) SA 703 (A)
— 178
Bhyat v Commissioner for Immigration 1932 AD
125
— 93, 118
Bloemfontein Town Council v Richter 1938 AD 195
— 173
Boiler Efficiency Services CC v Coalcor (Cape) (Pty)
Ltd 1989 (3) SA 460 (C)
— 140
Bok v Allen 1884 SAR 137
— 150
Bolnik v Chairman of the Board appointed by the
SA Council of Architects 1982 (2) SA 397 (C)
— 116
Brown v Cape Divisional Council 1979 (1) SA 589
(A)
— 119
Bugler’s Post (Pty) Ltd v Secretary for Inland
Revenue 1974 (3) SA 28 (A)
— 171
Bulawayo Municipality v Bulawayo Waterworks Ltd
1915 CPD 435
— 160

C
Carlis v Oldfield 4 HCG 379
— 170
Carmichele v Minister of Safety and Security 2001
(4) SA 938 (CC)
— 6, 43
Case v Minister of Safety and Security; Curtis v
Minister of Safety and Security 1996 (3) SA 617
(CC)
— 150
Page 210

Cats Entertainment CC v Minister of Justice; Van

der Merwe v Minister of Justice; Lucksters CC v
 Minister of Justice 1995 (1) SA 869 (T)
— 53
Chotabhai v Union Government 1911 AD 24
— 121
Coetzee v Government of the Republic of South
Africa; Matiso v Commanding Officer, Port
Elizabeth Prison 1995 (4) SA 631 (CC)
— 144, 193, 197
Colonial Treasurer v Rand Water Board 1907 TS
479
— 170
Commercial Union Assurance Co v Clarke 1972 (3)
SA 508 (A)
— 176
Commissioner for Inland Revenue v Golden Dumps
(Pty) Ltd 1993 (4) SA 110 (A)
— 112
Commissioner for Inland Revenue v Witwatersrand
Association of Racing Clubs 1960 (3) SA 291 (A)
— 116
Commissioner, SARS v Executor, Frith’s Estate
2001 (2) SA 261 (SCA)
— 93
Comrie v Liquor Licensing Board for Area 31 1975
(2) SA 494 (N)
— 176
Corocraft Ltd v Pan American Airways Inc. [1968]
3 WLR 714
— 7
Curtis v Johannesburg Municipality 1906 TS 308
— 55

D
Dadoo Ltd v Krugersdorp Municipal Council 1920
AD 530
— 135, 146
Daniels v Campbell 2004 (5) SA 331 (CC)
— 196
De Beers Industrial Diamond Division (Pty) Ltd v
Ishizuka 1980 (2) SA 191 (T)
— 123
De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division 2003 (3) SA 389
(W)
— 150
De Villiers v Cape Divisional Council 1875 Buch 50
— 92
Dhanabakium v Subramanian 1943 AD 160
— 135
Diepsloot Residents’ and Landowners’ Association v
Administrator, Transvaal 1994 (3) SA 336 (A)
— 132
Dilokong Chrome Mines (Edms) Bpk v Direkteur-
Generaal, Departement van Handel en Nywerheid
1992 (4) SA 1 (A)
— 151
Director of Education, Transvaal v McCagie 1913
AD 616
— 171
Director of Public Prosecutions, Western Cape v
Prins 2012 (2) SACR 183 (SCA)
— 135
Directory Advertising v Minister for Posts and
Telecoms 1996 (3) SA 800 (TPD)
— 131
Drakensberg Administration Board v Town Planning
Appeals Board 1983 (4) SA 42 (N)
— 140
Page 211
Du Plessis v De Klerk 1996 (3) SA 850 (CC)
— 33, 115, 164, 192
Du Plessis v Southern Zululand Rural Licensing
Board 1964 (4) SA 168 (D)
— 116

E
Eland Boerdery (Edms) Bpk v Anderson 1966 (4)
SA 400 (T)
— 179
Engelbrecht v Road Accident Fund 2007 (6) SA 96
(CC)
— 67
Engels v Allied Chemical Manufacturers (Pty) Ltd
1993 (4) SA 45 (Nm)
— 160
Ensor v Rensco Motors (Pty) Ltd 1981 (1) SA 815
(A)
— 93
Entabeni Hospital Ltd v Van der Linde; First
National Bank of SA v Puckriah 1994 (2) SA 422
(N)
— 79
Esselman v Administrateur SWA 1974 (2) SA 597
(SWA)
— 133
Estate Crosby v Wynberg Municipality 1921 CPD
1026
— 73
Euromarine International of Mauren v The Ship
Berg 1986 (2) SA 700 (A)
— 61
Evans v Schoeman 1949 (1) SA 571 (A)
— 139
Ex Parte Attorney-General, Namibia: In re The
Constitutional Relationship between the Attorney-
General and the Prosecutor-General 1995 (8)
BCLR 1070 (NmSC)
— 186
Ex Parte Slater, Walker Securities (SA) Ltd 1974
(4) SA 657 (W)
— 96
Ex Parte the Minister of Justice: In re R v Jacobson
and Levy 1931 AD 466133 Ex parte Minister of
Safety and Security: in re S v Walters 2002 (4)
 SA 613 (CC)
— 6, 48
Executive Council Western Cape Legislature v
President of the RSA 1995 (4) SA 877 (CC)
— 29

F
Farrar’s Estate v CIR 1926 TPD 501
— 93
Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metropolitan Council 1999 (1) SA
374 (CC)
— 25, 142
Ferreira v Levin 1996 (2) SA 984 (CC)
— 193
Finbro Furnishers (Pty) Ltd v Registrar of Deeds,
Bloemfontein 1985 (4) SA 773 (A)
— 113
Fourie v Minister of Home Affairs 2005 (3) SA 429
(SCA)
— 114
Freedom of Expression Institute v Chair,
Complaints and Compliance Committee
(unreported case 2009/51933) [2011] ZAGPJHC
 2 (24 January 2011)
— 29
Fundstrust (Pty) Ltd (in liquidation) v Van
Deventer 1997 (1) SA 710 (A)
— 123

G
Gardner v Lucas (1878) 3 App Cas 582
— 55
Page 212
Garydale Estate and Investment Co (Pty) Ltd v
Johannesburg Western Rent Board 1957 (2) SA
466 (T)
— 72
Geyser v Msunduzi Municipality 2003 (5) SA 19 (N)
— 105
Golden China TV Game Centre v Nintendo Co Ltd
1997 (1) SA 405 (A)
— 114
Goodman Bros (Pty) Ltd v Transnet Ltd 1998 (4)
SA 989 (W)
— 131
Gordon v Standard Merchant Bank 1983 (3) SA 68
(A)
— 78
Gory v Kolver (Starke and Others Intervening)
2007 (4) SA 97 (CC)
— 197
Govender v Minister of Safety and Security 2001
(4) SA 273 (SCA)
— 106
Government of the Republic of South Africa v
Government of Kwazulu 1983 (1) SA 164 (A)
— 79
Green v Fitzgerald 1914 AD 88
— 168

H
Handel v R 1933 SWA 37
— 116
Harksen v President of The RSA 2000 (5) SA 478
(CC)
— 144
Harris v Law Society of the Cape of Good Hope
1917 CPD 449
— 95
Hatch v Koopoomal 1936 AD 197
— 28
Heydon’s Case (1584) 3 Co Rep 7a (76 ER 637)
— 152
Hoffmann v South African Airways 2001 (1) SA 1
(CC)
— 131
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588
(W)
— 100, 144
Hopkinson v Bloemfontein District Creamery 1966
(1) SA 159 (O)
— 151
Hurwitz v SA Mining and General Assurance Co Ltd
1958 (4) SA 136 (W)
— 180

I
Independent Electoral Commission v Langeberg
Municipality 2001 (3) SA 925 (CC)
— 131
Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd:
In re Hyundai Motor Distributors (Pty) Ltd v Smit
 2001 (1) SA 545 (CC)
— 101, 184

J
Jaffer v Parow Village Management Board 1920
CPD 267
— 116
Jaga v Dönges 1950 (4) SA 653 (A)
— 98, 118, 131
Johannesburg City Council v Arumugan 1961 (3)
SA 748 (W)
— 179
Johannesburg Municipality v Cohen’s Trustees
1909 TS 811
— 78
Page 213

