Interpretation of Statutes and the Constitution

by
LOURENS DU PLESSIS*
Research Professor, Faculty of Law, North­West University, Potchefstroom

Last updated June 2012 ­ SI 30

INTRODUCTION
2C1 Preliminary observations
2C2 The supreme Constitution

CLASSIFICATION AND MODE OF CITATION OF LEGISLATION

2C3 Historical classification
2C4 The hierarchy and status of legislation
2C5 Super­ and subordinate legislation
2C6 Original and delegated legislation
2C7 Mode of citation of the Constitution and legislation

THE GENESIS AND DEMISE OF LEGISLATION

2C8 The promulgation of legislation
2C9 The demise, re­enactment and amendment of legislation

THE (POTENTIAL) IMPACT OF THE CONSTITUTION ON READING AND CONSTRUING

STATUTES
2C10 General observations: statutes and the Constitution
2C11 A broadening of the spectrum of interpreters
2C12 Political issues
2C13 Reading in conformity with the Constitution, severance and reading­in
2C14 Theoretical positions on statutory interpretation
(a) Theories of and theoretical positions on interpretation
(b) Literalism
(c) Intentionalism
(d) Literalism­cum­intentionalism
(e) Contextualism
(f) Purposivism
(g) Constitutionalism and the dominance of literalism­cum­
intentionalism
(h) The linguistic turn
(i) Objectivism and judicial or free theories of interpretation

CONSTITUTIONALISM AND THE CONVENTIONAL CANONS OF CONSTRUCTION

2C15 The canons of statutory interpretation
2C16 A possible (re­)systematisation of the canons of statutory
interpretation

THE PRESUMPTIONS
2C17 Do the presumptions still have a place under the Constitution?
2C18 Statute law is not unjust, inequitable and unreasonable
(a) Onerous provisions
(i) Encroachment on existing rights
(ii) Imposing burdens
(iii) Penal provisions
(b) Excluding discrimination and inequality
(c) Preferring the most just and equitable interpretation
(d) The right to be heard
(e) Avoiding absurd interpretations that may result in unjustifiable
hardship
2C19 Statute law applies to general and not to particular instances
2C20 Statute law promotes the public interest
2C21 Statute law does not interfere with or oust the jurisdiction of the courts
2C22 Statute law does not violate international law
2C23 Statutes do not bind the state
2C24 Statute law does not alter the existing law more than is necessary
2C25 A statute does not apply with retrospective effect
2C26 Statute law is not invalid or purposeless
2C27 References in statutes to conduct are references to valid and/or
permissible conduct
2C28 Delegated legislative powers are to be exercised by the delegatus itself
2C29 Remedial statutes must be construed generously
2C30 Statute law has no extra­territorial effect
2C31 The same words and phrases in a statute bear the same meaning
 THE CANONS OF GRAMMATICAL INTERPRETATION
2C32 Preliminary observations
2C33 The ordinary­meaning rule
2C34 Time and technicality
2C35 Definitions in statutes
2C36 Definitions in the Interpretation Act
2C37 Language is not used unnecessarily
2C38 Statutory multilingualism
2C39 Punctuation, paragraph and section divisions

THE CANONS OF SYSTEMATIC INTERPRETATION

2C40 Preliminary observations
2C41 T h e casus omissus and the adaptation of the ipsissima verba o f a
provision
2C42 Restrictive interpretation
2C43 Extensive interpretation
2C44 The preamble, statements of purpose and the long title
2C45 Schedules
2C46 Headings and marginal notes
2C47 Footnotes

THE CANONS OF TELEOLOGICAL INTERPRETATION

2C48 Preliminary observations
2C49 Peremptory and directory provisions
2C50 It is for a court to interpret and not to re­enact legislation
2C51 Provisions framed in general terms must be understood to have a
general effect

THE CANONS OF HISTORICAL INTERPRETATION

2C52 Preliminary observations
2C53 Custom as interpreter of legislation
2C54 References to other statutes
2C55 The historical source from which a provision derives
2C56 Surrounding circumstances
2C57 The genesis of the text

TRANSNATIONAL CONTEXTUALISATION
2C58 Preliminary observations
2C59 International law
2C60 Foreign (case) law

BIBLIOGRAPHY

Footnotes
* BJur et Comm LLB BPhil LLD (PU for CHE) Hons BA (Stell)

INTRODUCTION

2C1 Preliminary observations South Africa's two Constitutions since 19941 have introduced what constitutional
scholars often refer to as "a new constitutional dispensation" representing a commitment to overcome and leave
behind a previous dispensation premised on parliamentary sovereignty and characterised by gross violations of
fundamental rights and of the essentials of constitutional democracy. The commencement of South Africa's first
democratic Constitution2 on 27 April 1994 heralded what may quite appropriately be described as the era of
constitutionalism or constitutional democracy. This new era follows on a non­ and pre­constitutionalist era lasting from
31 May 1910 to 27 April 1994. The appellations aforesaid are preferred to the labels "new" and "previous" or "old"
constitutional dispensations respectively. Constitutionalism was finally confirmed when the Constitution o f t h e
Republic of South Africa, 19963 entered into force on 4 February 1997.

Statute law, because it is both the product and a source of state action, is the kind of law most directly
susceptible to the authority of the supreme Constitution. The Constitution therefore determines and shapes
statutory interpretation in an all­pervading manner. It is well nigh impossible to consider the impact of the Bill of
Rights4 on statutory interpretation apart from the impact of the Constitution as a whole. The values entrenched in
the Bill of Rights have inevitably and increasingly permeated statutory interpretation, and so too have (and will)
other constitutional values not embodied in, but nonetheless crucial to, the meaningful implementation of the Bill of
Rights. In addition, constitutional provisions and procedures of a more technical nature, pertaining to matters as
mundane as the hierarchy and status as well as the promulgation and demise of legislation, have to be accounted
for, lest a deficient picture of the impact of the Bill of Rights on statutory interpretation is presented.

The Constitution itself is an enacted law­text that stands to be construed and concretised. As enacted law the
Constitution has much in common with conventional statutes, and some (conventional) strategies, procedures and
canons of statutory interpretation may therefore find application and undergo transformation in the context of
constitutional interpretation ­ a possibility that has to be considered throughout.

In rebuilding the country and transforming society and its institutions, legislation is coming strongly to the fore as
an ally of the Constitution, facilitating propitious reliance on constitutional norms, and promoting constitutional
values and objectives. Legislation is indeed heading for a heyday, but under the discipline, guidance and authority
of a supreme Constitution designed to sustain constitutional democracy. 5 Anyone working with legislation is thus
empowered to see to it that the benefits of statute law, as an indispensable law­generative medium, are reaped
with due regard to its inherent limitations and possible shortcomings.
1 Constitution of the Republic of South Africa, Act 200 of 1993 and Constitution of the Republic of South
Africa, 1996.
2 Also known as the "transitional" or "interim" Constitution.
3 Hereinafter "the Constitution".
4 Ch 2 of the Constitution.
5 See in general Waldron The Dignity of Legislation Cambridge: Cambridge University Press 1999.

2C2 The supreme Constitution Section 2 of the Constitution1 provides that:

[t]his 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 8(1) furthermore makes the Bill of Rights (chapter 2), as highest law, applicable to all law (that is, statute,
common and customary law). These statements of constitutional supremacy, preceded by a similar provision in the
transitional Constitution formulated in somewhat more detail,2 are bold affirmations of the Constitution's highest
authority in a legal system that, historically, harbours formative elements militating against this very conception of
constitutionalism.3 First, there is the common­law preference for unwritten, judge­made law to guide and facilitate
the historical evolution of vast areas of law (including public, and especially constitutional, law) within the legal
system.4 Second, there is an unfamiliarity with the expansive and open­ended style in which a supreme constitution
with a bill of rights must necessarily be couched.5 Third, there is the South African political and constitutional history
of a minority parliament that enjoyed sovereignty for almost 85 years and for which the advent of constitutional
supremacy (and, with it, constitutional democracy) would eventually toll the death knell.6

To be of any consequence, affirmations of constitutional supremacy have to be backed by operational

stipulations providing for the justiciability of the Constitution. The Constitution contains provisions clearly indicative
of its justiciability. Section 165(5), for instance, provides that an order or decision issued by a court binds all organs
of state to which it applies. This section must be read with section 165(2) and (3) vouching for the independence of
the judiciary. The Constitution then proceeds to outline the jurisdiction of the Constitutional Court,7 the Supreme
Court of Appeal8 and high courts9 in, amongst others, constitutional matters that are said to include "any issue
involving the interpretation, protection or enforcement o f the Constitution" (emphasis added).10Section 172,
thereafter, details the powers of these courts in constitutional matters. Significant for the maintenance of
constitutional supremacy is the court's duty ("a court must . . .") to "declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency".11 The courts are thus vested with
the power of constitutional review which is circumscribed,12 however, in that it is conferred on various courts to
varying degrees and in that judicial discretion to exercise this power, subject to restrictions mitigating or postponing
the effects of a declaration of invalidity, is allowed. What is evident is that adjudicative organs, from high­court level
upwards, are charged with the responsibility of sustaining the Constitution's supremacy while they too are subject
to it.13 Judicial organs at lower levels have jurisdiction in constitutional matters to the extent that such jurisdiction
has been assigned to them by an act of parliament. Such an act may, however, not authorise any court lower in
status than a high court to enquire into or rule on the constitutionality of any legislation or any conduct of the
president.14

Constitutional review is to be exercised with restraint, especially in relation to statute law (where the courts'
power of review is sometimes also referred to as a testing right). Constitutional provision for mitigating the effects
of declarations of invalidity is indicative of this demand, rooted in, amongst others, the horizontal differentiation of
the legislative, executive and judicial powers in a democratic state (trias politica). The practice of judicial review
raises a so­called counter­majoritarian difficulty: an unelected judiciary may assess the tenability of any law
adopted by a democratically elected, deliberative legislature, and strike down such a law when it is found to be
unconstitutional.15 There is much to say for the proposition that the said difficulty need not be resolved, because
the tension(s) it generates may be creative (rather than destructive) in moulding a ("new") constitutional order16
by, for instance, keeping alive an institutionally mediated dialogue between the legislature and the judiciary.17

Modern­day democracy includes the notion of "constitutionalism" that bridles majority rule. Constitutionalism "is
the idea that government should derive its powers from a written constitution and that its powers should be limited
to those set out in the constitution".18 It "accepts the necessity of both government and limited government. It
contends that all power, even that of the people, must be limited". 19 Constitutionalism does not, however,
transform judges into a constitution's soothsayers. Popular and restricted government, both under the Constitution,
must ideally be in equilibrium. Legislative and judicial self­restraint are of equal significance, though constitutional
review emphasises the urgency of the latter.20

Judicial self­restraint commences with a realistic appraisal of what a supreme constitution is. It is the nation's
solemn and consequential memorandum of agreement. It is also just a document, however, a written law­text
amongst others or "a linguistic datum".21 The 1996 Constitution is the supreme law of the Republic, but not an
overarching, all­encompassing, super­law.22 It enjoys precedence among law­texts enacted by demonstrable, law­
making authors without, however, overpowering or simply defeating these other texts. Ranking legislation is
nothing new.23 What enactments higher in a predetermined hierarchy can be understood to say about a situation
or issue can, indeed, take precedence over what enactments lower in that hierarchy can be understood to say
about that same situation or issue. What has been new since 27 April 1994 is that the Constitution as enacted law­
text now stands at the apex of a hierarchy not only of laws enacted by legislatures, but also of common and
customary law. In the past superordinate enactments trumped subordinate enactments (or other laws) only when,
in spite of attempts to reconcile them, their incompatibility was found to be inevitable.24 There is no reason to
assume that this latter circumspect modus operandi cannot and should not also, with due allowance for the
supremacy of the Constitution, inform constitutional review ­ especially the review of legislation emanating from
democratically elected legislatures. A dictum of Kentridge AJ in S v Mhlungu,25 laying down an important guideline for
constitutional review, bears out the feasibility of this expectation:
I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course which should be followed.26

This guideline is commensurate with the notion of subsidiarity, well established (and readily invoked) in, amongst
others, German constitutional law as well as in the law of the European Union. Generally speaking, subsidiarity
obliges a more encompassing, superordinate body (or community) to refrain from taking, for its account, matters
which a more particular, subordinate body or community can appropriately dispose of, irrespective of whether the
latter is an organ of state or of civil society. 27 In German constitutional jurisprudence, considerations of subsidiarity
precludes the Bundesverfassungsgericht from adjudicating on matters that another forum can deal with.28 The South
African Constitutional Court has made rulings to a similar effect. In Amod v Multilateral Motor Vehicle Accident Fund,29
the court, for instance, held that the Supreme Court of Appeal is the more appropriate forum of higher instance to
develop the common law as envisaged in section 35(3) of the transitional Constitution and section 39(2) of the final
Constitution.30

I n c a s e s s u c h a s t h e s e , s u b s i d i a r i t y i s o f jurisdictional significance. However, in the Mhlungu case,31

considerations of subsidiarity guided the adjudication of substantive issues of law. Jurisdictional subsidiarity and
adjudicative subsidiarity are different. Jurisdictional subsidiarity assigns responsibility to an appropriate forum,
thereby evincing, in constitutional litigation, the broader principle of subsidiarity in its original, institutional
signification. Adjudicative subsidiarity, by contrast, is "mode­" or "issue­centric": it enjoins one and the same forum
to prefer a non­constitutional mode of adjudication to a constitutional mode whenever the legal question at issue
admits of the former. The higher authority of the Constitution is not to be overused to decide issues that can be
disposed of with reliance on particular, subordinate and non­constitutional law. This means that adjudicative
subsidiarity also finds application where a litigant alleges the infringement of a constitutional right (or rights) to
which a subsidiary constitutional statute gives more concrete effect. The litigant in bringing his or her case cannot
circumvent the said statute by attempting to rely directly on the right as entrenched in the constitution.32

In Zantsi v Council of State, Ciskei,33 Chaskalson P explained that adjudicative subsidiarity can allow the law to
develop incrementally, which is desirable in view of the far­reaching implications attaching to constitutional
decisions. Adjudicative subsidiarity moreover discourages court rulings "in the abstract on issues which are not the
subject of controversy and are only of academic interest"34 and also contributes to an appropriate demarcation of
the respective spheres of authority of the legislature and the judiciary. 35 Constitutional over­adjudication,
especially in reviewing legislation, could deprive the legislature of the opportunity to deal with an issue of its own
accord, in its own distinctive manner and in response to its mandate from the electorate. The legislature and the
executive are often better equipped than the courts to gauge and respond to the needs of society. In addition,
they are democratically accountable. The Constitutional Court moreover sometimes prefers to refrain from ruling on
the constitutionality of an enactment until such time as experienced judges in other forums have had the
opportunity to assess the consequences of either retaining or striking down the provision impugned.36

Because thoughtless reliance on adjudicative subsidiarity could enervate the precedence of the Constitution, the
Constitutional Court has found it necessary to rein it in. In the Zantsi case,37 Chaskalson P, for instance, observed
that the Constitutional Court will constitutionalise an issue whenever it is necessary to dispose of a matter on
appeal. He added that adjudicative subsidiarity cannot stand in the way of "the interest of justice". In Harksen v
Lane NO,38 Goldstone J also made it clear that there is no "hard and fast rule to the effect that in no case should
referrals be made to this Court where non­constitutional remedies have not been exhausted".

Adjudicative subsidiarity can at any rate not justify preference for a non­constitutional option inconsistent with
the Constitution. Where there are several options (equally) consistent with the Constitution, adjudicative
subsidiarity can, at best, result in preference for the option most in conformity with non­constitutional law as it
stands.

In The Pharmaceutical Manufacturers Association of SA. In re: The Ex parte Application of the President of the RSA,39
the Constitutional Court rejected the conclusion of the Supreme Court of Appeal, in Commissioner of Customs and
Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennie Group Ltd trading as Renfreight,40
that the review of administrative action has, to a large extent, remained a procedure determined primarily by
common law. Chaskalson P, in no uncertain terms, proclaimed the supremacy of the Constitution where­ and
whenever the exercise of any form of public power becomes susceptible to judicial assessment:41
The control of public power by the courts through judicial review is and always has been a constitutional matter . . . The
common law principles that previously provided the grounds for judicial review of public power have been subsumed under
the Constitution, and in so far as they might continue to be relevant to judicial review, they gain their force from the
Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts.42

To which extent this judgment is likely to reign in adjudicative (and jurisdictional) subsidiarity will become clearer
when, in the course of time, the concept of "public power" will be more closely defined.

The Pharmaceutical Manufacturers case43 is the Constitutional Court's response to a tendency of the Supreme
Court of Appeal to deal with constitution­related issues as if they can be disposed of in an "enlightened", rights­
friendly manner without reliance on (or even reference to) the Constitution. In this way, for example, the South
African common law on defamation was liberalised by extending the protection of free speech.44 This was done in a
judgment professing not to rely primarily on constitutional grounds. The law of evidence relating to sexual offences
was also modernised by abolishing the so­called cautionary rule of evidence in rape cases.45 T h e w o r d
"constitution" was not mentioned once. This tendency can, on the one hand, be seen as profitable reliance on
adjudicative subsidiarity, giving effect to a preference of the Constitutional Court itself. On the other hand, it raises
the question of whether the Constitution was meant simply to operate as a silent background norm when the
common law stands to be liberalised.46 The Supreme Court of Appeal's seemingly enlightened judgments on free
speech and the cautionary rule in sexual offences would most probably not have been handed down had it not
b e e n f o r the Constitution. Can one of the country's t w o highest courts allow itself to be influenced by the
Constitution and not acknowledge it? The Constitutional Court's judgment in the Pharmaceutical Manufacturers
case47 suggests that this ought not to be the case.

The reading of impugned statutory provisions in conformity with the Constitution (also known as "reading­
down") is another strategy to inhibit an overuse of the Constitution in reviewing legislation. This strategy will be
dealt with more fully at a later stage.48

Because the Constitution is the supreme law of the land and all legislation must be read subject to it, it is
unnecessary for legislation expressly to incorporate terms of the Constitution. Constitutional provisions or values or
principles are, in other words, part of the implied contents of statutes.49
1 Constitution of the Republic of South Africa, 1996.
2 Constitution of the Republic of South Africa, Act 200 of 1993 s 4: "Supremacy of the Constitution.­
(1) This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution,
be of no force and effect to the extent of the inconsistency.
(2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of
government."
3 See the discussion infra for the meaning of "constitutionalism".
4 Du Plessis Re­Interpretation of Statutes 20­22.
5 See par 2C14(g) below.
6 Du Plessis Introduction to Law 169­173.
7 S 167(3)­(7).
8 S 168(3) albeit by implication. The sub­section refers to the SCA's jurisdiction in constitutional matters
in a manner implying that this court has such jurisdiction: "it is the highest court of appeal except in
constitutional matters" (emphasis added).
9 S 169(a) explicitly refers to these courts' jurisdiction in constitutional matters.
10 S 167(7).
11 S 172(1)(a); Mkangeli v Joubert 2001 4 BCLR 316 (CC) par 10.
12 In eg s 172(2).
13 As to the courts' being subject to the Constitution, see s 165(1): "The courts are independent and
subject only to the Constitution and the law, which they must apply impartially and without fear, favour
or prejudice".
14 Cf eg s 170. See also Rautenbach and Malherbe Constitutional Law 250.
15 Tushnet 1985 Michigan Law Review 1503; Davis, Chaskalson and De Waal "Democracy and
Constitutionalism" in Rights and Constitutionalism 6­19.
16 Botha 2000 THRHR 578­581.
17 De Ville Constitutional and Statutory Interpretation 20­26.
18 Currie and De Waal Bill of Rights Handbook 8.
19 Murphy, Fleming and Barber American Constitutional Interpretation 3.
20 See also par 2C21 below for a fuller exposition of the notion of (and need for) judicial self­restraint.
21 In the words of Müller 1999 Stell LR 269.
22 Du Plessis 2000 Stell LR 201.
23 See par 2C5 below.
24 Cf Du Plessis Interpretation of Statutes 16 and especially the authority cited in fn 19.
25 1995 7 BCLR 793 (CC) par 59; cf also Motsepe v Commissioner for Inland Revenue 1997 6 BCLR 692
(CC) par 21.
26 Cf also National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC)
par 21; Minister of Education v Harris 2001 11 BCLR 1157 (CC) par 19.
27 Benda, Maihofer and Vogel Handbuch des Verfassungsrechts II 1051. Subsidiarity traces its origin to
Roman Catholic social thought (Kommers Constitutional Jurisprudence of Germany 113) and has found
various applications in German constitutional law. It has, for instance, informed the very notion of
federalism decisively: Benda, Maihofer and Vogel 1051­1052. It is also invoked to determine whether,
in the context of the European Union, a matter should be disposed of by a member state or rather by
an organ of the Union ­ cf the Maastricht Case (1993) 89 BverfGE 155. As such it has, at the behest of
(among others) Germany and Britain, been incorporated into Article 3b of the Maastricht Treaty. For an
insightful exploration of the possible applications of subsidiarity under South Africa's 1993 and 1996
Constitutions, see Van Wyk "Subsidiariteit as Waarde wat die oop en demokratiese Suid­Afrikaanse
Gemeenskap ten Grondslag lê" in Suprema Lex: Essays on the Constitution presented to Marinus
Wiechers 251­269. See also, on the role of subsidiarity in constitutional interpretation, Du Plessis
Interpretation in Woolman, Roux, Klaaren, Stein, Chaskalson and Bishop Constitutional Law of SA
(CLoSA) 2 ed 32.142 ­ 32.158 and Van der Walt 2008 Constitutional Court Review 77.
28 Hesse Grundzüge des Verfassungsrechts 143.
29 1998 (10) BCLR 1207 (CC).
30 These provisions enjoin any court developing the common law to "promote the spirit, purport and
objects of the Bill of Rights" ­ c f for example s 39(2) of the 1996 Constitution. See also par 2C10
below.
31 Supra.
32 See par 2C10 below and Van der Walt 100­101.
33 1995 (10) BCLR 1424 (CC) par 5.
 34 Par 7.
35 Currie and De Waal 75­78.
36 According to Kriegler J in S v Bequinot 1996 (12) BCLR 1588 (CC) par 14.
37 Supra par 4.
38 1997 (11) BCLR 1489 (CC) par 26.
39 2000 (3) BCLR 241 (CC).
40 1999 (3) SA 771 (SCA).
41 Cf eg pars 17, 20, 27, 33, 44 and 45.
42 Par 33.
43 Supra.
44 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
45 S v Jackson 1998 (1) SACR 470 (SCA).
46 Cf also par 2C24 below on the relationship between the common law and the Constitution.
47 Supra.
48 See par 2C13 below.
49 Harksen v President of the RSA 2000 (5) SA 478 (CC) par 18.

CLASSIFICATION AND MODE OF CITATION OF LEGISLATION

2C3 Historical classification Traditionally South African statute law has been divided into three historical
categories:1

(a) Pre­1806 legislation that has been received as common law2 susceptible to abrogation by disuse.3

(b) Pre­Union legislation that cannot be abrogated by disuse. Most of this legislation has, however, been
revoked.4

(c) Enactments between Union (1910) and 27 April 1994, still constituting a considerable volume of
present­day statute law.

(d) To the above three categories legislation enacted since 27 April 1994 must be added. Legislation in
category (c) was enacted in the absence of a supreme constitution (in a system premised on the
legislative sovereignty of parliament) while legislation in the present category has been enacted under
and subject to a supreme constitution, be it the transitional Constitution5 or the 1996 Constitution.6
The Constitutional Court has intimated that this distinction could matter in some instances where the
constitutionality of legislation is reviewed.

First, impugned post­1994 provisions are read on the assumption that the legislature consciously deferred to the
supreme Constitution and sought not to detract from the protection afforded by the Constitution.7 Such provisions
are thus, as far as is reasonably possible and without placing an unduly strained construction upon them, read in
conformity with the Constitution in order to save them.8 Second, in certain circumstances, pre­1994 legislation may
be scrutinised less strictly for constitutional validity than legislation enacted under South Africa's two supreme
Constitutions since 1994.9 It is not quite clear, however, exactly how and when this latter form of more lenient
scrutiny can be invoked. It seems to apply only to constitutional review in terms of constitutional provisions and
values other than those embodied in the Bill of Rights,10 and then only where the striking down of an impugned
provision "when nothing had yet been constructed to replace it" could contribute to throwing "the governmental,
administrative and economic infrastructure and functioning of the country into . . . chaos".11

The advent of constitutional democracy has also had an impact on the style in which ordinary legislation is
written. Legislation (especially enactments intended to set the tone in certain areas and to be durable) is drafted in
the expansive and flexible style of the supreme Constitution. The date "27 April 1994" has, thus, also been a
watershed as regards legislative style, although both Constitutions contain no particular provisions that constrain
legislatures to use this new style. This post­1994 phenomenon will be considered more fully later.12
1 Hahlo and Kahn SA Legal System and its Background 151­155.
2 R v Detody 1926 AD 198; Muller v Grobbelaar 1946 OPD 272 276; cf also Hosten et al Introduction to
SA Law and Legal Theory 481­482.
3 R v Patz 1946 AD 845.
4 Du Plessis Lawsa 25(1) par 292 and Re­Interpretation of Statutes 23­24.
5 Constitution of the Republic of South Africa, Act 200 of 1993.
6 Constitution of the Republic of South Africa 1996. The reasons for the difference in the respective
modes of reference to the transitional and final Constitutions are explained in par 2C7 below.
7 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd. In re:
Hyundai Motor Distributors (Pty) Ltd v Smit NO 2000 10 BCLR 1079 (CC) par 43.
8 De Lange v Smuts 1998 7 BCLR 779 (CC) p a r 8 5 ; Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors supra par 24; for the principle of reading in conformity with the
Constitution, see par 2C13 below.
9 Ynuico Ltd v Minister of Trade and Industry 1996 6 BCLR 798 (CC) par 7.
10 In ch 2 of the Constitution.
11 Ynuico supra par 7. This approach is not uncontroversial, though: cf Du Plessis 2000 Stell LR 207­208.
12 See par 2C14(g) below.

2C4 The hierarchy and status of legislation Statutes can be classified both with reference to their place in a
hierarchy of enacted law and to their status. These two criteria overlap, but should not be collapsed1 (as is often
done)2. The hierarchy of legislation bears on "higher laws" trumping "lower laws", and the status of legislation on
"lower laws" owing their existence to and deriving their operational force from "higher laws".

The vertical division of state power under the Constitution3 is prominent in and largely coincides with the
determination of the hierarchy of legislation. The Constitution provides for three levels, or tiers, of government at
which legislation can be made, referring to them as "spheres of government". These spheres are:4

(a) the national sphere (within which parliament enacts national acts);

(b) the provincial sphere (within which provincial legislatures enact provincial acts ­ no longer known as
"ordinances");5 and

(c) the local sphere (within which municipal councils enact by­laws)6.

The Constitution a s supreme law tops the hierarchy of legislation; superior o r superordinate (non­constitutional)
legislation follows next and lowest in the hierarchy is lower o r subordinate legislation. It makes sense to speak of
superordinate (in Afrikaans, bowegeskikte) and subordinate (in Afrikaans, ondergeskikte) legislation, for the hierarchy
of legislation is actually an ordination of enacted law with higher­ranking laws taking precedence over lower­ranking
laws.

The classification of legislation according to the criterion of status yields a distinction between original and
delegated legislation. Delegated legislation always derives from original legislation and is therefore always
subordinate legislation. However, original legislation can also be subordinate legislation. The status of legislation,
furthermore, is not only relevant to a formal determination of when superordinate, original legislation trumps
subordinate, delegated legislation, but also bears, in a substantive manner, on the standing or eminence of these
two kinds of enacted law. In short, it is an oversimplification to suggest that only one criterion of classification can
cater for considerations of both legislative hierarchy and status.

Both the hierarchy and status of legislation have a tangible impact on the operation and validity of enacted law
and will be considered next in some detail and seriatim.
1 As Baxter Administrative Law 74­75, 190­191, 328, 490­492 and 494 rightly shows. It must be borne in
mind that Baxter wrote without reference to a supreme constitution (which did not exist at the time).
2 For reasons that will appear below, it is (and, even before 27 April 1994, was) an over­simplification to
draw a distinction between eg original and subordinate legislation only, as the present author himself
did in Du Plessis Interpretation of Statutes 5­16 and in the 1991 version of Du Plessis Lawsa 25 par
259.
3 Constitution of the Republic of South Africa, 1996.
4 S 43. See also par 2C13 below.
5 S 123.
6 S 156(2) read with s 157.

2C5 Super­ and subordinate legislation A hierarchy of legislation presupposes the existence of "higher" and
"lower" legislatures and manifests the vertical distribution of power at the different levels or tiers ­ the
Constitution1 talks of "spheres"2 ­ of government, namely first­tier, or national; second­tier, or provincial; and third­
tier, or local/municipal government. The "more federal" a state and the more definite the vertical devolution of
power, the more distinct are the dividing lines between legislatures at the various levels of government and the
more consequential are the legislative powers of second­ and third­tier government.

South Africa's political history has inhibited the federalist impetus.3 As a result, constitutional provision for the
decentralisation of government reflects a compromise between centralist and federalist sentiments.4 T h i s
compromise is evident from, amongst others, the complex and cautious manner in which legislative powers have
been hierarchised. Safety mechanisms designed to minimise distortions of power at one level of government at the
cost of others have, for instance, been put in place. It can be said of the Constitution that it provides for federalism
as a process, rather than a system, of government, subjecting, as it were, law­making to an interplay of centralist
and decentralist mechanisms and procedures.5

The terminological strategy of referring to "spheres" rather than "tiers" of government in the Constitution is of
more than semantic significance. It connotes a shift away from a rigidly hierarchical division of governmental
(including legislative) powers, and is premised on the assumption that each of the various spheres of government
(and their legislatures) has equivalent status, is self­reliant and inviolable, and enjoys sufficient constitutional
latitude to define and express its unique character. 6 The principles of co­operative government in chapter 3 of the
Constitution,7 moreover, seek to avoid a fragmentation of the different spheres of government. Set against the
actual consequences of the vertical division of powers in the Constitution as well as the factual incapacitation of
many provincial and local governments, the foregoing depiction of the status and autonomy of the different spheres
of government may be exaggerated.8 The notion of "sphere autonomy" is not devoid of significance, however, as
appears from the occasional yet unprecedented inversion of the conventional first­, second­ and third­tier legislative
hierarchy9 as well as from the status that deliberative legislative bodies, in all three spheres of government,
enjoy.10

The national legislature, parliament, has the highest (albeit not sovereign)11 legislative power over the whole of
the Republic of South Africa as well as in all state affairs with the exception of those specifically allocated to other
legislatures.12 The pre­1994 provincial councils were original legislatures13 until 1 July 1986 when the Provincial
Government Act14 entered into force, abolishing the four provincial councils and elevating the provincial
administrators (who were organs of the executive) to the position of legislatures instead. The provincial
proclamations that the administrators were authorised to enact constituted delegated legislation.15
 Under the 1996 Constitution, with its spheres of government, provincial legislatures once again have substantial
powers. The Constitution as supreme law rules out the possibility that parliament can make laws that truncate the
legislative powers of the provinces. Parliamentary legislation as national legislation, to the extent that it deals with
matters the Constitution does not allocate to any other legislature, takes precedence over all other legislation.
Legislatures in the provincial and local spheres of government may not make laws on matters over which the
Constitution has not expressly given them the authority to do so. However, in matters in which the Constitution
gives authority to legislatures other than parliament, this authority cannot always be exercised without further ado.
This point needs some elaboration.

Schedule 5 to the Constitution gives provincial legislatures exclusive authority in certain matters.16 Schedule 4,
on the other hand, contains a list of matters over which the national legislature and provincial legislatures have
concurrent authority: In other words, both parliament and the provincial legislatures can make laws on schedule 4
matters. However, in cases where conflict arises, parliamentary or national legislation pertaining uniformly to the
country as a whole under certain circumstances has priority over the legislation of the province(s).17 I n t h e s e
circumstances,18 parliamentary legislation takes precedence over provincial legislation in pari materia, but in their
absence, provincial legislation takes precedence over and is superordinate or superior to parliamentary
legislation.19

With regard to schedule 5 matters, provincial legislation takes precedence over parliamentary legislation.
Precautionary provision is, however, made for parliamentary intervention, under certain clearly defined exceptional
circumstances, to prevent and trump20 provincial legislation on schedule 5 matters.21 This does not detract from the
essentially superordinate status of provincial legislation on these matters.

Local governments, or municipalities, have legislative authority in matters listed in schedules 4 a n d 5 t o the
Constitution or in matters allocated to them by the national or provincial government.22 They may make and
administer by­laws on these matters,23 but this legislation, although original,24 is always subordinate to national or
provincial legislation.25

Superordinate legislation always takes precedence over subordinate legislation in pari materia. Subordinate
legislation that is in conflict with superordinate legislation on the same subject is of no effect to the extent of the
conflict. Traditionally, the said subordinate legislation would have been inoperative because it would have been
invalid. This is no longer the case because section 149 o f the Constitution creates an unprecedented safety
mechanism that suspends the operation of (but does not nullify or invalidate) subordinate legislation in conflict with
original legislation. This safety mechanism will be considered, below, in the paragraph dealing with the demise, re­
enactment and amendment of legislation.26

Arrangements pertaining to the hierarchy of legislation under the 1996 Constitution are, in a nutshell, the
following:

(a) At the top of the hierarchy is the supreme Constitution. Any legislation that is in conflict with it is invalid.
The Constitution with its Bill of Rights is not only a superordinate law o r statute. I t i s the supreme
authority at the apex of the legal order. Sections 2 and 8(1) of the Constitution make this point in so
many words.27

(b) Next in order of priority is superordinate, non­constitutional legislation, which ­ depending on the
circumstances ­ can be parliamentary legislation vis­à­vis provincial legislation, or provincial legislation
vis­à­vis parliamentary legislation. Parliamentary and provincial legislation, in turn, always take
precedence over local or municipal legislation.

The next paragraph deals more fully with the distinction between original and delegated legislation. At
this stage, however, it must be mentioned that, in general, original legislation is superior to (that is,
higher in the hierarchy than) delegated legislation. In other words, original legislation vis­à­vis
delegated legislation is a specific manifestation of superordinate vis­à­vis subordinate legislation.
However, as will appear in due course, this general statement needs some fine­tuning.28

(c) Subordinate legislation ranks lowest in the hierarchy. But note that subordinate legislation in conflict
with superordinate legislation is not necessarily invalid. It could also be that, by virtue of section 149 of
the Constitution, its operation has simply been suspended.29
1 Constitution of the Republic of South Africa,1996.
2 Cf eg s 40 and s 43.
3 For insightful overviews of the historical development of ideas on federalism in South Africa, cf Kotzé
(ed) Federalism in SA and Kriek (ed) Federalism: The Solution?
4 Du Plessis Lawsa 25(1) par 294; Du Plessis Re­Interpretation of Statutes 32.
5 Cf Du Plessis 1997 Koers 204­205.
6 Chaskalson et al Constitutional Law of SA 5A­26 and 27.
7 Elaborated on, below.
8 Chaskalson et al 5A­27.
9 Discussed further on in this paragraph.
10 They are all original legislatures as will be shown in par 2C6 below.
11 As it used to be.
12 S 44.
13 See par 2C6 below.
14 69 of 1986.
15 For a fuller explanation, see par 2C6 below.
16 S 104(1)(b)(ii).
17 S 146(2) and (3).
18 These circumstances are the following:
 (a) National legislation deals with a matter that cannot be regulated effectively by legislation
enacted by the respective provinces individually(s 146(2)(a)).
(b) National legislation deals with a matter that requires national uniformity for the sake of effective
implementation. But the national legislation must then bring about such uniformity by laying
down norms and standards, frameworks or national policies (s 146(2)(b)(i)­(iii)).
(c) The national legislation is necessary in order to:
(i) maintain national security or economic unity;
(ii) protect the common market with respect to the mobility of goods, services, capital and
labour;
(iii) promote economic activity across provincial borders;
(iv) promote equal access to government services; or
(v) protect the environment (s 146(2)(c)(i)­(vi)).
(d) National legislation is intended to prevent unreasonable action by a province, that is, action
prejudicial to the economic, health or security interests of another province or of the country as
a whole or impeding the implementation of national economic policy (s 146(3)(a) and (b)).
19 S 146(5).
20 Cf s 147(2).
21 Parliament can, thus, intervene to maintain national security, economic unity and essential national
standards; to establish minimum standards required for the rendering of services; or to prevent
unreasonable action by a province that may be prejudicial to another province or to the country as a
whole.(s 44(2)(a)­(e)).
22 S 156(1).
23 S 156(2).
24 Cf par 2C6 below.
25 S 156(3).
26 Ie par 2C9 below.
27 See par 2C2 above.
28 See par 2C6 below.
29 Cf par 2C9 below.

2C6 Original and delegated legislation Under South Africa's previous Constitutions of 1910, 1961 and 1983,1
original legislation could not be struck down on account of deficiencies in its substance o r content, but only if
procedural or manner and form requirements had not been complied with in its adoption.2 There were more grounds
(including substance and content) on the basis of which delegated legislation could be declared invalid and struck
down.3 The distinction between original and delegated legislation was, therefore, of critical importance for purposes
of the judicial review or testing of legislation.4 Original legislation was enacted by a legislature that had full
legislative powers with regard to matters within its statutorily demarcated (legislative) jurisdiction.5The Constitution
itself or any other act of parliament could confer an original legislative competence. In terms of the 1910 and 1961
Constitutions, acts of parliament and provincial ordinances were held to be original legislation.6 I n Middelburg
Municipality v Gertzen,7 it was concluded that, on account of the substantial measure of deliberation involved in the
legislative processes of provincial councils, provincial legislation was original, and not delegated, legislation. This
remained the position when the 1983 Constitution entered into force, but, subsequently, the Provincial Government
Act8 transferred the legislative authority of the provinces to the respective provincial administrators. From then on,
provincial legislation (embodied in provincial proclamations) became delegated legislation9 and remained so until
the commencement of the transitional Constitution on 27 April 1994.10

The now obsolete National States Constitution Act,11 furthermore, conferred on the legislative assemblies of self­
governing (non­independent) "national states"12 the status of original legislatures. The legislative powers of these
legislatures were not "weaker" or "less original" than those of parliament or provincial councils simply because they
were derived from ordinary parliamentary legislation (other than the Constitution) ­ which goes to show that any
act of parliament could confer original legislative competencies.

Under constitutional democracy since 1994, the supreme Constitution,13 in so far as it is "legislation", certainly is
original legislation. Section 43 of the 1996 Constitution provides that the legislative authority in the Republic is
vested in parliament in the national sphere, in provincial legislatures in the provincial sphere, and in municipal
councils in the local sphere of government. The (primary) legislative competence of all these legislatures is, thus,
called into existence by the supreme Constitution itself. They are, moreover, all democratically elected, deliberative,
legislative bodies. Their legislation is therefore original. What is new is that, for the first time, legislatures at the
local or municipal level are recognised as original legislatures too. In the pre­constitutionalist era, they were
delegated legislatures whose legislative powers derived from provincial ordinances. In Fedsure Life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council,14 the Constitutional Court, in no uncertain terms, asserted
the status of local legislatures as original law­makers under both the transitional (1993) and the final (1996)
Constitutions:
The interim and the 1996 Constitutions no longer regard local governments as public bodies exercising delegated powers.
Their councils are deliberative legislative assemblies whose powers are recognised in the Constitution itself.15

One important consequence of local legislatures' new status as original legislatures is that their by­laws are no
longer reviewable on any of the traditional grounds for the review of delegated legislation, in so far as, in the era of
constitutional democracy, these grounds have remained. 16 These laws are also not administrative action justiciable
in terms of section 33 of the Constitution and the Promotion of Administrative Justice Act (PAJA).17

A further consequence of the municipal councils' new status as original legislatures is that they may now,
through their by­laws, confer delegated legislative powers. Previously this was not possible because the common
law precludes the sub­delegation of legislative powers (delegatus delegare non potest), unless an empowering
original law expressly or by implication authorises such further delegation.18Section 160(2)(a) o f the Constitution
includes, among the functions that may not be delegated by a municipal council, "the passing of by­laws". It is
unlikely, however, that this provision constitutes a curtailment of municipal councils' power to delegate legislative
authority. First, it refers to the passing of by­laws. Delegated legislation is normally not passed by an original law­
making body and an enactment promulgated in terms of a by­law will, at any rate, not be called "a by­law" (just as
delegated enactments in the national and provincial spheres of government are not referred to as "acts"). Second,
section 160(2)(a) is part of a provision that deals with the internal procedures of municipal councils and not of the
section defining and limiting their powers and functions.19 Section 160, apart from empowering municipal councils to
make by­laws to determine their own internal procedures,20 sets minimum standards for (and imposes certain
limitations upon) those procedures.21 Section 160(2)(a) simply does the same in respect of the (procedures for the)
passing of by­laws.