Joint Liquidators of Glen Anil Development

Corporation Ltd (in liquidation) v Hill Samuel (SA)
Ltd 1982 (1) SA 103 (A)
— 174

K
Kalla v The Master 1995 (1) SA 261 (T)
— 104
Kanhym Bpk v Oudtshoorn Munisipaliteit 1990 (3)
SA 252 (C)
— 119
Keagile v Attorney-General, Transvaal 1984 (2) SA
916 (T)
— 73
Kent v SA Railways and Harbours 1946 AD 405
— 79
Keyter v Minister of Agriculture 1908 NLR 522
— 112
Khala v Minister of Safety and Security 1994 (4)
SA 218 (W)
— 118, 191
Kleynhans v Yorkshire Insurance Co Ltd 1957 (3)
SA 544 (A)
— 126
Klipriviersoog Properties (Edms) Bpk v
Gemeenskapsontwikkelingsraad 1984 (3) SA 768
(T)
— 167
Kock v Scottburgh Town Council 1957 (1) SA 213
(D)
— 117
Kommissaris van Doeane en Aksyns v Mincer
Motors 1959 (1) SA 114 (A)
— 112
Kruger v President Insurance Co Ltd 1994 (2) SA
495 (D)
— 59

L
Le Roux v Grigg-Spall 1946 AD 244
— 180
Leibrandt v SA Railways 1941 AD 9
— 178
Lek v Estate Agents Board 1978 (3) SA 160 (C)
— 58

M
Maccsand (Pty) Ltd v City of Cape Town, Minister
for Water Affairs and Environment, MEC for Local
Government, Environmental Affairs and
Development Planning, Western Cape Province,
Minister for Rural Development and Land Reform,
and Minister for Mineral Resources 2012 (4) SA
181 (CC)
— 137
Mahomed v Union Government 1911 AD 1
— 73
Makwanyane and Ex parte Minister of Safety and
Security: In re S v Walters 2002 (4) SA 613 (CC)
— 6
Mamogalie v Minister van Naturellesake 1961 (1)
SA 467 (A)
— 136
Matatiele Municipality v President of the RSA 2006
(5) SA 47 (CC)
— 68
Mateis v Ngwathe Plaaslike Munisipaliteit 2003 (4)
SA 361 (SCA)
— 105
Mathiba v Moschke 1920 AD 354
— 150
Matiso v Commanding Officer, Port Elizabeth Prison
1994 (4) SA 592 (SE)
— 94, 163, 183
Page 214
McLoughlin v Turner 1921 RD 537
— 179
MEC for Public Works, Roads and Transport, Free
State v Morning Star Minibus Hiring Services
2003 (4) SA 429 (O)
— 69
Messenger of the Magistrate’s Court, Durban v
Pillay 1952 (3) SA 678 (A)
— 178
Metro Transport (Pty) Ltd v National Transport
Commission 1981 (3) SA 114 (W)
— 124
Middelburg Municipality v Gertzen 1914 AD 544
— 22
Minister of the Interior v Lockhat 1961 (2) SA 587
(A)
— 96
Minister v Land Affairs v Slamdien 1999 (4) BCLR
413 (LCC)
— 109
Minister of Police v Haunawa 1991 (2) SA 542
(Nm)
— 80
Minister van Polisie v De Beer 1970 (2) SA 712 (T)
— 127
Minister of Public Works v Haffejee 1996 (3) SA
745 (A)
— 61
Minister of Water Affairs and Forestry v
Swissborough Diamond Mines (Pty) Ltd 1999 (2)
SA 345 (T)
— 114
Mkontwana v Nelson Mandela Metropolitan
Municipality; Bissett v Buffalo City Municipality;
Transfer Rights Action Campaign v MEC, Local
Government and Housing, Gauteng 2005 (1) SA
530 (CC)
— 149
Morake v Dubedube 1928 TPD 625
— 149
Moseneke v The Master 2001 (2) SA 18 (CC)
— 28
Motorvoertuigassuransiefonds v Gcwabe 1979 (4)
SA 986 (A)
— 178

N
Nasionale Vervoerkommissie van Suid-Afrika v Salz
Gossow Transport (Edms) Bpk 1983 (4) SA 344
 (A)
— 129
National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC)
— 195
National Director of Public Prosecutions v Carolus
1999 (2) SACR 607 (SCA)
— 55
National Director of Public Prosecutions v
Seevnarayan 2003 (2) SA 178 (C)
— 118
National Union of Mineworkers of SA v Driveline
Technologies 2002 (4) SA 645 (LAC)
— 152
Ngcobo v Van Rensburg 1999 (2) SA 525 (LCC)
— 150
Ngxuza v Permanent Secretary, Department of
Welfare, Eastern Cape 2001 (2) SA 609 (E)
— 147
Nissan SA (Pty) Ltd v Commissioner for Inland
Revenue 1998 (4) SA 860 (SCA)
— 153
Nkisimane v Santam Insurance Co Ltd 1978 (2) SA
430 (A)
— 177
Page 215
Nortje v Attorney-General, Cape 1995 (2) SA 460
(C)
— 188, 191
Nourse v Van Heerden 1999 (2) SACR 198 (W)
— 74
Nyamakazi v President of Bophuthatswana 1992
(4) SA 540 (BGD)
— 114, 190, 191

O
Orpen v Cilliers 20 SC 264
— 179

P
Pharmaceutical Manufacturers Association of SA;
In re: Ex parte Application of the President of the
Republic of South Africa 2000 (2) SA 674 (CC)
— 28, 43, 49
Pio v Franklin 1949 (3) SA 442 (C)
— 178
Pivot Point SA (Pty) Ltd v Registrar of Companies
1980 (4) SA 74 (T)
— 128
PMB Armature Winders v Pietermaritzburg City
Council 1981 (2) SA 129 (A)
— 171
Premier, Limpopo Province v Speaker of the
Limpopo Provincial Government 2011 (6) SA 396
(CC)
— 24
President of the Republic of South Africa v Hugo
1997 (4) SA 1 (CC)
— 47
Prince v Cape Law Society 2002 (2) SA 794 (CC)
— 192
Principal Immigration Officer v Hawabu 1936 AD
26
— 91
Principal Immigration Officer v Purshotam 1928 AD
435
— 55
Prokureur-Generaal v Van Zyl 1961 (1) SA 729 (C)
— 133
Public Carriers Association v Toll Road
Concessionaries (Pty) Ltd 1990 (1) SA 925 (A)
— 97

Q
Qozeleni v Minister of Law and Order 1994 (3) SA
625 (E)
— 118
Queen v Jizwa 11 SC 337
— 47

R
R v Detody 1926 AD 168
— 63, 168
R v Forlee 1917 TPD 52
— 134
R v Herman 1937 AD 168
— 112
R v Hildick-Smith 1924 TPD 68
— 94
R v Lewinsohn 1922 TPD 336
— 179
R v Magana 1961 (2) SA 654 (T)
— 54
R v Maleka 1929 OPD 171
— 169
R v Maluma 1949 (3) SA 856 (T)
— 72
R v Mazibuko 1958 (4) SA 353 (A)
— 59
R v Njiwa 1957 (2) SA 5 (N)
— 132
Page 216

R v Nteto 1940 EDL 304

— 169
R v Shoolman 1937 CPD 183
— 117
R v Silinga 1957 (3) SA 354 (A)
— 116
R v Sillas 1959 (4) SA 305 (A)
— 62
R v Sopete 1950 (3) SA 769 (EC)
— 178
R v Thomas 1954 (1) SA 185 (SWA)
— 140
R v Vayi 1946 NPD 792
— 136
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC)
— 131
Rand Bank Ltd v De Jager 1982 (3) SA 418 (C)
— 43, 151
Rooiberg Minerals and Development Co Ltd v Du
Toit 1953 (2) SA 505 (T)
— 179

S
S v A Juvenile 1990 (4) SA 151 (ZSC)
— 191
S v Acheson 1991 (2) SA 805 (NmHc)
— 143
S v Adams 1979 (4) SA 793 (T)
— 96
S v De Bruin 1975 (3) SA 56 (T)
— 139, 140
S v Dodo 2001 (3) SA 382 (CC)
— 134
S v Dzukuda; S v Tilly; S v Tshilo 2000 (3) SA 229
(W)
— 151
S v F 1999 (1) SACR 571 (C)
— 145
S v Huyser 1968 (3) SA 490 (GW)
— 140
S v Kohler 1979 (1) SA 861 (T)
— 172
S v Koopman 1991 (1) SA 474 (NC)
— 70
S v Labuschagne 1979 (3) SA 1320 (T)
— 140
S v Makhubela 1981 (4) SA 210 (B)
— 123
S v Makwanyane 1995 (3) SA 391 (CC)
— 3, 6, 67, 94, 102, 143, 148, 186, 190, 192,
194-195
S v Mhlungu 1995 (3) SA 867 (CC)
— 55, 148, 198
S v Mujee 1981 (3) SA 800 (Z)
— 169
S v Ndiki 2008 (2) SACR 252 (Ck)
— 60
S v Reed 1972 (2) SA 34 (RA)
— 140
S v Staggie 2003 (1) SACR 232 (C)
— 147
S v Taekendesa 1972 (4) SA 72 (RAD)
— 178
S v Yolelo 1981 (1) SA 1002 (A)
— 133
S v Zuma 1995 (2) SA 642 (CC)
— 154, 192
SA Medical Council v Maytham 1931 TPD 45
— 133
Samuel Thomas Myers v Pretorius & Etc 1944 OPD
144
— 178
Santam Insurance Ltd v Taylor 1985 (1) SA 514
(A)
— 9, 152
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992
(3) SA 306 (A)
— 80
Secretary for Inland Revenue v Somers Vine 1968
(2) SA 138 (A)
— 113
Page 217
Sekretaris van Binnelandse Inkomste v Lourens
Erasmus (Edms) Bpk 1966 (4) SA 434 (A)
— 135
Sentrale Kunsmis Korporasie (Edms) Bpk v NKP
Kunsmisverspreiders (Edms) Bpk 1970 (3) SA
367 (A)
— 177
Shabalala v Attorney-General, Transvaal 1996 (1)
SA 725 (CC)
— 190
Shackleton Credit Management (Pty) Ltd v Scholtz
(unreported case 12611/2010, Western Cape
High Court)
— 106
Shoprite Checkers (Pty) Ltd v Ramdaw 2001 (3)
SA 68 (LC)
— 152
Shozi v Minister of Justice, Kwazulu 1992 (2) SA
338 (N)
— 79
Sidumo v Rustenburg Platinum Mines Ltd 2008 (2)
SA 24 (CC)
— 143
Sigcau v Sigcau 1941 CPD 334
— 112
Skinner v Palmer 1919 WLD 39
— 167
Skipper International v SA Textile and Allied
Workers’ Union 1989 (2) SA 612 (W)
— 133
Skotnes v South African Library 1997 (2) SA 770
(SCA)
— 170
Solicitor-General v Malgas 1918 AD 489
— 75
Soobramoney v Minister of Health, Kwazulu-Natal
1998 (1) SA 765 (CC)
— 6
South African Transport Services v Olgar 1986 (2)
SA 684 (A)
— 133
Standard Bank v Estate van Rhyn 1925 AD 266
— 179
Stellenbosch Farmers’ Wineries v Distillers
Corporation (SA) Ltd 1962 (1) SA 458 (A)
— 132
Sutter v Scheepers 1932 AD 165
— 178
Swanepoel v Johannesburg City Council 1994 (3)
SA 789 (A)
— 93

T
Transnet Ltd v Chairman National Transport
Commission 1999 (4) SA 1 (SCA)
— 55
Transnet Ltd v Ngcezulu 1995 (3) SA 538 (A)
— 55, 72
Transvaal Consolidated Land and Exploration Co
Ltd v Johanneshurg City Council 1972 (1) SA 88
(W)
— 123
Trivett & Co (Pty) Ltd v W M Brandt’s Sons & Co
1975 (3) SA 423 (A)
— 167
Turffontein Estates v Mining Commissioner
Johannesburg 1917 AD 419
— 121

U
Union Government v Mack 1917 AD 731
— 93, 111
Union Government v Tonkin 1918 AD 533
— 139
Page 218

University of Cape Town v Cape Bar Council 1986

(4) SA 903 (A)
— 98
Unlawful Occupiers, School Site v City of
Johannesburg 2005 (4) SA 199 (SCA)
— 176

V
Van Rooyen v The State 2001 (4) SA 396 (T)
— 131
Veldman v Director of Public Prosecutions,
Witwatersrand Local Division 2007 (3) SA 210
(CC)
— 55
Venter v R 1907 TS 910
— 91
Volschenk v Volschenk 1946 TPD 486
— 112

W
Weenen Transitional Council v Van Dyk 2002 (4)
SA 653 (SCA)
— 176
Wendywood Development (Pty) Ltd v Rieger 1971
(3) SA 28 (A)
— 79
Western Cape Provincial Government: In re DVB
Behuising (Pty) Ltd 2001 (1) SA 500 (CC)
— 150
Westinghouse Brake and Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A)
— 151
Winckler v Minister of Correctional Services 2001
(2) SA 747 (C)
— 147

Y
Ynuico Ltd v Minister of Trade and Industry 1996
(3) SA 989 (CC)
— 30

Z
Zantsi v Council of State, Ciskei 1995 (4) SA 615
(CC)
— 25
Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA
825 (ZSC)
— 162
Zulu v Van Rensburg 1996 (4) SA 1236 (LC)
— 116
 Page 219

Index
A
abuse of power — 139, 164
accessibility of law — 46-47
act — 3
Acts of Parliament — 3, 22-23
administrative quasi-legislation — 34
adoption of legislation — 45
amendments to legislation
clause in legislation about — 39
formal by competent legislature — 65
list of and structure of legislation — 35
non-textual (indirect) — 65
number of Acts at same time — 65
original legislation — 64
specific Act — 65
subordinate legislation — 64-65
textual (direct) — 65
 to suspend legislation — 77
who may make — 63-65
analogy, interpretation by — 174
apartheid — 4, 13, 203
approaches to interpretation
influence of Constitution (see also ‘constitutional
interpretation’) — 99-105
practical and inclusive method — 105-110
text-based approach — 91-97
text-in-context approach — 97-99, 132, 160-
161

C
case law — 4, 34
casus omissus rule — 95, 134, 136
cessante ratione legis, cessat et ipsa lex (see
‘restrictive interpretation’)
changes to legislation
formal amendments by legislature — 39, 65
modification of meaning by courts — 65-66,
161-162
circulars — 153-154
codifications — 3
Page 220
commencement of legislation (see also
‘promulgation of legislation’)
application of Act and — 54
combination of options — 51-52
delayed on specified future date — 49-50
delayed on unspecified future date — 49-50
general — 39-40, 45-62
on date of publication — 49
retroactive — 50-51, 57
subordinate legislation — 53-54
commission reports — 151
common law
computation of time — 127-128
Constitution and — 43-44
legislation and — 3-4, 33, 43-44
presumptions of interpretation (see
‘presumptions’)
comparative dimension of interpretation (see also
‘practical and inclusive method of interpretation’)
constitutional interpretation and — 194-195
 foreign law — 154
general — 108-109
public international law — 155-156
computatio civilis (see ‘computation of time’)
computatio extraordinaria (see ‘computation of
time’)
computatio naturalis (see ‘computation of time’)
computation of time
common-law method — 127-128
computatio civilis — 127-128
computatio extraordinaria — 128
computatio naturalis — 128
day — 52, 125, 126-127
month — 125
statutory method — 126-127
week — 125
year — 125
concretisation
law making function of courts — 160-165
modification of meaning — 166-174
no problems with — 166
possibilities during — 165-174
 text-based approach — 160
text-in-context approach — 160-161
conflicting legislation — 136-138
Page 221