Finally, section 156(5) of the Constitution gives a municipality the right "to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its functions". It is hard to see how, in the
absence of cogent and compelling indications to the contrary, this authorisation can be understood not to provide
for the legislative power to authorise delegated legislation.

To summarise: the legislation of a section 43 legislature is always original. In the case of parliamentary or
provincial legislation, it depends on the circumstances (as described in section 104(1)(b), read with sections 44(2)
and 146 of the 1996 Constitution) whether this legislation is superordinate or subordinate.22 Municipal legislation,
on the other hand, even though it is original, is always subordinate to acts of parliament or provincial legislatures or
delegated legislation made in terms of such acts.23

Delegated legislation mainly regulates, in some detail, matters provided for by original legislation in an outline
form.24 Various circumstances may necessitate resort to delegated legislation ­ for example, the specialised and/or
technical nature of the matters with which the original legislation deals, the fact that original legislative bodies are
not in continuous session and do not have the time to pass all legislation called for, the need for powers to cope
with emergencies, the peculiarity of local matters, and so forth.25 The existence of delegated legislation bears
testimony to a devolution of power from legislative to executive authorities, in accordance with considerations of
(jurisdictional) subsidiarity.26 Not all legislative matters have to be disposed of by plenary, elected and deliberative
legislatures. Organs of the executive are often in a better position to deal with certain matters once the parameters
within which it is competent for them to do so have been set by empowering, original legislation.

The distinctive feature of delegated legislation is that it has to be authorised by ­ and is accordingly always
enacted in terms of ­ original legislation. A delegated enactment, in other words, owes both its existence and its
authority to an empowering, original law.

The capacity to make delegated legislation normally, but not invariably, 27 vests in the executive. It is not quite
clear from the case law, though, whether legislative acts of the executive constitute "administrative action" as
contemplated in section 33 of the Constitution, and as more elaborately defined in section 1 of the Promotion of
Administrative Justice Act (PAJA),28 and whether such acts are therefore justiciable in terms of section 33 and the
PAJA.29 There have been unequivocal indications in recent jurisprudence of both the Constitutional Court30 and the
Supreme Court of Appeal31 that the making of delegated legislation is administrative action both in terms of section
33 and the PAJA.

An organ of a legislature, such as its speaker, may also be authorised to enact delegated legislation, especially
where the authorising original legislation is to be implemented by the legislature rather than the executive.32 Such
an organ, however, has to be accountable to the legislature in some constitutionally recognised manner.33

The enactment of delegated legislation is invariably authorised by specific, empowering original legislation, but
section 10 of the Interpretation Act34 is consistent with a general authorisation to enact delegated legislation
(although it also alludes to administrative acts other than legislative acts).35 Neither the transitional nor the final
Constitution explicitly authorises original legislatures to confer delegated legislative powers on other (particularly
executive) organs of state. Section 101(3) of the 1996 Constitution requires "proclamations, regulations and other
instruments of subordinate legislation" to be accessible to the public. This oblique reference to delegated
enactments (under the heading, "executive decisions") can certainly not be construed as an authorisation to enact
them, but is, at least, constitutional recognition of the fact that such enactments do somehow exist.

There is no reason, however, to assume that the competence of original legislatures to grant delegated
legislative powers to executive bodies is not implicitly included in the legislative powers that the Constitution
expressly grants them. Chaskalson P, with reference to the transitional Constitution and with the necessary judicial
self­restraint, held that such competence was, at any rate, not in conflict with that Constitution.36 A constitutional
provision conferring original legislative authority37 can, extensively construed,38 be taken to confer all that is
ordinarily included in and incidental to such authority. If anything is to be excluded, the Constitution should make
specific provision to that effect. If the Constitution makes no such provision, common­law directives on the scope
and granting of delegated legislative competencies to bodies of the executive continue to obtain. As Chaskalson P,
after a survey of the position in a number of other jurisdictions, succinctly and yet significantly concludes:
[W]here Parliament is established under a written Constitution, the nature and extent of its power to delegate legislative
powers to the executive depends ultimately on the language of the Constitution, construed in the light of the country's own
history.39

One of the far­reaching consequences of constitutional democracy (compared to the position before 27 April 1994)
is that legislative powers granted in terms of original legislation, other than the supreme Constitution itself, are
always delegated. First, it is no longer possible for an act of parliament to call into existence an original legislature
because the Constitution itself now determines finally who the original legislatures are. An act of parliament that
professes to call into existence a legislature with the same status will be inconsistent with the Constitution and,
therefore, invalid.
 Second, original legislation vesting wide plenary powers in the executive will no longer be upheld.40 In the pre­
constitutionalist era it was, for instance, possible for a delegated enactment to authorise the amendment of original
laws ­ even the very law under which the delegation was made. The constitutional value of trias politica (or
horizontal power separation),41 fundamental to the new order established by both of South Africa's Constitutions
since 1994, clamours against this possibility. The "delegation doctrine", developed in the United States and invoked
to impose limits on the delegation of legislative powers,
derives from an application of the theory of separation of powers ­ the notion being that law­making as the proper domain of
the legislature, should not be delegated excessively to the executive branch of government.42

Therefore, an original law conferring plenary legislative powers upon an executive law­maker will be
unconstitutional. The extent to which delegated legislation so authorised is prone to interfere with the authorising
legislature's distinctive functions and duties, pursuant to the principle of the separation of powers, will determine
the impugned law's fate. The approach just described was confirmed in Ynuico Ltd v Minister of Trade and Industry43
and, subsequently, in Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional
Development of the RSA; Executive Council of KwaZulu­Natal v President of the RSA.44 However, in the Ynuico case,45
the applicability of the delegation doctrine was, in the light of the "text and context" of section 37 of the transitional
Constitution, restricted to enabling original laws passed after the commencement of the transitional Constitution,
because it was said that it would have been impracticable to dismantle all our old statutory law in one fell swoop
when nothing had yet been constructed to replace it.

This would have thrown the governmental, administrative and economic infrastructure and functioning of the
country into immediate chaos.46 It is doubtful whether the same considerations are still valid after almost two
decades of constitutional democracy and with the final Constitution firmly in place.47

As was stated at the outset, the distinction between original and delegated legislation was of critical importance
in the pre­constitutionalist era (1910­1994) because the status of an enactment determined the extent to which it
was subject to judicial review. Acts of parliament were subject to "manner and form" review only. Review of the
substance or content of the legislation of the sovereign legislature was expressly excluded.48 Non­parliamentary
original laws, such as provincial ordinances or the enactments of self­governing homelands, were subordinate
legislation (vis­à­vis acts of parliament). But, as original legislation, they were, in principle, as immune to judicial
review as acts of parliament. They obviously had to be territorially and substantively intra vires, which meant that,
within their respective geographical borders, they could only deal with matters the Constitution or another act of
parliament assigned to the legislatures who enacted them.49 A court could, thus, strike down such legislation if it
exceeded these boundaries. Looked at closely, however, this judicial testing right was restricted to the "manner
and form" of impugned non­parliamentary, original legislation since a court could not pronounce on the
sustainability of an impugned law's content. To put it negatively, all such legislation escaped "the tests of certainty
and reasonableness imposed on legislative bodies exercising delegated legislative authority".50 It was, thus, quite
in order for a subordinate, original legislature to "legislate partially or retrospectively; invade rights without
compensation; or delegate its authority".51

Clearly, prior to 27 April 1994, the courts' competence to review delegated legislation extended much further
than was the case with the review of original legislation. Delegated legislation was traditionally treated as ­ and
has under the new Constitution, with some exceptions,52 mostly remained ­ subordinate legislation.53 Traditionally,
delegated legislation had to comply with the following common­law requirements, in order to be valid:54

(a) The body that delegated the legislative power to the delegated legislature had to have been competent
to do so.

(b) Delegated legislation must not have been in conflict with original legislation ­ because delegated
legislation had always been subordinate legislation.

(c) If there had been prescribed procedures, they had to have been observed in the adoption of the
delegated legislation.

(d) Delegated legislation must not have been vague: it had to have been reasonably clear and
comprehensible and had to have made clear to subjects what was expected of them.

(e) Delegated legislation had to have been intra vires. The delegated legislature, thus, had to remain within
the scope of the legislative powers granted by the competent legislature in (a) supra.

(f ) Unless explicitly authorised, delegated legislation must not have been unreasonable, unfair,
discriminatory or retrospective.55

(g) Sub­delegation was not permitted (delegatus delegare non potest).56 A delegated legislature could,
therefore, in principle, not authorise another person or organ to enact further delegated legislation,
unless the original legislation conferring this legislature's powers authorised such sub­delegation
expressly or by implication. An implied authorisation to delegate was inferred where certain criteria
were met.57

The above guidelines were applied with circumspection and a delegated enactment was not struck down readily. If,
for instance, delegated legislation was unclear or ambiguous, but could still be interpreted in such a way that it was
valid rather than invalid, the interpretation whereby it would be valid was preferred. Enactments of elected
delegated legislatures, such as the by­laws of municipal councils, were, on account of the doctrine of benevolent
interpretation,58 held to be even more immune to declarations of nullity than other delegated legislation. This
"additional" measure of judicial self­restraint owed its existence to the fact that such enactments emerged from a
deliberative legislative process. The courts were, therefore, at pains to defer to the judgment of those representing
public opinion as to what was desirable, reasonable or feasible.
 Most of the traditional, common­law "tests" for the validity of delegated legislation are not explicitly mentioned in
the Constitution:

(i) The Constitution does not state explicitly that only a competent body may delegate legislative powers to a
delegated legislature. This notion may possibly be included in the constitutional requirement of administrative
lawfulness or legality,59 but then this requirement has to be understood in the light of the common law.

(ii) The rule that delegated legislation may not be in conflict with original legislation because the former is
subordinate legislation also comes from the common law. The Constitution a l l u d e s t o t h e n o t i o n o f
superordinate and subordinate legislation only with reference to the vertical distribution of legislative
authority among the three spheres of government60 (and not in relation to original and delegated legislation).
As will be pointed out, below, the Constitution makes it possible for delegated legislation at one level of
government to be superordinate to original legislation at another (even "higher") level.

(iii) Compliance with prescribed procedures in the adoption of delegated legislation is a requirement of the
Constitution's notion of administrative lawfulness61 ­ more explicitly than in (i), above, but still dependent on
the common law for the full augmentation of its meaning.

(iv) The Constitution contains no explicit prohibition on the vagueness of (original and/or delegated) legislation,
but the following dictum from the Constitutional Court per Ngcobo J62 makes of vagueness a constitutional
issue: "The doctrine of vagueness is founded on the rule of law, which . . . is a foundational value of our
constitutional democracy. It requires that laws must be written in a clear and accessible manner. What is
required is reasonable certainty and not perfect lucidity. The doctrine of vagueness does not require absolute
certainty of laws. The law must indicate with reasonable certainty to those who are bound by it what is
required of them so that they may regulate their conduct accordingly."

The doctrine of vagueness also finds application in the adjudication of legislative limitations on constitutionally
entrenched rights. Only laws which are clear, comprehensible, accessible and predictable in their application ­
and this includes delegated legislation ­ can validly limit constitutional rights.63

(v) The intra vires requirement derives wholly from the common law: the Constitution is silent on the (scope of
the) powers of and for delegated legislatures.

(vi) The common­law prohibitions on the unreasonableness, unfairness and discriminatory operation of delegated
legislation have been sufficiently provided for by investing them with constitutional supremacy. 64The
Constitution has, indeed, replaced the common law as point of departure in this area, since a more up­to­
date, detailed and succinct constitutional jurisprudence on unreasonableness, unfairness and discrimination is
being developed with, for instance, the equality clause in the Bill of Rights65 as point of departure.66 T h e
prohibition of retrospective application, on the other hand, has no express, general constitutional basis and is
mentioned in section 35(3)(l) only in a limited sense as a manifestation of nullum crimen sine lege and, thus,
as a requirement for a fair trial.

(vii) Because the Constitution says nothing explicitly about the origin and scope of delegated legislative authority,
it seems to be silent on the restriction of sub­delegation as well. But section 238(a) should not be overlooked.
It authorises an executive organ of state in any sphere of government to delegate any power or function that
is to be exercised or performed in terms of (original) legislation to any other executive organ of state,
provided the delegation is consistent with the legislation in terms of which the power is exercised or the
function performed. This provision can ostensibly be construed as overriding the delegatus delegare non potest
restriction under the common law, also in respect of the sub­delegation of delegated legislative powers. Some
commentators seem to be oblivious to this possibility. 67 It does not escape the attention of Rautenbach and
Malherbe,68 though. They contend that the proviso to section 238(a) is of consequence. Accordingly, the
requirement that the sub­delegation of a delegated power or function must be consistent with the original
legislation in terms of which the power is exercised or the function performed, means that the said original
legislation must authorise such sub­delegation expressly or by implication. This, according to the authors,
means that "the rules on delegation have . . . not really been changed by the Constitution" ­ and they are
probably right. It is difficult to advance a plausible reason why section 238(a) should simply be held to dispose
of cautionary considerations informing restrictions on the sub­delegation of delegated legislative powers.

From the discussion so far, it is clear that the Constitution does not explicitly cater for some of the key concerns
embodied in the common­law tests for the validity of delegated legislation. In the light of considerations of
adjudicative subsidiarity, 69the Constitution must, at any rate, be read with due restraint vis­à­vis the existing
common law, and issues (such as the validity of delegated legislation) must not too readily be constitutionalised.
However, the effect of the Constitutional Court's judgment in The Pharmaceutical Manufacturers Association of SA. In
re: The Ex parte Application of the President of the RSA70 must also be reckoned with. As was pointed out
previously,71 this judgment affirmed the sovereignty of the Constitution wherever and whenever the exercise of
any form of public power becomes susceptible to judicial assessment. The enactment of delegated legislation
certainly is an exercise of public power and the assessment of delegated legislation called into existence as a result
of exercising such a power is, therefore, in principle, a constitutional matter. Are the common­law tests for the
validity of delegated legislation, thus, still of any significance or have they become obsolete? Chaskalson P, in the
course of his judgement in the Pharmaceutical Manufacturers case, inter alia, contended that the common law should
not be treated 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.72

This dictum does not eradicate the common law but contextualises it.73 The common­law tests for the validity of
delegated legislation are presently encapsulated in a (single) system of law shaped according to principles and
values embodied in the supreme Constitution and must, thus, be invoked in a manner promoting the spirit, purport
and objects of the Constitution.74 In some instances, the common­law tests will have to give way to more ample
and jurisprudentially better­developed constitutional tests. However, in respect of issues for which the Constitution
makes little or no provision the common­law tests can still serve as point of departure with due deference,
however, to constitutional values and principles where applicable. It is quite conceivable that these objectives can
be achieved if, for instance, an impugned delegated provision is first tested against the common­law requirements,
and probably also as "administrative action" in terms of section 33 o f the Constitution a n d section 1 o f t h e
Promotion of Administrative Justice Act75 (PAJA).76 If it fails any of these tests, the matter need not be turned into a
full­blown constitutional matter involving constitutional issues other than those for which section 33 caters. If the
provision concerned passes all these tests, it must also be tested against the Constitution as ultimate measure of
control. This will ensure that, in the final analysis, delegated legislation has to survive constitutional scrutiny as well.

As mentioned previously the case law on whether legislative acts of the executive constitute "administrative
action" as contemplated in section 33 of the Constitution and section 1 of the Promotion of Administrative Justice
Act (PAJA),77 is equivocal,78 but there have been dicta in jurisprudence of both the Constitutional Court79 and the
Supreme Court of Appeal80 to the effect that the making of delegated legislation is administrative action both in
terms of section 33 and the PAJA. If these dicta reflect the law as it stands, it means that all delegated legislation is
susceptible to judicial review on the grounds listed in section 6 of the PAJA, according to the procedures in section
7, and with the availability of the remedial relief in section 8. The consequences of all of this for the reviewability
(and actual review) of delegated legislation can be far­reaching.81

It is important to note that the Constitution, in at least one place, foresees the possibility that delegated
legislation issued in terms of an empowering, superordinate enactment can take precedence over subordinate
original legislation in pari materia. Section 146 ­ some of the provisions of which have been discussed previously82 ­
deals with conflicts between national and provincial legislation. Mention is made of national legislation that takes
precedence over provincial legislation and vice versa. According to the Constitution's definition clause,83 "national"
and "provincial legislation" include, apart from original legislation as envisaged in section 43,84 "subordinate
legislation made in terms of an Act of Parliament . . . and . . . a provincial Act" (that is to say, delegated national and
provincial enactments) respectively. Rautenbach and Malherbe, 85 thus, correctly conclude that original provincial
legislation can be subordinate to delegated national legislation issued in terms of an act of parliament taking
precedence over the provincial legislation concerned. In such cases, the legislation of an elected, deliberative
legislature will, indeed, be subordinate to that of an unelected, non­deliberative administrative organ.86

Section 146(5) provides that, in the absence of the circumstances noted in section 146(2) and (3), provincial
legislation takes precedence over national legislation.87 It is, therefore, also entirely possible that delegated
provincial legislation, issued in terms of original provincial legislation which, thus, enjoys superior status, can be
superordinate to the original parliamentary legislation subordinate to the provincial legislation authorising the
delegated legislation concerned.

The Constitution itself seems to foresee both the above possibilities because section 146(6) requires that,
before "a law made in terms of an Act of Parliament or a provincial Act" (in other words a delegated enactment) can
prevail (over original legislation), it must be approved by the national council of provinces. This incorporates a
legitimising, deliberative element into the process.

It may finally be asked whether constitutionalism obviates the need for a distinction between original and
delegated legislation. According to Botha,88 the distinction between original and (what he calls) subordinate
legislation is no longer "watertight". All legislation, he contends, has, in a sense, become subordinate legislation
(that is, legislation subordinate to the Constitution) . Section 43 o f the Constitution has, moreover, made
legislatures at all three levels of government original legislatures.89 Botha, therefore, agrees with Rautenbach and
Malherbe90 that the legislative actions of executive bodies (proclamations and regulations, in other words) are the
only remaining examples of subordinate legislation. Botha, and Rautenbach and Malherbe are not necessarily wrong
about this. However, Botha in particular underplays the distinction between original and delegated legislation in the
new era.

As appeared from the preceding discussion, it is (and, even before 27 April 1994, was) an oversimplification to
distinguish between original and subordinate legislation only. 91 More subtle distinctions between superordinate (or
superior) and subordinate legislation, on the one hand, and between original and delegated legislation, on the other,
are called for. 92 The first distinction pertains to the hierarchy and the second to the status of legislation. As was
suggested before,93 these are two different kinds of distinctions and yet they complement each other.

Even with the Constitution as the supreme law that can trump both original and delegated legislation in place,
the distinction between original and delegated legislation has remained relevant. The most obvious difference
between them is that the former is made in terms of legislative powers granted directly by section 43 o f the
Constitution and in the course of deliberative processes, whereas the latter is authorised by the legislation of a
section 43 legislature and normally issued by organs of the executive.

Delegated legislation is inevitably subordinate to the original legislation that authorises it (and to the
Constitution). As was shown, the (politically) substantive reason for this state of affairs is that the laws adopted
and promulgated by an elected legislature after deliberation should enjoy precedence over legislation enacted by
unelected bodies of the executive after no (or substantially less) deliberation.94 The legally most consequential
difference between original and delegated legislation is that judicial review of original legislation largely (if not
exclusively) takes place with reference to the Constitution, while delegated legislation can, to an appreciable and
sometimes even decisive extent, also (first) be subjected to certain common law tests.
1 The South Africa Act 9 Edw c 9, the Republic of South Africa Constitution Act 32 of 1961 and the
Republic of South Africa Constitution Act 110 of 1983, respectively.
 2 Du Plessis Interpretation of Statutes 6­8. See also eg s 34(2) and (3) of the now repealed 1983
Constitution.
3 Cf infra.
4 Cf, in general, Baxter Administrative Law 190­198.
5 Van Zyl and Van der Vyver Inleiding tot die Regswetenskap 286; Baxter 191.
6 Du Plessis Re­Interpretation 43.
7 1914 AD 544.
8 69 of 1986.
9 Du Plessis Lawsa 25(1) and par 297(b).
10 See also par 2C5 above.
11 21 of 1971 ss 3, 4, 30 and sch 1.
12 Baxter 192­193.
13 First, the (transitional) Constitution of the Republic of South Africa, Act 200 of 1993 and, subsequently,
the (final) Constitution of the Republic of South Africa, 1996.
14 1998 12 BCLR 1458 (CC) par 26.
15 Under the 1996 Constitution, the conclusion that local legislatures' authority is original could arguably
also have been reached on apparently "purely linguistic" grounds. These legislatures' authority, after
all, obtains from section 43, the textual source that, in the same breath, confers legislative
competency upon acknowledged original legislatures such as parliament and the provincial
legislatures. The Constitutional Court's more "political" line of reasoning commendable, however, since
it is informed with a judicious recognition of the impact of democratic processes on the (public) law as
it stands. The language of section 43 of the Constitution confirms this substantive argument.
16 See the discussion below.
17 3 of 2000. Cf also Hoexter Administrative Law in SA 171.
18 See (vii) and (g) infra.
19 To wit, s 156.
20 See eg s 160(6).
21 See eg s 160(3)­(5) and (7)­(8).
22 See par 2C5 above.
23 See par 2C5 above.
24 Hahlo and Kahn SA Legal System and its Background 163.
25 Hahlo and Kahn 163.
26 For the meaning of "subsidiarity", see par 2C2 above.
27 Executive Council of the Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC) par
51.
28 3 of 2000.
29 Cf Hoexter Administrative Law in SA 171­174 and the cases there discussed, eg Permanent Secretary,
Department of Education & Welfare, Eastern Cape v Ed­U­College (PE) (Section 21) Inc 2001 2 BCLR
118 (CC); Pharmaceutical Manufacturers Association of South Africa, In re: Ex parte Application of
President of the Republic of South Africa 2000 3 BCLR 241 (CC), 2000 (2) SA 674 (CC); Minister of
Home Affairs v Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs
2003 (5) SA 281 (CC) par 52.
30 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amicus Curiae)
2006 1 BCLR 1 (CC) par 113, 2006 (2) SA 311 (CC).
31 City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010 (3) SA 589 (SCA) 596D­E.
32 In re: The Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC) pars 19­
20.
33 Par 23.
34 33 of 1957.
35 Du Plessis Lawsa 25(1) par 297(a) and Re­Interpretation of Statutes 41­42.
36 Executive Council of the Western Cape Legislature v President of the RSA supra par 51.
37 As eg s 37 of the transitional Constitution did and s 43 of the 1996 Constitution at present does.
38 See par 2C43 below.
39 Par 61. In Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional
Development of the RSA; Executive Council of KwaZulu­Natal v President of the RSA 1999 12 BCLR
1360 (CC) par 124, Ngcobo J put it as follows: "Whether there is constitutional authority to delegate is
. . . a matter of constitutional interpretation. The language used in the Constitution and the context in
which the provisions being construed occur are important considerations in that process".
40 Cf Executive Council of the Western Cape Legislature v President of the RSA supra par 52 and the
authority there cited.
41 See par 2C5 above.
42 Chaskalson et al Constitutional Law of SA 3­4.
43 1996 6 BCLR 798 (CC) par 5­8.
44 Supra.
45 Supra.
46 Par 7.
47 Du Plessis Re­Interpretation 50­51.
48 See eg s 34(2) and (3) of the now repealed 1983 Constitution.
49 Hahlo and Kahn Union of SA 180­181; Baxter 190­191; Du Plessis Interpretation 6­8.
50 Hahlo and Kahn 181.
51 181.
52 For these exceptions, see the discussion below.
53 For the meaning of "subordinate legislation", see par 2C5, above.
54 Steyn Uitleg van Wette 203­299; Hahlo and Kahn SA Legal System and its Background 164­165 and Du
Plessis Re­Interpretation 44.
55 In this respect, the test in the English case Kruse v Johnson 1898 2 QB 91 (DC) 99­100 was applied.
56 See also par 2C28 below.
57 Baxter 435­442.
58 For an informative discussion of the doctrine of benevolent interpretation, cf Baxter 490­494.
59 S 33(1).
 60 See par 2C5 above.
61 S 33(1).
62 I n Affordable Medicines Trust v Minister of Health of the RSA 2005 6 BCLR 529 (CC) par 108,
2 0 0 6 ( 3 ) S A 2 4 7 ( C C ) a n d q u o t e d w i t h a p p r o v a l i n HTF Developers (Pty) Ltd v Minister of
Environmental Affairs and Tourism 2007 11 BCLR 1230 (SCA) par 9; contra a dictum in Durban Add­
Ventures Ltd v Premier, KwaZulu­Natal 2001 (1) SA 389 (N) 400C­E which seems to suggest that the
vagueness prohibition still is a wholly common law matter.
63 Rautenbach and Malherbe Constitutional Law 217­218 and 344­345.
64 In First National Bank of SA Ltd t/a Wesbank v Commissioner, SA Revenue Service 2001 (3) SA 310
(C) 332C­D, Conradie J eg remarked: "Since the advent of the Constitution, all legislation is in a sense
subordinate, and required to be reasonable, which is much the same as being justifiable."
65 Constitution s 9.
66 Cf eg President of the RSA v Hugo 1997 6 BCLR 708 (CC), Harksen v Lane NO 1997 11 BCLR 1489
(CC), Pretoria City Council v Walker 1998 3 BCLR 257 (CC) and National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC).
67 Burns Administrative Law 144; Devenish Commentary on the SA Constitution 331.
68 225­226.
69 See par 2C2 above.
70 2000 3 BCLR 241 (CC).
71 Par 2C2 above.
72 Par 44.
73 Currie and Klaaren AJA Benchbook 153 depict the relationship between the common law and the
Constitution in respect of administrative review in general as follows: "The grounds of review must be
interpreted and applied with reference to both their common­law provenance and their new
Constitutional and legislative context."
74 To use the language of s 39(2) of the Constitution.
75 3 of 2000.
76 See the discussion above.
77 3 of 2000.
78 See the discussion above.
79 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amicus Curiae)
2006 1 BCLR 1 (CC) par 113, 2006 (2) SA 311 (CC).
80 City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010 (3) SA 589 (SCA) 596D­E.
81 See the title ADMINISTRATIVE LAW especially on the nature and consequences of judicial review in
terms of s 33 of the Constitution and the PAJA.
82 Par 2C5 above.
83 S 239.
84 See par 2C5 above.
85 272­273.
86 And this leaves Rautenbach and Malherbe feeling somewhat sour.
87 See par 2C5 above.
88 Statutory Interpretation 3 ed. 9.
89 Incidentally, the author could more profitably have relied on s 43 o f the Constitution for the latter
contention; see the discussion above.
90 216 fn 177.
91 Par 2C4 above.
92 Baxter 74­75, 190­191, 328, 490­492 and 494.
93 Eg par 2C4 above.
94 Cf the discussion above.

2C7 Mode of citation of the Constitution and legislation Acts of parliament have traditionally been referred to by
their short titles followed by their numbers, including the year of their passing ­ for example, the "Interpretation Act
33 of 1957", the "Competition Act 89 of 1998", et cetera.1 Provincial acts after 1994 are cited in the same way,
except that a reference to their province of origin is added ­ for example, the "Eastern Cape Provincial Tender Board
Act 2 of 1994", the "KwaZulu­Natal Gambling Act 10 of 1996", et cetera.2

South Africa's two supreme Constitutions since 1994 have, unlike their predecessors since 1961, never been
referred to as "Constitution Acts"3 but simply as the "Constitution of the Republic of South Africa". This makes it
impractical simply to append a number and a year of passing to their short titles, as is done with other original
enactments.4 Official government publications5 (and the courts) used to refer to these two Constitutions as the
"Constitution of the Republic of South Africa, Act 200 of 1993" and the "Constitution of the Republic of South Africa,
Act 108 of 1996" respectively.6

In the case of the 1993 Constitution, also known as the "transitional" or "interim Constitution", this mode of
reference is appropriate since this Constitution was, after having been negotiated during a multi­party negotiation
process, passed as an act of parliament. Given the negotiated, non­revolutionary nature of the political transition in
South Africa, the transitional Constitution had to be passed by the then existing and authorised national legislature,
namely parliament, in order to be of force.7

The present Constitution, however, also known as the "1996" or "final Constitution" (or simply " the
Constitution"), was debated, agreed on and passed (in terms of chapter 5 of the transitional Constitution) by a
constitutional assembly. Although the assembly was made up of the members of the two houses of parliament, to
wit the house of assembly and the senate, sitting jointly for the purposes of chapter 5, the constitutional assembly
was a body distinct from parliament as constituted in terms of chapter 4 of the transitional Constitution. The
constitutional assembly's constitution­making duty was no regular legislative function.8 The final Constitution,
therefore, is not an act of parliament and should not be referred to as if it were. Reference to the Constitution a s
"Act 108 of 1996" gives a distorted picture of the constitution­making process9 and could have the unintended
consequence of deprecating the Constitution's authority as supreme law.

The national legislature has intervened, enacting the Citation of Constitutional Laws Act10 "[t]o change the
manner of referring to the Constitution of the Republic of South Africa, 1996, and to laws amending it; to substitute
the short titles of laws amending the Constitution of the Republic of South Africa, 1996; and to provide for matters
connected therewith".11

According to section 1(1) of the Act "no act number is to be associated with the 'Constitution of the Republic of
South Africa, 1996 (Act 108 of 1996)' " while section 1(2) provides that "[a]ny reference to the 'Constitution of the
Republic of South Africa, 1996 (A c t 1 0 8 o f 1 9 9 6)', contained 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' ". According to section 3(1) of the Citation of Constitutional Laws Act "no Act number is to be associated with
or allocated to any law amending the Constitution of the Republic of South Africa, 1996", and the short titles of such
laws "must reflect their chronological order", for example, the Constitution Seventh Amendment Act of 2001.

There is a tendency world­wide to refer to the "sections" of a solemn enactment, such as a constitution or
(international) declaration/covenant on human rights, as "articles" rather than "sections". This practice does not
seem to have gained acceptance in South Africa, however.
1 Other acceptable variants are the "Interpretation Act, Act 33 of 1957", the "Competition Act, Act 89 of
1998" or (less frequently, nowadays) the "Interpretation Act, Act No. 33 of 1957", the "Competition
Act, Act No. 89 of 1998" etc.
2 The "Provincial Tender Board Act 2 of 1994 (Eastern Cape)" and the "Gambling Act 10 of 1996
(KwaZulu­Natal)", as well as the variants in fn 1 supra are also acceptable.
3 Eg the "Republic of South Africa Constitution Act 32 of 1961" and the "Republic of South Africa
Constitution Act 110 of 1983".
4 See Dendy 1995 SALJ 691­698.
5 Including the official versions of the two constitutional texts themselves.
6 Dendy 697 also commends this mode of citation, at least in respect of the 1993 Constitution.
7 Du Plessis and Corder Understanding SA's transitional Bill of Rights 9.
8 Van Wyk 1997 THRHR 378­379 and Malherbe 1998 TSAR 140.
9 As it was provided for in ch 5 of the transitional Constitution.
10 5 of 2005.
11 According to the long title of the Act.

THE GENESIS AND DEMISE OF LEGISLATION

2C8 The promulgation of legislation The passing and promulgation of legislation are distinct. Passing an
enactment involves the initial processes whereby it is called into existence, its wording is decided on and the text is
finalised. With original legislation, the said processes are deliberative in nature1 and aimed at securing the required
consent of the legislative body involved.2

The Constitution requires, in addition to "conventional" forms of deliberation accompanying the adoption of
legislation, the facilitation of public involvement in the legislative processes. Section 59(1)(a) does so in respect of
the national assembly and its committees, and the national council of provinces3 and provincial legislatures4 are
under a similar (what has been held to be) constitutional obligation. The Constitutional Court has required meticulous
compliance with these exigencies of participatory democracy. Such compliance is a precondition to the enactment of
valid of legislation.5 Section 4 of the Promotion of Administrative Justice Act (PAJA),6 in a similar way, provides for
public participation in the making of delegated legislation.7

The promulgation of legislation follows its passing and is necessary to put the legislation into operation.8
"Promulgation" means "making publicly known".9 The passing and promulgation of delegated legislation are often
hardly distinguishable. In this paragraph, the effect of the Constitution10 on the promulgation of legislation will be
looked at.

Section 13 of the Interpretation Act,11 the traditional statutory authority dealing with the "commencement of
laws" and matters incidental thereto, has remained. Reaffirming the common law,12 section 13(1) provides that an
enactment comes into operation on the day of its publication in the Gazette. The general rule that an enactment
commences upon publication has, however, in respect of parliamentary and provincial legislation, been
constitutionalised. The Constitution (in sections 81 and 123, respectively) now provides that a parliamentary or a
provincial bill assented to and signed by the president or by a provincial premier, respectively, "takes effect when
published". The constitutional provisions are, in respect of acts of parliament and provincial legislation, higher law
than section 13(1) of the Interpretation Act, but they have, in fact, neither extended nor truncated the scope of
section 13(1) because the latter is quite compatible with them. Section 13(1),13 therefore, continues unabatedly to
make detailed arrangements about which the Constitution is silent. No constitutional provision similar to section 81
or 123 deals with the commencement of municipal by­laws, but, according to section 162(1) of the Constitution, "[a]
municipal by­law may be enforced only after it has been published in the official gazette of the relevant province".
This implies that the general (constitutional) rule for the commencement of legislation applies to municipal
legislation, too ­ as does section 13(1) of the Interpretation Act.

Sections 81 and 123 of the Constitution as well as section 13(1) of the Interpretation Act premise and give effect
to the principle that, before the provisions of an enactment can be enforced, they must be made known to those
who are expected to observe them. However, the said principle is not given effect to consistently and meticulously
in all instances where it can be expected to apply. The Gazette is, for instance, published only on the morning of the
day when an enactment comes into operation. This means that between midnight, when the day began, and the
time in the morning when the Gazette is published an enactment which has not been duly publicised can be of
effect. Section 35(3)(l) of the Constitution guarantees an accused person's right not to be convicted for an act or
omission that was not an offence under national or international law at the time when it was committed or omitted.
This right is prima facie infringed if a person is convicted of a new offence committed in the hours between the
commencement and the de facto publication in the Gazette of the law creating that offence. The same will hold if the
accused has, in those hours, become liable to a heavier sentence for an existing offence imposed by the said new
law. Steytler14 argues that the issue can be resolved either by treating section 13(1) of the Interpretation Act15 as
an acceptable limitation to the constitutional right in section 35(3)(l) or by applying the doctrine of constitutional
exemption. According to this doctrine, a court need not strike down a statutory provision which is perfectly
constitutional in the vast majority of instances, simply because it is unconstitutional in a far­fetched, marginally
imaginable case. It is competent for a court to declare such provision unconstitutional only in respect of the
particular, rare case.16

It is quite possible, as nowadays happens to an increasing extent, that an enactment can come into effect on a
date other than the day of its publication in the Gazette. This happens when the enactment published in the Gazette
prescribes another date as the date of its commencement. This other date then becomes the day on which the
enactment comes into operation.17The Constitution explicitly provides that an act of parliament18 or of a provincial
legislature19 can take effect "on a date determined in terms of the Act". Section 13(1) of the Interpretation Act
provides for this possibility in respect of all other legislation, including municipal by­laws.

Various methods may be employed to put an enactment into operation at a date other than the day of its
publication in the Gazette.20 The enactment itself may contain a "delaying clause" specifying a fixed later date for its
commencement. It is more common, however, that especially parliamentary and provincial acts provide for the date
of their commencement to be fixed at a later stage by proclamation by the president or a provincial premier, as the
case may be, in the relevant Gazette. This latter device can effect the suspension of the operation of either an
enactment as a whole or of certain specified provisions of it. Different dates may furthermore be fixed for the
commencement of different provisions of an enactment.21

The power to fix a later date for the commencement of legislation is not the exclusive prerogative of the
president or of provincial premiers ­ or, for that matter, of an organ of the executive. This power can also be
delegated to an organ of a legislature (for instance, its speaker) if such organ's functions are related to matters
that have to be resolved before the legislation in question can be brought into force. Such an organ must,
furthermore, be in a position to determine when the legislation could be brought into force effectively and must be
accountable to the legislature in some constitutionally recognised way.22

Sections 81 a n d 123 o f the Constitution are supreme law while section 13(1) of the Interpretation Act is
peremptory23 and binds the state.24 An enactment cannot, therefore, be promulgated without publication in the
Gazette. This also applies to enactments commencing on a date other than the day of their publication in the
Gazette.25 There are two qualifications to this general rule, however. First, forms of publication in addition to
publication in the Gazette (for example, publication by way of a notice exhibited in a public place) can quite validly be
required.26 Second, section 16A of the Interpretation Act provides for a waiver of the requirement of publication in
the Gazette in very exceptional circumstances.

Section 81 o f the Constitution requires the president (and section 123 provincial premiers) to publish "a Bill
assented to and signed" promptly. A bill becomes an act (of parliament or of a provincial legislature) as soon as it
has been assented to and signed (by the president or a premier, respectively), but only takes effect once it is
published "or on a date determined in terms of the Act".27 I f t h e d a y o f p u b l i c a t i o n o f a n a c t a n d o f i t s
commencement do not coincide, or if a specific date for the commencement of an act is not specified in the act itself,
the president or a provincial premier is not necessarily enjoined to put the act into operation promptly. The power to
put an act into operation imposes a duty on the president or a premier
to bring the provisions into force as soon as he might properly judge it to be appropriate to do so. In making that judgment
he would be entitled to have regard to all relevant factors. These would . . . include the time needed to make preparations
and prepare subordinate legislation [and other matters relevant to the coming into force of that legislation].28

Factors relevant to such a decision are not jurisdictional facts on which the exercise of the president or premier's
discretion depends. It is for him or her to decide which factors are relevant "and in the light of those factors to make
the political judgment as to whether it is appropriate to bring the Act into force".29 Where an act is put into
operation prematurely and the president or a premier's decision to do so is not rationally related to the purpose for
which he or she is authorised to decide when to put acts into operation, the said decision can be set aside by an
appropriate court reviewing it.30

It is suggested that an organ of state, other than the president or a provincial premier (for instance, the speaker
of a legislature), authorised to fix the date for the commencement of a statute by proclamation,31 also operates
under the constraints just discussed.

The provisions of section 14 of the Interpretation Act providing for the exercise of powers in terms of legislation
passed but still to be promulgated, have remained unabated.

S v Niemand32 illustrates that an enactment can, prior to its commencement, have persuasive (as opposed to
prescriptive) force in determining the outcome of a legal dispute. In this case, the Constitutional Court33 pieced
together a "legislative scheme" taking into account a statutory provision that had not been put into operation yet,
and that assumedly sought to remedy a constitutionally defective statutory provision still in operation. The fact that
the former not yet operative provision formed part of an act that had been passed by the legislature contributed to
the court's eventual finding that the latter provision was unconstitutional.
1 See par 2C6 above.
 2 See also Hahlo and Kahn SA Legal System and its Background 157.
3 S 72(1) of the Constitution.
4 S 118(1) of the Constitution.
5 3 of 2000.
6 Cf eg Matatiele Municipality and Others v President of the Republic of South Africa and Others 2006 (5)
BCLR 622 (CC); Doctors for Life v Speaker of the National Assembly and Others 2006 (12) BCLR 1399
(CC), 2006 (6) SA 416 (CC) and Matatiele Municipality and Others v President of the Republic of South
Africa and Others 2007 (1) BCLR 622 (CC), 2006 (5) SA 47 (CC). Cf also King and Others v Attorneys
Fidelity Fund Board of Control and Another 2006 (4) BCLR 462 (SCA), 2006 (1) SA 474 (SCA).
7 Hoexter Administrative Law in SA 81­83.
8 See, in general, Weenen Transitional Local Council v Van Dyk 2000 (3) SA 435 (N) 450E­451J.
9 Supreme Gaming CC v Minister of Safety and Security 2000 (3) SA 608 (SCA) par 8.
10 Constitution of the Republic of South Africa, 1996.
11 33 of 1957.
12 S v Manelis 1965 (1) SA 748 (A); Steyn Uitleg van Wette 180.
13 Sub­sections (1), (2) and (3).
14 Constitutional Criminal Procedure 372.
15 And he should also have added ss 81 and 123 of the Constitution.
16 S v De Vries 1996 12 BCLR 1666 (Nm)1676B­D.
17 S 13(1).
18 S 81.
19 S 123.
20 Hahlo and Kahn 169­170 afford a few examples.
21 S 1 3 ( 3 ) . S e e e g s 243 o f the Constitution for telling examples of the various possibilities just
mentioned.
22 In re: The Constitutionality of the Mpumalanga Petitions Bill, 2000 2001 11 BCLR 1126 (CC) pars 23­
24.
23 Bobrow v Meyerowitz 1947 (2) SA 885 (T) 889.
24 Interpretation Act s 24.
25 The Mean Machine v Minister of Safety and Security 1997 (4) SA 488 (NC) 493G­H.
26 S v Lutu 1989 (2) SA 279 (T); R v Rademeyer 1953 (3) SA 750 (O).
27 Ss 81 and 123 respectively.
28 R v Secretary of State for the Home Department ex parte Fire Brigade Union [1995] 2 AC 513 (HL)
520H quoted with approval in The Pharmaceutical Manufacturers Association of SA. In re: The Ex parte
Application of the President of the RSA 2000 3 BCLR 241 (CC) par 80.
29 Pharmaceutical Manufacturers par 81.
30 Pars 85­90.
31 Cf eg In re: The Constitutionality of the Mpumalanga Petitions Bill, 2000 supra.
32 2001 11 BCLR 1181 (CC) par 33.
33 Per Madala J.

2C9 The demise, re­enactment and amendment of legislation When repealed, replaced or amended by
hierarchically equal or superordinate statutory provisions, or by provisions of the same or a dissimilar status,1 acts,
by­laws and delegated laws may either cease to exist or continue to exist remade to a smaller or larger extent. The
same applies to statute law the continued operational force of which has, to some extent, been affected by judicial
review. The impermanence of legislation is not one of its distinctive features, though. It is, on the contrary, assumed
that South African statutes "are of potentially perpetual existence".2 Similarly couched, saving provisions in five
consecutive South African Constitutions since 1910,3 vouching for the survival of all legislation in force at the time of
the commencement of each of these constitutions, have borne out this assumption of perpetuity. Item 2(1) of
schedule 6 to the present Constitution4 indeed provides that "[a]ll law that was in force when the new Constitution
took effect, continues in force, subject to . . . any amendment or repeal;5 and . . . consistency with the new
Constitution".6

Before 1994, the doctrine and practice of parliamentary sovereignty helped sustain the potential perpetuity (or
durability) of national legislation.7 The vulnerability of post­1994 legislation to constitutional challenges has not
come to threaten this potential perpetuity of statute law. Statutes have, for instance, remained immune to
abrogation by disuse.8 The advent of constitutionalism in South Africa and the consequent demise of the theory and
practice of parliamentary sovereignty have affected the potential perpetuity of statute law only (albeit significantly)
to the extent that original legislation has now become susceptible to annulment as a consequence of judicial
review. For the rest, the potential perpetuity of legislation and its immunity to abrogation by disuse, in particular,
have remained. First, item 2(1) of schedule 6 to the 1996 Constitution, like its four similarly couched predecessors
since 1910, evidences regard for, if not deference to, the potential perpetuity of statute law. Parliament is no longer
the sovereign legislature, but this does not mean that it has become a legislature of no consequence. It has
remained the national legislature responsible for most superordinate legislation.9 Prior to 1994, potential perpetuity
or durability had, at any rate, not only been a quality ascribed to legislation of the supreme parliament but also to
provincial legislation and to delegated legislation susceptible (like all post­1994 legislation) to substantive judicial
review. Second, the post­1994 judiciary is enjoined to review the constitutionality of legislation with circumspection
and restraint, thereby honouring the intrinsic durability of statute law as an expression of the will of the elected
representatives of the people.10

The perpetuity of legislation is not absolute: it is but a potential perpetuity (or a permanence in principle) that can
be overridden by the inevitable impermanence of human­made law. However, the (potential) perpetuity of statute
law makes its repeal, replacement or amendment dependent upon either an authentic legislative act of a competent
legislature or upon an order of a duly authorised court of review.

Generally speaking, the common­law arrangements regarding the express (forthright) or implied (tacit)
amendment or repeal of legislation have remained. Express amendment or repeal occurs where a legislative
instrument announces the modification or the revocation of a prior enactment (or parts of it) eo nomine. Implied
amendment or repeal is governed by the maxim lex posterior priori derogat (or leges posteriores priores contrarias
abrogant). A statutory provision clearly inconsistent and irreconcilable with its preceding, hierarchically equal or
subordinate counterparts in pari materia modifies or revokes them to the extent of such inconsistency and
irreconcilability.11 This general maxim of implied amendment or repeal is invoked with circumspection,12 since it is
also presumed that a statutory provision is not aimed at altering or abrogating the existing law more than
necessary.13 Legislative provision can, for instance, be made for the exclusion of the said maxim.14 In addition,
where subsequent legislation deals with a subject in general terms, whereas ostensibly conflicting prior legislation
in pari materia does so specifically, the prior legislation is preserved in pursuance of the maxim generalia specialibus
non derogant.15 Subsequent, general legislation will only revoke prior, specific legislation in pari materia when the
former professes to regulate the subject matter with which it deals exhaustively. 16 An inevitable consequence of
the supremacy of the Constitution17 is that the maxim generalia specialibus non derogant cannot debilitate general
provisions of the supreme Constitution inconsistent with specific statutory provisions. Constitutional provisions
always trump statutory provisions in pari materia, irrespective of whether the latter were enacted prior or
subsequent to the commencement of the Constitution. This means that the maxim lex posterior priori derogat can
only be invoked to modify the Constitution where one constitutional provision is inconsistent with another, preceding
constitutional provision in pari materia. However, it is assumed that diverse provisions of the supreme Constitution
do not readily contradict one another and every attempt ought, therefore, to be made to reconcile them before
resort is had to any form of modification.18

Section 149 of the Constitution provides for the suspension (in contradistinction to abrogation) of (some) prior,
subordinate legislation inconsistent with subsequent superordinate legislation, thereby altering the common law
with regard to the repeal of subordinate legislation in accordance with the maxim lex posterior priori derogat. If a
court of law hands down a decision that legislation X prevails over legislation Y, then, according to section 149, Y is
not rendered invalid b u t inoperative to the extent of such conflict for as long as the conflict between X and Y
remains.19 There is a significant difference between legislation's being invalid and its being inoperative. If Y is
invalid because X prevails over it, Y becomes null and void from the moment its inconsistency with X is established20
and Y will have to be re­enacted to be of effect again. Neither a removal of the conflict nor the repeal of X in its
entirety will revive Y. However, if Y is inoperative (but not invalid) due to a conflict with X, Y goes into abeyance 21
the moment the inconsistency is established, but will become operative again as soon as the conflict is removed or
X is repealed. Y is, in other words, suspended and will automatically come into effect again without re­promulgation.
This arrangement is confirmed by section 156(3) of the Constitution, which provides for the validity of (subordinate)
municipal by­laws, in conflict with parliamentary or provincial legislation, suspended by virtue of section 149 for the
duration of such suspension. Section 149 props up co­operative government, which, as spelled out in some detail in
chapter 322 o f the Constitution, means that the different spheres of government, while distinct, are mutually
dependent on and linked to one another23 in order (among other things) to promote national unity24 and mutual
co­operation in good faith and trust.25 Co­operative government can be undermined if the legislation of
superordinate legislatures is allowed simply to overwhelm that of subordinate legislatures (especially in other
spheres of government). Section 149, in the spirit of co­operative government, makes it possible for a
superordinate legislature readily to adapt its legislation to remove conflicts with subordinate legislation in order to
allow the latter to become operative again.

Section 149 can be read as applying to superordinate parliamentary, as opposed to subordinate provincial,
legislation only, and vice versa, even though the section itself refers, seemingly inclusively and without further
qualification, to situations in which "legislation prevails over other legislation". Section 149 occurs in the last part of
the chapter in the Constitution dealing with the powers of provinces.26 This particular part of the chapter assigns
legislative powers to provinces and demarcates provincial legislative competency vis­à­vis that of parliament. A
systematic construction27 o f section 149 ­ that is, reading it with reference to the structure or scheme of the
Constitution as a whole ­ may, therefore, prompt the conclusion that section 149 refers to parliamentary and
provincial legislation only. It may further be argued, in support of this conclusion, that section 156(3) would have
been superfluous if section 149 referred to legislation in all three spheres of government. On the other hand, a
purposive (or teleological) interpretation28 of section 149, informed by a consciousness of the exigencies of co­
operative government, may well bring municipal legislation within the ambit of section 149. Section 156(3) can then
be read as confirmation ex abundandi cautela of the effects of the suspension of certain (superordinate) legislation
(to wit, parliamentary and provincial legislation) in terms of section 149 and not as an indication of the exclusion of
municipal by­laws from section 149. A purposive interpretation of section 149 will do no violence to the text of the
Constitution. The Constitutional Court, for instance, construing the section of the interim constitution29 dealing with
the concurrency of national and provincial legislation extensively, held that provisions similar to section 149 were
included in the section thus construed.30 A pronounced provision similar to section 149 was absent from the said
section.31 Section 149 may, thus, well be understood as a manifestation of a broader implied (or implicit)
constitutional value that obtains with a cogency equalling that of any explicit, verbally expressed value.32

Section 149 simply refers to instances where "legislation prevails over other legislation".33 If section 149 is
applied to all legislation it will, however, have the anomalous effect that a subsequent enactment inconsistent with a
prior enactment in pari materia will abrogate a hierarchically equal predecessor, but will merely suspend a subordinate
antecedent. To avoid or, at least, lessen this anomaly, it is submitted that section 149 should apply only to the
relationship between subsequent superordinate and prior subordinate legislation within different spheres of
government so as to optimise co­operative government.

Section 149, irrespective of exactly how extensively it is read, has a far­reaching impact on the common law
regarding the non­specific repeal of subordinate legislation, for it pertains to an appreciable volume of statute law.
There is a limit to the operation of this section, though. Its application is dependent on a decision of a court of law
to the effect that legislation X prevails over legislation Y. An apparent inconsistency between X and Y cannot, of
itself, suspend the operation of Y in accordance with section 149. Judicial intervention is a prerequisite. Prior to such
intervention, both X and Y are operative, the conflict notwithstanding. If a court cannot resolve a dispute concerning
a conflict between national and provincial legislation, the former prevails over the latter.34

Section 11 of the Interpretation Act, which determines when the repeal of legislation takes effect, has largely
remained unaffected by the advent of constitutionalism. So, too, has section 12(2), which regulates some
substantive or material consequences of the revocation of legislation ­ with one exception. Section 12(2)(d)
provides that a repealing enactment (X) does not "affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against" the enactment it repeals (Y). However, section 35(3)(n) of the Constitution provides
that, if the prescribed punishment for an offence is changed between the time that offence is committed and the
time an accused is sentenced for the commission of that offence, an accused is entitled to the benefit of the least
severe of the prescribed sentences. This constitutionally entrenched right of an accused person trumps section
12(2)(d), in so far as the latter has (or can have) the effect of sustaining a more severe, prescribed sentence. The
constitutional provision has full effect, irrespective of whether X repeals, amends or repeals and re­enacts Y.
Furthermore, when X prescribes a more severe sentence, an accused person is, as of right, entitled to the benefit of
the less severe sentence prescribed by Y. He or she is not thus entitled merely because of the operation of section
12(2)(d) literally construed. This means that any "law of general application", circumscribing the said right to some
extent, will have to pass the constitutional limitation test.35 It will not suffice to contend that an intention contrary
to the non­retrospective operation of a law prescribing a more severe sentence appears from, for instance, the
language­in­context or even from the purpose of such law.

As explained previously, 36 the judiciary's power to review or test legislation derives from the justiciability of the
supreme Constitution. Section 172(1)(a) authorises and, indeed, enjoins a competent court of law to declare any
law that is inconsistent with the Constitution invalid to the extent of the said inconsistency. Such a declaration
results in the complete or partial demise of the statutory provision in question. This is tantamount to the complete
or partial repeal of such a provision.37 It is competent for the Constitutional Court, the Supreme Court of Appeal
and "a High Court or court of similar status" to make an order concerning the constitutional validity of parliamentary
or provincial acts.38 Since "[a]n order or decision issued by a court binds all persons to whom and organs of state
to which it applies",39 "[i]t is particularly important that, where orders invalidate legislation, such orders be
specific40 . . . [T]he order in question should clearly indicate precisely what Act of Parliament, or provisions thereof,
[or] what provincial Act, or provisions thereof . . . is being declared constitutionally invalid".41 Such an order by any
court other than the Constitutional Court "has no force unless it is confirmed by the Constitutional Court",42 which
further enhances the need for clarity. The confirmation requirement does not apply to an order striking down, on
constitutional grounds, either municipal, original43 or delegated legislation44 in any of the spheres of government. A
court other than the Constitutional Court can make a final order regarding the constitutionality of legislation in the
said categories, including an order striking down such legislation. In addition, such a court's jurisdiction to review
delegated legislation on non­constitutional, common­law grounds has arguably remained, with review jurisdiction in
terms of section 33 o f the Constitution and the Promotion of Administrative Justice Act (PAJA),45 s i n c e t h e
commencement of the latter on 30 November 2000, added. Since 27 April 1994 municipal by­laws have been
excluded from the category of legislation thus reviewable, because the municipal councils responsible for them
became original legislatures first under the transitional and eventually under the 1996 Constitution.46 Section 170
of the latter Constitution precludes any court of a status lower than a high court from enquiring into or ruling on the
constitutionality of any legislation, including delegated legislation in any sphere of government. The competence of
such courts to pronounce on the validity of (especially pre­1994) delegated legislation on common law grounds,47
has presumably remained, but then only in so far as the Constitution, section 33 and PAJA in particular, have not
usurped, overridden and/or substituted the traditional common law grounds for review.48

As intimated before, courts are constrained to exercise their constitutional testing right with restraint and
circumspection, since this "right" interferes (albeit in a constitutionally authorised manner) with the legislative
competency of democratically elected (and accountable) original legislatures or with that of delegated law­makers
to whom these original legislatures have assigned legislative powers.49 A court called upon to strike down a
legislative provision will, thus, do so in accordance with the exigencies of adjudicative subsidiarity. 50 It will,
moreover, restrict its enquiry and eventual finding to the specific provision it has been called upon to consider with
reference to a particular issue or a series of related or equivalent issues. The court will, in particular, refrain from
pronouncing on the constitutionality of comparable provisions which, on grounds analogous to those determining
the constitutionality of the impugned provision, may or may not be constitutional.51

A declaration of invalidity need not nullify an impugned provision in its entirety, but may do so to the extent of its
inconsistency with the Constitution only. The Constitutional Court, in effecting a partial annulment of legislation,
avails itself of the long­standing, adjudicative technique of severance52 traditionally invoked in the judicial review of
administrative action.53 The constitutionally valid and invalid facets of an impugned provision must, indeed, be
severable: "the good" must not be dependent on "the bad" and it must be possible to separate the two. The court
may then conserve the constitutionally valid facets of the impugned provision only if they give effect to the "purpose
of the legislative scheme".54 A provision can, furthermore, be declared invalid, with reference to certain issues, in
certain circumstances and/or on certain conditions only, without actually severing anything from it. 55 This last
procedure, known as notional severance, should, however, not be resorted to in preference to actual severance in
instances where both are feasible.56 Notional severance is, furthermore, not a possibility where the constitutional
invalidity of a statutory provision results from an omission.57 Severance, resulting in a partial or restricted
annulment of an impugned provision, is brought about by an order of a competent court. A court cannot rely on a
notional severance formulation (such as "invalid to the extent that") to remedy an instance of constitutional
invalidity caused by an omission. The proper modus operandi in such a case is reading­in.58 The interpretive
procedure of reading­down and the remedy of reading words into an impugned provision so as to rescue it (wholly
or partly) from invalidation on constitutional grounds, are reminiscent of (but not the same as) severance and will
be considered later.59

Section 172(1)(b) o f the Constitution authorises a court pronouncing on the constitutionality of legislation to
"make any order that is just and equitable". This may be done, first, to optimise the "appropriate relief " granted in
terms of section 38 of the Constitution, taking into consideration (and balancing) the various interests of all those
who may be affected by a court order granting such relief. 60 The Constitutional Court has, for instance, invoked
section 172(1)(b) to order the reading of words into an impugned statutory provision.61 Second, a just and
equitable court order may help quell the ill effects and manage the far­reaching consequences that an extra­
legislative invalidation of legislation can conceivably have. "Reading in", for instance, usually rescues a statutory
provision from invalidation in its entirety. Courts of review are also specifically authorised to suspend a declaration
of invalidity "for any period and on any conditions, to allow the competent authority to correct the defect".62 If a
competent authority, for some or other reason, let the opportunity for corrective action go by default, a court,
mindful of the finality of litigation,63 would be loath to extend the suspension of a declaration of invalidity. It is not
wholly excluded though that, for good cause, a further extension may be granted.64 However, a competent
authority's failure to act promptly in order to rectify a defect is, when weighed against the constitutional
commitment to protect fundamental rights and other democratic values, not sufficient cause for the further
extension of a declaration of invalidity.65

Where a competent court strikes down legislation partly or in its entirety, it is assumed that the court itself does
not actually invalidate the legislation but simply (by proclaiming its already existent inconsistency with the
Constitution) declares (without actually effecting or ordering) the invalidity of the legislation in question.66 I n
accordance with this notion of objective statutory invalidity, which is not immune to criticism, 67 existing legislation
inconsistent with a supreme constitution is annulled by the commencement of that constitution. Unconstitutional
legislation enacted after the commencement of the Constitution is, for the same reason, null and void ab intio.68
However, the (theoretical) nullity of unconstitutional legislation consequent upon either the commencement of the
Constitution or the futile enactment of such legislation is of no (practical) "effect" unless it is subsequently
proclaimed by a competent court discharging its duty to declare any law inconsistent with the Constitution invalid.69
A judicial declaration of the invalidity of legislation inconsistent with the Constitution annuls, with retrospective
effect, everything done in terms of the provision(s) thus denounced. Mindful of any adverse consequences this may
have, section 172(1)(b)(i) specifically authorises a (just and equitable) court order limiting the retrospective effect of
declarations of invalidity. The Constitutional Court has made such limiting orders in, for instance, cases where it
ordered words to be read into impugned statutory provisions.70

A court order suspending the invalidity of a statutory provision on the strength of section 172(1)(b)(i), is not
incompatible with the notion ­ nor necessarily excludes the effects ­ of objective invalidity. 71 The case law on this
point, at a high court level, is not entirely undivided though.72

Judicial nullification of an unconstitutional, original enactment normally also invalidates delegated legislation
issued in terms of that enactment.73 In Moseneke v Master of the High Court,74 the Constitutional Court struck down
an unconstitutional provision (henceforth, "A") of the Black Administration Act75 with immediate effect, but upheld,
for a further period of two years, an equally unconstitutional regulation76 (henceforth, "B"). B was dependent upon
and gave effect to A, but was made pursuant to another provision of the Black Administration Act77 (henceforth,
"C") that remained on the statute book. C is but an extension of the now defunct A and provides for the delegation
of legislative powers in order to give effect to, amongst others, A. Empowering original legislation was, thus, struck
down with immediate effect while delegated legislation dependent upon (and giving effect to) it was kept alive for
some time. The principle thereby established is that judicial nullification of unconstitutional, original legislation need
not necessarily (and irreparably) invalidate delegated legislation issued in terms of (or giving effect to) such original
legislation.
1 For the distinction between the hierarchy and status of legislation, see par 2C4 above.
2 Hahlo and Kahn SA Legal System and its Background 172.
3 Namely, the South Africa Act of 1909 (9 Edw 7 c 9), s 135; the Republic of South Africa Constitution
Act 32 of 1961, s 107; the Republic of South Africa Constitution Act 110 of 1983, s 87; the Constitution
of the Republic of South Africa, Act 200 of 1993 ("the transitional Constitution"), s 229 and Constitution
of the Republic of South Africa, 1996, sch 6 item 2(1).
4 Item 2(1) obtains, by virtue of s 241 of the Constitution, making sch 6 applicable "to the transition to
the new constitutional order established by this Constitution, and any matter incidental to that
transition".
5 Item 2(1)(a).
6 Item 2(1)(b).
7 R v Detody 1926 AD 198 201.
8 Du Plessis Lawsa 25(1) par 304 and Re­Interpretation of Statutes 70­72.
9 See par 2C6 above.
10 See par 2C2 above.
11 Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1 9 1 1 A D 1 3 ; New
Modderfontein Gold Mining Co v Tvl Provincial Administration 1919 AD 367 397; Principal Immigration
Officer v Bhula 1931 AD 323 335; R v Sutherland 1961 (2) SA 806 (A) 815B.
12 Ex parte Minister of Justice. In re: R v Jekela 1938 AD 370 377; Principal Immigration Officer v Bhula
supra 335; Minister of the Interior v Estate Roos 1956 (2) SA 266 ( A ) 2 7 1 ; Tlelima v Sebokeng
Management Board 1967 (1) SA 603 (T) 605­606; Amalgamated Packaging Industries Ltd v Hutt
1975 (4) SA 943 (A) 949.
13 See par 2C24 below.
14 See eg the Labour Relations Act 66 of 1995, s 210.
15 R v Gwantshu 1931 EDL 29 31; S v V a n W y k 1969 (1) SA 37 ( C ) 4 0 G ; S v ffrench­Beytagh (1)
1971 (4) SA 333 (T) 336G­337B; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 603B­C; S
v Hattingh 1978 (2) SA 826 (A) 829A­G; S v Senye 1978 (3) SA 59 (T) 61G­62D.
16 New Modderfontein Gold Mining Co v Tvl Provincial Administration supra 3 9 7 ; S v M s e l e k u
1968 (2) SA 704 (N); S v Senye supra 61­62.
17 See par 2C2 above.
18 S v Rens 1996 2 BCLR 155 (CC) par 17.
19 In re: The National Education Policy Bill 83 of 1995 1996 4 BCLR 518 (CC) par 19.
20 S 149 requires such inconsistency to be established by a decision of a court. For the implications of this
 requirement, see the discussion infra.
21 In re: Certification of the Constitution of the Province of KwaZulu­Natal 1996 11 BCLR 1419 (CC) par
9.
22 Ss 40 and 41.
23 S 40(1).
24 S 41(1)(a).
25 S 41(1)(h). See, in general, Rautenbach and Malherbe Constitutional Law 282­288.
26 Ch 6.
27 See pars 2C16 and 2C40 below.
28 See par 2C14(f) below.
29 Constitution of the Republic of South Africa, Act 200 of 1993 s 126.
30 See eg In re: The National Education Policy Bill No 83 of 1995 supra par 19 and In re: Certification of
the Constitution of the Province of KwaZulu­Natal supra par 9. The provision of the interim Constitution
(s 126(5)) that came closest to s 149 of the 1996 Constitution reads as follows: "An Act of Parliament
and a provincial law shall be construed as being consistent with each other, unless, and only to the
extent that, they are, expressly or by necessary implication, inconsistent with each other."
31 And from the rest of the transitional Constitution.
32 SA Association of Personal Injury Lawyers v Heath 2001 1 BCLR 77 (CC) par 20.
33 Presumably in the sense in which the term "prevail" occurs in s 146(2), (3) and (5), ie in provisions
dealing with conflicts between national and provincial legislation.
34 And, where applicable, over a provincial constitution: s 148. For provisions regulating conflicts between
national legislation and provincial constitutions, see s 147(1).
35 In s 36.
36 In par 2C2 above.
37 Albeit with a stroke of the judicial pen, as it were. An order of court effecting a judicial revocation of
legislation typically reads as follows: "It is declared that section 217(1)(b)(ii) of the Criminal Procedure
Act of 1977 is invalid." Cf eg S v Zuma 1995 4 BCLR 401 (SA) par 46.
38 Constitution, s 172(1) and (2).
39 S 165(5).
40 Minister of Home Affairs v Liebenberg 2001 11 BCLR 1168 (CC) par 7.
41 Par 15.
42 S 172(2)(a) read with s 167(5).
43 Ie by­laws.
44 Ie legislation other than acts: s 172(2)(a) only refers to "an Act of Parliament" and "a provincial Act".
Cf Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home
Affairs 2000 8 BCLR 837 (CC) par 11; Booysen v Minister of Home Affairs 2001 7 BCLR 645 (CC) par
1 and Minister of Home Affairs v Liebenberg supra pars 9­13. These cases say nothing explicit about
(original) municipal legislation.
45 3 of 2000.
46 See par 2C6 above.
47 Cf Baxter Administrative Law 754­756.
48 Cf par 2C6 above.
49 Cf par 2C2 above.
50 Cf par 2C2 above.
51 Cf eg S v Zuma supra par 41­42.
52 Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR
1382 (CC) par 16; Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996
5 BCLR 609 (CC) par 1.
53 Baxter 678­679; Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 (A).
54 Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison supra par 16.
55 Cf eg Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC) par 157.
56 SA National Defence Union v Minister of Defence 1999 6 BCLR 615 (CC) par 16.
57 S v Niemand 2001 11 BCLR 1181 (CC) par 31. See par 2C13 below.
58 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC) pars
63­64, 2000 (2) SA 1 ( C C ) ; National Director of Public Prosecutions v Mohamed 2002 9 BCLR 970
(CC), 2002 2 SACR 196 (CC).
59 Under the heading "Reading in conformity with the constitution, severance and reading­in"; see par
2C13 below.
60 Fose v Minister of Safety and Security 1997 7 BCLR 851 (CC) par 38; Hoffmann v SA Airways 2000 11
BCLR 1211 (CC) pars 42­45.
61 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC) pars
65 and 70; S v Manamela (Director­General of Justice Intervening) 2000 5 BCLR 491 (CC) par 55.
62 S 172(1)(b)(ii). Such an order was eg made in Fraser v Children's Court, Pretoria North 1997 2 BCLR
153 (CC) par 52 and SA Association of Personal Injury Lawyers v Heath supra par 70. In Moseneke v
Master of the High Court 2001 2 BCLR 103 (CC), the court used a combination of mechanisms to avoid
possible ill effects that an immediate invalidation of clearly unconstitutional legislation could have. At
the same time, the court provided the authorities responsible for legislation in the area in question with
the opportunity to correct the defects. See also pars 2C12 and 2C41 below.
63 As described in eg Firestone SA (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) 306F­G.
64 Minister of Justice v Ntuli 1997 6 BCLR 677 (CC) par 30. But see par 42: "This court has the
responsibility of ensuring that the provisions of the Constitution are upheld and enforced. It should not
be assumed that it will lightly grant the suspension of an order made by it declaring a statutory
provision to be invalid and of no force and effect, or if it does so, that it will allow more time than is
necessary for the defect in the legislation to be cured."
65 Minister of Justice v Ntuli supra pars 32, 39 and 41­42.
66 Ferreira v Levin; Vryenhoek v Powell supra pars 26­30; Prince v President, Cape Law Society 2001 2
BCLR (CC) par 37.
67 Cf Currie and De Waal Bill of Rights Handbook 206­209.
68 New National Party of SA v Government of the RSA 1999 5 BCLR 489 (CC) pars 22­23.
69 To the extent of the inconsistency: s 172(1)(a). See the discussion supra.
 70 Cf National Coalition for Gay and Lesbian Equality v Minister of Home Affairs supra par 98 par 3 of the
court's order and S v Manamela (Director­General of Justice Intervening) supra par 59 par 3 of the
court's order.
71 Executive Council of the Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC) par
124(3).
72 "Were it to do so there would be no point in specifying a time limit for the suspension of an order which
declared a provision to be unconstitutional, as an order given in terms of s 172(1) of the Constitution
to suspend the declaration of invalidity would then render the doctrine of objective invalidity
ineffective. Such an approach runs contrary to the purpose of s 172(1), which is to temper possibly
harsh effects of the doctrine of objective invalidity by ensuring that, during a specified period as
contained in such order, Parliament would be afforded the opportunity to cure the constitutional defect.
In the present case the Ministry of Justice did not prepare any such legislation for Parliament.
Accordingly the order of suspension lapses and the doctrine of objective constitutional invalidity
dictates that the legislation is rendered unconstitutional from the day from which such legislation
became operative" ­ S v Danster; S v Nqido 2002 (2) SACR 178 (C) 183G­184A per Davis J.
73 Cf eg S v Jaars; S v Williams; S v Jantjies 2002 (1) SACR 546 (C).
74 Supra.
75 38 of 1927 s 23(7)(a).
76 Reg 3(1) promulgated under GN 10601 of 6 February 1987.
77 To wit s 23(10)(a).

THE CONSTITUTION ON READING AND CONSTRUING STATUTES

2C10 General observations: statutes and the Constitution The nature, operation and effect of, as well as the
limits to, constitutional supremacy were dealt with before,1 as was the impact of the Constitution2 on the hierarchy
and status,3 as well as the genesis4 and demise,5 of legislation. It must be clear by now that the (judicially)
construed Constitution (including the Bill of Rights) decidedly affects various facets of statute law and thereby sets,
in a demonstrable and tangible way, the scene for and limits to the interpretation of statutes. What will be looked
at under the present heading is the (potential) impact of the Constitution (including the Bill of Rights), and the way
in which it is construed, on the reading, construction and implementation of statute law. Not only are statutes
subject to the Constitution, but they also have to be read in the light of the Constitution in several ways.

First, section 39(2) o f the Constitution requires a mode of statutory interpretation that promotes the spirit,
purport and objects of the Bill of Rights. Meaning has to be attributed to the said provision in accordance with the
procedures of constitutional interpretation, but whatever meaning is placed upon it is bound to have an impact on
the manner in which legislation is construed.6 The Supreme Court of Appeal's judgment in Cape Killarney Property
Investments (Pty) Ltd v Mahamba,7 for instance, graphically illustrates how a constitutional injunction for the
protection of a fundamental right can induce a rights­friendly reading of a statutory provision. The court held that
section 4(4) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act8 must be read in a
manner affording a respondent in eviction proceedings the maximum benefit of effective notice of such proceedings,
since section 4(4) "has its roots" in section 26(3) of the Constitution.9 The constitutional provision states that "no
one may be evicted from their home without an order of court made after consideration of all the relevant
circumstances". Second, constitutional interpretation, in the course of a court's exercise of its testing right, sparks
off a dialectical interplay between the constitutional text and an impugned statutory text. The scope and effect of
the one has to be considered in the light of the other and, since the Constitution is supreme, it determines the
parameters within which meaning can be attributed to the statute and not vice versa. Finally, some aspects of
constitutional interpretation as mode of interpretation can, in the course of time, be assimilated into statutory
interpretation, especially as differences in style and language between the constitutional text and statutory texts
start dwindling.10

Statutory and constitutional interpretation are instances of legal interpretation11 a n d , t o b e m o r e e x a c t ,

instances of construing enacted law­texts.12 Some authors emphasise the similarity13 and others the dissimilarity14
of these two modes of interpretation. In South Africa, the latter emphasis seems to prevail,15 and a dictum from the
Canadian case, Hunter v Southam Inc,16 highlighting the otherness of constitutional interpretation, has met with
approval.17 The differences between constitutional and statutory interpretation have much to do with the
uniqueness of the constitutional text:18

(a) The Constitution, as supreme law, is a long­lasting, enacted law­text at the apex of the legal system.19

(b) The Constitution is justiciable and, therefore, a standard for the assessment of the validity of both "law"
and "conduct" in every (legislative and executive) echelon of government.20

(c) The Constitution verbalises, in characteristically broad, inclusive and open­ended language,21 values
and beliefs associated with democracy and the constitutional state (or Rechsstaat).

Constitutional interpretation cannot be a mere technique­driven analysis of the provisions of a constitutional text
designed to discover or decide the meaning of such provisions. It is a consequential practice, an observance, rooted
in and emanating from a culture of constitutionalism22 which, in its turn, is premised on deference to a supreme
constitution that establishes and vouches for a democratic, constitutional state. The very distinctiveness of
constitutional interpretation has far­reaching implications for statutory interpretation. As Froneman J23 explains:
The interpretative notion of ascertaining "the intention of the Legislature" does not apply in a system of judicial review based
on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the Legislature. This
means that both the purpose and method of statutory interpretation in our law should be different from what it was before
the commencement of the Constitution on 27 April 1994. The purpose now is to test legislation and administrative action
against the values and principles imposed by the Constitution. This purpose necessarily has an impact on the manner in
 which both the Constitution itself and a particular piece of legislation said to be in conflict with it should be interpreted.

Constitutional interpretation surely calls for a new interpretative approach, which means that statutory
interpretation can no longer make do with only the conventional canons of construction:
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.24

This is a teleological25 enunciation of a procedure of statutory­cum­constitutional interpretation ­ to wit, the reading

of statutes in conformity with the Constitution ­that will be discussed in due course.26 Structurally or formally, the
Constitution and statutes share many features. This is unsurprising as they are all enacted law­texts;27 in other
words, they are the products of conscious and planned law­making by demonstrable and authorised law­making
authors and are, therefore, meant to be of effect. The Constitution has not deprived statutes of their worth or
force, but has given them new direction. Statutes and the Constitution also show similarities, in both formal and
operational style, which makes it appropriate to rely on broadly similar reading strategies (including conventional
canons of construction)28 for their interpretation. However, it will be inappropriate, in both constitutional and
statutory interpretation, to allow privileged strategies or preferred canons of construction to trump an optimal
realisation of the values the Constitution and statutes are required to promote in concert. This truism calls into
question a conventional order of primacy of the canons of statutory interpretation.29

The manner in which construing and, more generally speaking, "dealing" with the Constitution and the Bill of
Rights can have an impact on statutory interpretation will be considered in outline. This impact can, to some extent,
be discerned from demonstrable constitutional injunctions or case­law articulations of the relationship between the
Constitution and statute law. Less obvious (but of considerable significance), however, is the (potential) impact of
readings of the Constitution (and Bill of Rights), as enacted law­texts sui generis, on the manner in which statutes
are read and construed (and eventually concretised). An assessment of the latter mode of impact inevitably
requires an interpretation of tendencies in the case­law ­ as well as a responsible measure of (informed) surmise
and prediction.

A growing body of statute law, appropriately describable as subsidiary constitutional legislation,30 has seen the
light since 1994 and especially over the last decade or so. This legislation has been designed to amplify and give
more concrete effect to expansively couched, key provisions of the Constitution and the Bill of Rights. Most often,
but not invariably, the constitutional provisions aforesaid anticipate, authorise and indeed require the enactment of
such statute law. Section 9(4) of the Constitution, for instance, obliges the national legislature to enact legislation
"to prevent or prohibit unfair discrimination" while section 33(3) o f the Constitution also mandates and indeed
requires the national legislature to enact legislation to give specific effect to rights and procedures associated with
just administrative action. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)31 and the
Promotion of Administrative Justice Act (PAJA)32 were enacted to comply with the constitutional obligations in
sections 9(4) and 33(3) respectively. The Labour Relations Act (LRA) 33 was enacted "to give effect to and regulate
the fundamental rights conferred by section 27 of the Constitution".34 "The Constitution" here referred to was the
interim Constitution, section 27 of which neither explicitly required nor envisaged legislation amplifying and giving
more concrete effect to it. Section 23(5) and (6) of the 1996 Constitution do, however, envisage and authorise, in a
permissive vein, legislation to regulate collective bargaining and recognise union security arrangements contained in
collective agreements. National legislation amplifying and giving more concrete effect to constitutional provisions can
thus be enacted pursuant to either a constitutional obligation or a permissive constitutional authorisation or of the
national (or any other) legislature's own accord.

There is a special relationship between the Constitution and subsidiary constitutional enactments, and this has
consequences for the interpretation and application of both the Constitution and the said enactments, irrespective
of whether the latter were passed pursuant to an obligatory or permissive constitutional authorisation or of a
legislature's own accord. First, a litigant taking action because of an alleged infringement of a constitutional right (or
rights) to which a statute gives more concrete effect, cannot circumvent the statute "by attempting to rely directly
on the constitutional right".35 To do so would be to "fail to recognise the important task conferred on the legislature
by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights".36 This is a straightforward
instance of adjudicative subsidiarity. Secondly, the provisions of a subsidiary constitutional statute must, like any
other statute, be construed to promote the spirit, purport and objects of both the Bill of Rights,37 and the specific
constitutional provision(s) to which more concrete effect is given. Especially remedial legislation "umbilically linked to
the Constitution" must, like the provision(s) of the Constitution to which they are linked, "be understood
purposively".38 Such legislation is, however, not simply to be treated as a restatement of the constitutional right(s)
to which it gives more concrete effect, and it may also not be allowed to decrease the protection that a
constitutional right affords or to infringe another right.39

On the two conditions aforesaid a subsidiary constitutional statute may, in the third place, "extend protection
beyond what is conferred by" the constitutional provisions to which it is subsidiary. 40 Finally, "[t]here is no
gainsaying that the substantive issues for determination" in a case brought under subsidiary constitutional
legislation "are constitutional matters" ultimately entertainable by the Constitutional Court.41

In Mankayi v Anglogold Ashanti Limited,42 the Constitutional Court was called upon to construe two statutory
provisions ­ section 35 of the Compensation for Occupational Diseases and Injuries Act (COIDA)43 and section
100(2) of the Occupational Diseases in Mines and Works Act (ODIMWA)44 ­ to determine whether they have the
effect of extinguishing the common­law claim of a mineworker applicant who contracted phthisis as a result of a
mine company's alleged breach of its duty of care owed to the applicant, namely to provide him with a safe and
healthy work environment. A unanimous court per Kampepe J held
that the proper interpretation of a statute that is alleged to extinguish a common law right of action that gives effect to a
constitutional right raises a constitutional issue. It is common cause that . . . section 35(1) of COIDA has this effect . . . A
constitutional matter thus arises for consideration.45
Froneman J carried this argument a step further, contending that the mere fact that a "case concerns the
interpretation of a statute is sufficient to bring it within this Court's jurisdiction".46 He explains:47
In terms of the provisions of section 39(2) of the Constitution, a court must, when interpreting any legislation, promote the
spirit, purport and objects of the Bill of Rights. This constitutional injunction makes it impossible to interpret any legislation
other than through the prism of the Bill of Rights. Statutory interpretation is thus inevitably a constitutional matter. It is a
legal issue which necessarily involves the evaluation of social and policy choices reflected in legislation.

He furthermore suggests that

general consideration should be given to whether the time has not arrived to shift the question of whether to grant leave to
appeal in matters where questions of law are involved, more to a debate on what kind of constitutional matters this Court
should hear, rather than on whether these issues of law are constitutional matters in the jurisdictional sense.48

Strictly speaking Froneman J's dicta do not form part of the unanimous judgment in Mankayi, but at the same time
there is nothing in that judgment that contradicts these dicta. They have persuasive force, at least, and represent a
milestone in the development of the law pertaining to the interpretation of statutes under the authority of a
supreme Constitution. They also enhance the status of such law.
1 See par 2C2 above.
2 Constitution of the Republic of South Africa, 1996 and, previously, the (transitional) Constitution of the
Republic of South Africa, Act 200 of 1993.
3 See pars 2C4­2C6 above.
4 See par 2C8 above.
5 See par 2C9 above.
6 See also pars 2C14(g) and 2C15 below.
7 2001 (4) SA 1222 (SCA) per Brand AJA.
8 19 of 1998.
9 Par 21.
10 See also par 2C14(g) below.
11 Schneider 1963 Veröffentlichungen der Vereinigung der Deutsches Staatsrechtslehrer 1; Ehmke 1963
Veröffentlichungen der Vereinigung der Deutsches Staatsrechtslehrer 53.
12 Du Plessis Re­Interpretation of Statutes 15­16.
13 Forsthoff Zur Problematik der Verfassungsauslegung 37­40; Dreier "Zur Problematik und Situation der
Verfassungsinterpretation" in Probleme der Verfassungsinterpretation 13­17.
14 Magiera "The Interpretation of the Basic Law" in Main Principles of the German Basic Law 91­97.
15 Cf also Chaskalson et al Constitutional Law of SA 11­10­11­14.
16 (1985) 11 DLR (4th) 641 (SCC) 649.
17 S v Mhlungu 1995 7 BCLR 793 (CC) p a r 8 4 ; Park­Ross v Director: Office for Serious Economic
Offences 1995 2 BCLR 198 (C)208G­H; De Klerk v Du Plessis 1994 6 BCLR 124 (T)128A­C.
18 See also De Ville Constitutional and Statutory Interpretation 58­60.
19 See par 2C2 above.
20 See par 2C2 above.
21 See par 2C14(g) below.
22 See par 2C2 above for the meaning of "constitutionalism".
23 Matiso v The Commanding Officer, Port Elizabeth Prison 1994 3 BCLR 80 (SE)87E­G.
24 De Ville 60. De Ville 60 fn 292 finds support for his contention in S v Dlamini; S v Dladla; S v Joubert; S
v Schietekat 1999 7 BCLR 771 (CC) pars 2­15 and 55; Minister of Land Affairs v Slamdien 1999 4
BCLR 413 (LCC); Dulabh v Department of Land Affairs 1997 (4) SA 1108 (LCC).
25 "Teleological" is used here in its context­sensitive, value­laden signification. See par 2C14(f) below.
26 See par 2C13 below.
27 Du Plessis 15­16.
28 See par 2C15 below.
29 See par 2C15 below.
30 The appellation "subsidiary constitutional legislation" has not been coined in the constitutional case law
or academic literature. It is, however, suggested by the author because of the close association of this
legislation with the notion of adjudicative subsidiarity in one of its shapes; see par 2C2 above.
31 4 of 2000 required by s 9(4) of the Constitution.
32 3 of 2000 required by section 33(3) of the Constitution.
33 66 of 1995, another statute in this category, envisaged in s 23(5) and (6) of the Constitution.
34 S 1(a) of the Act.
35 MEC for Education: KwaZulu­Natal v Pillay 2008 2 BCLR 99 (CC) par 40, 2008 (1) SA 474 (CC). Cf also
Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amicus Curiae)
2006 1 BCLR 1 (CC) pars 96 (Chaskalson CJ) and 434­437 (Ngcobo J), 2006 (2) SA 311 (CC); South
African National Defence Union v Minister of Defence 2007 8 BCLR 863 (CC) par 51, 2007 (5) SA 400
(CC); NAPTOSA v Minister of Education, Western Cape 2001 4 BCLR 388 (C)396I­J, 2001 (2) SA 112
(C) 123I­J.
36 South African National Defence Union v Minister of Defence supra par 52. Cf also Minister of Health v
New Clicks South Africa (Pty) Ltd supra par 96. This is an instance of (adjudicative) subsidiarity, where
a subordinate, less encompassing and more specific legal norm is relied on to adjudicate certain cases
in preference to a superordinate, more encompassing and general constitutional norm; see par 2C2
above.
37 S 39(2).
38 Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 10 BCLR 1027 (CC) par 53
per Moseneke DCJ, 2007 (6) SA 199 (CC).
39 MEC for Education: KwaZulu­Natal v Pillay supra par 43.
40 Par 43.
41 Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd supra par 30.
42 2011 (5) BCLR 453 (CC).
43 130 of 1993 (COIDA).
44 78 of 1973 (ODIMWA).
45 Par 19.
 46 Par 117.
47 Par 118.
48 Par 122.