Constitution
application clause — 14
Bill of Rights — 6-7, 13, 23, 33, 43-44, 59, 67-
68, 74, 96, 101-104, 114, 117, 130-131, 137,
141-142, 145, 154-155, 165, 180, 186, 188-
189, 197-200, 203-204
category of legislation — 21
citation — 21
common law development and — 43-44
founding provision — 14, 99-100
framework of and interpretation — 6-7
guidelines — 189-192
how to interpret — 188-195
influence of — 99-105
interpretation clause — 14, 100-102
law making powers derived from — 22
limitation clause — 14, 33
obligation clause — 14
 old order legislation, definition — 18, 29
retro-effect of legislation and rights — 59-60
retroactivity and — 61-62
supremacy clause (see also ‘supreme
Constitution’) — 14, 99-100
symbolism — 187-188
teleological interpretation — 143-148
constitutional interpretation
challenges — 197-204
comparative interpretation — 194-195
comprehensive and inclusive methodology —
192-195
constitutional symbolism — 187-188
constitutional values — 199-201
counter-majoritarian difficulty — 198-199
grammatical interpretation — 192-193
historical interpretation — 194
how to interpret — 188-195
limitations of corrective interpretation — 195-
196
ordinary statutory interpretation and — 183-
184
 rights culture — 201-203
social justice — 203-204
substantive constitutionalism — 186-187
supreme Constitution and ordinary legislation —
184
systematic interpretation — 193
teleological interpretation — 193-194
constitutional order — 12-14
Page 222

constitutional review
amendments to legislation — 66
conflicting legislation — 136
limits of corrective interpretation — 195-196
reading-down — 165, 196
reading-in — 197
reading-up — 196
severance — 197
unconstitutionality — 67-69, 195-197
constitutional state — 52, 103-104, 142, 186-
187, 198-204
constitutional values — 102-103, 143-148, 199-
201
constitutionalism — 19
formal — 185-186
impact of — 103-105
substantive — 186-187
contemporanea expositio — 152
context (see also ‘contextual interpretation’;
‘holistic dimension of interpretation’; ‘text-in-
context approach’)
balance between text and — 131-132
of legislation — 7
contextual and structural dimension (see ‘holistic
dimension of interpretation’)
contextual interpretation
Constitution and — 193
deconstruction — 86-87
co-operative government
conflicting legislation — 136
suspension of legislation — 77
corrective interpretation — 95, 106, 162-163,
167, 195-196
counter-majoritarian difficulty — 198-199
courts
 corrective interpretation — 162-163
invalidation of legislation by — 67-69
law making function (see ‘judicial law-making’;
‘modification of the meaning’)
role of in text-in-context approach — 98-99
to determine purpose of legislation — 133-136
Critical Legal Studies Movement (CLS) — 88-89

D
day (see ‘computation of time’)
debates during legislative process — 150-151
deconstruction — 89-90
deeming clause — 57
Page 223

definitions
as external language aids — 124
disaster — 9
intra-textual aids — 119-120
law — 16
national legislation — 16-17
old order legislation — 18, 29
provincial legislation — 17
 structure of legislation and — 38, 119-120
delegated legislation (see ‘subordinate legislation’)
democratic values — 102, 164
dictionaries — 123-124
directory provisions
general — 175-177
guidelines — 177-180
jurisprudential guidelines — 178-179
presumptions — 179-180
semantic guidelines — 177-178

E
eiusdem generis (see ‘restrictive interpretation’)
enacted law-text, meaning — 15, 33
enacting provision — 37
examples and footnotes (see ‘extra-textual aids’)
explanatory memoranda — 152
explanatory notes — 41, 153-154
extensive interpretation
by analogy — 174
by implication — 173-174
general — 172
extra-textual aids
circulars — 153-154
commission reports — 7, 151
contemporanea expositio — 152
debates during legislative process — 150-151
definitions in Constitution — 124
definitions in other legislation — 124
dictionaries and linguistic evidence — 7, 123-
124
examples and footnotes — 124
explanatory memoranda and notes — 152, 153-
154
foreign law — 154
international law — 155-156
interpretation notes — 153-154
mischief rule — 152
preamble to the Constitution — 148-149
preceding discussions — 150-151
Page 224
prior legislation — 149-150
subsecuta observatio — 153-154
extra-textual context — 128-129
 F
footnotes, as external language aids — 124
foreign law — 154
formalism — 86-87

G
gazettes — 46-47
generalia specialibus non derogant — 80
geographical areas
application of old order legislation in new — 29-
33
government bodies, presumption that not bound
by own legislation — 138-142
government gazettes (see ‘gazettes’)
grammatical interpretation — 192-193
Green Papers — 34

H
headings to chapters and sections — 121-122
hermeneutics — 83-86
hierarchical categories of legislation
Constitution — 21
 original — 21-25
subordinate legislation — 25-29
historical dimension of interpretation (see also
‘practical and inclusive method of interpretation’)
— 108, 148-154, 194
holistic dimension of interpretation (see also
‘practical and inclusive method of interpretation’)
balance between text and context — 131-132
conflicting legislation — 133-138
constitutional interpretation — 193
extra-textual context — 128-129
intra-textual context — 128
legislation to be studied as a whole — 128-131
organ of state — 130-131
presumption that government bodies not bound
by own legislation — 138-142
presumption that legislation not containing futile
or nugatory provisions — 133-136
structure of legislation — 132-133
homelands (see ‘self-governing territories’)
Page 225

I
implication, interpretation by — 174
independent homelands — 20, 24-25
indigenous law — 3-4, 33
institutional statutes — 27
intention of legislature — 11-12, 90-95, 97-98,
105, 114, 116, 133, 147, 150, 160, 162, 170-
171, 177-178, 190
intention theory (see ‘intention of legislature’)
interim Constitution — 12-13, 17-20, 29-30, 33,
62, 74, 94, 99, 105, 165, 186, 189, 193, 196
internal department memos — 34
internal language aids (see ‘intra-textual aids’)
international law — 108-109, 155-156, 189, 194
Interpretation Act 33 of 1957 — 15-17, 46-47,
49, 50-54, 64, 70-74, 100, 124-127, 139
interpretation clauses
Constitution — 100-102
legislation — 38
interpretation guidelines, as language aid — 120-
121
interpretation notes — 153-154
interrelated dimensions of interpretation
comparative dimension — 154-156
historical dimension — 148-154
holistic dimension — 128-142
language dimension — 111-128
value-laden (teleological) dimension — 142-148
intra-textual aids
definition clause — 119-120
express purpose clause — 120-121
headings to chapters and sections — 121-122
interpretation guidelines — 120-121
legislative text in other official languages —
115-118
long title — 118
paragraphs and punctuation — 132-133
preamble — 118
schedules — 122
intra-textual context — 128
intra vires — 136
invalidation of legislation
by courts — 67-69
meaning — 67
 subordinate legislation — 68-69
unconstitutional provisions — 67-68, 195-197
Page 226
iudicis est ius dicere sed non dare — 95, 143, 160

J
judicial discretion of courts — 66, 85, 161-162,
188
judicial law-making
factors supporting and limiting — 163-165
judicial discretion — 161-162
modification of meaning — 65-66, 162-163
modification of the language — 162
text-based approach — 160
text-in-context approach — 160-161
judiciary, independence of — 165

L
language aids (see ‘extra-textual aids’; ‘intra-
textual aids’)
language dimension of interpretation (see also
‘practical and inclusive method of interpretation’)
basic principles — 111-115
 constitutional dynamic — 114-115
continuing time-frame of legislation — 113-115
every word is important — 112-113
initial meaning of text — 111-112
internal language aids — 115-122
no addition or subtraction — 113
ordinary meaning of text — 111-112
overlapping and repetition — 112-113
law
definition — 16
forms of — 3
meaning — 3
law of general application (see ‘Constitution:
limitation clause’)
law-making powers (see also ‘judicial law-
making’) — 22
legal hermeneutics — 85
legal positivism — 88, 92, 94
legalese — 8-10
legality principle — 103, 134-135, 142, 147, 164,
185
legislation
Acts — 22-23
adoption — 45
amendments — 35, 39, 63-66, 77
assent — 45
categories — 3, 15, 17-33
changes to (see ‘amendments to legislation’)
commencement — 7, 39-40, 45-62
Page 227

common law and — 3-4, 33, 43-44

conflicting — 133-138
constitutional order — 20
definitions — 38
delegated — 47
demise of — 66-76
enacted law-text — 6, 15, 33
enacting provision — 37
incorporated by reference — 72
interpretation, what is — 4-12
invalid — 67-69
juridical understanding of — 4-12
legislative codes — 41-42
list of amendments — 35
list of regulations — 35
long title — 36-37
meaning — 3, 16, 33
municipal — 17, 25
names and concepts — 15
national — 16
new order — 17
numbering — 40-41
old order — 17-18-20, 29-33
preamble — 36
promulgation — 46
provincial — 17, 23-24
publication of — 46-47
purpose and interpretation clauses — 38
regulations and ministerial powers — 39
repeal — 39, 63-65, 67, 69-76
retro-effect — 55-62
schedules — 40
short title — 39-40
signing — 45, 115
source of law — 3
structures and codes — 34-42, 132-133
 subordinate — 17, 25-29
suspension of — 77-78
table of contents — 37
types — 15, 16, 17
unconstitutional — 67-68, 195-197
what is — 14-17
what is not — 33-34
why rules of interpretation necessary — 4-8
Page 228

legislative administrative acts — 27

legislative authority — 22
legislative codes — 41-42
legislative powers — 22-25, 27, 64, 161, 162
lex fundamentalis (see ‘supreme Constitution’)
limitation clause (see ‘Constitution: limitation
clause’)
linguistic evidence — 123-124
linguistic turn — 90-91
long title — 36-37, 118