2C11 A broadening of the spectrum of interpreters According to Peter Häberle,1 a constitution is a "public
process" (öffentlicher Prozeß) in the interpretation of which an offene Gesellschaft ­ that is, an "open" as well as a
"public" community (including civil society)2 ­ participates. This openness of a constitution and of constitutional
interpretation brings to light something that, in statutory interpretation, is usually neglected: namely the fact that
courts are not the only authorised (and de facto) interpreters of either the Constitution or statutes. Court processes
centred on issues of interpretation are usually initiated by non­judicial readers, albeit generally with the aid of legal
experts. This means that not only the judiciary plays an active role in the eventual determination of the meaning of
a statute or a constitution.

Organs of state other than the judiciary are also duty­bound to engage in the interpretation of a constitution3
and of statutes,4 often before a judicial construction is placed upon them. These non­judicial interpretations in the
public sphere probably outnumber judicial interpretations by far. They come from, for instance, legislatures at the
various levels (or in the various spheres) of government (national, provincial and local), which legislatures must
pass their legislation mindful of the Constitution and the law as it stands, or from organs of the executive. The
original authors of a text (in other words, those actually writing it), those debating the draft and the deliberative
body eventually agreeing to and passing it are also interpreters of the text. Their interpretation is vital because it
anticipates possible meanings that can be attributed to the text and determines its final formulation.
1 Häberle Verfassung als Öffentlicher Prozeß 155­181.
2 Du Plessis 1996 SAJHR 215.
3 Murphy, Fleming and Barber American Constitutional Interpretation 262­344. An American president,
Andrew Jackson, pointed out, in 1832, in his veto of a Bank Bill, that every public official takes an oath
to uphold and support the Constitution, but not the Supreme Court's interpretation of it (see Murphy,
Fleming and Barber 313­314).
4 Bennion Statutory Interpretation 16­24.

2C12 Political issues There used to be a judicial belief that politics can be kept out of statutory interpretation.
This belief was, for instance, verbalised by Holmes JA, in Minister of the Interior v Lockhat,1 in dealing with the
profoundly controversial Group Areas Act.2 Prior to the advent of constitutional democracy, courts did not, however,
maintain impeccable neutrality and sometimes actually gave wings to harsh government policies embodied in and
implemented through legislation.3 At other times, they tried to explain and justify such policies.4 The South African
experience has also shown that assigning a judiciary, believing itself to be politically neutral, to the task of
construing a supreme constitution does not necessarily make judges alive to their political responsibility, and may
even lure them into devising technicalities to escape it. Before 1994, the Appellate Division of the Supreme Court
(as it then was) was, for instance, sporadically called upon to construe the justiciable constitutions (and bills of
rights) of some so­called independent TBVC states, as well as Namibia's pre­independence, justiciable "interim
constitution".5 The judges involved were generally reluctant to acknowledge their political involvement and tried to
bypass overt value and policy choices by seeking refuge in conventional technical certainties associated with
statutory interpretation instead.6

Generally speaking, constitutional interpretation in South Africa since 1994 seems to have been accompanied by
a consciousness of the judiciary's unavoidable political involvement, in the broad sense of the term. Evidence of this
consciousness is Kentridge AJ's unprecedented acknowledgement, in S v Zuma,7 of the fact that it is not easy for a
judge "to avoid the influence of one's personal intellectual and moral preconceptions".8 The Constitutional Court
has, however, on occasion, 9 intimated that it can decide controversial issues in a legal, as opposed to a political,
manner.10 The crucial choice for the judiciary seems to be either to remain more of a referee or to become more of a
player in the game of politics.11 Unanimity on how to strike a balance (if a balance needs to be struck at all) is
hardly attainable, for the choice that stands to be exercised is, in itself, a political one rooted in presuppositions and
pre­conceptions.12 Judges do not regard a party­political etiquette as particularly flattering,13 but, at the same
time, they can hardly plead political innocence. The Constitutional Court, in two cases14 where it was called upon to
give effect to socio­economic entitlements guaranteed under the Constitution,15 adopted the attitude that it will not
refrain from setting aside policy (for which read 'political') decisions simply because they are "political". However, the
court will not do so by 'second­guessing' them. It has also been said that "a court should be slow to impose
obligations upon government which will inhibit its ability to make and implement policy effectively".16 However,
when called upon to adjudicate state action necessary to provide relief to those in desperate need, the
Constitutional Court ­ in keeping with constitutional injunctions17 enjoining the state to take reasonable legislative
and other measures, within its available resources, to achieve the progressive realisation of socio­economic or
"second generation" entitlements ­ has assumed an uncommonly activist role in ordering or propping up the
procurement of such relief.18

The above guidelines for judicial interference in matters political have been laid down with reference to policy
decisions underlying administrative action, but the same reasoning can mutatis mutandis be applied to policy
decisions inducing the adoption of legislation.

Does the politicisation of constitutional interpretation also imply a politicisation of statutory interpretation? It is
hard to think that it does not. A court exercising its testing right is called upon to assess the policies (or politics)
underlying and informing impugned legislation in relation to the Constitution and then to assign a "political
meaning" to such legislation under, in conformity with and/or informed by the values of the Constitution. This
"requires a court to negotiate the shoals between the Scylla of the old­style literalism and the Charybdis of judicial
law­making".19

Moreover, a court may be faced with the dilemma of considering the perpetuation of some politically controversial
pre­1994 legislative measures which, their racially biased pedigree notwithstanding, could nowadays be construed
as preponderantly advantageous to (at least some of ) the very people against whom they were initially designed
to discriminate.20 In Moseneke v Master of the High Court,21 Sachs J depicted the court's dilemma in instances like
these as follows:
To keep a manifestly racist law on the statute books is to maintain discrimination; to abolish it with immediate effect without
making practical alternative arrangements is to provoke confusion and risk injustice. Such a dilemma is inherent in
transition. The Black Administration Act, as its very name indicates, both reminds us of South Africa's shameful and
"disgraceful" past and continues to make invidious and wounding distinctions on grounds of race. It survives, however,
because it has become encrusted with processes of great practical, day­to­day importance to a large number of people.

In some other cases, courts had to decide to what extent and with what political consequences the present political
powers­that­be may practise their politics of transformation through the use of statute law.22

In S v Baloyi (Minister of Justice Intervening),23 the Constitutional Court per Sachs J cautioned against undue
judicial activism in certain socially sensitive areas where the legislature (as political decision­maker) is best left with
a "reasonable degree of latitude or margin of appreciation". In casu, the court had to consider the constitutionality
of section 3(5) of the Prevention of Family Violence Act,24 and, inter alia, observed as follows:25
One may accept that insistence on rigid and inflexible rules would be inappropriate in this developing area, with its complex
nuances and new procedures. Provided it remains within constitutionally appropriate limits, the Legislature must enjoy a
reasonable degree of latitude or margin of appreciation in choosing appropriate solutions to a grave social ill, particularly
when the need for special law enforcement procedures has become manifest. In the present case this requires a
construction of s 3(5) that is sensitive to its context and seeks to balance out the interests of all concerned in the fairest
manner possible.

The interpretation of statutes has not (since the advent of constitutional democracy) all of a sudden become
political. It has always been that way. The "novelties" of constitutional interpretation and constitutional review have
merely made it easier to see that, in interpreting statutes, courts often have to exercise political choices ­ perhaps
not in a "party political manner", but nonetheless.

The (overt) involvement of the courts in the final determination of the outcome of (overtly) political disputes
makes judges susceptible not only to criticism of the "legal" techniques and justifications on which they rely in
sustaining their decisions, but also to criticism of their (actual or supposed) political motivation for reaching a
decision. In S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening),26 t h e
Constitutional Court held that, in a constitutional democracy, politically inspired criticism of the judiciary is not
improper per se and that the conventional common­law offence of scandalising a court simply by criticising its
decisions on political grounds cannot survive constitutional scrutiny. Vocal public scrutiny of courts' performance may
serve as "a democratic check on the judiciary"27 and ideally
robust and informed public debate about judicial affairs promotes peace and stability, by convincing those who have been
wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by
satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are
concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement.28

1 1961 (2) SA 587 (A) 602D­E. See also S v Adams 1979 (4) SA 793 (T) 801A­B.
2 77 of 1957.
3 Rossouw v Sachs 1964 (2) SA 551 (A) 562E­H.
4 S v Adams; S v Werner 1981 (1) SA 187 (A) 224E­225A; S v Meer 1981 (4) SA 604 (A) 614C­E.
5 Sch 1 to Proclamation R101 of 17 June 1985.
6 For a critical assessment, cf three articles by Du Plessis and De Ville 1993 Stell LR 63, 199 and 356.
See eg the authors' critical assessment of the case of Cabinet for the Territory of South West Africa v
Chikane 1989 (1) SA 349 (A) (Du Plessis and De Ville 1993 Stell LR 68­73). See also Tussentydse
Regering vir Suidwes­Afrika v Katofa 1987 (1) SA 695 (A) and Cabinet of the Transitional Government
for the Territory of South West Africa v Eins 1988 (3) SA 369 (A). In some instances, courts in the
TBVC states (especially the former Ciskei), as well as the Supreme Court in pre­independence
Namibia, handed down judgments, in constitutional cases, that did reflect an understanding of the
ethos of constitutionalism. For a positive evaluation of some of these judgments, cf Du Plessis and De
Ville 1993 Stell LR 199­218; 200­202 and 205­209.
7 1995 4 BCLR 401 (SA) par 17. See par 2C14(b) below.
8 In Brink v Kitshoff NO 1996 6 BCLR 752 (CC) par 39, O'Regan J attributed the different approaches to
equality of courts in different national jurisdictions, not to different textual provisions and different
historical circumstances only, but also to different jurisprudential and philosophical understandings. In
President of the RSA v SA Rugby Football Union 1 9 9 9 7 B C L R 7 2 5 ( C C ), t h e j u d g e s o f t h e
Constitutional Court were challenged to put their (past) political affiliations on the table and to deal
with allegations of political bias. The court did not shy away from the fact that its members have
political preferences and predilections, and accepted, in so many words and with reference to several
authorities, that out­and­out neutrality on the part of a judicial officer cannot be achieved (cf pars 42­
44). The court then proceeded to consider how best to deal with such a­neutrality in order to ensure
that justice is done (and also seen to be done). In Ngxuza v Permanent Secretary, Department of
Welfare, Eastern Cape 2001 (2) SA 609 (E) 619F­620E, Froneman J openly stated that his view of "the
social context in which the law is applied to a particular set of facts" had codetermined his
interpretation of s 38 of the Constitution of the Republic of South Africa, 1996 (on the issue of standing
in a constitutional action).
9 Apparently too often and too consistently, according to some. C f eg the informative but critical
discussion of De Ville Constitutional and Statutory Interpretation 33­40 and 46­51.
10 C f e g S v Makwanyane 1995 6 BCLR 665 (CC) p a r 2 0 7 ; Executive Council of the Western Cape
Legislature v President of the RSA 1995 10 BCLR 1289 (CC) pars 116­122.
11 For a more detailed discussion, cf Du Plessis and Corder Understanding South Africa's Transitional Bill
 of Rights 67­72.
12 See par 2C14(d) below.
13 See Executive Council of the Western Cape Legislature v President of the RSA supra.
14 Soobramoney v Minister of Health, KwaZulu­Natal 1997 12 BCLR 1696 (CC) and Government of the
RSA v Grootboom 2000 11 BCLR 1235 (CC).
15 Ss 26 and 27.
16 Premier, Mpumalanga v Executive Committee, Association of State­Aided Schools, Eastern Transvaal
1999 2 BCLR 151 (CC) par 41.
17 In eg s 26(2) and s 27(2) of the Constitution.
18 Government of the RSA v Grootboom supra pars 40, 52 and 96 and Minister of Public Works v Kyalami
Ridge Environmental Association 2001 7 BCLR 652 (CC) pars 38­39.
19 Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) par 11 per Olivier JA.
20 Cf eg DVB Behuising (Pty) Ltd v North West Provincial Government 2000 4 BCLR 347 (CC); Moseneki v
Master of the High Court 2001 2 BCLR 103 (CC).
21 Supra par 25.
22 Pretoria City Council v Walker 1998 3 BCLR 257 (CC). In this case, the empowering Act itself was not
challenged, but the court had to deal with the policy implications of legislation read in light of the
(transitional) Constitution of the Republic of South Africa, Act 200 of 1993.
23 2000 1 BCLR 86 (CC).
24 133 of 1993.
25 Par 30.
26 2001 5 BCLR 449 (CC).
27 Par 30.
28 Par 31.

2C13 Reading in conformity with the Constitution, severance and reading­in Verfassungskonforme Auslegung,
that is, the interpretation of legislation in conformity with a justiciable constitution, is a widely adhered to reading
strategy associated with constitutional interpretation.1 Strictly speaking, however, it is a procedure of statutory
rather than of constitutional interpretation honouring to the requirement of judicial self­restraint.2 Judicial self­
restraint, in its turn, goes hand in hand with subsidiarity and, in particular, the notion of adjudicative subsidiarity
which was explained before.3 Reading in conformity with the Constitution also gives specific expression to the more
general idea of interpreting statutes "through the prism of the Bill of Rights" in accordance with the (new) canon of
statutory interpretation in section 39(2) of the Constitution,4 namely that legislation must be construed to promote
the spirit, purport and objects of the Bill of Rights.5 The conventional interpretative presumption that legislation is
not invalid or purposeless6 further restrains readings that make for the nullity rather than the validity of an
impugned provision.7

Interpretation in conformity with the constitution is sometimes associated with what is called "a presumption of
constitutionality".8 A prima facie unconstitutional (and, by that token, potentially impugnable) provision is to survive
constitutional scrutiny if it is reasonably possible to read it in conformity with the Constitution without distorting it or
unduly straining its "plain meaning".9 Such a reading is mostly believed to be narrower or more restrictive than
other possible readings. It is, in other words, a reading­down. A more extensive, non­distortional reading of an
impugned provision or a reading that eliminates ambiguity (a reading­up) is, however, not excluded. 10 In Daniels v
Campbell11 the Constitutional Court, for example, understood the term "spouse" in the Maintenance of Surviving
Spouses Act12 extensively so as to include partners in a Muslim marriage which had not officially been solemnised in
terms of the Marriage Act.13 The majority of the Court thought that such an extensive reading (or reading­up) was
necessary to vouch for the constitutionality of a provision that would otherwise had to be struck down. A reading­
up of the provisions of subsidiary constitutional statutes14 can moreover serve to enhance constitutional values
and duly comply with constitutional imperatives.

One of two or more conflicting interpretations of a statutory provision better promoting the spirit, purport and
objects of the Bill of Rights than the others, is to be preferred.15 "By the same token, where two conflicting
interpretations of a statutory provision could both be said to be reflective of the relevant structural provisions of the
Constitution as a whole, read with other relevant statutory provisions, the interpretation which better reflects those
structural provisions should be adopted."16 The interim Constitution17 explicitly authorised the reading­down of
impugned "laws" both in relation to the provisions of its chapter on fundamental rights18 and other constitutional
provisions.19 The 1996 Constitution20 contains no similar provision(s). Reading­down, and reading in conformity
with the Constitution in general, have nonetheless remained valid and, in fact, required reading strategies.21
However, they ought not to be confused with the requirement of section 39(2) of the Constitution22 that existing
law must be developed in accordance with the spirit, purport and objects of the Bill of Rights. And they are certainly
not equivalent to the remedy of reading­in.23

In Govender v Minister of Safety and Security,24 the Supreme Court of Appeal per Olivier JA explained that reading­
down requires a court
(a) to examine the objects and purport of the Act or the section under consideration;
(b) to examine the ambit and meaning of the rights protected by the Constitution;
(c) to ascertain whether it is reasonably possible to interpret the Act or section under consideration in such a manner that
it conforms with the Constitution, ie by protecting the rights therein protected;
(d) if such interpretation is possible, to give effect to it; and
(e) if it is not possible, to initiate steps leading to a declaration of constitutional invalidity.25

In Ex Parte Minister of Safety and Security: In Re: S v Walters,26 the Constitutional Court endorsed the Supreme
Court of Appeal's approach in Govender.
 Reading in conformity with the Constitution is an instance of restrained constitutionalism wary of over­reliance on
the written constitutional text as supposed super law.27 Severance and reading­in are judicially more activist ways of
either restricting or extending the scope of a statutory provision (once again to rescue it from invalidity on
constitutional grounds). Through severance the unconstitutional parts (literally: words and phrases) of impugned
legislation are severed or "cut off" from the rest of the legislation, and struck down, in order to preserve the
constitutionally valid remainder. 28 Reading­in refers to the insertion of words and/or phrases into impugned
legislation to render it constitutional, thereby averting a declaration of invalidity. The latter modus operandi has, for
example, been followed in a number of cases dealing with legislation on intimate relationships and the "meaning of
spouse" issue in particular. 29 Severance and reading­in are activist because they are constitutional remedies ­ as
opposed to reading strategies ­ authorised by section 172(1)(b) of the Constitution: a court testing legislation on
constitutional grounds "may make any order that is just and equitable". Severance or reading­in can be such an
order.30

It is not obvious when a court should attempt to read impugned legislation in conformity with the Constitution or
when it should rather grant one of the two aforementioned remedies. Much depends on a court's assessment of
what, in a particular case, a "reasonably possible", "non­distortive" and/or not "unduly strained" reading­in
conformity with the Constitution can be. A court reading legislation in a literalist way ­ assuming that language is
the bearer of uncontested, pre­given meaning ­ will probably be reluctant to read­in conformity with the
Constitution and will tend rather to grant remedial relief. The Constitutional Court has mostly preferred remedial
activism to interpretive flexibility, especially in its (judged by outcomes) rather progressive jurisprudence on intimate
relationships.31 The basis for this preference is a narrow understanding of "interpretation" which excludes the
alteration of words from its scope ­ this while even some of the most conventional accounts of statutory
interpretation in South Africa, leave room for woordwysigende uitleg (interpretation altering the very words of a
legislative instrument).32 According to Le Roux the court's narrow view of interpretation is also an "unsound political
limitation of the democratic process": "The problem is that the constitutional remedies (unlike the interpretive
techniques) are reserved for use by the Constitutional Court itself, or under its direct supervision only . . . [T]he
centralising tendencies that are built into this distinction pose a threat to the democratisation of legal meaning in
post­apartheid South Africa. In fact, the centralised control of meaning in the apartheid state is perfectly mirrored by
the juricentric approach to legal interpretation in its post­apartheid successor."33

Moseneke J, however, in Daniels v Campbell,34 advanced the following motivation for preferring the remedial
rather than the interpretive route to bring statutes in conformity with the Constitution:

Another important consideration relates to the rule of law. The problem of readily importing interpretations
piecemeal into legislation is the precedent it sets. Courts below will follow the lead and readily interpret rather than
declare invalid statutes inconsistent with the Constitution. However, constitutional re­interpretation does not come
to this Court for confirmation. The result may be that high courts develop interpretations at varying paces and
inconsistently. This makes for an even more fragmented jurisprudence and would have deleterious effects on how
people regulate their affairs. It is highly undesirable to have an institution as important as marriage recognised for
some people in some provinces and not in others. The rule of law requires legal certainty.

It is clear from both Le Roux's and Moseneke J's remarks that institutional politics rather than "purely
interpretive", legal technicalities determine the choice between reading a statute in conformity with the Constitution
or remedially rectifying it.

In summary then, reading­in conformity with the Constitution can, first, require a narrowing down of the scope of
a statutory provision, and the canons of restrictive statutory interpretation35 could (but need not) be used to this
end. Secondly, it can consist of expanding the scope of a statutory provision and, to this end, the canons of
extensive interpretation could (but also need not) be invoked.36 Thirdly, the remedies of severance or reading­in
can be invoked.
1 Betterman Die Verfassungskonforme Auslegung: Grenzen und Gefahren; S c h u p p e r t Funktionell­
rechtliche Grenzen der Verfassungsinterpretation; Du Plessis 1998 Acta Juridica 13; Currie and De
Waal Bill of Rights Handbook 64­67.
2 See par 2C2 above.
3 Ibid.
4 Constitution of the Republic of South Africa, 1996.
5 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd, In re:
Hyundai Motor Distributors (Pty) Ltd v Smit 2000 10 BCLR 1079 (CC) pars 21­23, 2001 (1) SA 545
(CC); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687
(CC) par 72, 2004 (4) SA 490 (CC); Veldman v Director of Public Prosecutions, Witwatersrand Local
Division 2007 9 BCLR 929 (CC) par 74, 2007 (3) SA 210 ( C C ) . C f also Currie and De Waal Bill of
Rights Handbook 65; and see par 2C10 above.
6 See par 2C26 below.
7 Member of the Executive Council for Development Planning & Local Government in the Provincial
Government of Gauteng v Democratic Party 1998 7 BCLR 855 (CC) par 52, 1998 (4) SA 1157 (CC).
8 Devenish Interpretation of Statutes 210­212; De Ville Constitutional and Statutory Interpretation 223­
225; Cheadle, Davis and Haysom SA Constitutional Law 33­4 ­ 33­5.
9 National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 2000 1 BCLR 39 (CC) par 23,
2000 (2) SA 1 (CC); Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd supra pars 24­26. See also Laugh it Off Promotions CC v SAB International (Finance) BV t/a
Sabmark International 2005 8 BCLR 743 (CC), 2006 (1) SA 144 (CC); Du Toit v Minister of Transport
2005 11 BCLR 1053 (CC) par 29, 2006 (1) SA 297 (CC); National Director of Public Prosecutions v
Mohamed 2002 9 BCLR 970 (CC) par 33, 2002 2 SACR 196 (CC) and Affordable Medicines Trust v
Minister of Health 2005 6 BCLR 529 (CC) par 36 n 31, 2006 (3) SA 247 (CC) where Ngcobo J observed
that "[i]t is by now axiomatic that, where possible, legislation ought to be construed in a manner that is
consistent with the Constitution". Note, however, the following caveat in HTF Developers (Pty) Ltd v
Minister of Environmental Affairs and Tourism 2007 11 BCLR 1230 (SCA) par 7 per Combrinck JA:
 "The Constitution does not permit a court to strain the meaning of a statutory provision under its guise
particularly when there is more than one constitutional value involved." In Veldman v Director of Public
Prosecutions, Witwatersrand Local Division 2007 9 BCLR 929 (CC) par 21, 2007 (3) SA 210 (CC) the
Constitutional Court per Mokgoro J provided an example of what a strained reading of a constitutional
provision would be: "To read 'prescribed punishment' in s 35(3)(n) [of the Constitution] as inclusive of
penal jurisdiction . . . is to give it an unduly strained meaning."
10 Currie and De Waal 66.
11 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC).
12 27 of 1990.
13 25 of 1961.
14 For examples of such statutes see par 2C10 above.
15 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2008 11 BCLR 1123 (CC).
16 Supra par 47.
17 Constitution of the Republic of South Africa, Act 200 of 1993.
18 S 35(2). This provision read as follows: "No law which limits any of the Rights entrenched in this
Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie
exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more
restricted interpretation which does not exceed such limits, in which event such law shall be construed
as having a meaning in accordance with the said more restricted interpretation."
19 S 232(3).
20 Constitution of the Republic of South Africa, 1996.
21 De Lange v Smuts 1998 7 BCLR 779 (CC) par 85, 1998 (3) SA 785 (CC); Van Dyk v Maithufi [2004] 1
All SA 568 (T) 572, 2004 1 SA 441 (T).
22 Constitution of the Republic of South Africa, 1996.
23 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2006 11 BCLR 1255 (CC) par 72.
24 2001 11 BCLR 1197 (SCA), 2001 (4) SA 273 (SCA).
25 Govender v Minister of Safety and Security supra par 10­11. The court cited in support of its approach
De Lange v Smuts supra par 85; National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs supra pars 23­24 and S v B h u l w a n a ; S v G w a d i s o 1995 12 BCLR 1579 (CC) p a r 2 8 ,
1996 (1) SA 388 (CC).
26 2002 7 BCLR 663 (CC) pars 36­39; 2002 (4) SA 613 (CC).
27 See par 2C2 above.
28 Severance was previously also discussed under the heading "Judicial intervention"; see par 2C9
above.
29 Examples of such judgments are National Coalition for Gay and Lesbian Equality v Minister of Justice
1998 12 BCLR 1517 (CC), 1999 (1) SA 6 (CC) (the criminalisation of same­sex sexual behaviour
between men ­ also referred to as "sodomy" ­ was found to be unconstitutional), National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs supra (the court read words into a statutory
provision to extend immigration benefits that "spouses" of South African nationals enjoyed, to same
sex life­partners), Satchwell v President of the Republic of South Africa 2002 9 BCLR 986 (CC),
2002 (6) SA 1 (CC) (words were read into a statutory provision conferring financial benefits on a
judge's "surviving spouse" so as to extend such benefits to a same sex life­partner) and Daniels v
Campbell supra (a surviving "spouse" reaping benefits from legislative provision for maintenance, was
held to include a partner in a Muslim marriage). On reading­in in general, cf Van Dyk v Maithufi supra
572.
30 Cf in general Du Plessis Interpretation (CLoSA) 32­140 ­ 32­141.
31 Le Roux 2005 Obiter 526.
32 Le Roux 533­534. And cf Steyn Uitleg van Wette 55­68.
33 Le Roux 547.
34 Supra par 104.
35 See par 2C42 below.
36 See par 2C43 below.

2C14 Theoretical positions on statutory interpretation The advent of constitutional democracy in South Africa
and the exigencies of constitutional interpretation are bound to have (and have already had) a profound impact on
the judicial approach to statutory interpretation and on the theoretical assumptions informing it. This is a vast topic
which (in the present paragraph) can only be considered in outline.1

(a) Theories of and theoretical positions on interpretation

A theory, on the one hand, is an "explanation" or "explication".2 Scholarly or scientific theories are examples of such
explanatory models. On the other hand, a theory can also be an idea accounting for a situation or, especially in law,
justifying a course of action. Such a theory advances the principles on which the practice of an activity is based.3
Theories of statutory interpretation are explanatory and justificatory at the same time and are, therefore,
associated with what may also be called "approaches" to the interpretation of statutes.4

A statutory interpreter's theory of interpretation causes him or her to relate the issues of statutory
interpretation, with which he or she may be confronted in a concrete situation, to fundamental questions regarding,
amongst others, the "true" nature of the law and the possibility of justice. An interpretative theory also situates an
interpreter and his or her interpretative endeavours in a legal tradition5 which, amongst others, includes a
particular understanding of the nature and division of power as well as the role appropriate to authorised
interpreters of the law in the system. An approach to (statutory) interpretation is premised on and shaped by
theoretical assumptions about the matters just mentioned and by numerous other matters too. These assumptions,
constituting an interpreter's theoretical position as it were, strongly influence the procurement of a particular
interpretative outcome. To make an assumption involves making a choice. Theories of interpretation emanating from
choices thus made are, therefore, also an ordering or ranking of interpretative preferences.
 A theoretical position, which is a theoretical disposition at the same time, is not, in its entirety, consciously or even
rationally decided on. In particular, "jurists in practice" (including judicial officers) do not habitually devote time to
reflect specifically on (and to explain or justify) their theoretical positions. These positions become visible in the
arguments they use to justify particular interpretative outcomes. A theoretical position may nonetheless be
reflected on, contested, defended, explained and (consciously) changed. It may also be shared with others.6 A
theoretical position is made up of multifarious interacting factors and forces, some of which result from conscious,
reasoned choice while others emanate from intuitive perception. Covert and unconsciously held (theoretical)
assumptions, precisely because of an interpreter's uncritical unawareness of them, often have a more decisive
impact on interpretative outcome than overt and consciously reasoned assumptions.7

It is an oversimplification to assume that the South African judiciary as a whole has traditionally assumed a single
theoretical position on statutory interpretation and that constitutionalism stands to transform that position into
something else. The reality is much more complex. The theoretical position of a particular judge may, as a matter of
fact, vary from case to case, depending on the exigencies of each case and on the measure of latitude the law and
the canons of construction allow for deciding the specific issues involved in that case.8

However, there is a theoretical position which has dominated the approach of South African interpreters of
statutes (especially those of judiciary and legal practitioners) and that has served as a template for additional (or
auxiliary) positions on and approaches to statutory interpretation. This template position blends literalism and
intentionalism into a literalist­cum­intentionalist approach. Recognised additional or auxiliary positions can, broadly
speaking, be classified as contextualist and purposive or (preferably) teleological. South African scholars who look
critically at legal interpretation, in general (and statutory and constitutional interpretation, in particular), have
assumed theoretical positions associated with the linguistic turn in legal interpretation. A brief look will be taken at
each of these theoretical positions, whereafter the (possible) impact of constitutionalism on these positions will
briefly be assayed.

(b) Literalism

Literalism in its crude form contends that the meaning of a statutory provision can (and must) be retrieved from the
ipsissima verba in which it is couched, regardless of manifestly unjust or even absurd consequences.9 Clear
language is identified with plain or ordinary language,10 that is language in the sense that a normal speaker of a
language will understand it.11 Literalism is, thus, closely associated with the ordinary­meaning rule12 of statutory
interpretation. However, ordinary language (as "natural language") is by no means characteristically clear and
unambiguous13 and this causes the literalist interpreter to run into difficulties inherent in language.14 Strict
adherence to the words of a provision may, for instance, produce an interpretative result so absurd and repugnant
to "common sense" that the legislature can hardly be believed to have intended it ­ hence, the golden rule15 of
interpretation of which Lord Wensleydale's dictum16 is a classical exposition:
[T]he grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words
may be modified, so as to avoid the absurdity and inconsistency, but no farther.

The golden rule has, over the years and to this day, met with considerable response in South African case­law.17

Crude literalism "has reached its apogee and is on the wane".18 However, adapted and amplified versions of
literalism are alive and kicking.19 Literalism is, for instance, still the major point of reference for a classification of
common­law theories of statutory interpretation on the assumption that the interpretation of a statutory provision
necessarily commences with its actual words or (clear) language. Other approaches to statutory interpretation are
accordingly regarded as deviations from literalism instead of as theoretical positions in their own right.20

The Constitutional Court in S v Zuma,21 its very first reported judgment, intimated that literalism, to some extent
at least, could also stand constitutional interpretation in good stead:
[T]he Constitution does not mean whatever we might wish it to mean . . . [E]ven a constitution is a legal instrument, the
language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to
'values' the result is not interpretation but divination . . . I would say that a constitution embodying fundamental principles
should as far as its language permits be given a broad construction.

The literalist ring to this dictum is, indeed, muffled by an expression of sentiments in favour of a broad (and, by
implication, value­laden) interpretation of the Constitution, but the dictum has nonetheless been cited to justify
resort to literalism in its formalist guise.22 I n S v Mhlungu,23 the Constitutional Court was in disagreement on
abidance by the very linguistic form in which the apparently "technical" section 241(8) of the transitional
Constitution24 was cast. The minority25 took Kentridge AJ's dictum in Zuma26 literally, contending that, however
important it may be not to ignore "fundamental concerns" or "the spirit and tenor of the Constitution",27 it is not
competent for a court dealing with the constitutional text to come to an interpretative conclusion that can be
perceived as a modification of the ipsissima verba of the text. The majority, 28 on the other hand, after having
identified constitutional objectives beyond the ipsissima verba of the provision in question, was comfortable to fill in
gaps29 in the wording of section 241(8). This, the majority did in order to prevent the denial of "the equal
protection of fundamental rights guaranteed by Chapter 3"30 to "a substantial group of people".31

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism32 an undivided Constitutional Court
per Ngcobo J identified itself with the "emerging trend in statutory construction to have regard to the context in
which the words occur, even where the words to be construed are clear and unambiguous". The court referred with
approval to Thoroughbred Breeders' Association v Price Waterhouse33 and voiced concern about "an interpretive
approach that pays too much attention to the ordinary language of the words . . . It 'ignores the colour given to the
language by the context'. That context is the constitutional commitment to achieving equality, the foundational
policy of the Act to transform the industry consistent with the Constitution and the Act read as a whole."34 More
than a decade after the Mhlungu judgment, a majority of the Constitutional Court, in African Christian Democratic
Party (ACDP) v The Electoral Commission,35 demonstrated an unwavering readiness to proceed beyond the ipsissima
verba of a legislated text where considerations of constitutional and legislative purpose were held so to require.
This latter case will be discussed more fully below.36

(c) Intentionalism

According to Steyn,37 a d e c i d e d l y o u t s p o k e n p r o p o n e n t o f intentionalism, the paramount rule of statutory

interpretation is that the real intention of the legislature, once discerned, must be given full effect to. In cases
involving the interpretation of statute law, dicta to the effect that the (real) intention of the legislature must be
determined and given effect to are almost certain to occur. 38 This belief has been affirmed, time and again, by
classical dicta like the one in Farrar's Estate v Commissioner for Inland Revenue39 asserting that "[t]he governing rule
of interpretation ­ overriding the so­called 'golden rule' ­ is to endeavour to ascertain the intention of the law­maker
from a study of the provisions of the enactment in question". What is stated, however, can probably better be
described as the fundamental (theoretical) assumption or premise rather than the paramount rule of statutory
interpretation. "Determine and give effect to the intention of the legislature" is too general and too unspecific to be
a "rule". It is, however, the statement of an interpretative belief generally accepted among (South African) jurists.

Judges typically pronounce the outcome of their interpretative insights and argumentation in the following terms:
"the legislature clearly intended X"; "the intention of the legislature, on a proper construction of the provision, is X";
"the legislature can hardly have intended Y"; et cetera.40 Very seldom will a judge say, "I think the provision means
X"; even less frequently, "the provision as I see (or construe) it means X"; and seldom, if ever, "the result of my
interpretative endeavour is X"41 ­ even if X may actually be the outcome of any or all of these and the "actual
intention" of the legislature may somehow be at odds with X. Judicial pronouncements are meant to carry weight.
The phrase "intention of the legislature" is the rhetorical means that lends them this weight while, at the same
time, this manner of speech enjoys the advantage of being rhetorically malleable.

It is this malleability that has caused the notion of legislative intent to join forces with interpretative assumptions
about the language and purpose of statute law so as to exert its authority in a canon­like fashion. As quid pro quo,
the said notion lends justificatory force to interpretative canons associated with the language and purpose of
legislation.42 Intentionalism in practice cannot be understood in isolation from its alliances with literalism (literalism­
cum­intentionalism) and purposivism (intentionalism­cum­purposivism). The first alliance will be considered next, and
the second in (f) infra when purposivism, as theoretical position, will be dealt with.

(d) Literalism­cum­intentionalism

Literalism­cum­intentionalism, confidently verbalised by Innes J in Venter v R43 more than a century ago, is arguably
still prominent on the judicial scene. Determination of the intention of the legislature is said to be the real object of
statutory interpretation, assuming that the legislature "meant to express" its intention in language. The court then
explains:
By far the most important rule to guide courts in arriving at that intention is to take the language of the instrument, or of the
relevant portion of the instrument as a whole; and, when the words are clear and unambiguous, to place upon them their
grammatical construction and to give them their ordinary effect.

This is basically a literalist position. First,44 it is assumed that there is a grammatical structure that allows for a
fixed, "ordinary effect" of the language. Second, and following from the first, it is accepted that the (most) correct
use of the language, in conformity with its grammatical structure and rules, will make for an objective perspicuity in
the advantages of which all (reasonable?) users of the language can share. This literalist­cum­intentionalist
approach is widely relied on in the case­law.45 It has, for instance, been stated that the intention of the legislature
can be determined by affording words their plain, ordinary, literal or grammatical meaning, 46 that it is inadmissible
for a court to construe an enactment contrary to the intention of the legislature as appears from the clear wording
of the instrument,47 that, if the legislature did have a specific intention, it would have expressed it by using clear
and unambiguous language,48 and that a change of wording in a statutory provision prima facie, although not
inevitably, signifies a change of intention.49

The instances of literalism in the Venter case, and in subsequent cases, have been criticised by legal scholars
who advocate the idea that statutory interpretation must be alive to latter­day developments in theories of
understanding.50 First, it is pointed out that statutory language is natural a n d n o t formal language.51 Natural
language is always an open system making for a proliferation of meaning.52 Not only is its meaning constantly in
flux, but it is also ever and again in conflict ­ especially so with law that has to regulate massive and mostly
antagonistic conflicts.53 Courts come up against this reality every day54 and Innes J, in Venter's case,55 actually
saw this when he spoke of "a difficulty inherent in the nature of language". The strategy he suggested for dealing
with this difficulty was golden­rule reasoning.

Second, a realisation of exactly how thoroughly, inevitably and decisively pre­understanding shapes and
shepherds legal understanding in practice is food for thought for adherents of the belief that interpretation can be
"objective" as long as linguistic form and clear language are respected. Kentridge AJ's much avowed dictum in S v
Zuma56 on the significance of linguistic form in constitutional interpretation also contains an acknowledgement
(albeit slightly in passing) that, in reading and construing the Constitution, it is not easy "to avoid the influence of
one's personal intellectual and moral preconceptions" ("one", here, referring to the judge).57 This remark unsettles
the belief that deference to linguistic form will guarantee objective interpretation, but, read in context, Kentridge
AJ's observation does not do away with this belief outright and he will probably find it hard to assimilate fully the
consequences of what Stanley Fish58 has to say about the feasibility of the idea of "clear language":
Meanings only become perspicuous against a background of interpretive [sic] presumptions in the absence of which reading
would be impossible. A meaning that seems to leap off the page, propelled by its own self­sufficiency, is a meaning that
flows from interpretive [sic] assumptions so deeply embedded that they have become invisible.
Fish implies that language, as such, cannot be clear. What can be clear to an interpreter, however, is his or her
understanding of what the language of a (statutory) text prescribes for a concrete situation at hand. This
understanding is shaped by "personal intellectual and moral preconceptions" and by the interpreter's familiarity
with the context.

Third, the advent of constitutional democracy and the enactment of politically, socially and economically
reformative legislation, much of which is framed in broad and expansive, constitution­like language, are showing up
the inadequacies of literalism in interpretative practice.59 However, before dealing with this phenomenon, it is
necessary to say something about two other conventional positions on statutory interpretation that have assumed
new significance under constitutionalism. They are contextualism and purposivism.

(e) Contextualism

The gist of contextualism is that the meaning of a provision must be determined by a reading of its words in context
or by a reading of the language in context or by a reading of the provision itself in context.60 Contextualism and
purposivism go hand in hand.61 Legislative purpose, ascertained from the context, is often also equated with
legislative intent.62 Contextualism and purposivism are, in principle, both post­literalist approaches. However, there
are versions of contextualism that seek not to oppose or contradict literalism, but to augment and enrich it
instead.63 The classical ex visceribus actus approach is, for instance, such an example.64 This approach, judged by
the Constitutional Court's frequent reliance on it,65 seems to be exceptionally apt for purposes of constitutional
interpretation too.

In Hoban v ABSA Bank Ltd t/a United Bank,66 Cameron67 is quoted with approval where he says that "context
does no more than reflect legislative meaning which in turn is capable of being expressed only through words in
context". This is putting in a nutshell Schreiner JA's seminal articulation (in a minority judgment in Jaga v Dönges;
Bhana v Dönges)68 of an interpretative modus operandi honouring the exigencies of both language and context. His
approach does not represent a decided break with literalism­cum­intentionalism,69 b u t d o e s g o b e y o n d " a n
excessive peering at the language to be interpreted without sufficient attention to the contextual scene".70 This
minority judgment of Schreiner JA is probably one of the most frequently cited minority judgments in the history of
South African case­law.71 Its large­mindedness seems to appeal to judges in search of justification for a mode of
interpretative reasoning that goes beyond linguistic formalism. Small wonder that this judgment has met with
approval in constitutional jurisprudence, too.72

It was intimated in Jaga v Dönges; Bhana v Dönges73 that "context" includes not only the language of the rest of
the statute, but also it's matter, its apparent purpose and scope and, within limits, its background. Background,
understood as history, is a contextual element that, in the case­law, has been taken into account for interpretative
purposes,74 especially where obscure language shrouds the intention of the legislature in obscurity. 75 T h e
Constitutional Court has also emphasised the importance of construing constitutional provisions in context, holding
that this includes the history and background to the adoption of the Constitution, other provisions of the
Constitution itself, and, in particular, the provisions entrenching fundamental rights (chapter 3 of the transitional
and chapter 2 of the 1996 Constitution).76 The role of legislative history in statutory and constitutional
interpretation will be considered at a later stage.77

(f ) Purposivism

Purposivism attributes meaning to a legislative provision in light of the purpose that provision seeks to achieve in
the context of the instrument of which it forms part. Where "clear language" and purpose are at odds, the latter
prevails. But, how is purpose to be discerned? According to the classical version of purposivism in the common­law
tradition, the so­called mischief rule in Heydon's case,78 the purpose of enacted law is to suppress mischief. A court
interpreting a provision is constrained to ask four questions: first, what the common law was before the enactment
of the provision; second, what the mischief and defect were for which the common law did not provide; third, what
remedy parliament resolved and appointed "to cure the disease of the commonwealth"; and, fourth, the true
reason for the remedy:
[T]he office of all judges is always to make such construction as shall suppress the mischief and advance the remedy, and to
suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life
to the cure and remedy according to the true intent of the makers of the Act pro bono publico.

In the last sentence of the dictum just quoted, legislative intent is identified with any construction of a statute
suppressive of a mischief and conducive to the remedy designed to eliminate that mischief. This implies that the true
intention of the legislature and the purpose of an act can hardly be at odds. This implication, in its turn, creates
room for the notion of intentionalism­cum­purposivism.

The mischief rule has met with response in South African case­law and was (re­)stated in Hleka v Johannesburg
City Council.79 The line of reasoning informing this classical common­law rule has, moreover, also been appealed to
in constitutional interpretation, holding that the "previous constitutional system of this country was the fundamental
'mischief' to be remedied by the application of the new Constitution".80 Looked at in this way, the Constitution is a
remedial measure that must be construed generously in favour of redressing the mischief of the past and in such a
way as to advance its own objectives for the present and the future.81

It has for long been recognised in the South African case­law on statutory interpretation that, giving effect to the
policy or object or purpose of legislation is an accepted strategy of statutory interpretation.82 However, it has also
been made clear that this strategy is appropriate only once the language of a provision lets the interpreter down.83
The purposive approach is, in other words, second to the literalist­cum­intentionalist approach: as a rule, "ordinary"
or "clear and unambiguous language" trumps other indicia of policy, object or purpose. 84 However, in some cases,
purposivism is seen as an ally of literalism­cum­intentionalism: as in Heydon's case, the intention of the legislature
and the purpose of an act are understood to be identical.85 This version of purposivism­cum­intentionalism usually
goes hand in hand with a readiness, on the part of judges, to proceed beyond the literal form of a provision that
stands to be construed86 and to "go by the design or purpose which lies behind it".87 Much is made of, for instance,
the preamble to an act as well as statements of purpose in the body of the text.88 Preambles, traditionally reserved
for legislation of a formal and solemn nature,89 have become a feature of post­1994 legislation, while statements of
purpose, which were previously unheard of, are quite readily included, especially in acts with (potentially) far­
reaching policy effects.90 Subsidiary constitutional statutes enacted with the specific aim of promoting constitutional
values or fulfilling constitutional duties or obligations are often construed with reference to the preambulatory and
other value statements in the Constitution itself.91

Purposiveness, it seems, is a substitute for clear language as the key to constitutional interpretation.92 This has
had (and will, in the course of time, probably continue to have) an impact on courts' approach to the interpretation
of non­constitutional legislation, too, especially where legislation closely associated with socio­economic and
political transformation stands to be construed and where specialist fora, called into existence to deal with such
legislation, are involved.93 The Land Claims Court, in In re: Former Highlands Residents: Sonny v Department of Land
Affairs,94 for example, verbalised its purposive approach to the interpretation of the Restitution of Land Rights Act95
as follows:
The Court must exercise its powers to order restitution within the confines of the Restitution Act, duly interpreted by using all
relevant norms of interpretation (the presumptions and other intra­textual and extra­textual aids). Where the language of a
statute leaves a gap to be filled, the Court must fill that gap. In doing so, it must reconstruct the thinking contained in the
statute, consider the practical implications and come up with a solution which conforms with the purpose of the statute and
with the spirit, purport and objects of the Bill of Rights, while also serving the requirements of justice and equity.96

It is quite significant that, in the above dictum, the court prefers to describe the purpose of statutory interpretation
a s giving meaning t o a legislated text and not as finding o r discovering meaning i n the text.97 Nevertheless,
purposive interpretation cannot be the uncontested (or only) "Open sesame!" to the interpretation of all enacted
law­texts.98 In particular, some latter­day manifestations of this interpretative strategy could turn into unruly
horses should three caveats not be heeded.

First, the belief that the Constitution, and the Bill of Rights in particular, ought to be given a generous or broad
interpretation, as the Constitutional Court itself has clearly said,99 o u g h t t o b e q u a l i f i e d . T o c o n s t r u e the
Constitution purposively is not always tantamount to construing it generously or broadly: a purposive interpretation
can also be restrictive precisely because it is purposive.100 Moreover, an overly generous interpretation of a
constitutional benefit which, in terms of the Constitution itself, is subject to limitation by an act of parliament will be
inapposite, especially once the constitutionally envisaged legislation has indeed been enacted.101

Second, the processes involved in constitutional (and statutory) interpretation are too complex to be captured in
one essential or predominant buzzword. The following words of caution are apposite:102
[I]t serves little purpose to characterise the proper approach to constitutional interpretation as liberal, generous, purposive
or the like. These labels do not in themselves assist in the interpretation process and carry the danger of introducing
concepts or notions associated with them which may not find expression in the Constitution itself.

Third, purposive interpretation cannot simply begin (and end) by giving effect to the purpose of a provision to be
construed. Such purpose or object cannot simply be known prior to interpretation, but has to be established through
interpretation, instead: the interpretation of enacted law is, by its very nature, purpose­seeking.103 I f n o t s o
established, an interpreter can read a purpose or object into the provision in an arbitrary manner and, thus, try to
escape the responsibility of justifying his or her conclusion, or water it down to token argumentation.104 In pre­
constitutionalist South Africa, optimum effect was, for instance, given to harsh statutory provisions gratuitously
interfering with fundamental rights precisely because such provisions were construed purposively. 105 S o m e
writers,106 therefore, argue that purposive interpretation should enjoy the status of a secondary (as opposed to a
primary) mode of interpretation.

Some South African scholars have suggested a teleological approach to constitutional (but also statutory)
interpretation. In essence, this approach is still purposive but it seeks to proceed beyond ad hoc purposivism in
that, in the interpretation of an individual statutory or constitutional provision, it aspires to a realisation of the
"scheme of values" on which the legal order is premised.107 It is "value­activating interpretation",108 in other
words, going not only by the design or purpose that lies behind an individual provision, but by the scheme of values
informing the legal and constitutional orders in their totality.109

Teleological interpretation has not yet been explained in the case­law in the way it has just been done.
However, there have been dicta, mostly (and unsurprisingly) in cases dealing with constitutional interpretation,
where the line of reasoning informing the teleological approach, or a line of reasoning akin to it, has met with
approval.110

(g) Constitutionalism and the dominance of literalism­cum­intentionalism

From the discussion, so far it seems as if there are indications in the case­law that the dominance of literalism­cum­
intentionalism as template for the interpretation of enacted law­texts is increasingly questioned and contested,
especially in constitutional interpretation and in the interpretation of statutes specifically designed and enacted to
give effect to constitutional (and constitutionalist) values and objectives. This is not surprising. Literalism and
intentionalism as dominant considerations in statutory and constitutional interpretation are incompatible with the
idea and practice of constitutionalism for several reasons ­ as will next be shown.

Intentionalism and its place in constitutional interpretation have been hotly debated issues in the United States
of America, with the originalists maintaining that a constitution is to be read faithfully in accordance with the original
intent of its framers.111 Some of their opponents' objection is that original intentionalism leaves too little room to
adapt constitutional provisions with a long history to "present circumstances".112 Constitutional interpretation, it is
said, is not about finding the original intent of the "founding fathers", but about attributing a present­day meaning
to constitutional provisions that, in the case of the United States, were drafted some two centuries ago. In quite a
number of South African Constitutional Court cases, reference is made to what the framers of the Constitution113
would (or would not) have thought or foreseen or intended.114 These conjectures, reminiscent of intentionalist­
speak in statutory interpretation, are generally invoked to justify the court's understanding of a provision, and
restate the preferred and privileged canons of construction115 of literalism­cum­intentionalism116 in the context of
constitutional interpretation. This conventional rhetoric is not evidence of an ideological embracing of originalism,
however, for the court has, on occasion, actually intimated that it does not endorse "the doctrine of original
intent".117

Statutory interpretation may take its cue from the trend in constitutional interpretation just described, and
reconfirm an allegiance to intentionalism, but it will not be intentionalism as it used to be. Ironically, the preferred
status of intentionalism as an approach to statutory interpretation is toppled by the supremacy of the Constitution,
brought into action by the reading of statute law in conformity with the Constitution.118 The decisive question of
statutory interpretation is no longer what the legislature intended a statute to mean, but which one of the possible
meanings of the text is most compatible with the Constitution.119 The intention of the legislature plays second
fiddle, at best. It may be argued that this will be the case only where the constitutionality of a statutory provision is
challenged, but, then again, the radiating effect of the supreme Constitution, like the perpetuity of statute law,120
i s a l w a y s p r e s e n t i n e v e r y s i t u a t i o n w h e r e l e g i s l a t i o n i s c o n s t r u e d , o n a c c o u n t o f section 39(2) o f the
Constitution.121 Irrespective of the interpreter's surmise of what the legislature intended, statute law must be
given effect to in a manner promoting the spirit, purport and objects of the Bill of Rights.

From a stylistic point of view, the Constitution as text has also unsettled the notion of "clear and unambiguous
language", intentionalism's prime partner in constituting the judiciary's conventional, template position on the
interpretation of enacted law­texts.122 Crucial provisions in the constitutional text, such as the statement of values
in, for example, the preamble, sections 1,123 41124 and 195,125 and the Bill of Rights126 in its entirety, are
couched in all but clear and unambiguous language ­ and deliberately so. The Constitution is a value­laden text and
values can hardly be expressed in clear and unambiguous language. It is, furthermore, a durable text whose
expansively formulated and, thus, inevitably ambiguous provisions are meant to cater for an inestimable array of
exigencies for a long time to come.

The open­endedness of the constitutional text makes the inevitable role of the (judicial) interpreter's pre­
understanding in construing constitutional provisions, more visible. Froneman J, in an unprecedented dictum in
Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape,127 is, for instance, quite frank about the fact
that his pre­understanding has codetermined his construction of section 38 o f the Constitution (in relation to
subjects' standing in constitutional litigation).128 Similarly, Horn AJ, in Port Elizabeth Municipality v Peoples Dialogue on
Land and Shelter,129 discourages an overly legalistic approach to the construction of crucial provisions of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,130 "a piece of welfare legislation formulated
upon humanitarian lines".131

On the other hand, jurists who believe that the notion of clear and unambiguous language (still) has at least
some interpretative relevance have suggested that constitutional provisions drafted in the "new style" (referred to
above) are essentially dissimilar to more conventional constitutional provisions, drafted in the conventional,
common­law style, catering for "mundane" or technical matters. This latter style of draftsmanship,132 producing
long­winded and often esoteric formulations, anticipates a literal reading of statutory texts. In the Romano­
Germanic legal systems of European countries, the language of enacted legal norms ­ especially in codifications ­ is,
by contrast, characteristically inclusive and open­ended.133 For constitutional provisions drafted in the conventional
common­law style, literalist­cum­intentionalist reading strategies will, it is thought, suffice. Van Dijkhorst J,134 for
instance, suggests that section 106(2) of the transitional Constitution, providing for Bloemfontein to be the seat of
the Appellate Division of the Supreme Court of South Africa (presently the Supreme Court of Appeal) is a provision in
the latter category. However, looked at in the abstract, this provision is not clear and unambiguous at all.
"Bloemfontein" can be more than one place or location. It can be the city of Bloemfontein but also the district of
Bloemfontein. It could, moreover, include a farm or a suburb or a squatter camp or, perhaps, even an aircraft named
"Bloemfontein". It is not the linguistic signifier that makes the meaning of "Bloemfontein" in section 106(2) clear, but
interpreters' shared knowledge that, at the time of the adoption of the transitional Constitution and for the 83
years preceding it, the city of Bloemfontein, capital of the Free State, had been the seat of the Appellate Division.
This knowledge co­constitutes interpreters' pre­understanding, and it is this pre­understanding that makes section
106(2) "clear and unambiguous".135

Another example will serve to illustrate the problems that arise when one approaches the language of
"technical" constitutional provisions with confidence in the perspicuity of such language. Section 46(1) o f the
Constitution provides that the national assembly consists of no fewer than 350 and no more than 400 men and
women. Presumably, a national assembly, consisting of 360 men only (or 360 women only) will be unconstitutional
because this body is required to consist of men and women. However, in light of the Constitution's overwhelming
insistence on gender equality, a national assembly consisting of, for example, 355 men and 5 women will probably
also be unconstitutional. To take it further: if members of the national assembly resign or are killed in an accident,
and their numbers drop to below 350, will the remaining members still constitute "the national assembly" ­ at least
for the time being? And does it make a difference whether the numbers have dropped below the minimum, due to
resignations or due to an accident? These questions are not irresolvable, but the language of the provision cannot,
of itself and in abstracto, suggest a solution. Constitution­based arguments will have to be weighed against one
another to determine a preferred meaning ­ just as is the case with more open­ended provisions of the
Constitution. Conversely, a violation of a fundamental right entrenched in the Bill of Rights can be so flagrant that
the meaning of the provision entrenching it may, for purposes of that case, seem clear and unambiguous.

Constitutional provisions can, thus, hardly be classified in terms of their clarity of meaning because they have to
be read in the context of the constitutional text as a whole, in relation to one another and they presuppose some
pre­understanding on the part of the interpreter. All of this has an impact even on (what was conventionally
considered to be) "clear language" dealing with "mundane issues".136 The same holds for statutory provisions that
must be read in light and in the context of the Constitution. More and more statutes are, at any rate, drafted in the
linguistic style of the Constitution. A prime example is the Labour Relations Act.137 The Competition Act,138 drafted
by and large in a similar style, occasioned a significant difference of opinion, among judges of the Supreme Court of
Appeal, on appropriate reading strategies.139

The majority judgment of the Constitutional Court in African Christian Democratic Party (ACDP) v The Electoral
Commission,140 powerfully illustrates how considerations of constitutional and legislative purpose can take
interpretive endeavours and outcomes beyond the ipsissima verba of an enactment that stands to be construed.
Section 14(1)(b) of the Municipal Electoral Act141 requires a party contesting a municipal election to pay a deposit
equal to a prescribed amount by means of a bank guaranteed cheque submitted to the office of the local
representative of the electoral commission by a stipulated cut­off date. Together with the cheque a notice of a
party's intention to contest the election and its party lists must also be submitted.142 The ACDP wanted to contest
an election in the Cape Town Metro Municipality, and submitted their notice and party lists to the Cape Town office
of the electoral commission, but did not pay the prescribed deposit of R3 000,00 in the manner required by section
14(1)(b). Instead it submitted a bank guaranteed cheque to the central office of the commission in Pretoria,
including in one amount all the deposits payable in respect of all the municipalities in which the party wished to
contest elections. A list of these municipalities was submitted together with the cheque, but as a result of an
administrative oversight the Cape Town Metro was omitted from the list, and the bulk amount did not include a
deposit for the election in Cape Town. The ACDP discovered the mistake on a date after the deadline for the
payment of deposits had elapsed and after it had decided not to contest elections in certain of the municipalities
initially included in its list. This meant that the commission held a surplus amount of money in favour of the ACDP
who then requested the commission to use that credit (or part of it) as deposit for the election in the Cape Town
Metro. The commission refused to do so, contending that the prescribed procedure and deadline for party
registrations were peremptory and that the ACDP's failure fully to comply with both cannot be condoned.

On appeal against this decision the electoral court agreed with the commission and the ACDP thereupon turned
to the Constitutional Court for relief. A majority of this court held that payment of the deposit in Pretoria for
participation in respect of the election in municipalities subsequently uncontested by the ACDP, sufficed as payment
of the deposit for the Cape Town Metro election. The court emphasised that it was not condoning the ACDP's non­
compliance with peremptory registration requirements, but that it was saying that by doing what it did the party
was indeed complying with these requirements.143 Actual compliance was thus not required to be compliance in
accordance with the letter of the law: circuitous and arguably even unintended compliance, duly serving the
purpose of the provision in question, sufficed. This meant reaping the greatest possible advantage from the
elasticity of the language of section 14(1) to achieve optimum realisation, first, of the immediate purpose of the
provision itself, namely "to ensure that a deposit is paid by a political party to establish that they have a serious
intention of contesting the election";144 second, of the purpose of the act as a whole, namely to encourage and
facilitate participation in (rather than conduce exclusion from) municipal elections; and, third and ultimately, a core
purpose of the Constitution, namely to sustain multi­party democracy through free and fair elections.145 This core
purpose is articulated, as an assertion of values key to a multi­party, democratic government, in section 1(d) among
the founding provisions of the Constitution. The purposive picture, in this instance, dwarfs the practical
arrangement that a deposit must be paid at a particular designated place (or, for that matter, before the expiration
of a stipulated deadline).

Wessel le Roux146 depicts the court's interpretive modus operandi as follows:

The Court resolves the case, not by asking what the phrase "office of the Commission's local representative" means
linguistically, but by asking what the purpose of that phrase is within the context of election law. The Court is not pursuing an
abstract definition but an operative effect. The concern with the linguistic meaning of the phrase is at the same time
dismissed as an "unduly narrow" (read textualist or literalist) approach to statutory interpretation. By contrast, the broader
(read purposive) approach which the Court favours includes the following distinct steps: (i) establish the central purpose of
the provision in question; (ii) establish whether that purpose would be obstructed by a literal interpretation of the provision;
if so, (iii) adopt an alternative interpretation of the provision that "understands" (read promotes) its central purpose; and (iv)
ensure that the purposive reading of the legislative provision also promotes the object, purport and spirit of the Bill of
Rights.

The ACDP case dealt with the interpretation of statutory provisions, but these provisions form part of the Municipal
Electoral Act, section 2(a) of which enjoins any person interpreting the Act to "do so in a manner that gives effect to
the constitutional declarations, guarantees and responsibilities contained in the Constitution". Interpreting the Act
thus inevitably also involves interpreting the Constitution, particularly in relation to elections and matters and
values pertaining to multi­party democracy. 147 The shift away from the primacy of literalist­cum­intentionalist
interpretation to a far­reaching implementation of purposive interpretation where circumstances so demanded, is
equally appropriate to constitutional and statutory interpretation and actually emphasises that these two instances
of interpretation can hardly (still) be kept apart.

(h) The linguistic turn

All in all, the advent of constitutional democracy and the exigencies of constitutional interpretation in South Africa
have lent credence to (some of) the propositions underlying and informing the linguistic turn in legal interpretation.
The linguistic turn amounts to this: meaning is not discovered in a (law­)text, but is made in dealing with the text.148
Crucial propositions underlying this linguistic turn are that language cannot be said to have a perspicuous, clear and
unambiguous meaning; though, at the same time, language is decisive, and, indeed, all­pervading, in determining
the meaning of any law­text that stands to be construed, since all meaning derives from, is determined by and is to
be found within language as a complex system of signifiers. To determine the meaning of a law­text, such as a
statutory or constitutional provision, therefore, does not mean to find meaning in the text (and then to retrieve it),
but to attribute meaning to the text or to decide on the meaning of the text (by engaging with the text in interaction
with other texts).149

Linguistic­turn reasoning is not readily compatible with conventional judicial reasoning, and assertions that the
construction of an enacted law­text involves giving meaning to the text rather than finding or discovering meaning in
the text are rare ­ although not non­existent, as appeared from the dictum in In re: Former Highlands Residents:
Sonny v Department of Land Affairs150 (cited and commented on, above).151 The linguistic turn nonetheless brings to
light and emphasises two matters of considerable importance to the interpretation of enacted law­texts in such a
way that it confirms themes already present in the common­law tradition of statutory interpretation. First, it
explains, from the perspective of the openness of language as a complex system, why context is so crucial in the
determination of meaning, thereby lending credence to positions on statutory and constitutional interpretation that
emphasise the inevitability of determining the meaning (and purpose) of a provision by reading it in context. Second,
the linguistic turn explains, with reference to the dynamics of language, why an interpreter always has a choice,
thereby confirming assumptions that have informed objectivism and concomitant judicial or free theories of
interpretation. These theoretical positions have not met with any response of note in South African case­law, but
have shown up in English common law with which the tradition of statutory interpretation in South Africa has close
links.152 They, therefore, merit some consideration.

(i) Objectivism and judicial or free theories of interpretation

Objectivism is meant as an antidote to the subjectivism of intentionalism, contending that, once a law has been
enacted, the legislature has had its say and the text assumes an existence of its own.153 Also known as "the
delegation theory" objectivism entrusts the function of concretising154 statutes ­ that is, bringing them to
completion in life's concrete situations ­ to the courts, who are said to be acting as the legislature's delegates.

In the South African context, Labuschagne155 has propounded a variation of objectivism, arguing that a
statutory provision acquires meaning (only) once it is interpreted and applied in a concrete situation. This
contention echoes Gadamer's seminal insight about the oneness of interpretation and application.156 According to
Labuschagne, a statute as promulgated is but a structure statute: it contains merely a "structure norm" and
becomes "real" or "complete" (that is to say, a function norm) only once it is carried into effect and applied to an
individual, concrete situation. Since the function norm operates with reference to a particular, concrete case only, it
is unique, and legal norms (qua function norms) cannot, therefore, be in conflict with each other. The legislative
process, according to Labuschagne, proceeds from the generality of the structure norm to the particularity of the
function norm.157

Objectivism also reminds the interpreter that statutes ought to be construed with regard to the continuing time­
frame within which they function.158 Regard should accordingly be had to the policies that existed at the time a
statute became law, as well as to the changes these policies might have undergone: " '[a]pplication' is a continuing
process and the application of a provision in a particular case is only one step in a journey".159

Du Toit160 speaks of the dimension of futurity in the law. Subscribing to a key tenet of objectivism, he rejects the
idea that statutory interpretation involves the discovery of a "past intention" of the legislature. The interpretation of
a text (and of a statute) is the "present realisation" of the meaning possibilities contained in the original draft,
instead.161 "Past meaning" must, in other words, be transposed into present terms, while "present meaning"
opens up vistas of futurity. Understanding a statute is tantamount to its existential application.162

Judicial o r free theories of statutory interpretation constitute a theoretical position closely associated with
objectivism. In a moderate form, these theories recognise and justify and, in a more radical form, strongly advocate
judicial activism premised on the belief that judges have a creative role to play in the interpretation and application
of statute law. "Moderate free theorists"163 contend that ascertaining the intention of the legislature necessarily
entails the filling in of gaps in an enactment. In this way, provisions are made to make sense rather than opened up
to destructive analysis. A "wait and see" attitude, with regard to legislative reform, is inappropriate.164 T h e
judiciary, with the help of the common law, must intervene in order to remedy defects in statute law, since
legislative processes are not sufficiently expeditious and streamlined to cope with deficiencies that show up in day­
to­day practice.

More radically disposed adherents of judicial activism165 do not reject the theses underlying the moderate
approach, but go further by piercing the veil of ostensible judicial objectivity. Statutory interpretation is seen not as
a science, but rather as an art that involves the making of choices. Interpretation is not really guided by "objective"
canons of construction. Instead, the exigencies of an intuitively arrived­at desired interpretation induce preferential
reliance on only certain canons of construction to justify the interpretative result. The outcome is actually
predetermined by the interpreting judge's pre­understanding.166

Constitutionalism and constitutional interpretation, associated with increased and increasing demands on the
judiciary to make, and to help ensure, the implementation of policy­like decisions,167 enhance conditions conducive
to the onset and growth of objectivism and free theories of interpretation. As appeared from some case­law
examples above,168 objectivist and free­theory argumentation do not necessarily constitute self­sufficient
theoretical positions, but usually give momentum and direction to contextualist and purposivist reasoning in
statutory and constitutional interpretation. In future, this will probably happen to an ever­increasing extent ­ as a
result of the policy responsibilities the Constitution assigns to the judiciary169 and also as manifestation of a world­
wide trend detectable even in jurisdictions, such as Britain, without a supreme Constitution.170
1 For a more extensive discussion, see Du Plessis Re­Interpretation of Statutes ch 5 and 143­147.
2 Pearsall (ed) New Oxford Dictionary of English 1922. The "consensus theory" in the law of contract is a
good example of a theory explaining something. This theory explains that a contract is based on a
concursus animorum of the parties involved (Wille Principles of SA Law 421­422).
3 Pearsall (ed) 1922.
4 In legal parlance, "theory" is sometimes also used as a synonym for "rule" or precept. The "expedition
 theory" in the law of contract is, for instance, in essence a rule prescribing that a contract concluded
by mail comes into existence the moment the written acceptance of an offer is posted (Hosten et al
Introduction to SA Law and Legal Theory 704­705). This theory is preferred to the "information theory"
according to which such a contract will enter into force the moment the offeree's acceptance comes to
the attention of the offeror ­ that is, when the latter receives and reads the letter of acceptance. In this
chapter "theory" is not meant to have the connotation of "rule" or "precept".
5 Du Plessis 1999 Koers 254­255 and 2000 SA Public Law 302­303.
6 Although, due to the uniqueness of each individual, no two theoretical positions are likely to be
identical in every detail.
7 Fish Doing what comes naturally 358.
8 Cf eg Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 (1) SA 925 (A) 943C­
944A.
9 For examples cf Steyn Uitleg van Wette 64­67.
10 Maxwell Interpretation of Statutes 28­29.
11 Cross Statutory Interpretation 1.
12 See par 2C33 below.
13 See the discussion in (d) infra.
14 Venter v R 1907 TS 910 913.
15 Cowen 1980 THRHR 379 refers to the golden rule as "the second canon of literalism".
16 In Grey v Pearson [1843­60] All ER Rep 21 (HL) 36.
17 The classical statement of the golden rule occurs in Venter v R supra 914­915, but the rule has
continuously been confirmed: cf Seluka v Suskin and Salkow 1912 TPD 258 265­266; Storm v Durban
Municipality 1 9 2 5 A D 4 9 5 5 ; P r i n c i p a l I m m i g r a t i o n O f f i c e r v H a w a b u 1 9 3 6 A D 2 6 3 0 ­ 3 1 ;
Landboukredietraad v Vrystaat Lewendehawe Koöperasie Bpk 1990 (1) SA 106 (A) 112F; S v Toms; S
v Bruce 1990 (2) SA 802 (A) 807H­J; Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van
Suider­Afrika Bpk; Red Head Boer Goat (Edms) Bpk v Eerste Nasionale Bank van Suider­Afrika Bpk;
Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider­Afrika Bpk 1994 (3) SA 407 (A) 422A­
B; Van Heerden v Joubert 1994 (4) SA 793 (A) 795E­G; Malindi v Commercial Union Insurance Co SA
L t d 1 9 9 7 ( 1 ) S A 3 2 7 ( A ) 3 3 2 D ­ H ; Randburg Town Council v Kerksay Investments (Pty) Ltd
1998 (1) SA 98 (SCA) 107A­G; Regering van die RSA v Disotto 1998 (1) SA 728 (SCA) 735A­B;
Manyasha v Minister of Law and Order 1999 (2) SA 179 (SCA) 185B­C; Runeli v Minister of Home
Affairs 2000 (2) SA 314 (TkH) 322C­D; Poswa v Member of the Executive Council for Economic Affairs,
Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) pars 10­13.
18 As Devenish Interpretation of Statutes 26 has it.
19 For examples from the case­law, see East London Municipality v Abrahamse 1997 (4) SA 613 (SCA)
632G; Standard Bank Investment Corporation Ltd v Competition Commission; Liberty Life Association
of Africa Ltd v Competition Commission 2000 (2) SA 797 (SCA) 811A­H.
20 Cf eg Steyn 22­68; cf also par 2C15 below.
21 1995 4 BCLR 401 (SCA) pars 17 and 18 per Kentridge AJ.
22 Cf eg Standard Bank Investment Corporation Ltd v Competition Commission; Liberty Life Association of
Africa Ltd v Competition Commission supra 811A­D. Van der Vyver 1995 SALJ 574­575 eg claims: "
[T]he South African Constitutional Court in its first judgement clearly endorsed the view that the rules
of interpretation pertaining to the Chapter on Fundamental Rights [in the transitional Constitution] do
not authorize the courts to go beyond the wording of the instrument itself ".
23 1995 7 BCLR 793 (CC).
24 Constitution of the Republic of South Africa, Act 200 of 1993.
25 Per Kentridge AJ pars 72­80.
26 Cf, in particular, par 77 of Mhlungu.
27 Par 63.
28 Per Mahomed J pars 2­34.
29 Cf the discussion in (i) infra.
30 The chapter on fundamental rights in the (transitional) Constitution of the Republic of South Africa, Act
200 of 1993.
31 Par 33.
32 2004 7 BCLR 687 (CC) par 90, 2004 (4) SA 490 (CC).
33 [2001] 4 All SA 161 (A), 2001 (4) SA 551 (SCA) par 12.
34 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism supra par 92.
35 2006 5 BCLR 579 (CC), 2006 (3) SA 305 (CC).
36 See (g) infra.
37 2.
38 A random selection of examples are Santam Versekeringsmpy Bpk v Roux 1978 (2) SA 856 (A) 868E­
F; Santam Versekeringsmpy Bpk v Kruger 1978 (3) SA 656 (A) 665F; S v Gampel Bros and Barnett
(Pty) Ltd 1978 (3) SA 772 (A) 784A­785E; S v Moroney 1978 (4) SA 389 (A) 399F­400B and 405H­
406A; S v N g w e n y a 1 9 7 9 ( 2 ) S A 9 6 ( A ) 1 0 0 F ­ G ; Ovenstone v Secretary for Inland Revenue
1980 (2) SA 721 (A) 736B; S v Yolelo 1981 (1) SA 1002 (A) 1011B; Suliman v Minister of Community
Development 1981 (1) SA 1108 (A) 1120A­B; Federated Employers' Insurance Co Ltd v Magubane
1981 (2) SA 710 (A) 716H; Public Carriers Association v Toll Road Concessionaries (Pty) Ltd supra
943G­H; S v Masina 1990 (4) SA 709 (A) 713G; Dodd v Multilateral Motor Vehicle Accidents Fund
1997 (2) SA 763 (A) 769D; Coin Security Group (Pty) Ltd v SA National Union for Security Officers and
Other Workers 1998 (1) SA 685 (C) 688E; Manyasha v Minister of Law and Order supra 185B.
39 1926 TPD 501 508.
40 The cases in fn 38 supra provide examples.
41 Though judges do sometimes bring the subjectivity of their own view of the meaning of a provision into
the picture via ascriptions to legislative intent; cf eg Coin Security Group (Pty) Ltd v SA National Union
for Security Officers and Other Workers supra 688G where King DJP remarks: "Clearly, in my view, it
was the intention of the Legislature in passing the Act to . . ." etc.
42 Cowen 1980 THRHR 382.
43 Supra 913.
44 Innes J mentions it second; but, for the sake of the present argument, it is more convenient to
mention it first.
45 For a recent examples coming from one of South Africa's two highest courts, see Randburg Town
Council v Kerksay Investments (Pty) Ltd 1998 (1) SA 98 (SCA) 107A­B; Public Carriers Association v
Toll Road Concessionaries (Pty) Ltd supra 942I­J; Manyasha v Minister of Law and Order supra 185B­
C; Commissioner, SA Revenue Service v Executor, Frith's Estate 2001 (2) SA 261 (SCA) 273G­I.
46 Mendelson and Frost (Pty) Ltd v Pretoria City Council 1977 (3) SA 693 (T) 697C; S v Hotel and Liquor
Trade Association Tvl 1978 (1) SA 188 (W) 192C; Minister van Polisie v Goldschagg 1981 (1) SA 37 (A)
55F; S v Toms; S v Bruce supra 807G­H.
47 Du Plessis v Joubert 1968 (1) SA 585 (A) 594H­595A; Mendelson and Frost (Pty) Ltd v Pretoria City
Council supra 697C.
48 Ensor v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A) 822B.
49 Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) 1279; R
v Shole 1960 (4) SA 781 (A) 787B; S v Mjoli 1981 (3) SA 1233 (A) 1238A­B; Manyasha v Minister of
Law and Order supra 186B.
50 See eg Van den Bergh Die Betekenis van die Strukturele Hermeneutiek vir die Uitleg van Wette 680;
Du Plessis 1999 Koers 238­240 and 2000 SA Public Law 283­286.
51 Müller 2000 Stell LR 432­433. For the distinction between natural and formal language, see Audi (ed)
The Cambridge Dictionary of Philosophy 318 and 673.
52 Cilliers Complexity and Postmodernism 37­47.
53 Müller 432.
54 Dias Jurisprudence 167­168 and 177.
55 Supra 913.
56 Supra pars 17 and 18.
57 Par 17. See also SA Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods
Division Fish Processing) 2000 8 BCLR 886 (CC) par 13.
58 Fish Doing what comes naturally 358.
59 See (g) infra.
60 West Rand Estates Ltd v New Zealand Insurance Co Ltd 1925 AD 245 261; Secretary for Inland
Revenue v Brey 1980 (1) SA 472 (A) 478A­B, S v Makwanyane 1995 6 BCLR 665 (CC) par 10;
Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC) pars 52, 54, 57 and 70 per Ackermann J
and par 170 per Chaskalson P; S v Motshari 2001 2 All SA 207 (NC) par 8.
61 Ferreira v Levin; Vryenhoek v Powell supra par 46 per Ackermann J and par 172 per Chaskalson P.
62 Hoban v ABSA Bank Ltd t/a United Bank 1999 (2) SA 1036 (SCA) 1044I­1045A.
63 There are examples of dicta, however, allowing for a departure from the "plain meaning" of the words
of a statute, if compelled by the context of a provision; cf eg Naboomspruit Munisipaliteit v Malati Park
(Edms) Bpk 1982 (2) SA 127 (T) 133F; Oertel v Direkteur van Plaaslike­bestuur 1983 (1) SA 354 (A)
370D­G; Reynolds Bros Ltd v Chairman, Local Transportation Board, Johannesburg 1984 (2) SA 826
(W) 828G.
64 S v L o o i j 1975 (4) SA 703 (RA) 705C­D; Transvaal Consolidated Land and Exploration Co Ltd v
Johannesburg City Council 1972 (1) SA 88 (W) 94F­G. See also New Mines Ltd v Commissioner for
Inland Revenue 1938 AD 455; Hleka v Johannesburg City Council 1949 (1) SA 842 (A) 852­853; City
Deep Ltd v Silicosis Board 1950 (1) SA 696 (A) 702; Soja (Pty) Ltd v Tuckers Land and Development
Corp (Pty) Ltd 1981 (3) SA 314 (A) 321H. This approach also facilitates the harmonisation of ostensibly
conflicting provisions of one and the same statute on the assumption that "the legislature is . . .
consistent with itself ": Principal Immigration Officer v Bhula 1931 AD 323 335. C f also Le Roux v
Provincial Administration (OFS) 1943 OPD 1 4; S v Dlamini; S v Dladla; S v Joubert; S v Schietekat
1999 7 BCLR 771 (CC) par 84.
65 Cf S v Makwanyane 1995 6 BCLR 665 (CC) pars 115 and 278; S v Mhlungu 1995 7 BCLR 793 (CC)
pars 15, 45, 105 and 112; Zantsi v Council of State, Ciskei 1995 10 BCLR 1424 (CC) par 35; Executive
Council of the Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC) par 204; S v
Rens 1996 2 BCLR 155 (CC) pars 17­21; Du Plessis v De Klerk 1996 5 BCLR 658 (CC) par 123; S v
Lawrence; S v Negal; S v Solberg 1997 10 BCLR 1348 (CC) par 148; Harksen v Lane NO 1997 11
BCLR 1489 (CC) par 116; De Lange v Smuts 1998 7 BCLR 779 (CC) par 30; Member of the Executive
Council for Development Planning and Local Government, Gauteng v Democratic Party 1999 6 BCLR
607 (CC) pars 43­46 and 59; National Coalition for Gay and Lesbian Equality v Minister of Justice 1998
12 BCLR 1517 (CC) par 87.
66 Supra 1045B.
67 Lawsa 26 par 229.
68 Supra 662D­667H.
69 Du Plessis Re­Interpretation 113­114.
70 664H.
71 Cf eg Secretary for Inland Revenue v Sturrock Sugar Farm (Pty) Ltd 1965 (1) SA 897 (A) 903G­H; S v
Radebe 1988 (1) SA 772 (A) 778D­G; University of Cape Town v Cape Bar Council 1986 (4) SA 903
(A) 913I­914E; Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A) 726H­J;
Shepstone & Wylie v Geyser 1998 (3) SA 1036 (SCA) 1044A­B; Fei Lui v Commanding Officer,
K e m p t o n P a r k 1 9 9 9 ( 3 ) S A 9 9 6 ( W ) 1 0 0 5 G ­ C ; Standard Bank Investment Corporation Ltd v
Competition Commission; Liberty Life Association of Africa Ltd v Competition Commission supra 810G­
811H; Paltex Dyehouse (Pty) Ltd v Union Spinning Mills (Pty) Ltd 2000 (4) SA 837 (BHC) 852C­E;
Thoroughbred Breeders' Association v Price Waterhouse 2001 (4) SA 551 (SCA) par 12 per Marais JA,
Farlam JA and Brand AJA; Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School [2008] 4 All SA 117 (SCA), 2008 (5) SA 1 (SCA) par 17.
72 Cf eg S v Makwanyane supra par 10.
73 Supra 662G­H.
74 S v Nel 1987 (4) SA 276 (O) 290F­J.
75 As it was put in Santam Insurance Ltd v Taylor 1985 (1) SA 514 (A) 527C (see also 527A­B). As De
Ville 1999 TSAR 212­214 quite correctly observes, it is not history "out there" that is invoked by an
interpreter, but his or her interpretation of history: he or she creates a text with the help of which the
statutory text is then approached.
76 S v Makwanyane supra par 10; Ferreira v Levin; Vryenhoek v Powell supra par 46 per Ackermann J
and par 172 per Chaskalson P.
77 See par 2C57 below.
 78 (1584) 3 Co Rep 7a 7b.
79 Supra 852­853. See also Harris v Minister of the Interior 1952 (2) SA 428 (A) 459F­H; S v Conifer (Pty)
Ltd 1974 (1) SA 651 (A) 655D­H; Glen Anil Development Corp Ltd v Secretary for Inland Revenue
1975 (4) SA 715 (A) 727H­728A; Sefalana Employee Benefits Organisation v Haslam 2000 (2) SA 415
(SCA) par 8.
80 Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E)81G­H. Cf also Potgieter v Kilian 1995 11
BCLR 1498 (N)1515B­F.
81 See also par 2C29 below.
82 S e e e g Stellenbosch Farmers' Winery Ltd v Distillers Corp (SA) Ltd 1962 (1) SA 458 (A) 473F;
Nasionale Vervoerkommissie v Salz Gossow Transport 1983 (4) SA 344 (A) 357A; Kanhym Bpk v
Oudtshoorn Munisipaliteit 1990 (3) SA 252 (C) 262C­D; Raats Röntgen and Vermeulen (Pty) Ltd v
Administrator, Cape 1991 (1) SA 827 (C) 837A; Stopforth v Minister of Justice; Veenendaal v Minister
of Justice 2000 (1) SA 113 (SCA) par 21.
83 Goldberg v P J Joubert Ltd 1960 (1) SA 521 (T) 523D.
84 As was made clear in a classical exposition of purposivism in Dadoo Ltd v Krugersdorp Municipal
Council 1920 AD 530 543 relied on in Standard Bank Investment Corporation Ltd v Competition
Commission; Liberty Life Association of Africa Ltd v Competition Commission supra 810C­G.
85 Konyn v Special Investigating Unit 1999 (1) SA 1001 (Tk) 1007H­1008B.
86 The minority and majority judgments of the Supreme Court of Appeal, in Standard Bank Investment
Corporation Ltd v Competition Commission; Liberty Life Association of Africa Ltd v Competition
Commission supra, provide a striking illustration of the fundamental dissimilarities between a
purposive approach subject to literalism­cum­intentionalism and a purposive approach going beyond
linguistic formalism. The majority (per Schutz JA) did not reject the idea of purposive interpretation but
found that it was not warranted, in casu, because the language of the provision in question is clear. By
contrast, Marais JA, handing down a minority judgment, did not proceed from the assumption that the
provision in question has a clear meaning, but sought, from the outset, to establish such meaning with
reference to contextual indicia of the purpose behind the provision. Cf Du Plessis 2001 THRHR for an
elaborate analysis of this case. In Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School [2008] 4 All SA 117 (SCA), 2008 (5) SA 1 (SCA) pars 20­23 a majority of the Supreme
Court of Appeal, per Van Heerden JA, followed an approach similar to that of Marais JA, holding that
considerations pertaining to the purpose of a statutory provision, and ascertained from the context in
which the provision occurs, are decisive in opting for the linguistically most feasible meaning to attach
to that provision. The court thereby conceded that a provision can have more than one equally viable
literal or ordinary meanings of which one must then be chosen.
87 James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 1 All ER 518 at 522j­523b,
cited with approval in Baloro v University of Bophuthatswana 1995 8 BCLR 1018 (B)1061H­J a n d
Dulabh v Department of Land Affairs 1997 (4) SA 1108 ( L C C ) p a r 4 8 . C f also MV Golden North
Governor and the Company of the Bank of Scotland v Fund Constituting the Proceeds of the Judicial
Sale of the MV Golden North (Maritime Technical Co Ltd Intervening) 1999 (1) SA 144 (D) 152A­B.
88 See par 2C44 below.
89 Du Plessis Interpretation of Statutes 123­124.
90 See also par 2C44 below.
91 See pars 2C10 above and 2C44 below and cf eg Dulabh v Department of Land Affairs supra pars 52
and 53.
92 Cf eg Davis, Chaskalson and De Waal "Democracy and Constitutionalism: The Role of Constitutional
Interpretation" in Rights and Constitutionalism 122­126; Davis, Cheadle and Haysom Fundamental
Rights in the Constitution 11­13. See also the discussion in Currie and De Waal, Bill of Rights Handbook
148­150 of the place and role of purposive interpretation in the jurisprudence of the Constitutional
Court.
93 The Land Claims Court has handed down some decisions where statutory provisions were generously
construed in favour of land claimants, and where the need for purposive interpretation was used as
justification for such interpretation: cf eg Dulabh v Department of Land Affairs 1997 (4) SA 1108 (LCC)
pars 46­47; Minister of Land Affairs v Slamdien 1999 4 BCLR 413 (LCC) pars 12­16; In re: Kranspoort
Community 2000 (2) SA 124 (LCC) pars 29­30. The purpose that a purposive interpretation seeks to
achieve has not been clearly delineated yet. In Derby­Lewis v Chairman, Amnesty Committee of the
Truth and Reconciliation Committee 2 0 0 1 ( 3 ) S A 1 0 3 3 (C) 1055H­I, legislative purpose was
distinguished from legislative intent and resort to the "overriding purposes" of an act was said to be
justified "where language of the statute is less than clear".
94 2000 (2) SA 351 (LCC) par 10 (per Gildenhuys J).
95 22 of 1994 especially s 2(1) and 2(4): read with s 2 of the Land Restitution and Reform Laws
Amendment Act 18 of 1999.
96 See also Magor and St Mellons Rural District Council v Newport Corp 1950 2 All ER 1226 (CA) 1236.
97 Par 11.
98 The Land Claims Court, In re: Former Highlands Residents: Sonny v Department of Land Affairs supra
par 12, with reference to the Botha­De Ville "debate" (Botha Statutory Interpretation 3ed 31 and De
Ville 1999 THRHR 377­378), aptly remarks thus: "Important as the purpose of legislation may be,
elevating it to the prevailing factor of interpretation will not, in my view, always provide the key to
unlock meaning."
99 Cf eg S v Zuma supra par 14; National Coalition for Gay and Lesbian Equality v Minister of Justice 1998
12 BCLR 1517 (CC) par 21.
100 Soobramoney v Minister of Health, KwaZulu­Natal 1997 12 BCLR 1696 (CC) p a r 1 7 ; SA National
Defence Union v Minister of Defence 1999 6 BCLR 615 (CC) par 28.
101 In re: Former Highlands Residents 2000 (1) SA 489 (LCC) par 11. See also Ex parte Mayibuye: In re:
Sub 121, Farm Trekboer 1998 4 All SA 604 (LCC) 615g.
102 Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E)80D per Kroon J and Froneman J.
103 Du Plessis and Corder 85.
104 Judicial observations to the effect that "a purposive approach to interpretation does not do away with
the ordinary rules of statutory interpretation" (Richtersveld Community v Alexkor Ltd 2001 (3) SA 1293
(LCC) par 51 fn 115) must probably be understood as words of caution in quest of steering clear of
such arbitrariness. Cf also Minister of Land Affairs v Slamdien supra par 16.
105 Cf e g Rossouw v Sachs 1964 (2) SA 551 (A), discussed by McCreath "The 'Purposive Approach' to
Constitutional Interpretation" in Constitution and Law II 65­68. Cf also Mureinik 1986 SALJ 620.
106 Eg Müller 1999 Stell LR 269­283 275­276 and Juristische Methodik 248­249.
107 Mureinik 623­624.
108 Botha Waarde­aktiverende Grondwetsuitleg: Vergestalting van die Materiële Regstaat.
109 Carpenter 1999 THRHR 633.
110 Cf eg Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10
BCLR 1382 (CC) par 46 per Sachs J; Du Plessis v De Klerk 1996 5 BCLR 658 (CC) par 181 (on the role
o f the Constitution in the legal order in a constitutional democracy) and Gardener v Whitaker
1995 (2) SA 672 (E) 684E.
111 Dworkin Life's Dominion 132­144 offers some helpful and insightful perspectives on this debate and so
does Michelman 1998 Acta Juridica 208. See also Corder 1992 SALJ 206­214 who deals in some detail
with the contribution of Robert Bork, regarded as the main proponent of originalism.
112 Du Plessis and De Ville 1993 Stell LR 376­377.
113 Constitution of the Republic of South Africa, 1996 and its predecessor the Constitution of the Republic
of South Africa, Act 200 of 1993.
114 See eg S v Makwanyane 1995 6 BCLR 665 (CC) par 392; S v Mhlungu 1995 7 BCLR 793 (CC) pars
100, 102 and 105; Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC) par 15; Bernstein v
Bester 1996 4 BCLR 449 (CC) par 53; Du Plessis v De Klerk 1996 5 BCLR 658 (CC) par 45; Executive
Council of the Western Cape v Minister for Provincial Affairs and Constitutional Development of the
RSA; Executive Council of KwaZulu­Natal v President of the RSA 1999 12 BCLR 1360 (CC) pars 39­41
and S v Twala (Human Rights Commission Intervening) 2000 1 BCLR 106 (CC) pars 9­17.
115 See par 2C15 below.
116 See (d) supra.
117 SA Association of Personal Injury Lawyers v Heath 2001 1 BCLR 77 (CC) par 19.
118 See par 2C13 above.
119 See also Froneman J's dictum in Matiso v The Commanding Officer, Port Elizabeth Prison 1994 3 BCLR
80 (SE)87E­G, quoted in par 2C10 above.
120 See par 2C9 above.
121 See pars 2C10 and 2C13 above.
122 See (d) supra.
123 Headed "Republic of South Africa".
124 Headed "Principles of co­operative government and intergovernment relations".
125 Headed "Basic values and principles governing public administration".
126 Ch 2.
127 2001 (2) SA 609 (E).
128 619F­620F.
129 2000 (2) SA 1074 (SE) 1081F­G.
130 19 of 1998.
131 1080E.
132 David and Brierly Major Legal Systems in the World Today 361­364, 383­384.
133 95­97.
134 In Kalla v The Master 1994 4 BCLR 79 (T)87C.
135 See (d) supra.
136 Cf Du Plessis Re­Interpretation 146­147.
137 66 of 1995. Other examples are the Promotion of Administrative Justice Act 3 of 2000 a n d t h e
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
138 89 of 1998.
139 Standard Bank Investment Corporation Ltd v Competition Commission; Liberty Life Association of
Africa Ltd v Competition Commission supra.
140 2006 5 BCLR 579 (CC), 2006 (3) SA 305 (CC) per O'Regan J. This judgment has been received
enthusiastically by proponents of purposive interpretation as interpretive approach of first choice; cf Le
Roux 2006 SA Public Law 382; Devenish 2006 SALJ 399.
141 27 of 2000.
142 S 14(1)(a).
143 ACDP supra par 34.
144 Par 27.
145 Pars 15, 20 and 31­33.
146 2006 SA Public Law 386.
147 ACDP supra pars 20­21.
148 For an insightful discussion of the linguistic turn, cf Coombe 1989 McGill Law Journal 603; Boshoff 157­
162. For a critical assessment, cf Moore 1989 Stanford Law Review 871.
149 Du Plessis Re­Interpretation xv.
150 Supra.
151 See (f) supra.
152 Du Plessis 121­123.
153 For a discussion of this theoretical position, see Cowen 1976 TSAR 156­158 and Devenish 50­51.
154 To use the terminology of Müller 1999 Stell LR 269.
155 1983 THRHR 422­435.
156 Gadamer Wahrheit und Methode 308. See also Du Plessis 1999 Koers 247­251; 2000 SA Public Law
295­299 and par 2C40 below.
157 This line of argumentation is reminiscent of the structuring legal theory of Müller succinctly explained
by the author himself at 426.
158 Dias 170; Devenish 51.
159 Dias 170.
160 1977 JJS 11­21.
161 Du Toit 16.
162 Du Toit 18­19.
163 Eg Lord Denning in Magor and St Mellons Rural District Council v Newport Corp 1950 2 All ER 1226 (CA)
1236.
 164 Shaw v Director of Public Prosecutions 1961 2 All ER 446 (HL) 452­453.
165 Eg Dugard Human Rights and the SA Legal Order 367­372.
166 See also the discussion supra.
167 See par 2C12 above.
168 C f e g In re: Former Highlands Residents: Sonny v Department of Land Affairs supra; Ngxuza v
Permanent Secretary, Department of Welfare, Eastern Cape supra and Port Elizabeth Municipality v
Peoples Dialogue on Land and Shelter supra.
169 S 7 of the Constitution eg enjoins the state (including the courts) not only to respect and protect the
rights guaranteed in the Bill of Rights, but also to promote and fulfil them. Several socio­economic or
"red" rights, and even "green rights", are justiciable in terms of the Constitution. This means that
courts will inevitably, from time to time, be required to pronounce on policy issues; cf eg ss 24, 26, 27,
28 and 29 of the Constitution.
170 Lord Irving of Lairg 1999 European Human Rights Law Review 352, for instance, explains:
"Interpretation is, at root, an exercise in textual analysis. It is, therefore, the words of a bill
of rights with which judges must primarily be concerned as they seek to adjudicate in cases
which engage fundamental norms. Although many eminent judges held that the judicial
function entailed nothing other than this literal approach to construction, this declaratory
theory long ago gave way to more open recognition that law­making ­ within certain limits ­ is
an inevitable and legitimate element of the judge's role. Acceptance of this truism reveals the
real nature of the interpretative process. In particular it indicates that, when construing a
statutory provision, the judge may well have to choose between competing meanings by
reference, for instance, to the underlying rationale of the legislative scheme."