M
ministerial powers — 39
mischief rule — 97, 152
modern critical theories — 86-91
modification of the meaning
changes to legislation — 65-66
constitutional review — 66
law making function of courts — 161-162
restrictive interpretation — 167-172
when necessary — 166-174
when not possible — 174
modificative interpretation by courts (see
‘modification of the meaning’)
month (see ‘computation of time’)
municipal by-laws — 17, 25

N
national legislation
definition — 16-17
subordinate legislation in terms of — 27
noscitur a sociis — 170
notice, meaning — 15
nulla poena sine lege rule — 134
numbering in legislation — 40-41
 O
offences, new and retro-effect of legislation — 59
official languages
subordinate legislation — 116-118
text in other — 115-118
old order legislation
application in new order — 29-33
before 1806 — 18
between 1910-1994 — 20
Constitution and — 18, 29 —
new provincial boundaries — 29-33
Page 229

Pre-Union (1806-1910) — 19-20

ordinances — 24, 28
original legislation
amendments — 64
conflicting language versions — 115-118
constitutionality — 28-29
principles relating to hierarchical status — 22
repeal — 64
subordinate legislation, conflict with — 28
 P
paragraphs and punctuation — 132-133
penalties and retro-effect of legislation — 59
peremptory provisions
general — 175-177
guidelines — 177-180
jurisprudential guidelines — 178-179
presumptions — 179-180
policy documents and guidelines — 34
postmodernism — 87-90
practical and inclusive method of interpretation
comparative aspect — 108-109
general — 105-107
historical aspect — 108
language aspect — 107-108
structure and context — 108
teleological interpretation — 108
preamble to the Constitution — 148-149
preambles — 36, 118
preceding discussions
commission reports — 151
 debates — 150-151
travaux préparatoires — 194
prescribed penalties, absence of — 134-135
presumptions — 44
against infringement of existing rights — 165
government bodies not bound by own
legislation — 138-142
legislation does not contain futile or nugatory
provisions — 133-136, 165
legislation not changing existing law more than
necessary — 77-80, 164
legislation only applies to future — 55-62
peremptory and directory provisions — 179-180
rebuttal of — 58-59
Page 230
primary legislation (see ‘original legislation’)
principle of legality (see ‘legality principle’)
proclamations (see ‘commencement of legislation’;
‘promulgation of legislation’; ‘subordinate
legislation’)
promulgation of legislation (see also
‘commencement of legislation’) — 46
 alternative methods of — 47
delegated authority — 48
publication in gazette — 46-47
timing — 48-49
who promulgates — 47-49
provincial Acts — 23-24
provincial boundaries
new and old order legislation — 29-33
provincial gazettes (see ‘gazettes’)
provincial legislation
definition — 17
ordinances — 24, 28
proclamations and regulations — 28-29
publication of legislation — 46-47
punctuation and paragraphs — 132-133
purpose and interpretation clauses — 38
purpose of legislation (see also ‘intention of
legislature’) — 11-12, 120-121, 132-133
purposive interpretation (see ‘approaches to
interpretation’)

R
reading-down — 165, 196
reading-in — 197
reading-up — 196
reburial of bodies — 31-32
Rechtsstaat (see ‘constitutional state’)
regulations
list of and structure of legislation — 35, 39
subordinate legislation — 27
when furnished to Parliament — 47
repeal of legislation
clause in legislation — 39
effect on pending cases — 71-75
implied — 76
implied powers — 64-65
legislation incorporated by reference — 75
meaning — 67
numbering of repealed provisions — 41
Page 231
original legislation — 64
re-enacted provisions — 71
repeal (deletion) — 71-76
 subordinate legislation — 64-65
substitution (repeal and replace) — 69-71
sunset clauses — 76
transitional arrangements — 72
who may — 63-65
restrictive interpretation
cessante ratione legis, cessat et ipsa lex — 77,
168-170
eiusdem generis — 170-172
general — 167-168
retroactivity (see ‘retro-effect’)
retro-effect
common law presumption of future
application — 58-59
Constitution and — 61-62
constitutional rights and — 59-60
deeming clause — 57
higher penalties — 59
new offences — 59
retroactivity — 55-57
retrospectivity — 55-57
state of emergency — 60
 what prevents legislation from applying with —
58-61
when enactment deals with procedure — 61
when favouring individual — 61-62
retrospectivity (see ‘retro-effect’)
rights culture — 201-203
rule of law — 164
rules of courts — 27

S
schedules — 40, 122
secondary legislation (see ‘subordinate legislation’)
self-governing territories — 20, 24
separation of powers — 25, 66, 92, 95, 103, 113,
164, 185, 198
severance — 197
short title — 39-40
signed version of legislation — 115-118
signing of legislation — 45, 115
social justice — 203-204
sovereignty of parliament — 11-13, 92, 94, 102,
145, 163, 165, 187, 189
statute law (see ‘legislation’)
structuralism — 88
Page 232
subordinate legislation — 17, 25-29
amendments — 64-65
commencement of legislation — 53-54
conflict with original legislation — 28
conflicting language versions — 116-118
constitutionality of original legislation and — 28-
29
declaration of state of national defence — 27
in terms of national legislation — 27
institutional statutes — 27
interpretation of enabling Act and — 29
invalidation of legislation — 68-69
legislative administrative acts — 27
powers of delegated legislative body — 29
presumption that legislation not containing futile
or nugatory provisions — 136
provincial proclamations and regulations — 28-
29
purpose of — 25-27
 regulations — 27
repeal — 64-65
rules of courts — 27
scope — 27
separation of powers — 25
tabling in parliament — 47
subsecuta observatio — 153-154
substantive constitutionalism — 186-187
substantive interpretation — 143-148
substitution of legislation — 69-70
sunset clause — 76
supreme Constitution — 12-14, 19, 21, 22-23,
99-100, 103-105, 163, 165, 184-188
surrounding circumstances (see also ‘contextual
interpretation’; ‘mischief rule’) — 7, 58, 109,
132, 139
suspension of legislation — 77-78
by amendment — 77
cessante ratione legis, cessat et ipsa lex — 77
co-operative government and — 77
systematic interpretation (see ‘holistic dimension
of interpretation’)
 T
TBVC states (see ‘independent homelands’)
teleological dimension of interpretation — 143-
148
teleological interpretation — 108, 193-194
text, balance between context and — 131-132
Page 233
text-based approach — 91-97
criticism of existing legal order — 94-96
examples — 92, 96-97
holistic dimension — 132
intention of legislature — 92-94
introduction into South African system — 92
judicial law-making — 94
law making function of courts — 160
legal positivism — 92, 94
pre-dominance of the word — 92
secondary aids — 91
separation of powers — 92
sovereignty of parliament — 92, 94
tertiary aids — 91
text in another official language — 115-118
text-in-context approach — 132
approaches to interpretation — 97-99
law making function of courts — 160-161
mischief rule — 97
role of the court — 98-99
theories of interpretation (see ‘approaches to
interpretation’)
time (see ‘computation of time’)
transitional arrangements
repeal of legislation and — 72
substitution of legislation — 69-70
trias politica doctrine (see ‘separation of powers’)

U
ubuntu — 148
ultra vires — 28, 68, 136

V
validity of legislation — 7
value-coherent theory — 13, 108, 193
value-laden dimension of interpretation (see
‘teleological dimension of interpretation’)
value-laden interpretation (see ‘teleological
interpretation’)