CONSTITUTIONALISM AND THE CONVENTIONAL CANONS OF CONSTRUCTION

2C15 The canons of statutory interpretation The canons of statutory interpretation consist of rules and
presumptions, some of which are of common­law origin while others are laid down as interpretative precepts in
statutes1 and the Constitution.2

Dworkin3 distinguishes between rules of law that obtain in an all­or­nothing manner and principles whose
application is less definite, though they carry weight in the determination of legally reasoned outcomes. In terms of
Dworkin's distinction, the rules and presumptions of statutory interpretation exert whatever interpretative influence
they have in a principle­like rather than a rule­like manner, though (with the exception, perhaps, of some
presumptions) they are not really principles in the Dworkinian sense. They are rules about reading and
understanding other rules (of law); in other words, normative waymarks guiding the interpreter through the
enacted law­text he or she construes, without, however, indicating only one final or correct destination: the
interpreter is no slave "of maxims of interpretation which should serve us as guides and not be allowed to tyrannise
over us as masters".4 Small wonder, then, that the canons of statutory interpretation, as Llewellyn 5 s o
painstakingly points out, can be opposing on almost every point and do have a thrust, but, in relation to one
another, (always) also a counter­thrust. Courts and other interpreters do not and cannot really rely on canons of
construction to find the one and only correct or feasible meaning inherent in a text, but they do so to justify, explain
and lend legitimacy to the interpretative outcome at which they arrive.6 The processes of reasoning involved are
complex and interminable, but their results are there for anyone to see and, more importantly, they are available for
future use.7

Rules of interpretation embodied in the Constitution, and in statutes, usually pre­define the meaning of selected
words and phrases, or prescribe modes of interpretative reasoning. They, too, do not obtain in an all­or­nothing
manner and are usually couched in permissive terms: they are to be given effect to subject to an "unless".8 Much of
interpretative significance embodied in statutes, and especially in the Constitution, carries considerable weight,
even though it cannot be given effect to in an all­or­nothing manner. Descriptive examples are the value statements
in sections 1 and 7, the statements of principle on co­operative government, in section 41, and on public
administration, in section 196 o f the Constitution, as well as statements of purpose in acts.9 The interpretative
precepts in section 39 of the Constitution10 are couched in peremptory language,11 but, then again, this language
is so broad and open­ended that it allows for multifarious, equally justifiable ways of abiding by them as precepts.

The canons of statutory interpretation form part of either the common law or legislation that "every court,
tribunal or forum" must interpret and develop in a manner promoting the "spirit, purport and objects of the Bill of
Rights".12 This is cardinal because the canons of construction are infused with the value­laden ideas (and may, in
some instances, even be replaced by the norms and principles) of the Constitution and of constitutionalism.

Traditionally, the relationship among the various canons of statutory interpretation has been dominated by a
literalist­cum­intentionalist paradigm pursuant to an order of primacy. 13 At the top of the order are rules of
interpretation accounting for the (supposed) relationship between clear and unambiguous language and the
intention of the legislature. Canon­like derivatives of these rules, such as the golden rule, enjoy a similar status. In
judicial thinking the rules on language in context, stated in the minority judgment in Jaga v Dönges; Bhana v
Dönges,14 probably also function at this level. Next in the order, and of more secondary status, are rule­like
verbalisations of contextualism and purposivism such as the ex visceribus actus or mischief rules. Augmentations
catering for the inadequacies of primary rules (for example, the exceptions to the ordinary­meaning rule, or the
procedures of restrictive and extensive interpretation) also function as safety nets at this level as do rules allowing
recourse to other textual and extra­textual aids, while the presumptions are to be found at a tertiary level, waiting
to be relied on as a last resort.

It is doubtful whether this order of primacy will survive the impact of constitutionalism on the manner in which
statutes are drafted and read. Conventionally, the presumptions, for instance, carry interpretative weight only as
tertiary, last resorts and, yet, as will be shown below, 15 among the conventional common­law canons of
construction they are the most pronounced verbalisations of legal and democratic values of all canons of
construction. In a legal system with growing aspirations toward value­laden, teleological interpretation,16
treatment of the presumptions as but last resorts can hardly persist. Furthermore, some third­level, "other aids" to
interpretation, such as preambulatory statements17 and legislative history, 18 have moved much closer to centre
stage.

The time has probably come to reconsider ­ or, actually, to consider really seriously for the first time ­ the
interrelatedness and classification of the traditional canons of construction in the South African law on statutory
interpretation.19

As enacted law­texts ­ that is, products of conscious and planned law­making ­ statutes and the Constitution
have much in common.20 The conventional canons of statutory interpretation have therefore, in some instances,
served as justifications for constitutional interpretation, too.

Presumptions (rather than rules) of statutory interpretation have most often been explicitly recognised by the
Constitutional Court. First among these is the presumption that enacted law is not unjust and inequitable.21 This is
somewhat surprising because this presumption is quite susceptible to subsumption under the Constitution, and the
Bill of Rights, in particular.22 Second, the presumption that statute law is not invalid or purposeless23 and, third, the
presumption that a statute does not apply with restrospective effect24 have also been relied on. The presumption
that statute law does not violate international law25 is a fourth presumption that has been recognised in
constitutional interpretation;26 and, finally, the "principle of interpretation" that, where two sub­sections deal with
the same subject­matter, they are usually read together has been afforded similar recognition. 27 A l l t h e s e
examples will be considered more fully when the individual canons are discussed.

It has already been pointed out28 that the Constitutional Court has not been loath to avail itself of intentionalist
and literalist­cum­intentionalist rhetoric. Instances of such rhetoric cannot be classified as examples of reliance on
specific canons of statutory interpretation. They testify, nonetheless, to a hold that conventional statutory
interpretation, rightly or wrongly, still has over constitutional interpretation. However, the use of conventional
canons of statutory interpretation in constitutional interpretation, as well as resort to commonplace, interpretative
rhetoric, warrant neither an assimilation of literalist­cum­intentionalist assumptions into constitutional
interpretation, nor deference to the prevailing (albeit implicit) hierarchy29 of canons of construction.
1 Especially the Interpretation Act 33 of 1957.
2 Constitution of the Republic of South Africa, 1996.
3 Taking Rights Seriously 22­28.
4 Pottie v Kotze 1954 (3) SA 719 (A) 727F­G per Fagan JA. In Parow Municipality v Joyce and McGregor
(Pty) Ltd 1974 (1) SA 161 (C) 165H, Van Winsen AJP made the following observation: "[T]hese 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
a s s i s t a n c e o f t h e s e r u l e s n e e d n o t b e s o u g h t " . S e e a l s o Moleah v University of Transkei
1998 (2) SA 522 (TkH) 539C: "[T]he rules of interpretation are not really legal rules. At most it may be
said that they are logical deductions used to determine ancillary powers and are nothing more than
conceptual models used to determine the content and ambit of a particular statutory authorisation".
5 The Common Law Tradition 521­535.
6 See, on justification, De Ville Constitutional and Statutory Interpretation 29­33; Carpenter 1999 THRHR
634­635; Baxter Administrative Law 484­485.
7 Eg because they are part of a binding judgment.
8 See eg par 2C36 below.
9 See par 2C44 below.
10 Constitution of the Republic of South Africa, 1996.
11 Except s 39(1)(c) which provides that foreign law may be considered.
12 S 39(2) of the Constitution.
13 For a succinct summary of this order of primacy, see Celliers 1962 SALJ 203.
14 1950 (4) SA 653 (A) 662F­663A; see par 2C14(b) above.
15 See par 2C17 below.
16 See par 2C14(f) above.
17 See par 2C44 below.
18 See par 2C57 below.
19 See par 2C16 below.
20 See par 2C10 above.
21 Du Plessis v De Klerk 1996 5 BCLR 658 (CC) par 123; S v Mhlungu 1995 7 BCLR 793 (CC) par 36.
22 See par 2C18 below.
23 Member of the Executive Council for Development Planning and Local Government in the Provincial
Government of Gauteng v Democratic Party 1998 7 BCLR 855 (CC) par 52; see par 2C26 below.
24 S v Mhlungu supra pars 37, 38 and 66; see par 2C25 below.
25 See par 2C22 below.
26 Azanian Peoples Organisation (AZAPO) v President of the RSA 1996 8 BCLR 1015 (CC) par 26.
27 Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional Development
of the RSA; Executive Council of KwaZulu­Natal v President of the RSA 1999 12 BCLR 1360 (CC) par
52; see par 2C40 below.
28 See par 2C14(d) above.
29 Ie the order of primacy.

2C16 A possible (re­)systematisation of the canons of statutory interpretation Hahlo and Kahn1 suggest an
approach to statutory interpretation that duly accounts for the textual or literal, the contextually logical, the
teleological and the historical aspects of the text to be construed. Actually, this approach is not a particularly recent
development. It is based on methods of interpretation advanced by Von Savigny2 for the interpretation of
pandectaerian Roman law, and is accepted today, mainly on the European continent, 3 for the interpretation of
codifications of the law, statutes4 and also constitutions.5 Since 1994, it has, directly as a result of constitutionalism
and encounters with strategies of constitutional interpretation in other jurisdictions, met with response, albeit not
explicit judicial response, in South Africa, too.6

The methods or modes of interpretation, modelled on a slightly adapted version of the Savignian model,7 are the
following. First, grammatical interpretation, concentrating on the ways in which the conventions of natural
language8 assist and direct legal interpretation. Second, systematic interpretation, as a manifestation of
contextualism,9 requiring an understanding of a specific provision in light of the text or instrument as a whole and of
extra­textual indicia. Third, purposive or teleological interpretation, as manifestation of purposivism,10 s h e d s
interpretative light on a provision with reference to its purpose or ratio in light of the values and aspirations of the
legal system as a whole. Fourth, historical interpretation situates a provision within the tradition from which it
emerged and allows qualified recourse to information concerning the genesis of the text of which the provision
forms part. A fifth method has been added, namely comparative interpretation, in terms of which a provision is to be
understood in the light of the standards of international law, but also in comparison with its counterparts in other
legal systems.

It could be asked whether Von Savigny's methods, entangled in the web of a nineteenth­century hermeneutics,
as it were, can be of any use today. 11 Surely, they cannot be invoked in a mindless and mechanistic manner.
However, they can serve as anchors in the transformation of interpretative strategies. Their disadvantage of being
dated can also be seen as the advantage of being rooted in the civil­law tradition sharing its formative history with
Roman­Dutch law. They have, moreover, successfully aided constitutional interpretation, especially in European
jurisdictions (for instance, Germany and the Netherlands). They are quite helpful in working with expansively
couched and open­ended enacted instruments, such as codes and constitutions, and also statutes that have not
been drafted in the conventional common­law style. It will be of specific strategic significance, in the South African
context, to follow an interpretative modus operandi well equipped to meet the challenges of dealing with
expansively couched, open­ended texts such as the Constitution12 and the growing number of statutes modelled
stylistically on the Constitution.13

Present­day reliance on Von Savigny's methods can, first, serve a classificatory and explanatory purpose. This is
mainly how they will be used in the discussion that follows. Second, reliance on Von Savigny's methods may
encourage reliance on a multiple or many­sided strategy of interpretation recognising as co­equal the grammatical,
contextual, purposive and historical dimensions of statutes and the Constitution.14 This means there will no longer
be a need for an order of primacy premised on the sustainability of clear and unambiguous language.15 There are
examples from the case­law bearing out the feasibility of such a multiple strategy.16

It should be emphasised that Von Savigny's four methods of interpretation do have their limitations and are
certainly not recipes for interpretation prescribing a specific procedure to be followed. Meaning and interpretation
are much too complex for that. The four methods are classificatory and explanatory aids encouraging the interpreter
to take the fullest possible look at the text to be construed ­ nothing more and nothing less.
1 SA Legal System and its Background 180.
2 System des heutigen Römischen Rechts I 206 et seq.
3 But, also, in the civil law tradition in Canada (cf eg Côté The Interpretation of Legislation in Canada
193­350).
4 Cliteur Inleiding in het Recht 196­202.
5 Forsthoff Zur Problematik der Verfassungsauslegung 39­40; Hesse Grundzüge des Verfassungsrechts
der Bundesrepublik Deutschland 21; Kommers Constitutional Jurisprudence of the Federal Republic of
Germany 42­43; Müller Juristische Methodik 239­254, and 1999 Stell LR 275­276. Brugger 1994 Archiv
des Öffentlichen Rechts 1­34 redefines the four methods or techniques of interpretation in a creative
manner so as to adapt them to his understanding of the modern­day exigencies of (constitutional)
interpretation.
6 De Waal, Currie and Erasmus Bill of Rights Handbook 129­140 relied, for purposes of bill­of­rights
interpretation, on an interpretative scheme akin to that of Von Savigny. This is no longer done in
Currie and De Waal Bill of Rights Handbook, the fifth edition of De Waal, Currie and Erasmus Bill of
Rights Handbook. See also Du Plessis 1998 Acta Juridica 13­16.
7 For a summary, see Du Plessis 13­16.
8 For the meaning of "natural language", see par 2C14(d) above.
9 See par 2C14(e) above.
10 See par 2C14(f) above.
11 Du Toit 1998 Acta Juridica 44­45.
12 Constitution of the Republic of South Africa 1996.
13 See also par 2C14(g) above.
14 Du Plessis 18­20.
15 See par 2C15 above.
16 C f e g Dulabh v Department of Land Affairs 1997 (4) SA 1108 (LCC) and the minority judgment in
Standard Bank Investment Corporation Ltd v Competition Commission; Liberty Life Association of
Africa Ltd v Competition Commission 2000 (2) SA 797 (SCA). See also par 2C14(f) above.

THE PRESUMPTIONS

2C17 Do the presumptions still have a place under the Constitution? The presumptions of statutory
interpretation, counting among the legal system's foundational norms,1 as it were, verbalise expectations that a
legislature will follow (or will at least be alert to) certain basic tenets and aspirations of the said system.2 They carry
the weight of "principles", as Dworkin3 understands the concept. Principles are legal standards that, unlike rules, do
not operate in an all­or­nothing fashion.4 They do exert normative influence, though, determine the choice of rules
in any given situation and pilot the concretisation of those chosen rules. The courts, however, have over the years,
attributed a more modest role to the presumptions of statutory interpretation. Their interpretative function has
been described as "purely auxiliary" and "they may be invoked in the process of interpretation only if the language
in question is not clear".5 This view has been echoed by legal scholars too, for instance, by Celliers6 (in a frequently
cited article on the subject), by Labuschagne7 and by Hahlo and Kahn.8 According to Celliers,9 the primary source of
the intention of the legislature is the clear and unambiguous language of a statute, followed by information
obtained through reliance on other canons of construction, the latter serving as secondary, objective sources of
deduction. Should both of these sources not suffice, the presumptions, as a tertiary source of assumptions about
the intention of the legislature, take effect. This view, a clear manifestation of the literalist­cum­intentionalist order
of primacy,10 is not uncontested.11

The introduction of a supreme Constitution12 is an event of vital significance for the continued existence of the
presumptions of statutory interpretation. It is surprising that, almost two decades after the commencement of
South Africa's first supreme Constitution,13 there is insufficient indication of what the future holds for the
presumptions. The presumptions, as will be shown in the further exposition of each of them, verbalise diverse
values. However, if the presumptions are last resorts in statutory interpretation, surely the Constitution, as a much
more powerful verbalisation of values, overwhelms them. On the other hand if, in spite of the prevailing view of the
courts, (some of) the presumptions are in fact consequential statements of values, they can come to compete with
constitutional statements of values. As common law, they are of course subject to the Constitution and, where
there are inconsistencies, the Constitution will trump the presumptions. However, the Constitution is also not a
catalogue of all possible values with relevance for statutory interpretation and is, at any rate, no super law. The
courts are bound to exercise self­restraint in the determination of the constitutionality of existing law, including
common law, in accordance with the demands of adjudicative subsidiarity. 14 The presumptions can, thus, "stand in"
for the Constitution in areas where the Constitution does not cater for certain values or does so in a fragmentary
manner. Where the Constitution and the presumptions coincide, the Constitution takes precedence, but the
possibility that the presumptions can augment, enrich and enhance the Constitution is not to be excluded. The
majority of traditional canons of construction, on which the Constitutional Court has so far explicitly relied for
purposes of constitutional interpretation, have (curiously enough) been presumptions.15

Most opinions thus far expressed, on the future of the presumptions, foresee a substantially lesser and more
limited role for them, in spite of the fact that the presumptions have been invoked in constitutional interpretation
and, as De Ville16 correctly suggests, reliance on the presumptions in statutory interpretation has not visibly abated
since 1994. The Constitutional Court has, on occasion, and somewhat in passing, expressed the view that "a
q u e s t i o n m a r k h a s t o b e p l a c e d o v e r t h e u s e f u l n e s s o f c o m m o n l a w p r e s u m p t i o n s i n i n t e r p r e t i n g the
Constitution".17 However, nothing was said about the role of the presumptions in statutory interpretation.

Kruger,18 writing in anticipation of constitutionalism in South Africa, saw the presumptions as interpretative aids
belonging typically to a pre­constitutionalist era. He distinguished two types of presumptions: namely, those relied
on to ensure an orderly course of events in state affairs and those that protect the individual against the unbridled
exercise of state authority.19 The latter category undoubtedly forms part of what he called the implied contents of a
bill of rights, while the first category coincides with the "spirit and objectives" of the bill of rights and stands to be
affected most by a supreme constitution.

Burns20 is among the authors who foresee a limited role for the presumptions under the new constitutional
dispensation.
Before the promulgation of the interim and 1996 Constitutions, the common law presumptions of statutory interpretation
played a vital role in the protection of individual rights and freedoms . . . These . . . presumptions, which could be regarded
as a common law bill of rights, have now largely been supplanted by the supreme constitution in general, and the chapter on
fundamental rights in particular. In effect most of the presumptions have been codified as entrenched fundamental rights.

In a similar vein, Botha21 laments the fact that the supreme Constitution emphasises and entrenches the values
underpinning the common­law presumptions while, at the same time, it abates their future significance. Both Burns
and Botha, however, lose sight of the fact that, as was pointed out above, the presumptions did not actually play a
vital role in the protection of individual rights and freedoms prior to constitutionalism. They also do not consider the
possible positive effects of allegiance to adjudicative subsidiarity for the survival of the presumptions. Adjudicative
subsidiarity is, of course, not absolute. The principle laid down in The Pharmaceutical Manufacturers Association of SA,
In re: The Ex parte Application of the President of the RSA22 is also to be reckoned with. It will be remembered that, in
this case, the Constitutional Court emphasised that the control of public power is essentially a constitutional matter
and that common­law rules in this area have largely been subsumed under the Constitution.23 The common­law
presumptions, in so far as they had the effect of controlling the exercise of public power, are, thus, subject to, and
have in some instances been replaced by, the Constitution as construed and invoked by the courts for purposes of
statutory interpretation. This judgment, thus, seems to add weight to the pessimistic views of Burns and Botha of
the future of the presumptions. However, it must be borne in mind that the Constitutional Court emphasised, in the
same breath,24 that common­law rules, in so far as they may continue to be relevant in judicial assessments of the
exercise of public power, gain force from the Constitution. Moreover, and most important, it was held that the
Constitution and the common law are intertwined "and do not constitute separate concepts".

It is submitted that the presumptions, as interpretative guides, could still fulfil a number of useful functions.25
First, they can supplement, facilitate and mediate resort to constitutional values in statutory interpretation, in
accordance with the requirements of section 39(2) of the Constitution.26 Second, they can advance foundational
values consistent with ­ but not explicitly spelled out in ­ the Constitution. Third, they can amplify foundational
values embodied fragmentarily in the Constitution. Finally, they can guide constitutional interpretation itself and
amplify certain of its procedures.
 Considering their future role in relation to their role in the past and, most importantly, in relation to the supreme
Constitution, the presumptions can be divided into three categories:

(a) Presumptions that seem to have been subsumed under the Constitution (and the Bill of Rights, in
particular). These are typically those presumptions whose demise Botha laments.

(b) P r e s u m p t i o n s t h a t s e e m t o b e i n c o n s i s t e n t w i t h the Constitution a n d / o r i n c o m p a t i b l e w i t h

constitutionalism.

(c) Presumptions that, in principle at least, seem to have been left unaffected by the Constitution. Of
course, no presumption or rule of statutory interpretation has been left wholly unaffected by the advent
of constitutional supremacy. However, this category refers to presumptions that still serve their
traditional purpose and can still perform their basic functions, albeit in a fundamentally new context.

In the following paragraphs,27 the presumptions will be discussed in an order more or less determined by their
susceptibility to constitutional impact, beginning with those wholly or partially subsumable under, or inconsistent
with, the Constitution. Thereafter, those presumptions that will probably not be affected in such a far­reaching
manner will be discussed. This is not a rigid classification, however.
1 Du Plessis 1998 SALJ 750.
2 Devenish Interpretation of Statutes 156.
3 Taking Rights Seriously 22­28. See also par 2C15 above.
4 Mureinik 1986 SALJ 620.
5 Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A) 809F­G; Williams v Santam Bpk
1996 (4) SA 263 (C) 267E­F; Kettledas NO v Minister of Law and Order 1998 (2) SA 76 (SE) 83H­84C.
See also Ex parte Minister of Justice, In re: R v Masow 1940 AD 75 90.
6 1962 SALJ 189.
7 1978 JJS 60.
8 SA Legal System and its Background 202.
9 203.
10 See par 2C15 above. It must be added that Labuschagne 60 does not advance the same pronouncedly
literalist­cum­intentionalist arguments in support of the secondary status that he affords the
presumptions. He sees them as substitutes for "a real state of affairs" when the latter does not exist.
11 Cowen 1980 THRHR 392.
12 Constitution of the Republic of South Africa, 1996.
13 Constitution of the Republic of South Africa, Act 200 of 1993.
14 See pars 2C2 and 2C13 above.
15 See par 2C15 above.
16 Constitutional and Statutory Interpretation 166.
17 S v Mhlungu 1995 7 BCLR 793 (CC) par 115 per Sachs J.
18 Die Wordingsproses van 'n Suid­Afrikaanse Menseregtebedeling 247­249.
19 248.
20 Administrative Law under the 1996 Constitution 84­85.
21 Statutory Interpretation 3 ed 56.
22 2000 3 BCLR 241 (CC).
23 Par 33 of the judgment. See par 2C2 above.
24 Par 33.
25 See Du Plessis 1998 SALJ 752.
26 See pars 2C10 and 2C13 above.
27 Pars 2C18­2C31 below.

2C18 Statute law is not unjust, inequitable and unreasonable This presumption goes to the root of what most
citizens believe a legal order should seek to achieve while it eludes, as far as is humanly possible, individual
hardship. In terms of their dictionary meanings, "justice", "equity" and "reasonableness" can be synonyms but they
can also be looked at as expressions of values differing not in respect of the ultimate objectives to which they
aspire, but in respect of the emphasis placed on the means to achieve those objectives.1

The Constitution2 can be seen as a codification of the values of justice, equity and reasonableness as they are
encountered in an open and democratic society based on human dignity, equality and freedom. Evidence of this is
the statement and restatement of the said values in the preamble to and sections 1, 7(1), 36(1) (the limitation
clause) and 39(1)(a) (the interpretation clause) of the Constitution. The Bill of Rights is a key chapter3 o f the
Constitution as a codification of values. In short, an opulence, rather than an indigence, of values characterises the
Constitution. The common­law presumption against injustice, inequity and unreasonableness was meant primarily
to ameliorate the effects of parliamentary sovereignty in the absence of a (supreme) codification of values. Does
this presumption still have a function? The Constitutional Court seems to think so.

In Du Plessis v De Klerk,4 Kriegler J contended that the drafters of the transitional Constitution did not intend it
"to bear a harsh or inequitable meaning". The judge pointed out that the general value statements in the
Constitution itself, and in the Bill of Rights in particular, augment and enrich this presumption. In S v Mhlungu,5
Mahomed J, speaking for the majority of the court, in a similar vein confirmed that an optimally just and equitable
interpretation of the transitional Constitution was justified in the light of the conventional presumption "that the
lawgiver must not be imputed with the intention to enact irrational, arbitrary or unjust consequences". He also
rejected any literalist interpretation of constitutional provisions which could lead to unjust and absurd
consequences.6 These dicta, and others after 1994, dealing with just and equitable statutory interpretation,7 show
that the days of the presumption are not numbered: it can be and has been used to guide constitutional
interpretation, to amplify certain of its procedures, and to supplement, facilitate and mediate resort to constitutional
values in statutory interpretation. However, if the presumption's traditional scope of application is considered, it
becomes evident that much of the presumption has been subsumed under more specific and clearly articulated
provisions of the Constitution guaranteeing rights and just procedures. Furthermore, in the past "[t]he presumption
was . . . easily refuted by the 'clear language' of the enactment and it, therefore, did not often succeed in
preventing the implementation of apartheid policies".8 This means that, prior to 1994, jurisprudence on the
presumption did not develop as fully as it could have and should have. At present, the "clear language" of a statute
cannot trump the Constitution and constitutional jurisprudence on many of the exigencies, for which the
presumption has traditionally catered. In these instances, it is desirable that constitutional provisions, as
expounded in the case­law, take the place of the presumption.

The presumption has traditionally held sway in five areas that will next be considered seriatim.9

(a) Onerous provisions

(i) Encroachment on existing rights

Traditionally, it has been said to be "a well­established rule in the construction of statutes that where an Act is
capable of two interpretations, that one should be preferred which does not take away existing rights, unless it is
plain that such was the intention of the Legislature".10 Conversely, remedial provisions had to be construed
liberally so as to extend the remedy they contain "as far as the words will admit".11 The presumption has obtained
with additional force when elementary rights12 stood to be interfered with: "The more fundamental the right, the
stronger the 'presumption' ".13 Prior to 1994, the protection of elementary rights derived mostly from the common
law,14 and the presumption against unnecessarily interfering with the existing law,15 therefore lent additional force
to the presumption against unjust, inequitable and unreasonable results in safeguarding elementary rights. The
presumption that enactments apply to general and not to particular instances16 requires, inter alia, a strict
interpretation of exceptions to general rules.17 This, however, was held not to apply to the interpretation of
exceptions to onerous provisions.18 These exceptions were construed liberally.19

The restrictive understanding of onerous statutory provisions, including those interfering with existing rights, is
congruous with the value system of the Constitution and of the Bill of Rights. Encroachments on vested rights could
previously only be considered once it was determined that such rights had indeed vested.20 Since 1994, a supreme
Constitution defines many rights, especially elementary or, in constitutional nomenclature, fundamental rights. Such
rights are indeed vested rights protected, subject to limitations,21 under the supreme Constitution22 with all its
enforcement mechanisms. It will, in other words, make little sense to rely on the common law in preference to the
Constitution to avert or ameliorate the effects of legislation encroaching on rights entrenched in the Constitution. A
court is, as a matter of fact, enjoined to invoke the Constitution as its prime source for the assessment of such
legislation.23

Reliance on the common law, in dealing with statutory encroachments on rights not protected under the
Constitution, is still allowable. Section 39(3) of the Constitution says that much about common­law rights that have
not been included in the Bill of Rights:
The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common
law, customary law or legislation, to the extent that they are consistent with the Bill.

Note that reliance on the common­law right must be consistent with the Constitution and subject to the reading
strategy required by section 39(2). The right is, in other words, to be interpreted or developed in a manner
promoting the spirit, purport and objects of the Bill of Rights.24

Prior to 1994, enabling statutes vesting delegated legislatures with the power to make legislation encroaching
on existing rights were strictly construed ­ and the delegated legislation itself, too, particularly with regard to its
reasonableness. An enabling enactment had to allow, expressly or by necessary implication, for the promulgation of
delegated legislation interfering with rights.25 It has been pointed out26 that statutory authorisations to enact
delegated legislation are now subject to constitutional review and, thereby, also the constitutional standards for
the protection of rights. The constitutional guarantee is much stronger than the common­law guarantee which, over
the years, was eroded by judicial interpretations which increasingly acquiesced in the legislatures' considerably
extended authority to delegate law­making powers.27

Prior to 1994, legislative interference with individual property rights by the state was associated with the sub­
presumption presently under discussion. Judicial sentiment generally favoured monetary compensation for losses
suffered or damages sustained as a result of such interference,28 although entitlement to such compensation was
not inferred as a matter of course.29 It is submitted that, at present, section 25 of the Constitution is the prime and
most exhaustive source for the assessment of legislation dealing with the exercise of public power30 in relation to
private property, including the expropriation of such property "for a public purpose or in the public interest".31 There
is no longer a need for reliance on the presumption, in this area.

(ii) Imposing burdens

The tendency has always been to construe statutory provisions that impose burdens on subjects restrictively. 32 In
the case­law, taxation laws have most often been dealt with as manifestations of statute law imposing burdens,
resulting in the recognition of a presumption contra fiscum for the construction of tax provisions.33 As in the case of
provisions interfering with existing rights, a restrictive understanding of onerous provisions is congruous with the
value system of the Constitution and the Bill of Rights. There is no explicit provision in the Constitution, however,
from which the necessity for such a restrictive approach can be deduced. The common­law presumption thus
continues to apply reinforced by constitutional values.

De Ville34 contends that section 8(2) of the Constitution is a burdensome provision to the extent that, in certain
conditions, it provides for the binding effect of the Bill of Rights on (private) natural and juristic persons. However,
the said provision is not to be construed subject to the common­law presumption dealing with burdensome
provisions, but subject to section 39(1) of the Constitution, instead.

(iii) Penal provisions

Fundamental rights relating to criminal law and due process in criminal proceedings are comprehensively and
exhaustively entrenched in section 35 of the Constitution. This section, together with constitutional provisions and
other rights in the Bill of Rights intertwined with it, has become the primary source for the assessment of penal
provisions enacted in the exercise of the state's "power of the sword", probably the prime example of public
power.35 The constitutional provisions have, thus, taken the place of the common­law maxim in poenis strictissima
verborum significatio accipiendi est ("in the case of penal laws, the strictest interpretation of their terms should be
accepted").

(b) Excluding discrimination and inequality

Prior to 1994, the courts expressed sentiments against discriminating laws. It was, for instance, held that
legislation will not lightly be construed "in such a way that its effect is to achieve apparently purposeless, illogical
and unfair discrimination between persons who might fall within its ambit". The effects of such legislation were,
however, ameliorated only if "the language of the statute is reasonably capable of an interpretation which avoids
that result". A court would then have preferred a non­discriminatory construction of a statute "rather than one
which would attribute to the Legislature a whimsical predilection for purposeless and unfair discrimination".36 These
modest judicial rejections of inequality, typical of a fragmented body of case­law on equality, have, since 1994, been
overridden by a powerful and consolidated constitutional jurisprudence on equality and non­discrimination37 based
on two supreme constitutions.38 This new jurisprudence must inevitably also affect statutory interpretation,
especially if the effect of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA),39 a statute
specifically designed to give effect to the equality clause40 in the Constitution, is also taken into account.

(c) Preferring the most just and equitable interpretation

The Constitution does not explicitly mention the presumption that, where more than one interpretation of a
provision is possible, the most just and equitable interpretation is to be preferred.41 H o w e v e r , t h e s a i d
presumption can facilitate resort to constitutional values in statutory interpretation. It can, furthermore, sustain
other applications of the presumption that statute law is just, equitable and reasonable, though it has also been
invoked as a relatively independent canon of construction. This presemption is sometimes applied without explicitly
referring to it.42 It is, however, not relied on automatically or merely mechanically: 43 the provision that stands to be
construed must be reasonably capable of more than one meaning.44 It has, on occasion, been stated45 t h a t
something less than an ambiguity can also activate the presumption: for instance, "a mere vagueness, obscurity
and/or elasticity of language or uncertainty of purpose".

Mainstream jurisprudence has always held that the most beneficial interpretation of a provision can be preferred
only if it is not excluded by a manifest, contrary intention of the legislature, which intention appears from clear and
unambiguous language.46 It was even thought that legislation ostensibly interfering with the rights and liberties of
the subject should, in principle, not be treated differently from "ordinary" statutes: their "plain meaning" must be
adhered to.47 Today, statutory interpretation in conformity with the Constitution48 challenges this assumption.
Preference for the most beneficial interpretation of a provision may coincide with an interpretation most in
conformity with the Constitution. That interpretation is then to be preferred regardless of considerations of legislative
intent and language.

(d) The right to be heard

Where legislation authorises a public official or body to take action that may adversely affect the rights of an
individual, such legislation is, in accordance with a fundamental conception of "fair play" (and, therefore, of justice),
presumed to include the individual's right to be heard (audi et alterem partem). In Administrator, Transvaal v Traub,49
the operation of the presumption was extended to instances where an individual has a legitimate expectation.50
This groundbreaking judgment flew in the face of conventional audi et alteram partem jurisprudence that
acknowledged the applicability of the presumption only in the absence of literalist­cum­intentionalist indications to
the contrary.51

The presumption has ceased to be the prime source of the audi et alterem partem requirement, at least in respect
of (quasi­judicial) administrative proceedings. The Promotion of Administrative Justice Act (PAJA),52 adopted to give
effect to the constitutional entrenchment53 of a right to administrative justice, has taken over that role. Previous
legislation inconsistent with the act, especially in so far as such legislation relates to audi et alterem partem, has
been repealed by implication54 and by force of section 33 of the Constitution in pursuance of which the act was
adopted.55

(e) Avoiding absurd interpretations that may result in unjustifiable hardship

The (sub­)presumption that legislation was not meant to be absurd or anomalous, which presumption is not
subsumed under the Constitution, it is submitted, is an articulation of the expectation that legislation will be
reasonable.56 The presumption is related to the golden rule57 that also makes for the avoidance of absurdities.
However, the focus of the presumption is the avoidance of absurdities that are also unjust and inequitable. It has
been held that "if Parliament spoke ambiguously, its words must be interpreted strictly". 58 There are several
examples of cases in which courts refused to sustain a simultaneously absurd and unreasonable interpretative
outcome.59
 Nothing in the Constitution explicitly excludes an absurd construction of a statute so as to elude hardship.
However, "common sense" somehow requires it, also in constitutional interpretation, as the reasoning of the
Constitutional Court in Fraser v Children's Court, Pretoria North,60 for instance, illustrates. The court found that
section 18(4)(d) of the Child Care Act,61 affording only the mother of a child born out of wedlock a say in the child's
adoption, is unconstitutional as it discriminates against the father. However, simply striking down the provision
would have left a lacuna that could have had the absurd result of giving, for instance, a rapist a say in the adoption
of a child conceived, out of wedlock, pursuant to his misdemeanour. The court, thus, refrained from striking down
the provision forthwith and allowed parliament a period of two years to remedy the defect in a comprehensive
manner. In S v Mhlungu,62 the majority of the Constitutional Court (per Mahomed J), without explicitly referring to
the presumption, preferred a non­literal reading of section 241(8) of the transitional Constitution63 in order to avoid
the absurd result of excluding a substantial group of people from constitutional protection in the area of criminal
procedure.64
1 Du Plessis Re­Interpretation of Statutes 154
2 Constitution of the Republic of South Africa, 1996.
3 Ch 2.
4 1996 5 BCLR 658 (CC) par 123.
5 1995 7 BCLR 793 (CC) par 36.
6 Pars 4 and 45.
7 See eg Ndebele v Mutual & Federal Insurance Co Ltd 1995 (2) SA 699 (W) 704A­C; Nguza v Minister of
Defence 1996 (3) SA 483 (TkA) 488E­I; Rutenberg v Magistrate, Wynberg 1997 (4) SA 735 (C) 754A­
E; Road Accident Fund v Smith 1999 (1) SA 92 (SCA) 102C­F.
8 De Ville Constitutional and Statutory Interpretation 194.
9 See, in general, Du Plessis Interpretation of Statutes 83­97.
10 Tvl Investment Co Ltd v Springs Municipality 1922 AD 337 347 per Solomon JA. This rule has met with
wide response in the case­law. See eg Rossouw v Sachs 1964 (2) SA 551 (A) 562C­E; Pan American
World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A) 164WC­D;
Thom v Moulder 1974 (4) SA 894 (A) 905C­D; S v Katsikaris 1980 (3) SA 580 (A) 598A­B.
11 Looyen v Simmer and Jack Mines Ltd 1952 (4) SA 547 ( A ) 5 5 4 B ­ C ; R v L a J o y c e ( P t y ) L t d
1957 (2) SA 113 (T) 117E­G; Kinekor Films (Pty) Ltd v Dial­a­Movie 1977 (1) SA 450 (A) 461B­D. See
also par 2C29 below.
12 Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 552; Maree v Raad van Kuratore vir
Nasionale Parke 1964 (3) SA 727 (O) 730C­H; S v Weinberg 1979 (3) SA 89 (A) 105C­E; S v Sparks
1980 (3) SA 952 (T) 957E­H; Soja (Pty) Ltd v Tuckers Land and Development Corp (Pty) Ltd
1981 (3) SA 314 (A) 325A­B.
13 Hahlo and Kahn SA Legal System and its Background 208; c f also Steyn Uitleg van Wette 105 who
quotes Lifina Ngomozulu v R 1944 OPD 157 160 in support of this general proposition. In this
interesting case elementary rights were taken to be related to the performance of everyday and usual
human acts ("alledaagse en gebruiklike menslike verrigtinge").
14 See eg Soja (Pty) Ltd v Tuckers Land and Development Corp (Pty) Ltd supra 325.
15 See par 2C24 below.
16 See par 2C19 below.
17 See par 2C51 below.
18 Lewis v Heuer 1952 (1) SA 104 (T) 108D­E; S v Tshabalala 1980 (4) SA 179 (T) 181G.
19 R v Taweel 1937 TPD 387 389.
20 Manyeka v Marine and Trade Insurance Co Ltd 1979 (1) SA 844 (SECL) 848F­G.
21 As eg provided for by s 36 of the Constitution.
22 S 2 being the declaration of supremacy; see par 2C2 above.
23 See pars 2C2 and 2C17 above.
24 See pars 2C10 and 2C13 above.
25 See eg McKenzie v Union Government (1917) 38 NLR 309 319; Feinstein v Baleta 1930 AD 319; Lifina
Ngomozulu v R supra 160; Sinovich v Hercules Municipal Council 1 9 4 6 A D 7 8 3 ; R v Slabbert
1956 (4) SA 18 (T); Pretorius v Minister of Defence 1981 (1) SA 1174 (ZA).
26 See par 2C6 above.
27 See De Ville 183­184.
28 In re: John Freeman v Colonial Secretary of Natal (1889) 10 NLR 71 73.
29 See Du Plessis Interpretation 87­88 for a summary of the law as it stood.
30 See also pars 2C2 and 2C17 above.
31 S 25(2)(b). See, on the scope and effects of s 25, Van der Walt The Constitutional Property Clause.
32 R v Milne and Erleigh (7) 1951 (1) SA 791 (A) 823B­F; Park Geboubeleggings en Wynkelders Bpk v
Stadsraad van Vanderbijlpark 1965 (1) SA 849 (T) 852C­E; Von Wielligh v Mimosa Inn (Pty) Ltd
1 9 8 2 ( 1 ) S A 7 1 7 ( A ) 7 2 4 G ­ H ; Klerksdorpse Stadsraad v Renswyk Slaghuis (Edms) Bpk
1988 (3) SA 850 (A) 876C­D; Minister of Law and Order v Pavlicevic 1989 (3) SA 679 (A) 689G­H;
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A) 735G­I.
33 For a helpful overview of principles laid down in the course of several decades, cf Kommissaris van die
SA Inkomstediens v Botha 2000 (1) SA 908 (O) 916B­917B.
34 198.
35 See pars 2C2 and 2C17 above.
36 Quotations from Lister v Incorporated Law Society Natal 1969 (1) SA 431 (N) 434 per Miller J. See also
Principal Immigration Officer v Bhula 1931 AD 323 336; Dempers v South West Agency Co (Pty) Ltd
1965 (2) SA 674 (A) 678D­679B; Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk
1966 (4) SA 434 (A) 443B­C; American Swiss Watch Co Ltd v Minister of Finance 1977 (1) SA 876 (C)
885F­G; Cape Town Municipality v Frerich Holdings (Pty) Ltd 1979 (2) SA 1137 (C) 1139G­H; Cometal­
Mometal SARL v Corliana Enterprises (Pty) Ltd 1981 (4) SA 662 (W) 665A­B.
37 Among the directional equality judgments that have been handed down by the Constitutional Court are
President of the RSA v Hugo 1997 6 BCLR 708 (CC); Harksen v Lane NO 1997 11 BCLR 1489 (CC);
Pretoria City Council v Walker 1998 3 BCLR 257 (CC); National Coalition for Gay and Lesbian Equality
v Minister of Justice 1998 12 BCLR 1517 (CC).
38 Equality rights are entrenched in s 9 of the Constitution, but equality itself is one of the Constitution's
central themes and values (see eg ss 1(a), 7(1), 36(1) and 39(1)(a)). S 1(b) makes it clear that the
 exclusion of racism and sexism, probably the two most recurrent instances of discrimination in South
Africa, is one of the founding objectives of the Constitution.
39 4 of 2000.
40 S 9.
41 Widely recognised in the case­law; c f e g Principal Immigration Officer v Bhula supra 336­337;
Arenstein v Secretary for Justice 1970 (4) SA 273 (T) 281A­D; Cornelissen v Universal Caravan Sales
(Pty) Ltd 1971 (3) SA 158 (A) 175C; Du Plessis v Skrywer 1980 (2) SA 52 (SWA) 59D­G; Sigaba v
Minister of Defence and Police 1980 (3) SA 535 (Tk) 541H; Tshwete v Minister of Home Affairs (RSA)
1988 (4) SA 586 (A) 612F­G; SA Geneeskundige en Tandheelkundige Raad v Strauss 1991 (3) SA 203
(A) 214H­J.
42 S e e e g Thomas v Liverpool and London and Globe Insurance Co of SA Ltd, Platjies v Eagle Star
Insurance Co 1968 (4) SA 141 (C) 148H.
43 Bartman v Dempers 1952 (2) SA 577 (A) 580H­582C; D v Minister of the Interior 1960 (4) SA 905 (T)
908E­G et seq.
44 R v Sachs 1953 (1) SA 392 (A) 399F­H; Martin v Marine and Trade Insurance Co Ltd 1978 (1) SA 1153
(C) 1158B­C.
45 In Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107 (Nm) 119A­I.
46 Principal Immigration Officer v Bhula supra 336.
47 R v Halliday 1917 AC 260 (HL) 274, quoted with approval in R v Sachs supra 400A­D.
48 See par 2C13 above.
49 1989 (4) SA 731 (A).
50 761.
51 R v Ngwevela 1954 (1) SA 123 (A) 131H; Publications Control Board v Central News Agency Ltd
1970 (3) SA 479 (A) 488H­489D.
52 3 of 2000, especially ss 3 and 4.
53 In s 33 of the Constitution.
54 De Ville 216.
55 See s 33(3) of the Constitution.
56 In Barnard v Regspersoon van Aminie 2001 (3) SA 973 (SCA) par 27 the Supreme Court of Appeal
contended for an interpretation that would avoid "onsinnige gevolge".
57 See par 2C14(b) above.
58 Spinnaker Investments (Pty) Ltd v Tongaat Group Ltd 1982 (1) SA 65 (A) 76H.
59 C f e g S v Moodley 1971 (1) SA 320 ( N ) ; S v Hlangothe 1979 (4) SA 199 ( B T ) ; S v Bissessue
1980 (1) SA 228 (N); S v De Abreu 1981 (1) SA 417 (T). S v Werner 1980 (2) SA 313 (W) provides a
striking example of how the presumption against absurdity can be reined in. The accused, a coloured,
contravened section 26(1) of the Group Areas Act 36 of 1966 (read with Proclamation 83 of 1962) by
living in a white group area. His defence was that Proclamation 83 of 1962 had become unreasonable
and accordingly ultra vires because of a severe housing shortage in his particular group area. The
court's response was that an initially reasonable proclamation cannot be invalidated on account of
circumstances which arose after its promulgation, even if these new circumstances render the
proclamation prima facie unreasonable.
60 1997 2 BCLR 153 (CC).
61 74 of 1983.
62 Supra par 4.
63 Constitution of the Republic of South Africa, Act 200 of 1993.
64 See also par 2C14(b) above.

2C19 Statute law applies to general and not to particular instances Steyn1 says that this presumption derives
from a directive meant for legislatures, namely to phrase statutes with instances that occur regularly rather than
with exceptional instances in mind. However, traditionally statutory provisions have been phrased in a detailed ­
and inflationary and inelegant ­ manner in an attempt to cater visibly and explicitly for as many particular
eventualities as possible. The presumption has, thus, found restrictive and irregular application mostly to frustrate
an individual's evasion of the generally applicable provisions of a statute on account of the alleged peculiarity of his
or her particular circumstances.2

The presumption can be seen to enhance equality before the law, which equality is guaranteed in section 9(1) of
the Constitution.3 Thus, the presumption resonates with the requirement, in section 36(1), that only a law of general
application can validly limit a fundamental right entrenched in the Constitution. T h i s w o u l d m e a n t h a t t h e
presumption has largely been subsumed under the Constitution.4
1 Uitleg van Wette 79­80.
2 Norwich Union Life Insurance Society v Dobbs 1912 AD 395 399; Louw v Louw 1965 (3) SA 750 (E)
750G­751A. For examples of applying the presumption, see S v Van der Merwe 1977 (2) SA 774 (T); S
v Van der Westhuizen 1980 (1) SA 333 (SWA).
3 Constitution of the Republic of South Africa, 1996.
4 Du Plessis 1998 SALJ 754­755.

2C20 Statute law promotes the public interest The term "public interest" is open­ended. It can be abused to
suppress the rights and interests of the individual in the name of the public weal that is seen as an expression of
the rights and interests of all. It is often necessary, in statutory interpretation, to try and strike a balance between
individual entitlements and the public interest and to read "public interest" in light of the considerations informing
the presumption against unjust, inequitable and unreasonable statute law.1

The Constitution2 is vital for an understanding of the concept of "public interest". To respect and protect ­ and to
promote and to fulfil, as section 7(2) of the Constitution would add ­ the rights entrenched in the Bill of Rights is no
doubt a public­interest matter of prime concern. Indeed, public interest pilots the interpretation of rights by virtue
of, and in accordance with, section 39(1)(a) of the Constitution. This section requires an interpretation of the Bill of
Rights which will promote the values underlying an open and democratic society based on human dignity, equality
and freedom. The public interest as "the interest of all", however, also requires a duly bridled exercise of individual
rights ­ hence, the need to limit them. To this end, the general limitation clause in the Constitution3 appeals to the
public interest in the very same terms as the interpretation clause.

The equilibrium of public interest and individual rights is, therefore, well served if it is assumed that the common­
law presumption of statutory interpretation favouring the promotion of the public interest has been subsumed
under the interpretation and limitation clauses of the Bill of Rights. This does not, however, preclude the role of this
presumption as an exegetic framework augmenting an understanding of the constitutionally imposed duties of the
state, including duties other than respecting, protecting, promoting and fulfilling fundamental rights in the Bill of
Rights.4 The state is, for instance, duty­bound to "be the kind of state" described in section 1 of the Constitution to
defer to the supremacy of the Constitution,5 to heed the principles of co­operative government,6 and to perform its
administration in accordance with the basic values and principles in section 195 of the Constitution. "Public interest"
thus serves as an overarching value­concept, rooted in the common law, accounting for the duties of the state and
making for a contextual understanding of the state's duties in the Constitution. O n t h e o t h e r h a n d , the
Constitution's meticulous circumscription of these duties considerably enriches the common­law notion of "public
interest", as such, and the understanding of the state's task as servant of the "public interest". In this sense, the
presumption facilitates resort to constitutional values in statutory interpretation.
1 See par 2C18 above. In S v Innes 1979 (1) SA 783 (C), S v Mulder 1980 (1) SA 113 (T) and Mabaso v
Nel's Melkery (Pty) Ltd 1979 (4) SA 358 (W), attempts were indeed made to strike a balance between
public interests and the rights and interests of individuals.
2 Constitution of the Republic of South Africa, 1996.
3 S 36(1).
4 S 7(2).
5 S 2.
6 S 41.

2C21 Statute law does not interfere with or oust the jurisdiction of the courts The object of this presumption is
to vouch for the horizontal division of powers (or trias politica) and, in particular, for the independence of the
judiciary, and to ensure access of individuals to the courts and to adjudicative procedures. It is submitted that the
common­law presumption has largely been subsumed under the Constitution.1

Section 165 of the Constitution provides for the independence of the judiciary in no uncertain terms, and section
34 entrenches the fundamental right of access to adjudication processes. Other provisions of the Constitution also
demand deference to judicial authority. Section 35, for instance, explicitly involves courts at all the various stages of
the criminal process, while section 37(3), for the first time in South Africa's history, makes the declaration of a state
of emergency justiciable.

In SA Association of Personal Injury Lawyers v Heath,2 the Constitutional Court held that the implicit (or implied)
terms of the Constitution3 vouch for a horizontal separation of powers (or trias politica) and, in consequence, for the
independence of the judiciary, as decidedly and as powerfully as any express provision would have done. 4 In S v
Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening),5 the same court, in the course of
assessing the constitutionality of the common­law offence of scandalising the court, emphasised that, under the
doctrine of separation of powers, the judiciary "stands on an equal footing with the executive and the legislative
pillars of state", but that "in terms of political, financial or military power it cannot hope to compete". It lacks a
constituency, a purse and a sword. As the weakest of the three pillars of government, the judiciary, in asserting its
essential (and manifest) independence must therefore rely on moral authority6 which manifests, inter alia, in the
exercise of various forms of judicial self­restraint.7

A judicial awareness of the fact that access to court is a fundamental right, and of the fact that restrictions of the
jurisdiction of courts is a constitutional issue, has been shown in the case­law since the advent of constitutional
democracy.8 The validity of time­limitation clauses has, for example, been dealt with as a constitutional issue9
related not only to the section 3410 (constitutional) right of access to adjudicative proceedings,11 but also to
equality before and equal protection of the law.12 Similarly, an ouster clause purporting to place issues of
parliamentary privilege beyond judicial scrutiny on the ipse dixit of the speaker of the national assembly was held to
be unconstitutional.13 The Constitutional Court has, on the other hand, refrained from taking an overly purist stand
o n trias politica, in respect of statutorily prescribed minimum sentences, holding (in S v D o d o)14 t h a t t h e
determination of the nature and severity of sentences in criminal cases is not the sole prerogative of the judiciary,
and that legislation requiring the imposition of minimum sentences in certain circumstances, and on certain
conditions, is not unconstitutional per se. The court then laid down guidelines for the determination of the
constitutionality of such legislation.15

The Promotion of Administrative Justice Act (PAJA),16 which gives detailed effect to the principles of just
administrative action entrenched in section 33 of the Constitution, also makes itself felt in matters within the scope
and ambit of the common­law presumption against interference with the jurisdiction of the courts. Section 7(2) of
the act, for instance, imposes a duty on an aggrieved person first to exhaust domestic, non­judicial remedies before
he or she approaches a court. This duty can be dispensed with in exceptional circumstances.

Finally, the common­law presumption has, on occasion, been relied on to interpret jurisdictional provisions of the
transitional Constitution.17 Such reliance has, however, been sporadic and controversial 18 and is not certain to
guarantee the future of the presumption.
 1 Both the (transitional) Constitution of the Republic of South Africa, A c t 2 0 0 o f 1 9 9 3 a n d the
Constitution of the Republic of South Africa, 1996. See Du Plessis 1998 SALJ 755­758.
2 2001 1 BCLR 77 (CC).
3 As opposed to "tacit terms". "Tacit terms" are "terms that the parties intended but failed to express in
the language of the contract" whereas "implicit" or "implied terms" are terms implied by law ­ par 19.
4 Pars 19­20.
5 2001 5 BCLR 449 (CC).
6 Par 16.
7 Even more encompassing than the self­restraint required for the adjudication of the constitutionality of
legislation or administrative action ­ see par 2C2 above; see par 18 of the judgment.
8 Williamson v Schoon 1997 (3) SA 1053 (T) 1068A­1069A.
9 Mohlomi v Minister of Defence 1996 12 BCLR 1559 (CC) par 12.
10 S 22 of the transitional Constitution.
11 As was the case in Mohlomi v Minister of Defence supra.
12 S 9(1) and the concomitant prohibition of unfair discrimination in s 9(3). See eg The Chairman of the
Council of State v Qokose 1994 2 BCLR 1 (CkAD); Zantsi v The Chairman of the Council of State 1994
6 BCLR 136 (Ck); Hans v Minister van Wet en Orde 1995 12 BCLR 1693 (C).
13 De Lille v Speaker of the National Assembly 1998 7 BCLR 916 (C) par 40.
14 2001 5 BCLR 423 (CC).
15 Par 33.
16 3 of 2000.
17 Ferreira v Levin; Vryenhoek v Powell 1995 4 BCLR 437 (W)443­444.
18 The presumption was, for instance, relied on in Zantsi v The Chairman of the Council of State 1994 6
BCLR 136 (Ck)164C to assert the testing right of the Supreme Court (as it then was) in respect of pre­
1994 legislation. The decision was, however, overturned by the Constitutional Court on appeal ­ see
Zantsi v Council of State, Ciskei 1995 10 BCLR 1424 (CC) pars 37­38.

2C22 Statute law does not violate international law Reliance on this presumption is meant to ensure, first, that
the state's international obligations are honoured in the application of municipal law and, second, that international
standards for the protection of fundamental rights and freedoms are upheld by the state. The Constitution1 fully
caters for all eventualities that could previously have been brought within the ambit of the presumption. Section
233 o f the Constitution requires a court to prefer any reasonable interpretation of legislation consistent with
international law over any alternative interpretation inconsistent with such law, while section 39(1)(b) enjoins a
court to consider international law in interpreting the Bill of Rights. "International law" includes customary
international law as well as international treaties. International treaties ­ with the exception of self­executing
agreements2 ­ must first, through legislation, be made part of the municipal law before they acquire the force of
law.3

A court may attribute meaning to a municipal, legislative provision with reference to the meanings attributable to
the provision in an international instrument (for example, a convention) after which the former provision was
styled.4

I n Azanian Peoples Organisation (AZAPO) v President of the RSA,5 the Constitutional Court intimated that the
conventional presumption against the violation of international law applies to constitutional interpretation. While
the (obiter) dictum stating this referred to the transitional Constitution,6 the statement probably holds for the 1996
Constitution too.

Section 233 explicitly mentions the interpretation of legislation (only), but the Constitutional Court, in due course,
had little difficulty to conclude that the presumption it creates "must apply equally to the provisions of the Bill of
Rights and the Constitution as a whole".7
1 Constitution of the Republic of South Africa, 1996.
2 S 231(4) of the Constitution.
3 De Ville Constitutional and Statutory interpretation 192.
4 Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA) par 9.
5 1996 8 BCLR 1015 (CC) par 26.
6 Constitution of the Republic of South Africa, Act 200 of 1993.
7 Kaunda and Others v President of the RSA and Others (2) 2004 (10) BCLR 1009 (CC), 2005 (4) SA 235
(CC) par 33.

2C23 Statutes do not bind the state This is the one common­law presumption of statutory interpretation of which
it is really difficult to say which legal values it seeks to promote. The courts have mostly relied on English case­law
to develop the presumption and, at first, referred mainly to the prerogative powers vested in the crown as the fons
et origo of the presumption. Over time, however, the presumption also came to be applied to legislation that had
nothing to do with the prerogatives1 on the (broadened) assumption that the state intends to legislate for its
subjects and not for itself. 2 Conventionally, this presumption has not been invoked, except as a tertiary source of
knowledge of the intention of the legislature.3

Hahlo and Kahn4 capture the essence of the presumption thus:

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.

According to the classical judicial exposition of the presumption,5 its express or implied rebuttal can be inferred not
only from the language of the provision in question, but also from its nature and, with a view to surrounding
circumstances, its objects and consequences.6 A general provision that "this Act shall bind the state" is not
necessarily a conclusive indication that the state is, in fact, bound by the legislative instrument as a whole, and due
regard should also be had to the common law before a final conclusion is drawn.7 Rebuttal of the presumption is
not easily inferred if the effect would be that statutory provisions burden the state with encroachment on its
property or prerogative rights, restrict the performance of public duties in the interest of the state community, and
subject the state to intervention and undue control by its own officials, or to penal provisions.8

Is it feasible, after the advent of constitutional democracy, still to presume that the state is not bound by its own
legislation? Wiechers,9 a decade prior to the advent of constitutionalism and the constitutional state, voiced his
misgivings about the consistency of the presumption with the value of legality ­ in other words, government in
accordance with the law ­ and argued for a reversal of the presumption. The general rule should be that the state is
bound by its own legislation except in instances where this would negatively affect the performance of government
functions. Deviation from the general rule has to be justified on (other) legal grounds, such as necessity.

Wiechers's suggestion met with rejection10 but also with favourable response (albeit as somewhat of an
aside)11 in pre­1994 case­law. However, the Appellate Division of the Supreme Court (as it then was) subsequently
confirmed the conventional approach setting out, in detail, the circumstances in and conditions on which the
presumption can be rebutted.12 That was the law as it stood at the time of the commencement of the transitional
Constitution13 on 27 April 1994.

Constitutional democracy is about bridling state power by binding organs of the state, at every level and in every
sphere of government to, first, the supreme Constitution14 ­ that is trite ­ and, second, to the law in general. The
basic democratic value of legality is inherently incompatible with an interpretative presumption that the state is not
bound by its laws. Legality is as much part of the implicit terms of the Constitution as is the horizontal division of
powers.15 This was affirmed by the Constitutional Court, in so many words, in Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council.16 I n Mohamed v President of the RSA,17 the Constitutional Court
described its finding that the handing over of a suspect to a foreign government agency was unlawful as "a serious
finding".18

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"19 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.20 The moment for what Wiechers had foreseen a decade before the advent of constitutional
democracy has probably come.21
1 Evans v Schoeman 1949 (1) SA 571 (A) 578 per Centlivres JA. See also R v Thomas 1954 (1) SA 185
(SWA) 187A­B.
2 Raats Röntgen and Vermeulen (Pty) Ltd v Administrator, Cape 1991 (1) SA 827 (C) 838­841 provides
a helpful historical overview.
3 See par 2C17 above.
4 SA Legal System and its Background 204.
5 In Union Government v Tonkin 1918 AD 533 540­541 per Innes CJ.
6 The presumption was relied on in several cases, the leading ones being Union Government v Tonkin
supra, SAR&H v Smith's Coasters (Prop) Ltd 1931 AD 113 and Evans v Schoeman supra.
7 Oertel v Director of Local Government 1981 (4) SA 491 (T) 501 503B­504C. In this sense, the
presumption is invoked in concert with the presumption against unnecessary alterations to the existing
law (see par 2C24 below).
8 Steyn Uitleg van Wette 76.
9 Administratiefreg 374­377.
10 S v De Bruin 1975 (3) SA 56 (T) 59A­B.
11 Raats Röntgen and Vermeulen (Pty) Ltd v Administrator, Cape supra 843A­B.
12 Administrator, Cape v Raats Röntgen and Vermeulen (Pty) Ltd 1992 (1) SA 245 (A) 262A­D, with
Kriegler AJA handing down the court's judgment in the appeal against the judgment in Raats Röntgen
and Vermeulen (Pty) Ltd v Administrator, Cape supra.
13 Constitution of the Republic of South Africa, Act 200 of 1993.
14 Constitution of the Republic of South Africa, 1996; see par 2C2 above.
15 By analogy with SA Association of Personal Injury Lawyers v Heath 2001 1 BCLR 77 (CC) pars 19­20.
16 1998 12 BCLR 1458 (CC) par 58.
17 2001 7 BCLR 685 (CC).
18 Pars 67­68.
19 S 1(c).
20 S 195(1)(f ).
21 Labuschagne and Habig 2000 SA Public Law confirm this conclusion and rely on examples from post­
1994 case­law in support of the contention that the conventional presumption has become an
"anachronism" in our new constitutional state. They refer to the following cases: Somfongo v
Government of the RSA 1995 (4) SA 738 ( T k S C ) a n d Minister of Water Affairs and Forestry v
Swissborough Diamond Mines (Pty) Ltd 1999 (2) SA 345 (T).

2C24 Statute law does not alter the existing law more than is necessary This presumption, first, enhances legal
certainty: it discourages an undue destabilisation or unsettling of the law as it stands. Second, it manifests esteem
for the worth of the common law as the outcome of historical evolution.1 At a glance, this second objective of the
presumption seems to bring it in competition and, therefore, in conflict with the Constitution.2 The latter trumps the
common law3 and requires the development of the common law (and the interpretation of existing statute law) to
promote the spirit, purport and objects of the Bill of Rights.4 Is there, then, still room for a presumption that seeks
to stabilise the existing common (and statute) law?
 An assessment of the impact of the Constitution on the presumption must be prefaced with three remarks. First,
the South African legal system is not a common­law system to the backbone: it is a curious hybrid where common­
law­speak often serves to enhance and entrench concepts of law developed by means of deductive or "principled",
civil­law reasoning.5 Second, common law has traditionally been seen as the basis of the law as it stands, with
statute law as an exception to common law. However, the courts' manner of statutory interpretation has often lent
precedence to the intention of the legislature as expressed in clear and unambiguous statutory language.6 Third,
for purposes of the presumption, "existing law" includes both the common law and statute law, neither of which
enjoys pre­eminence.7 The maxim generalia specialibus non derogant,8 in a broad signification, adds to the force of
the presumption. The interpretation of general provisions of a statute should not be allowed to derogate from the
specific provisions of the common law, as it stands, or from specific, existing legislation.9

A classical statement of the operation of the presumption in respect of modifications of the common law is to be
found in a dictum in Casserley v Stubbs:10
It is a well­known canon of construction that we cannot infer that a statute intends to alter the common law. The statute
must either explicitly say that it is the intention of the legislature to alter the common law, or the inference from the
ordinance must be such that we can come to no other conclusion than that the legislature did have such an intention.11

Legislation must, in other words, be interpreted in light of the common law, as far as possible, be reconciled with
related precepts of the common law, and must be read to be capable of co­existing with common law in pari
materia.12 However, the common law is no "impenetrable obstacle" 13 and, in several instances, common­law
precepts had to give way to legislation.14 The presumption is, in other words, like any other presumption,
rebuttable.15

How, then, has the Constitution affected the common­law presumption that statute law does not alter the
existing law more than is necessary? This question is posed against the background of a lively debate about how
the Constitution and the common law should be read in relation to each other. 16 That the supreme Constitution
applies to the common law and can trump the common law is uncontested. That the common law must be
developed in a manner promoting the spirit, purport and objects of the Bill of Rights17 is a constitutional injunction
and also beyond dispute. However, there is a difference of opinion as to what precisely the implications of
constitutional supremacy for the common law are. The divergent ways in which the majority and the minority of the
Constitutional Court, in Du Plessis v De Klerk,18 assessed the extent of the horizontal operation of the Bill of Rights
in the light of section 7(2) of the transitional Constitution19 are clear evidence of this. The majority, for instance,
rejected a construction of section 7(2) that would have resulted in a direct application of the Bill of Rights to
"common law issues between private litigants".20 The minority did not see the common law as such an obstacle. On
an earlier occasion, the Constitutional Court, however, unanimously cautioned that "[c]onstitutional rights conferred
without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into
line with the common law".21 In time, the Constitutional Court, professing to follow the route of "development of
the common law in the light of the Constitution",22 has become more outspoken about (and, to some degree, even
activist in asserting) the Constitution's precedence over the common law in the determination, first, of the scope
and contents of litigants' rights in litigation and, second, of apt remedies for an infringement of such rights. In
Carmichele v Minister of Safety and Security,23 it was stressed24 that a court is always under an obligation to
develop the common law and that "this duty upon judges arises in respect both of the civil and criminal law,
whether or not the parties in any particular case request the court to develop the common law under section 39(2)
[of the Constitution]".25 This obligation is not discretionary, but implicit in section 39(2) read with section 173 of the
Constitution.26

The conventional presumption of statutory interpretation favours a construction of statute law that does not
alter the existing law more than is necessary, or, to frame it positively, only as much as is necessary . It is submitted
that, under the Constitution, "necessary" has become a concept different to what it used to be. First, if the
maximisation of the common law through statutory interpretation comes to a result at odds with the Constitution,
there can be no question: it is necessary to interpret the statute in a manner altering the common law. Second,
common­law rights and remedies have to give way to statutory rights and remedies more advantageous to those
who stand to benefit from them. Thus, a reading of a statute which promotes the spirit, purport and objects of the
Bill of Rights and, thereby, provides for rights and remedies more advantageous than those at common law is a
necessary modification of the common law. Third, when a statute dealing with the exercise of a public power is
construed, it is necessary that the common law does not enjoy any possible "advantage" that the conventional
presumption could afford it.27

With "necessary" thus circumscribed, little remains for the common­law presumption as a presumption. This does
not mean, however, that the common law can no longer play a role in statutory interpretation. 28 It must be borne
in mind that the Constitution is not read as a super law overwhelming all existing (common and statute) law. It is
read in accordance with the demands of adjudicative subsidiarity, 29 and existing law is read in conformity with the
Constitution30 in an attempt to save, rather than do away with, it. The first objective of the conventional
presumption, namely to enhance legal certainty by discouraging an undue destabilisation or unsettlement of the
law as it stands, has thus remained an integral element of statutory and constitutional interpretation.

Finally, there is a presumption that the legislature is familiar with the courts' interpretation of legislation, and
that therefore
where the Legislature uses words that were judicially construed in the past, it is presumed, in the absence of clear indication
to the contrary, to have intended those words to bear the meaning ascribed to them by the courts.31

This presumption actually also expresses a need for stability of the law as it stands, and it is therefore an instance
of the presumption against unnecessary alteration of the existing law. The presumption causes courts to construe
statutes on the assumption that their meaning must not be at variance with judicial constructions placed upon
previous corresponding statutes, provided that the "words in question . . . had acquired a settled and well­
recognised judicial interpretation before the relevant legislation was passed".32
 1 Steyn Uitleg van Wette 97.
2 Constitution of the Republic of South Africa, 1996.
3 S 2.
4 S 39(2).
5 Du Plessis Introduction to Law 71­80.
6 Du Plessis Re­Interpretation of Statutes 21.
7 Van Heerden v Queen's Hotel (Pty) Ltd 1973 (2) SA 14 (RA) 23D­F per Beadle CJ obiter.
8 See par 2C9 above.
9 Cockram Interpretation of Statutes 99.
10 1916 TPD 310 312 per Wessels J.
11 See also Dhanabakium v Subramanian 1943 AD 160 167; Rand Bank Bpk v Regering van die
Republiek van SA 1974 (4) SA 764 (T) 767D­F; Bills of Costs (Pty) Ltd v The Registrar Cape
1979 (3) SA 925 (A) 942D­E; Kaplan v Incorporated Law Society Tvl 1981 (2) SA 762 (T) 770D­F; Law
Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) 639E; Skyway Management Ltd v Telkom
SA Bpk 2001 (2) SA 780 (T) 784C­F.
12 Kubheka v Imextra (Pty) Ltd 1975 (4) SA 484 (W); Joss v Board of Executors 1979 (1) SA 780 ( C )
782A­C; Gouws v Theologo 1980 (2) SA 304 (W) 306C­D; S v Leeuw 1980 (3) SA 815 (A) 823F­G;
Shell SA (Edms) Bpk v Gross h/a Motor Maintenance 1980 (4) SA 151 (T); S v Collop 1981 (1) SA 150
(A) 164A­B; S v Zwela 1981 (1) SA 335 (O) 343F­H; Cape Town Municipality v Allie 1981 (2) SA 1 (C)
6A­B; Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N) 87A­C; In re: Kranspoort Community
2000 (2) SA 124 (LCC) par 67.
13 Kruger v Santam Versekeringsmpy Bpk 1977 (3) SA 314 (O) 320G­H.
14 Popatlall Kara (Pty) Ltd v Essay 1969 (3) SA 593 (D); Casely v Minister of Defence 1973 (1) SA 630
(A); Mphosi v Central Board for Co­op Insurance Ltd 1974 (4) SA 633 (A) 644B­E; S v Robinson
1975 (4) SA 438 (RA); Dick v Olver 1979 (4) SA 880 (C); S v Mbhele 1980 (1) SA 295 (N); Standard
Merchant Bank Ltd v Gordon 1980 (4) SA 637 (C); Glen Anil Finance (Pty) Ltd v Joint Liquidators Glen
Anil Development Corp Ltd 1981 (1) SA 171 (A); Krige v Smit 1981 (4) SA 409 (C) 413E­G.
15 Also with reference to literalist­cum­intentionalist considerations: cf Glen Anil Finance (Pty) Ltd v Joint
Liquidators Glen Anil Development Corp Ltd supra 181H­182A. On the rebuttal of the presumption in
general, cf Mphosi v Central Board for Co­op Insurance Ltd supra 643H­644H.
16 C f eg Van der Walt 1995 SAJHR and 1998 Acta Juridica; O'Regan "The best of both Worlds?" in
Constitution and Law II; Rautenbach 2000 TSAR, Van der Merwe 2000 TSAR.
17 S 39(2).
18 1996 5 BCLR 658 (CC).
19 Constitution of the Republic of South Africa, Act 200 of 1993.
20 Par 57 per Kentridge AJ.
21 S v Zuma 1995 4 BCLR 401 (SA) par 15 per Kentridge AJ.
22 And in accordance with s 39(2) of the Constitution.
23 2001 10 BCLR 995 (CC).
24 Per Ackermann and Goldstone JJ writing for a unanimous bench.
25 Par 36.
26 Par 39.
27 See the discussion of the implications of The Pharmaceutical Manufacturers Association of SA, In re:
The Ex parte Application of the President of the RSA 2000 3 BCLR 241 (CC) in pars 2C2 and 2C17
above.
28 The Supreme Court of Appeal in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) par 16 per
Nugent AJA (for the majority) seems to be in agreement with the principal proposition, but
unfortunately overemphasises the qualification. The Labour Relations Act 66 of 1995 is the legislative
instrument designed to give effect to rights pertaining to labour relations (as entrenched in s 23 of the
Constitution) and yet the majority of the court held that the act and the Constitution cumulatively have
not supplanted the common law with regard to the rights and remedies available to employees upon
the termination of their employment. Froneman AJA, in his minority judgment, espoused the opposite
view which, with respect, amounts to a more rigorous (worker­unfriendly) endorsement of the
supremacy of the Constitution in this particular area.
29 See par 2C2 above.
30 See par 2C13 above.
31 Geue v Van der Lith [2003] 4 All SA 553 (SCA), 2004 (3) SA 333 (SCA) pars 9, 11. Cf also CR v Ismail
1958 (1) SA 206 (A) 211.
32 Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A), 1997 (1) SA 710 (A) 732A­
C. See also Ex parte Minister of Justice: In re R v Bolon 1941 AD 345 359­360; De Wet v Jurgens
1970 (3) SA 38 (A) 51D­F; Commissioner for Inland Revenue v Friedman 1993 (1) SA 353 (A) 387A­C.