W
week (see ‘computation of time’)
White Papers — 34
words
colloquial speech — 112
definitions — 114, 119-120
dictionaries — 123-124
initial meaning of text — 111-112
Page 234

linguistic evidence — 123-124

meaning attached to every word — 112-113
no addition or subtraction — 113
ordinary meaning — 111-112
practical, inclusive method of interpretation —
107-108
technical meaning — 112
the law is always speaking — 113-115

Y
year (see ‘computation of time’)
 Page a33y1957

Interpretation Act 33 of 1957

[ASSENTED TO 16 [DATE OF
MAY 1957] COMMENCEMENT: 24 MAY
1957]

(English text signed by the Governor-General)

as amended by
Interpretation Amendment Act 7 of 1959
Interpretation Amendment Act 45 of 1961
General Law Amendment Act 102 of 1967
General Law Amendment Act 62 of 1973
Interpretation Amendment Act 42 of 1977
Criminal Procedure Act 51 of 1977
Republic of South Africa Constitution Second
Amendment Act 101 of 1981
Republic of South Africa Constitution Act 110 of
1983
Provincial Government Act 69 of 1986
General Law Third Amendment Act 129 of 1993
Constitution Consequential Amendments Act 201 of
1993

also amended by
Magistrates' Courts Amendment Act 120 of 1993
[with effect from a date to be proclaimed -
see PENDLEX]

ACT
To consolidate the laws relating to the
interpretation and the shortening of the
language of statutes.
Part I
General (ss 1-17)
1 Application of Act
The provisions of this Act shall apply to the
interpretation of every law (as in this Act defined)
in force, at or after the commencement of this Act
in the Republic or in any portion thereof, and to
the interpretation of all by-laws, rules, regulations
or orders made under the authority of any such
law, unless there is something in the language or
context of the law, by-law, rule, regulation or order
repugnant to such provisions or unless the
contrary intention appears therein.
[S. 1 amended by s. 1 of Act 45 of 1961.]
2 Definitions
The following words and expressions shall, unless
the context otherwise requires or unless in the
case of any law it is otherwise provided therein,
have the meanings hereby assigned to them
respectively, namely-
'administrator' . . . . . .
[Definition of 'administrator', previously
definition of 'Administrator', amended by s.
2 (a) of Act 45 of 1961, substituted by s. 22
(a) of Act 69 of 1986 and deleted by s. 4 (a)
of Act 201 of 1993.]
'Christian name' means any name prefixed to
the surname, whether received at Christian
baptism or not;
'district' means the area subject to the
jurisdiction of the court of any magistrate;
[NB: The definition of 'district' has been
substituted by s. 74 of the Magistrates'
 Courts Amendment Act 120 of 1993, a
provision which will be put into operation by
proclamation. See PENDLEX.]
'Gazette'-

(a)
in the case of laws, proclamations, regulations,
notices or other documents published prior to
the thirty-first day of May, 1910, and required
under a law in force prior to that day to be
published in the Gazette, means the
Government Gazette of the Colony wherein
that law was in force; and

(b)
in the case of laws, proclamations, regulations,
notices or other documents published after the
thirty-first day of May, 1010, and required
under any law to be published in the Gazette,
means the Government Gazette of the Republic
or, if the matter is one entrusted to a provincial
council under the Republic of South Africa
Constitution Act 1961, means the Official
Gazette of the province concerned;
(c)
in the case of laws, proclamations, regulations,
notices or other documents published after the
date of commencement of the Constitution and
required under any law to be published in the
Gazette or the Provincial Gazette or any other
official Gazette, means the Government
Gazette of the Republic or the relevant
Provincial Gazette, according to whether the
administration of the law concerned or, as the
case may be, the law conferring the power to
make or issue such a proclamation, regulation,
notice or other document, vests in, or in a
functionary of, the national government or a
provincial government;
[Para. (c) added by s. 4 (b) of Act 201 of
1993.]
[Definition of 'Gazette' amended by s. 2 (b)
of Act 45 of 1961.]
'Governor-General' means the State
President as defined in this section;
 [Definition of 'Governor-General' amended
by s. 2 (c) of Act 45 of 1961 and substituted
by s. 4 (c) of Act 201 of 1993.]
'law' means any law, proclamation, ordinance,
Act of Parliament or other enactment having the
force of law;
'month' means a calendar month;
'oath' and 'affidavit', in the case of persons
allowed by law to affirm or declare instead of
swearing, include affirmation and declaration,
and 'swear'; in such case, includes 'affirm' and
'declare';
'Parliament' means the Parliament of the
Republic;
[Definition of 'Parliament' amended by s. 2
(d) of Act 45 of 1961.]
'person' includes-

(a)
any divisional council, municipal council, village
management board, or like authority;

(b)
 any company incorporated or registered as
such under any law;

(c)
any body of persons corporate or
unincorporate;
'Premier', with reference to a province, means
the Premier of that province, including any acting
Premier, acting in terms of the Constitution;
[Definition of 'Premier' inserted by s. 4 (d)
of Act 201 of 1993.]
'President' means the President of the
Republic, including any acting President, acting in
terms of the Constitution;
[Definition of 'President' inserted by s. 4 (d)
of Act 201 of 1993.]
'province'-

(a)
in the case of a law referred to in section 229
of the Constitution, means a province of the
Republic as it existed immediately before the
commencement of the Constitution;
(b)
in the case of a law passed or made after the
commencement of the Constitution, or passed
or made before such commencement, but with
reference to the Constitution, means a province
of the Republic referred to in section 124 (1) of
the Constitution;
[Definition of 'province' amended by s. 2 (e)
of Act 45 of 1961 and substituted by s. 4 (e)
of Act 201 of 1993.]
'provincial council' . . . . . .
[Definition of 'provincial council' amended by
s. 2 (f) of Act 45 of 1961 and deleted by s. 4
(f) of Act 201 of 1993.]
'State President' means, subject to section
232 (1) (c) of the Constitution, the President or
the Premier of a province;
[Definition of 'State President' inserted by s.
2 (g) of Act 45 of 1961 and substituted by s.
4 (g) of Act 201 of 1993.]
'the Constitution' means the Constitution of
the Republic of South Africa, 1993;
 [Definition of 'the Constitution' inserted by
s. 4 (h) of Act 201 of 1993.]
'the Republic' means, subject to section 232
(1) (a) of the Constitution, the territorial limits of
the Republic of South Africa referred to in
section 1 of the Constitution;
[Definition of 'the Republic' inserted by s. 2
(h) of Act 45 of 1961 and substituted by s. 4
(i) of Act 201 of 1993.]
'the Union' means the Republic.
[Definition of 'the Union' amended by s. 2 (i)
of Act 45 of 1961.]
3 Interpretation of expressions relating to
writing
In every law expressions relating to writing shall,
unless the contrary intention appears, be
construed as including also references to
typewriting, lithography, photography and all other
modes of representing or reproducing words in
visible form.
4 Reckoning of number of days
 When any particular number of days is prescribed
for the doing of any act, or for any other purpose,
the same shall be reckoned exclusively of the first
and inclusively of the last day, unless the last day
happens to fall on a Sunday or on any public
holiday, in which case the time shall be reckoned
exclusively of the first day and exclusively also of
every such Sunday or public holiday.

5 Measurement of distance
In the measurement of any distance for the
purpose of any law, that distance shall, unless the
contrary intention appears, be measured in a
straight line on a horizontal plane.
6 Gender and number
In every law, unless the contrary intention
appears-

(a)
words importing the masculine gender include
females; and

(b)
 words in the singular number include the
plural, and words in the plural number include
the singular.
7 Meaning of service by post
Where any law authorizes or requires any
document to be served by post, whether the
expression 'serve', or 'give', or 'send', or any other
expression is used, then, unless the contrary
intention appears, the service shall be deemed to
be effected by properly addressing, prepaying, and
posting a registered letter containing the
document, and, unless the contrary is proved, to
have been effected at the time at which the letter
would be delivered in the ordinary course of post.

8 Meaning of rules of court

(1) In every law, unless the contrary intention
appears, the expression 'rules of the court', when
used in relation to any court, means rules made by
the authority having for the time being power to
make rules or orders regulating the practice and
procedure of that court.
 (2) The powers of the said authority to make
rules of the court, as defined in subsection (1),
shall include a power to make rules of court for the
purpose of any law directing or authorizing
anything to be done by rules of court.
9 ......
[S. 9 substituted by s. 3 of Act 45 of 1961
and repealed by s. 344 (1) of Act 51 of
1977.]
10 Construction of provisions as to exercise
of powers and performance of duties
(1) When a law confers a power or imposes a
duty then, unless the contrary intention appears,
the power may be exercised and the duty shall be
performed from time to time as occasion requires.
(2) Where a law confers a power, jurisdiction or
right, or imposes a duty on the holder of an office
as such, then, unless the contrary intention
appears, the power, jurisdiction or right may be
exercised and the duty shall be performed from
time to time by the holder for the time being of the
office or by the person lawfully acting in the
capacity of such holder.
(3) Where a law confers a power to make rules,
regulations or by-laws, the power shall, unless the
contrary intention appears, be construed as
including a power exercisable in like manner and
subject to the like consent and conditions (if any)
to rescind, revoke, amend or vary the rules,
regulations or by-laws.
(4) . . . . . .
[Sub-s. (4) amended by s. 4 of Act 45 of
1961 and deleted by s. 8 (a) of Act 101 of
1981.]
(5) Whenever the administration of any law or
any provision of any law which confers a power or
imposes a duty upon or entrusts a function to any
Minister of State, member of the Executive Council
of a province or other authority has under the
Constitution been assigned by the President or the
Premier of a province to any other Minister,
member of such Executive Council or authority, as
the case may be, that power may be exercised by
such other Minister, member of the Executive
Council or authority and that duty shall and that
function may be performed by him, and-

(a)
any reference in that law or provision to a
department, including any division of any
department or administration, administered by
such firstmentioned Minister, member of the
Executive Council or authority shall be
construed as a reference to the department
administered by such lastmentioned Minister,
member of the Executive Council or authority;
[Para. (a) substituted by s. 5 (b) of Act 201
of 1993.]

(b)
any reference in that law or provision to an
officer in the public service attached to such
firstmentioned department or to any such
officer holding a specified office in that
department, shall be construed as a reference
to an officer in the public service attached to
such lastmentioned department or, as the case
may be, as a reference to such an officer
 holding a corresponding office in that
department;

(c)
any power, duty or function vested in or
imposed upon or entrusted to-
(i)
an officer of such firstmentioned department
who is then an officer of such lastmentioned
department; or
(ii)
the holder of a specified office in that
department,
by or under that law or provision, shall be
deemed to have been duly vested in or
imposed upon or entrusted to the officer
concerned in his capacity as an officer of
such lastmentioned department or, as the
case may be, to the holder of a
corresponding office in that department;

(d)
any regulation made or any notice, direction or
order issued or any appointment made or any
 action taken under that law or provision prior
to the date on which the administration thereof
was so assigned, shall remain in full force and
effect as if it had been made, issued or taken
by the person who on that date was, by virtue
of the assignment of the administration of that
law or provision or the provisions of this
subsection, competent to make such regulation
or to issue such notice, direction or order or to
make such appointment or to take such action.
[Sub-s. (5) added by s. 1 of Act 7 of 1959
and amended by s. 4 of Act 45 of 1961, by
s. 8 (b) of Act 101 of 1981, by s. 101 (1) of
Act 110 of 1983 and by s. 5 (a) of Act 201
of 1993.]
(5A) The provisions of subsection (5) shall apply
in so far as the President or the Premier of a
province does not determine otherwise in the
assignment concerned and, if the administration of
any law or a provision of any law has been
assigned to any other Minister, member of the
Executive Council of a province or authority as
contemplated in that subsection, but in relation to
a matter specified in the assignment, the
provisions of that subsection shall apply
accordingly.
[Sub-s. (5A) inserted by s. 8 (c) of Act 101
of 1981 and substituted by s. 101 (1) of Act
110 of 1983 and by s. 5 (c) of Act 201 of
1993.]
(5B) . . . . . .
[Sub-s. (5B) inserted by s. 101 (1) of Act
110 of 1983 and deleted by s. 5 (d) of Act
201 of 1993.]
(6) Where any provision in any law confers a
power or imposes a duty or entrusts a function to
any Minister of State or other authority and
authorizes such Minister of State or authority to
delegate the exercise or performance of such
power, duty or function to the holder of an office
as such or to any particular person, and if the
exercise or performance of such power, duty or
function is delegated to the holder of any office,
that power, duty or function may or shall, unless
the contrary intention appears, be exercised or
performed by the holder for the time being of the
office or by the person lawfully acting in the
capacity of such holder.
[Sub-s. (6) added by s. 1 of Act 42 of
1977.]
11 Repeal and substitution
When a law repeals wholly or partially any former
law and substitutes provisions for the law so
repealed, the repealed law shall remain in force
until the substituted provisions come into
operation.

12 Effect of repeal of a law

(1) Where a law repeals and re-enacts with or
without modifications, any provision of a former
law, references in any other law to the provision so
repealed shall, unless the contrary intention
appears, be construed as references to the
provision so re-enacted.
(2) Where a law repeals any other law, then
unless the contrary intention appears, the repeal
shall not-

(a)
 revive anything not in force or existing at the
time at which the repeal takes effect; or

(b)
affect the previous operation of any law so
repealed or anything duly done or suffered
under the law so repealed; or

(c)
affect any right, privilege, obligation or liability
acquired, accrued or incurred under any law so
repealed; or

(d)
affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any law so repealed; or

(e)
affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, forfeiture or punishment as
is in this subsection mentioned,
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed, as if the repealing law had not
been passed.
13 Commencement of laws
(1) The expression 'commencement' when used
in any law and with reference thereto, means the
day on which that law comes or came into
operation, and that day shall, subject to the
provisions of subsection (2) and unless some other
day is fixed by or under the law for the coming into
operation thereof, be the day when the law was
first published in the Gazette as a law.
(2) Where any law, or any order, warrant,
scheme, letters patent, rules, regulations or by-
laws made, granted or issued under the authority
of a law, is expressed to come into operation on a
particular day, it shall be construed as coming into
operation immediately on the expiration of the
previous day.
(3) If any Act provides that that Act shall come
into operation on a date fixed by the President or
the Premier of a province by proclamation in the
Gazette, it shall be deemed that different dates
may be so fixed in respect of different provisions of
that Act.
[Sub-s. (3) added by s. 10 of Act 129 of
1993 and amended by s. 6 of Act 201 of
1993.]

14 Exercise of conferred powers between

passing and commencement of a law
Where a law confers a power-

(a)
to make any appointment; or

(b)
to make, grant or issue any instrument, order,
warrant, scheme, letters patent, rules,
regulations or by-laws; or

(c)
to give notices; or

(d)
to prescribe forms; or

(e)
 to do any other act or thing for the purpose of
the law,
that power may, unless the contrary intention
appears, be exercised at any time after the passing
of the law so far as may be necessary for the
purpose of bringing the law into operation at the
commencement thereof: Provided that any
instrument, order, warrant, scheme, letters patent,
rules, regulations or by-laws made, granted or
issued under such power shall not, unless the
contrary intention appears in the law or the
contrary is necessary for bringing the law into
operation, come into operation until the law comes
into operation.
15 Notification in Gazette of official acts
under authority of law
When any act, matter or thing is by any law
directed or authorized to be done by the President
or the Premier of a province, or by any Minister, or
by any public officer, the notification that such act,
matter or thing has been done may, unless a
specified instrument or method is by that law
prescribed for the notification, be by notice in the
Gazette.
[S. 15 amended by s. 5 of Act 45 of 1961
and by s. 7 of Act 201 of 1993.]
16 Certain enactments to be published in
Gazette
When any by-law, regulation, rule or order is
authorized by any law to be made by the President
or a Minister or by the Premier of a province or a
member of the Executive Council of a province or
by any local authority, public body or person, with
the approval of the President or a Minister, or of
the Premier of a province or a member of the
Executive Council of a province, such by-law,
regulation, rule or order shall, subject to the
provisions relative to the force and effect thereof in
any law, be published in the Gazette.
[S. 16 amended by s. 5 of Act 45 of 1961
and substituted by s. 8 of Act 201 of 1993.]
16A Promulgation and commencement of
laws and publication of certain notices when
publication of the Gazette impracticable
 (1) If the President is satisfied that the
publication of the Gazette cannot be effected or is
likely to be seriously delayed as a result of
circumstances beyond the control of the
Government Printer, he may by proclamation
published in the manner directed by him, make
such rules as he may deem fit for the publication,
during any period specified in the proclamation, of
laws or notices required or authorized by law to be
published in the Gazette.
[Sub-s. (1) amended by s. 9 (a) of Act 201
of 1993.]
(2) Any law or notice published in accordance
with any rules so made, shall be deemed to have
been published in the Gazette, and any law so
published shall be deemed to have come into
operation on the day on which it was first so
published as a law, unless some other day is fixed
by or under that law for the commencement
thereof.
(3) The President of a province may at any time
vary or withdraw any proclamation referred to in
subsection (1) by like proclamation.
 [Sub-s. (3) amended by s. 9 (a) of Act 201
of 1993.]
(4) Any law or notice published in accordance
with any rule made under subsection (1) shall, if it
is then still in force, be published in the Gazette for
general information as soon as publication of the
Gazette can be effected.
(5) The provisions of subsection (4) shall not
affect the validity of anything done under any rules
made under subsection (1).
(6) The Premier of a province may exercise the
President's powers in terms of this section with
reference to such province.
[Sub-s. (6) added by s. 9 (b) of Act 201 of
1993.]
[S. 16A inserted by s. 13 of Act 102 of
1967.]

17 List of certain proclamations and notices

to be submitted to Parliament and provincial
legislatures
When the President, a Minister or the Premier or
a member of the Executive Council of a province is
by any law authorized to make rules or regulations
for any purpose in such law stated,
notwithstanding the provisions of any law to the
contrary, a list of the proclamations, government
notices and provincial notices under which such
rules or regulations were published in the Gazette
during the period covered in the list, stating in
each case the number, date and title of the
proclamation, government notice or provincial
notice and the number and date of the Gazette in
which it was published, shall be submitted to
Parliament or the provincial legislature concerned,
as the case may be, within fourteen days after the
publication of the rules or regulations in the
Gazette.
[S. 17 amended by s. 5 of Act 45 of 1961
and substituted by s. 13 of Act 62 of 1973,
by s. 22 (a) of Act 69 of 1986 and by s. 10
of Act 201 of 1993.]
Part II
Special provisions applicable only to the province
of the Cape of Good Hope
(s 18)
18 Meaning of certain expressions in laws of
colony of Cape of Good Hope
In the interpretation of any Act of Parliament,
government notice, government advertisement,
ordinance, placaat, proclamation, regulation or by-
law made under the authority of any law, rule of
court, or any enactment having the force of law,
which came into operation in the colony of the
Cape of Good Hope prior to the thirty-first day of
May, 1910, the following expressions shall, unless
the context otherwise requires and subject to the
provisions of the Republic of South Africa
Constitution Act 1961, have the meanings hereby
assigned to them respectively, namely-
'Charter of Justice' means the Royal Letters
Patent of His Majesty King William the Fourth,
dated the fourth day of May, 1832, for the better
and more effectual administration of justice;
'Constitution Ordinance' means the
ordinance enacted on the third day of April,
1852, by His Excellency the Governor of the Cape
of Good Hope with the advice and consent of the
Legislative Council thereof, for constituting a
Parliament for the said colony;
'division' or 'fiscal division' means the area
under the administration of a civil commissioner
within the meaning of the relevant act, notice,
advertisement, ordinance, placaat, proclamation,
regulation, by-law, rule of court or enactment;
'Governor' includes the officer who for the
time being administered the Government of the
colony of the Cape of Good Hope acting by and
with the advice of the Executive Council thereof;
'Order-in-Council' means any order made by
the Governor (as in this section defined) with the
advice of the Executive Council;
'solemn declaration' means a declaration
made under and by virtue of the provisions of the
Oaths and Declarations Act 1891, of the colony of
the Cape of Good Hope.
[S. 18 amended by s. 6 of Act 45 of 1961.]
Part III
Special provisions applicable only to the province
 of the Transvaal
(ss 19-20)
19 Meaning of certain expressions in laws of
the South African Republic
In the interpretation of any law or resolution of
the Volksraad of the late South African Republic
the following expression shall, unless otherwise
expressly provided and subject to the provisions of
the Republic of South Africa Constitution Act 1961,
or of any other law, have the meanings hereby
assigned to them respectively, namely-
'landdrost' means magistrate;
'Publieke Aanklager' means the Attorney-
General of the Transvaal or any person appointed
to prosecute for or on behalf of the State;
'Staats Courant' means the Gazette;
'Staats President' or any expression denoting
the Head of the late South African Republic
means the State President of the Republic;
'Staats Procureur' means the Attorney-
General of the Transvaal;
 'Staats Sekretaris' means the Minister of the
Interior;
'Zuid Afrikaansche Republiek', 'Republiek',
'Staat' or any like expression means the
Transvaal,
and when any act is required or authorized to be
done by any such law or resolution or whenever
any process is required to be taken out in the
name and on behalf of the people of the South
African Republic it shall be deemed to be required
or authorized to be done or taken out in the name
and on behalf of the State.
[S. 19 amended by s. 7 of Act 45 of 1961.]

20 Meaning of expression Governor or

Lieutenant-Governor in laws of the colony of
Transvaal
In the interpretation of any law which came into
operation in the colony of the Transvaal prior to
the establishment of the Union, the expression
'Governor' or 'Lieutenant-Governor' includes the
officer who for the time being administered the
government of the said colony, acting (when by
law required) by and with the advice of the
Executive Council thereof.
Part IV
Special provisions applicable only to the province
of the Orange Free State
(ss 21-22)

21 Meaning of certain expressions in laws of

the Orange Free State
Where, in any law of the late Orange Free State,
the following expressions occur they shall, unless
otherwise expressly provided and subject to the
provisions of the South Africa Act 1909, or of any
other law, have the meanings hereby assigned to
them respectively, namely-
'Goevernements Sekretaris' means the
Minister of the Interior;
'landdrost' means magistrate;
'Oranje Vrijstaat' or 'Staat' means the
province of the Orange Free State;
'President' or 'Staatspresident' means the
State President of the Republic;
'Raad' or 'Volksraad' means Parliament;
 'Staatsprocureur' means the Attorney-
General of the Orange Free State;
'Thesaurier-generaal' means the Minister of
Finance;
'Weesheer' means the Master of the Supreme
Court (Orange Free State Provincial Division);
'Wet boek' means the Law Book of the Orange
Free State of 1891;
'Zuid Afrikaansche Republiek' means the
Transvaal.
[S. 21 amended by s. 8 of Act 45 of 1961.]
22 Meaning of expression Governor or
Lieutenant-Governor in laws of Orange River
Colony
In the interpretation of any law which came into
operation in the Orange River Colony prior to the
establishment of the Union, the expression
'Governor' or 'Lieutenant-Governor' includes the
officer who for the time being administered the
government of the said colony, acting (when by
law required) by and with the advice of the
Executive Council thereof.
 Part V
Special provisions applicable only to the province
of Natal (s 23)
23 Meaning of expression Governor or
Lieutenant-Governor in laws of Natal
In the interpretation of any law which came into
operation in the Colony of Natal prior to the
establishment of the Union, the expression
'Governor' or 'Lieutenant-Governor' includes the
officer who for the time being administered the
government of the said colony, acting (when by
law required) by and with the advice of the
Executive Council thereof.
Part VI
Supplementary (ss 24-26)
24 Application to State
This Act shall bind the State.
25 Repeal of Act 5 of 1910 and Act 5 of 1944
(1) Subject to the provisions of subsection (2),
the Interpretation Act 1910, and the Interpretation
Amendment Act 1944, are hereby repealed.
 (2) Any action taken under any provision of a law
repealed by subsection (1) shall be deemed to
have been taken under the corresponding provision
of this Act.
26 Short title
This Act shall be called the Interpretation Act,
1957.
Pendlex: Interpretation Act 33 of 1957 after
amendment by the Magistrates' Courts
Amendment Act 120 of 1993

Section 2 - definition
'district' means the area subject to the
jurisdiction of a magistrate's court;