2C25 A statute does not apply with retrospective effect This presumption has found wide recognition in the
case­law, both for purposes of statutory1 and constitutional interpretation.2 Retrospective interference with vested
rights or the creation of new obligations or an imposition of new duties by the legislature is not lightly assumed.3
The crux of the matter is not the prospectivity or retrospectivity of legislation as such, but the fair treatment
befalling those subject to the legislation should that legislation be held to apply in either manner. 4 De Ville,5 for
instance, deals with the presumption against retrospectivity as part of the presumption against unjust, inequitable
and unreasonable legislation,6 and cumulative reliance on both presumptions has, indeed, been held not to be
inappropriate.7 However, legislation that does not interfere with vested rights or create new duties or impose new
obligations can also be subject to the presumption against retrospectivity. This presumption and the presumption
favouring a just, equitable and reasonable interpretative outcome, therefore, do not exist for precisely the same
reasons. In the case of the presumption against retrospectivity, an element of legal certainty, not divorced from
considerations of fairness, also enters the picture. Individuals should know what the law is in order to be able to
"conform their conduct accordingly".8 Transactions or acts which had been completed prior to the commencement of
a statute belong, as far as that statute is concerned, to the past.9
 The presumption against retrospectivity can be rebutted expressly or by necessary implication;10 but, once
rebutted, the retrospective effect that a provision acquires because of the rebuttal, is construed restrictively. 11
Legislation is usually said to obtain retrospectively in the following circumstances:

(a) Where the retrospective operation of a statute is provided for (either expressly or by necessary
implication),12 or where the statute deals with past matters and events.

(b) Where a statutory provision confirms the existing law. Steyn13 is right that this is not a case of true
retrospectivity, since true retroaction means "that as at a past date the law shall be taken to have
been that which it is not".14

(c) "[A] statute which deals with a topic or subject which has been a matter of some doubt and which is
intended to clarify and settle that doubt is said to operate retrospectively".15

(d) Where a statute deals with procedural matters.16 Procedural provisions strike proceedings initiated after
their commencement prospectively without, however, regulating the events from which the proceedings
have arisen retrospectively.

(e) Where an enactment benefits the subject.17 This exception applies only if all persons subject to the
provisions of a statute would benefit from reliance on the exception.18 Traditionally, the exception has
mostly been considered with reference to criminal liability, the point of departure being that an accused
cannot be convicted of an act that became an offence after it had been committed.19 This general rule
has now been constitutionalised.20 As far as increasing existing penalties is concerned, the principal
presumption has always been held to obtain with full force:
[A] penalty cannot without express words or clear implication, be increased against a wrongdoer after the
commission of the offence.21

This rule has also, by necessary implication, been constitutionalised, since section 35(3)(n) o f the
Constitution e n t i t l e s a n a c c u s e d p e r s o n t o t h e b e n e f i t o f t h e l e s s s e v e r e o f t w o p r e s c r i b e d
punishments, "if the prescribed punishment for an offence has been changed between the time that the
offence was committed and the time of sentencing". This provision, therefore, with constitutional
authority, provides for the retrospective operation of statutes reducing criminal liability. In the past, the
courts have not been unwilling to apply statutory provisions that decrease punishment with
restrospective effect;22 but, with the constitutional provision in place, it has become unnecessary to
continue to rely on case­law authority.

The constitutional provision also settles another issue. An accused can benefit from a statutory
provision abolishing a prescribed minimum sentence, even if the beneficial provision is not yet in
operation at the time of his or her conviction.23

The extent to which the majority of the Constitutional Court in S v Mhlungu24 was prepared to give restrospective
effect to provisions of the transitional Constitution25 in order to extend the benefits of the Constitution t o t h e
largest possible section of the population has been considered previously in another context.26

The presumption against retrospectivity, and some of the exceptions to it, have, thus, been constitutionalised in
but a limited way. Section 35(3)(l) of the Constitution entrenches an accused person's right not be convicted of an
act or omission that was not an offence under national or international law at the time it was committed or omitted,
while section 35(3)(n) entitles an accused to the least severe of prescribed minimum sentences. The presumption
against retrospectivity, and its exceptions, have accordingly been subsumed under the Constitution only to this
limited extent; but, for the rest, they still apply with full effect.

Legislation applying retroactively is sometimes distinguished from legislation applying retrospectively:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for
the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates
backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the
future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a
retrospective statute changes the law from what it otherwise would be with respect to a prior event.27

"Retroactivity" is sometimes also referred to as "retrospectivity in a strong sense" while "retrospectivity" as

understood in the quotation above has been referred to as "retrospectivity in a weaker sense".28 There is case­law
suggesting that the presumption against the retrospective operation of legislation applies to retroactive legislation
only, and not to retrospective legislation as well. 29 However, in respect of both, "elementary considerations of
fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct
accordingly".30 "There is a natural resistance to creating legal consequences for conduct only after the conduct has
occurred."31 Both retroactive and retrospective legislation will thus not be given effect to if vested rights are taken
away or impaired, or new obligations are created, or a new duty is imposed, or a new disability is attached "in
regard to events already past".32 From this perspective the presumption against the retrospective operation of
legislation is also on all fours with the Constitution which seems
to enjoin an approach to the interpretation of statutes which would be mindful of society's distaste for retroactive legislation
and which would be characterised by a reluctance to accept that accrued and vested rights are intended to be retroactively
set at nought unless the legislation in question makes that plain.33

1 See eg Mahomed v Union Government (Minister of the Interior) 1911 AD 1 8; Principal Immigration
Officer v Purshotam 1928 AD 435 443; Jockey Club of SA v Tvl Racing Club 1959 (1) SA 441 (A) 451F­
G; Northern Office Micro Computers (Pty) Ltd v Rosenstein 1981 (4) SA 123 (C) 129A­B; Genrec MEI
(Pty) Ltd v Industrial Council for the Iron, Steel, Engineering, Metallurgical Industry 1995 (1) SA 563
(A) 572E; DVB Behuising (Pty) Ltd v North West Provincial Government 2000 4 BCLR 347 (CC) par 65.
2 In S v Mhlungu 1995 7 BCLR 793 (CC), both the majority (pars 37 and 38) and the minority (par 66)
 of the Constitutional Court recognised the relevance of this presumption for constitutional
interpretation.
3 Curtis v Johannesburg Municipality 1906 TS 308 311; R v Margolis 1936 OPD 143 144; Peterson v
Cuthbert & Co Ltd 1945 AD 420 430; Bartman v Dempers 1952 (2) SA 577 (A) 580A­E; Shewan
Tomes & Co Ltd v Commissioner of Customs and Excise 1955 (4) SA 305 (A) 311G­312A; R v Sillas
1959 (4) SA 305 (A) 309G­H; Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman,
National Transport Commission; Transnet Ltd (Autonet Division) v Chairman, National Transport
Commission 1999 (4) SA 1 (SCA) par 12.
4 National Director of Public Prosecutions v Carolus 2000 (1) SA 1127 (SCA) par 42. See also Gardener
v W h i t a k e r 1 9 9 4 5 B C L R 1 9 ( E )25I­26B; Workmen's Compensation Commissioner v Jooste
1997 (4) SA 418 (SCA) 424F­H.
5 Constitutional and Statutory Interpretation 204­215.
6 See par 2C18 above.
7 Cape Town Municipality v F Robb & Co Ltd 1966 (4) SA 345 (C) 350F­H; Venter v Venter
1970 (3) SA 257 (A) 262A­B.
8 National Director of Public Prosecutions v Carolus supra par 36
9 See the classic dictum per McGregor J in Du Plessis v Raubenheimer 1917 OPD 104 111.
10 Workmen's Compensation Commissioner v Jooste supra 424G.
11 R v Ah Koon 1927 TPD 966 969; Njobe v Njobe and Dube 1950 (4) SA 545 (C) 552G­H, Director of
Public Prosecutions: Cape of Good Hope v Bathgate 2000 2 BCLR 151 (C) par 122.
12 For the various ways in which the commencement of a statute can be provided for, see also par 2C8
above. For the clarity of a "retrospective intention", see eg Rowallan Mansions (Pty) Ltd v McKenzie
1971 (3) SA 653 (W) 657A. In Lek v Estate Agents Board 1978 (3) SA 160 (C) 169F­H, it was said that
retrospectivity can be inferred "when the consequences of holding an Act to be non­retrospective
would lead to an absurdity or practical injustice". Cf also Du Plessis v Raubenheimer supra 105­106;
Van Wyk v Rondalia 1967 (1) SA 373 (T) 376C.
13 Uitleg van Wette 89.
14 Hahlo and Kahn SA Legal System and its Background 206.
15 Per Williamson J in Ex parte Christodolides 1959 (3) SA 838 (T) 841A.
16 Kruger v President Insurance Co Ltd 1994 (2) SA 495 (D) 502J­503D.
17 Ex parte Christodolides supra 841A­B.
18 Van Lear v Van Lear 1979 (3) SA 1162 (W) 1167G­H.
19 Sigcau v R (1895) 12 SC 256 266.
20 Constitution of the Republic of South Africa, 1996 s 35(3)(l).
21 Per Schreiner JA in R v Sillas supra 311G. See also R v Mazibuko 1958 (4) SA 353 (A) 357B­F; R v
Hlongwane 1959 (3) SA 337 (A) 341D­E; R v Rainers 1961 (1) SA 460 (A) 465E­G; S v Theledi
1978 (1) SA 563 (T) 565H. In some decisions (eg R v Banksbaird 1952 (4) SA 512 (A)), it was held
that an accused becomes liable to punishment only on her or his conviction of an offence, and that,
accordingly, it was possible that an accused could be held liable to a more severe punishment than the
one existing at the time of the commission of the offence. This line of reasoning has, it would seem,
since been discredited.
22 R v Loots, R v Vermaak 1951 (2) SA 132 (T) 134A­F; R v Vermaak and Visagie 1951 (2) SA 134 (T); R
v Mazibuko supra 357B­H; R v Sillas supra 311F­H; S v Harrison 1970 (3) SA 684 (A) 685A; S v
Ndlovu 1978 (3) SA 829 (T); S v Gininda 1978 (4) SA 466 (T); S v Williams 1979 (3) SA 1270 (C).
23 This was a matter of controversy because of conflicting decisions in S v Crawford 1979 (2) SA 48 (A)
and S v Innes 1979 (1) SA 783 (C), although the former decision handed down by a higher court was
probably the binding one. According to that decision, an accused was not entitled to the benefit of a
lighter sentence if he or she had already been convicted.
24 Supra.
25 Constitution of the Republic of South Africa, Act 200 of 1993.
26 See par 2C14(b) above.
27 Driedger, Elmer A "Statutes: Retroactive Retrospective Reflections" (1978) 56 Canadian Bar Review
264 268­269; Benner v Canada (Secretary of State) (1997) 42 CRR (2d) 1 (SCC) quoted with approval
in National Director of Public Prosecutions v Carolus supra par 34. See also Bareki v Gencor Ltd [2006]
2 All SA 392 (T), 2006 (1) SA 432 (T) 443 B­C.
28 National Director of Public Prosecutions v Carolus supra par 35.
29 BoE Bank Ltd v Tshwane Metropolitan Municipality 2005 (4) SA 336 (SCA) par 14; Adampol (Pty) Ltd v
Administrator, Tvl supra 809E­G.
30 National Director of Public Prosecutions v Carolus supra par 36.
31 National Director of Public Prosecutions v Basson [2002] 2 All SA 255 (SCA), 2002 (1) SA 419 (SCA)
par 11.
32 Shewan Tomes & Co Ltd v Commmissioner of Customs & Excise supra 311G­312A; National Iranian
Tanker Co v MV Pericles GC 1995 (1) SA 475 (A) 483H­484A; Cape Town Municipality v F Robb & Co
Ltd supra 350F­351D; De Ville 205.
33 Minister of Safety & Security v Molutsi [1996] 4 All SA 535 (A), 1996 (4) SA 72 (A) 88D­E. De Ville 206.

2C26 Statute law is not invalid or purposeless This presumption expresses the truism that statutes are meant
to be of effect,1 and it has met with consistent approval in the case­law.2 Oddly enough, the presumption is seldom
couched in positive terms ­ that is, as a presumption of validity and purposefulness. It has, however, been invoked
to assist the construction of legislation in such a manner that the provision to be construed best serves its
purpose.3 The presumption is, in other words, consonant with, and indeed conducive to, purposive interpretation
and, therefore, holds its own in the new constitutional dispensation.

This appears from generous (albeit sometimes implicit) reliance on it in constitutional interpretation. In Farjas
(Pty) Ltd v Regional Land Claims Commissioner, KwaZulu­Natal,4 section 24 of the 1993 Constitution,5 the article in
the transitional Bill of Rights entrenching a right to administrative justice, was construed as an extension of the
common­law grounds of administrative review ­ otherwise, the Land Claims Court thought, such article would have
been superfluous. In Grootboom v Oostenberg Municipality,6 oblique but approbative reference was made to the
presumption to avoid an interpretation of section 28(1)(b) of the 1996 Constitution (the provision that guarantees
children's right to family, parental or "appropriate alternative care") which would have rendered the provision
"somewhat redundant". De Ville7 also correctly points out that the reasoning underlying the common­law
presumption of statutory validity and purposefulness convinced the Constitutional Court, in its powerful judgment in
Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of the RSA,8 that the
premature promulgation of delegated legislation that would have rendered a regulatory structure meaningless,
unworkable and ineffective had to be quashed. The court made no explicit reference to the presumption, but
opened up new avenues for its development in the light of the Constitution (and, indeed, section 39(2) o f the
Constitution, should issues regarding the protection of fundamental rights arise). The court, inter alia, laid down the
requirement that the exercise of public power must be rationally connected to the purpose for which the power was
granted ­ otherwise, the power is meaningless.9

An example of explicit reliance on the conventional presumption of validity and purposefulness is Yacoob J's
judgment in Member of the Executive Council for Development Planning and Local Government in the Provincial
Government of Gauteng v Democratic Party.10 The constitutionality of a statutory provision11 dealing with budgetary
matters and preserved from repeal during the period of transition to fully democratic local government was
challenged. The provision was alleged to be inconsistent with a section in the Constitution12 adopted before the
process of transition to the new form of local government had been completed. The court heeded the presumption
to preserve the impugned provision and thought that to uphold the challenge would amount to finding that the
drafters of the impugned provision had "had no purpose at all". Whether this finding compromises the supremacy of
the Constitution is debatable. However, it is significant that the conventional presumption was thought to be of
relevance in the context of constitutional review.

In this last case, the presumption was not used to interpret the constitutional text, as such, but to construe an
impugned statutory provision in conformity with the Constitution. This procedure, also associated with what is
sometimes referred to as a presumption of constitutionality, 13 has been described previously. 14 The common­law
presumption of validity and purposefulness will most probably be developed further in the context of this reading
strategy informed with deference to adjudicative subsidiarity. 15 The presumption's future under constitutional
democracy is bright, indeed.
1 Du Plessis Re­Interpretation of Statutes 187.
2 C f eg Keyter v Minister of Agriculture, Natal 1908 NLR 522 523; Attorney­General, Transvaal v
Additional Magistrate for Johannesburg 1924 AD 421 436; Minister of Justice v Breytenbach 1942 AD
175 183; Wellworths Bazaars Ltd v Chandler's Ltd 1947 (2) SA 37 (A) 43; Israelsohn v Commissioner
for Inland Revenue 1952 (3) SA 529 (A) 536E­F; Cornelissen v Universal Caravan Sales (Pty) Ltd
1971 (3) SA 158 (A) 174D­E; S v Weinberg 1979 (3) SA 89 (A) 98D­F; Commissioner for Inland
Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA 110 (A) 116F­117A; Case v Minister of Safety and
Security; Curtis v Minister of Safety and Security 1996 5 BCLR 609 (CC) par 57; Olivier v Olivier
1998 (1) SA 550 (D) 555.
3 Steyn 122 especially fn 223.
4 1998 (2) SA 900 (LCC) par 18.
5 Constitution of the Republic of South Africa, Act 200 of 1993.
6 2000 3 BCLR 277 (C)287H per Davis J.
7 Constitutional and Statutory Interpretation 169.
8 2000 3 BCLR 241 (CC) pars 64 and 90.
9 Par 85.
10 1998 7 BCLR 855 (CC) par 52.
11 S 16(5) of the Local Government Transition Act 209 of 1993.
12 To wit s 160(3)(b) read with s 160(2)(b) of the Constitution of the Republic of South Africa 1996.
13 De Ville 223­225; Devenish Interpretation of Statutes 210­212.
14 See par 2C13 above.
15 See par 2C2 above.

2C27 References in statutes to conduct are references to valid and/or permissible conduct This presumption
seeks to promote the value of legality1 on an assumption of regularity. Statutory references to action, conduct,
omissions, et cetera, are to be construed as references to "regular" or lawful manifestations of these ­ unless, of
course, the very purpose or purport of a statute is one of dealing with "irregularities" or unlawfulness in order to
negotiate a mischief. It has, for example, been held that a statutory discretion conferred upon an official is, as a
rule, to be understood as one that must be exercised judicially. 2 Similarly, statutory reference to proceedings is
taken to be reference to regular proceedings,3 and reference to permission supposes legally valid permission.4
Where, however, the application of the presumption would have had a discriminatory or even differential effect, the
courts have been reluctant to invoke it.5 It goes without saying that the presumption is rebuttable6 and, generally
speaking, courts have not been eager to invoke it, emphasising its tertiary status as one of the interpreter's last
resorts.7

The Constitution makes no express or implicit reference to this presumption. There is, in principle, no reason to
question its continued existence in the areas of constitutional and statutory interpretation, provided that it is not
invoked unduly to promote action, conduct, omissions, et cetera, at odds with constitutional values8 or to sustain
constitutionally suspect legislation. However, the Supreme Court of Namibia has concluded that the presumption is
not compatible with purposive and generous constitutional interpretation.9
1 For the meaning of "legality", see par 2C23 above.
2 Greenberg v Mortimer 1979 (4) SA 642 (T); S v Nawaseb 1980 (1) SA 339 (SWA).
3 S v Muzikayifani 1979 (2) SA 516 (D).
4 S v Le Grange 1962 (3) SA 498 (A) 502G­503B.
 5 Cape Town Municipality v Frerich Holdings (Pty) Ltd 1979 (2) SA 1137 (C) 1139G­H; cf also Abbott v
Commissioner for Inland Revenue 1963 (4) SA 552 (C) 556D­F.
6 Kauluma v Minister van Verdediging 1987 (2) SA 833 (A) 856G­857D.
7 A good illustration of this attitude is to be found in Commissioner for Inland Revenue v Insolvent
Estate Botha t/a "Trio Kulture" 1990 (2) SA 548 (A) 558D­559J.
8 As eg in S v Mapheele 1963 (2) SA 651 (A) 655D­F.
9 Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (NmS) 360I­361D and especially 362F­G.

2C28 Delegated legislative powers are to be exercised by the delegatus itself The maxim delegatus delegare
non potest, referred to earlier, 1 has also been framed as a presumption. It is presumed that legislation which
delegates powers and functions to a subordinate authority does not entail an authorisation to sub­delegate those
powers.2 This presumption seeks to promote orderly and, more importantly, accountable government. A public
official, or an organ of state, entrusted with public power, especially with the power of decision­making, is expected
not to relegate responsibility to subordinates.

This is not a downright prohibition of all (sub­)delegation. The extent of the prohibition depends on the measure
of responsibility and accountability (and skill and care)3 that has to accompany the exercise of the power.
Mechanical powers, the exercise of which involves no or limited discretion, are readily (sub­)delegable, but powers
to make policy decisions4 and the very power delegated, especially the power to legislate,5 are usually struck by
the prohibition. De Ville6 sums up:
The . . . complexity and breadth of discretion . . . and other factors, such as the degree of devolution of the power; the
importance of the original delegee; the impact of the power; and practical necessities are taken into account in determining
whether an implied power of subdelegation can be said to exist. Even where a provision grants an express power to
subdelegate, such provision will, in accordance with the presumption, be restrictively interpreted.

The accountability of public administration has been constitutionalised as a value or principle governing public
administration,7 while section 6(2)(a)(ii) of the Promotion of Administrative Justice Act (PAJA)8 has stepped in to
vest, in so many words, a court or tribunal with the power to review the administrative action of an administrator
acting "under a delegation of power which was not authorised by the empowering provision".
1 See par 2C6 above.
2 Attorney­General, OFS v Cyril Anderson Investments (Pty) Ltd 1 9 6 5 ( 4 ) S A 628 (A) 639C­D;
Chairman, Board on Tariffs and Trade v Teltron (Pty) Ltd 1997 (2) SA 25 (A) 34C­E; Rudolph v
Commissioner for Inland Revenue 1997 (4) SA 391 (SCA) 396A­B; Government of the Province of the
Eastern Cape v Frontier Safaris (Pty) Ltd 1998 (2) SA 19 (SCA) 32A­C.
3 Baxter Administrative Law 440.
4 Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd supra. See also Shidiack v
Union Government (Minister of the Interior) 1912 AD 642 648.
5 Catholic Bishops Publishing Co v State President 1990 (1) SA 849 (A) 864A­J.
6 Constitutional and Statutory Interpretation 218.
7 Constitution of the Republic of South Africa, 1996 s 195(1)(f ).
8 3 of 2000.

2C29 Remedial statutes must be construed generously This presumption sustains the salutary effects of
remedial or reformative legislation. A court, it is said, will extend a remedy for which a statute provides "as far as
the words will admit".1 De Ville2 correctly contends that the Constitutional Court's generous interpretation of the
Bills of Rights3 (both in the transitional4 and 19965 Constitutions) can be traced to the remedial nature of both of
these entrenchments of fundamental rights. South Africa's two Constitutions since 1994 have indeed been remedial
instruments, in the broad sense of the term, addressing and redressing the major mischief of the past, namely the
previous constitutional system.6 Legislation augmenting the Constitution and/or enacted for the specific purpose of
enhancing legal, political and socio­economic reform in "the new" South Africa7 is to be treated as remedial
legislation too.
1 Looyen v Simmer and Jack Mines Ltd 1952 (4) SA 547 (A) 553E­F; Goddard v Registrar of Deeds, King
Williams Town and Colonial Government 25 SC 207; R v La Joyce (Pty) Ltd 1957 (2) SA 113 (T) 117F­
G; Kinekor Films (Pty) Ltd v Dial­a­Movie 1977 (1) SA 450 (A) 461B­D; Slims (Pty) Ltd v Morris
1988 (1) SA 715 (A) 734D­F; Bopape v Moloto 2000 (1) SA 383 (T) 387H.
2 Constitutional and Statutory Interpretation 223.
3 He refers to cases such as S v Zuma 1995 4 BCLR 401 (SA) pars 14­15; S v Makwanyane 1995 6
BCLR 665 (CC) par 9; S v Mhlungu 1995 7 BCLR 793 (CC) par 8.
4 Constitution of the Republic of South Africa, Act 200 of 1993 ch 3.
5 Constitution of the Republic of South Africa, 1996 ch 2.
6 Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E)81G­H; see par 2C14(f) above.
7 For examples of such legislation, see par 2C44 below.

2C30 Statute law has no extra­territorial effect The presumption that statutes do not obtain extra­territorially
or do not have extra­territorial application or do not "strike acts committed beyond the limits of jurisdiction of the
legislature"1 is rooted in respect for the territorial integrity of other states. Prior to 1994, "security legislation", such
as the now defunct Internal Security Act,2 overrode this presumption by providing that certain acts performed "in
the Republic or elsewhere" were offences for purposes of the Act.3

The presumption is not explicitly mentioned in the Constitution,4 nor is the rationale for its existence undermined.
It will, therefore, remain in its common­law form. Whilst none of South Africa's supreme Constitutions since 19945
was and is explicitly said to have extraterritorial effect, nothing precludes judicial review, especially in terms of the
Bill of Rights, of abuses of state power by organs of the state outside South Africa.6
1 Bishop v Conrath 1947 (2) SA 800 (T) 803; cf also S v Makhutla 1968 (2) SA 768 (O).
2 74 of 1982. This Act was repealed and replaced by the Protection of Constitutional Democracy against
Terrorist and Related Activities Act 33 of 2004.
3 See also S v Fazzie 1964 (4) SA 673 (A) where, with regard to the commission of a political crime, the
presumption was held to have been rebutted by necessary implication.
4 Constitution of the Republic of South Africa, 1996.
5 The (transitional) Constitution of the Republic of South Africa, Act 200 of 1993, and the 1996
Constitution.
6 Chaskalson et al Constitutional Law 10­5 and 10­10.

2C31 The same words and phrases in a statute bear the same meaning Where the same or essentially similar
words, phrases or expressions are used in various places throughout a legislative instrument, they are presumed
to bear the same meaning throughout.1 This is also true, as De Ville2 points out, where such words or phrases or
expressions refer to the same object. "Meaning" here means meaning­in­context. Where the same signifiers thus
occur in different contexts, the presumption no longer applies.3 Also, the presumption cannot aid the attribution of
meaning to a word or a phrase with reference to a similar word or phrase suffering from ambiguity, where it occurs
elsewhere in one and the same legislative instrument.4 This essentially formal presumption has no particular
constitutional relevance except that it is most probably also applicable in constitutional interpretation.
1 Principal Immigration Officer v Hawabu 1936 AD 26 33; Minister of the Interior v Machadodorp
Investments (Pty) Ltd 1957 (2) SA 395 (A) 404C­D; Makoka v Germiston City Council 1961 (3) SA 573
(A) 580H; S v Kellner 1963 (2) SA 435 (A) 443G­H; Standard Finance Corp of SA Ltd v Greenstein
1964 (3) SA 573 (A) 578A­E; S v Fazzie 1964 (4) SA 673 (A) 680B­C; Pantanowitz v Sekretaris van
Binnelandse Inkomste 1 9 6 8 ( 4 ) S A 8 7 2 (A) 879D­E; Sekretaris van Binnelandse Inkomste v
Raubenheimer 1969 (4) SA 314 (A) 319H; S v ffrench­Beytagh (1) 1971 (4) SA 333 (T) 334D­F;
Durban City Council v Shell and BP Southern Africa Petroleum Refineries (Pty) Ltd 1971 (4) SA 446 (A)
457A; More v Minister of Co­operation and Development 1986 (1) SA 102 (A) 115B­D; Tshwete v
Minister of Home Affairs (RSA) 1988 (4) SA 586 (A) 618E­F; Public Carriers Association v Toll Road
Concessionaries (Pty) Ltd 1990 (1) SA 925 (A) 949F; Ndluli v Wilken NO 1991 (1) SA 297 (A) 306B; S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 7 BCLR 771 (CC) par 47; Skhosana v Roos
t/a Roos se Oord 2000 (4) SA 561 (LCC) par 9.
2 Constitutional and Statutory Interpretation 218.
3 Singer v The Master 1996 (2) SA 133 (A) 139E­F.
4 MV Forum Victory: Den Norske BANK ASA v Hans K Madsen CV 2001 (3) SA 529 (SCA) par 11.

THE CANONS OF GRAMMATICAL INTERPRETATION

2C32 Preliminary observations Grammatical interpretation cautions the interpreter to take the meaning­
generative functioning of language, and of the text as linguistic signifier, seriously. The notion of clear and
unambiguous language is thereby disclaimed, because, if language and the text as linguistic signifiers are really
taken seriously, it becomes obvious that they generate too many rather than too few meanings.1 The importance of
language as generator of meaning is inconsistent with the notion of "clear and unambiguous language" that
actually truncates and minimises the role of language in interpretation. Clarity and unambiguousness are not
functions of language as such, but of a reader's assessment of the (quality of ) the language. This assessment is, in
turn, shaped by the reader's pre­understanding.2 The rules of grammatical interpretation are, therefore, designed
to limit the possible meanings the language of a legislative instrument can generate. The previously cited dictum of
Kentridge AJ in S v Zuma,3 emphasising that the language of the constitutional text must be respected, is best
understood as a word of caution to take the language of the text seriously in the sense just explained.4

The possible effects of constitutionalism on grammatical interpretation are best assayed with reference to the
individual canons of this form of interpretation.
1 See eg pars 2C14(d) and (f) and par 2C15 above.
2 See par 2C14(d) above.
3 1995 4 BCLR 401 (SA) pars 17 and 18; see par 2C14(b) above.
4 Even though this may not exactly be what Kentridge AJ had in mind.

2C33 The ordinary­meaning rule The language of a legislative instrument must be understood in its ordinary
signification. This is a long­standing canon of statutory interpretation.1 The literalist­cum­intentionalist approach to
statutory interpretation assumes that the language of a legislative instrument can be clear and unambiguous, and
requires that, in such an event, the language must be given effect to without further ado.2 "Ordinary language" is
most often said to be such clear and unambiguous language. The ordinary meaning of statutory language is, in
other words, glibly identified with what is believed to be the plain or literal or grammatical meaning of language as
such.3 Often, however, the "ordinary meaning" ­ also referred to as the "popular meaning" 4 ­ o f w o r d s ,
expressions, phrases and sentences is not clear and unambiguous ­ not even in the sense that the courts
understand it.5 This is unsurprising, for statutory (and constitutional) language is natural language as opposed to
formal language.6 The determination of the clarity of such language depends on the reader more than on any
"objective quality" of language itself 7 ­ as experience with the interpretation of enacted law­texts in the era of
constitutional democracy in South Africa also increasingly shows.8

Reliance has been placed on the ordinary­meaning rule in constitutional interpretation,9 and dictionaries have
been consulted to determine the ordinary meaning of words in the Constitution.10

In order to avoid a conflation of the concepts "ordinary language" and "clear and unambiguous language", it is
suggested that the conventional ordinary­meaning rule be reformulated as follows: The interpreter must observe
usage and the conventions of the natural language (English, Afrikaans, isiXhosa, isiZulu, Setswana et cetera)11 in which
the text (a statute or the Constitution) has been drafted.12

As a result of the deliberations on and the introduction of South Africa's two Constitutions since 1994, and
especially of the 1996 Constitution, the concept of "plain language", in relation to constitutional and statutory
draftsmanship, has been introduced.13 Plain language is a user­ or reader­friendly means of communication
professing to be accessible to as many as possible of the potential readers of a text. Plain language will probably
be ordinary language too, but certainly not the ordinary language characteristic of the common­law style of detailed
and long­winded drafting.14 There are many examples of this style of drafting that have caused the ordinary
meaning of legislative instruments to be very esoteric! Since 1994, statutory draftsmen have increasingly been at
pains to draft statutes, after the example of the Constitution, in plain language.15
1 Union Government (Minister of Finance) v Mack 1917 AD 731 739; Mayfair South Townships (Pty) Ltd v
Jhina 1980 (1) SA 869 (T) 879H; HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N) 909A;
Nyembezi v Law Society Natal 1981 (2) SA 752 (A) 757H; S v Du Plessis 1981 (3) SA 382 (A) 403H; S
v Henckert 1981 (3) SA 445 (A) 451G­H.
2 See par 2C14(d) above.
3 Classic dicta to this effect are to be found in cases such as Venter v R 1907 TS 910 913; Bhyat v
Commissioner for Immigration 1932 AD 125 129 and Volschenk v Volschenk 1946 TPD 486 487.
Similar sentiments have, however, been echoed in eg Odendaalsrus Municipality v Odendaalsrus Gold,
General Investment and Extensions Ltd 1959 (1) SA 374 (A) 382B­D (where Malan JA subtly equated
the "contemplation of the legislature" with the results of "the plain grammatical construction" of a
statutory provision); Norden v Bhanki 1974 (4) SA 647 (A) 655A (per Hofmeyr JA confirming the
interpretative paramountcy of the "plain meaning" of statutory language); Woodley v Guardian
Assurance Co of SA Ltd 1976 (1) SA 758 (W) 762H­763B (where the "plain" and the "natural"
meanings of a provision were identified); Mandela v Minister of Prisons 1981 (1) SA 531 (C) 537H­
538A (where "clear" and "ordinary" meaning were identified).
4 See eg Beedle & Co v Bowley (1895) 12 SC 401 402.
5 In S v Rosenthal 1980 (1) SA 65 (A) 75H, for example, a phrase was held to have at least four equally
valid "ordinary meanings".
6 For the distinction between natural and formal language, see par 2C14(d) above.
7 Savage v Commissioner for Inland Revenue 1951 (4) SA 400 (A) 410F­G.
8 See par 14(g) above.
9 Ie for the interpretation of both the (transitional) Constitution of the Republic of South Africa, Act 200
of 1993, and the Constitution of the Republic of South Africa, 1996; see eg Zantsi v The Chairman of
the Council of State 1994 6 BCLR 136 (Ck)144D­145F; S v Makwanyane 1995 6 BCLR 665 (CC) pars
26 and 278; S v Mhlungu 1995 7 BCLR 793 (CC) pars 76­77; Zantsi v Council of State, Ciskei 1995 10
BCLR 1424 (CC) par 37; Ex parte Speaker of the National Assembly. In re: Dispute Concerning the
Constitutionality of Certain Provisions of the National Education Policy Bill No 83 of 1995 1996 4 BCLR
518 (CC) par 7; Ynuico Ltd v Minister of Trade and Industry 1 9 9 6 6 B C L R 7 9 8 ( C C ) p a r 7 ;
Soobramoney v Minister of Health, KwaZulu­Natal 1997 12 BCLR 1696 (CC) par 13; De Lange v Smuts
1998 7 BCLR 779 (CC) par 28; Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council 1998 12 BCLR 1458 (CC) p a r 4 2 ; E x p a r t e P r e s i d e n t o f t h e R S A . I n r e :
Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC) pars 55 and 57.
10 Ie the transitional Constitution and the 1996 Constitution. See eg S v Williams 1995 7 BCLR 861 (CC)
par 24; Ex parte Chairperson of the Constitutional Assembly. In re: Certification of the Amended Text
o f the Constitution of the Republic of South Africa, 1996 1997 1 BCLR 1 (CC) par 159; National
Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC) par 20; De Lange
v S m u t s 1998 7 BCLR 779 (CC) pars 28, 77 and 137; Ex parte President of the RSA. In re:
Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC) par 55; Executive Council of the Western Cape
v Minister for Provincial Affairs and Constitutional Development of the RSA; Executive Council of
KwaZulu­Natal v President of the RSA 1999 12 BCLR 1360 (CC) par 91 fn 82.
11 For multilingualism, see par 2C38 below.
12 Du Plessis Re­Interpretation of Statutes 201.
13 Du Plessis 1996 Stell LR 4­6 and 284.
14 See par 2C14(g) above.
15 See par 2C14(g) above.

2C34 Time and technicality The ordinary­meaning rule is qualified by the precept that time­bound words and
expressions, as well as archaisms encountered especially in older statutes,1 be understood in accordance with the
usage and linguistic conventions at the time the statute came into existence2 ­ that is, in accordance with "the
intention of the Legislature . . . at the time when the . . . provision was enacted".3 In constitutional interpretation,
this qualification to the ordinary­meaning rule is to be relied on with the utmost circumspection (and is best
avoided), lest "original­intent" thinking (which has been discredited by the Constitutional Court) frustrates an
adaptation of the constitutional text to "present circumstances".4

Technical words and expressions are taken to be generators not of ordinary but of technical meaning 5 ­ that is,
either a meaning adapted to usage in a specific trade, craft, profession or discipline, or a meaning peculiar to law.
Of significance for constitutional interpretation (and for statutory interpretation in relation to constitutional matters)
is the fact that words such as "limitation", "restriction" and "derogation", which, in international human­rights law
have acquired a certain meaning, are regarded as technical legal terms, too.6
1 Steyn Uitleg van Wette 7.
2 Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985 (4) SA 773 (A) 804D.
3 Minister of Water Affairs and Forestry v Swissborough Diamond Mines (Pty) Ltd 1999 (2) SA 345 (T)
352A­B.
4 See par 2C14(g) above.
5 Beedle & Co v Bowley (1895) 12 SC 401 402.
6 African National Congress (Border Branch) v Chairman, Council of State of the Republic of Ciskei 1994
1 BCLR 145 (Ck)156H­158C.

2C35 Definitions in statutes Section 239 of the Constitution1 is a definition clause subject to interpretation in
accordance with the canons of statutory interpretation applicable to the construction of provisions of this kind.

Words and phrases included in a definition clause acquire, for purposes of a specific statute, a "technical"
meaning that may deviate from their ordinary meaning. Such words and phrases are to be understood in
accordance with the meaning ascribed to them by the definition clause, unless the context indicates otherwise.2 It
has also been held that departure from a statutory definition is warranted if it appears that the legislature intended
otherwise and, in deciding whether the legislature so intended, the court has generally asked itself whether the
application of the statutory definition would result in such injustice or incongruity or absurdity as to lead to the
conclusion that the legislature could never have intended the statutory definition to apply.3

In the era of constitutionalism, a statutory definition that is at odds with some provision(s) of or value(s) in the
Constitution, and/or with the spirit, purport and objects of the Bill of Rights,4 will certainly be held to cause
"injustice or incongruity or absurdity".
1 Constitution of the Republic of South Africa, 1996.
2 Commissioner for Inland Revenue v Simpson 1949 (4) SA 678 (A) 692 per Watermeyer CJ, quoted
with approval from Halsbury Laws of England vol 21 par 591: "A definition section does not necessarily
apply in all the possible contexts in which a word may be found in the statute. If a defined expression
is used in a context which the definition will not fit, it may be interpreted according to its ordinary
meaning." See also Mosanto Co v MDB Animal Health (Pty) Ltd 2001 (2) SA 887 (SCA) par 10.
3 Hoban v ABSA Bank Ltd t/a United Bank 1999 (2) SA 1036 (SCA) 1044D­E. For dicta on the use and,
also, the cautionary use of statutory definitions, see eg Town Council of Springs v Moosa 1929 AD 401
417; Govindsamy v Indian Immigration Trust Board Natal 1918 AD 633 637­638; Union Government v
De Jager 1946 AD 235 238; Katzenellenbogen v Commissioner of Customs and Excise
1959 (1) SA 331 (T) 333A; Brown v Cape Divisional Council 1979 (1) SA 589 (A) 601G­H; Kanhym
Bpk v Oudtshoorn Munisipaliteit 1990 (3) SA 252 (C) 258H­259A.
4 See s 39(2) of the Constitution.

2C36 Definitions in the Interpretation Act Included in the Interpretation Act1 are definition clauses (or defining
provisions) which, other than definition clauses restricted to particular statutes, apply to "the interpretation of every
law . . . in force, at or after the commencement of this Act, in the Republic or in any portion thereof ".2 As its long
title indicates, the object of the act is "to consolidate the laws relating to the interpretation and the shortening of
the language of statutes". The act itself 3 defines the term "law" as "any law, proclamation, ordinance, Act of
Parliament or other enactment having the force of law", and section 1 provides that the act is applicable to "all by­
laws, rules, regulations or orders made under the authority of any . . . law". The 1996 Constitution3 ( a s i t s
predecessor)5 is "a law", for purposes of the Interpretation Act,6 and definitions in the Act have been used for
constitutional interpretation in much the same way as they would have been used for statutory interpretation.7 The
use of the act's definitions to assign meaning to constitutional provisions is precluded, however, if doing so would
have the effect of subordinating the supreme Constitution to the act.

Most of the specific definitions in the Interpretation Act have been left unaffected by the Constitution, but there
are some in respect of which constitutional issues have been or can be raised:

(a) "Parliament" is defined in section 2 of the Interpretation Act as "the parliament of the Republic". In
terms of the transitional Constitution,8 only the Constitutional Court had the authority to strike down
"acts of parliament". In Zantsi v The Chairman of the Council of State,9 a high court held that the pre­
1994 South African parliament was no "parliament" for purposes of this constitutional provision.
"Parliament", in its ordinary signification, refers to a democratically elected body, which the pre­1994
parliament was not. It was, therefore, competent for a court at a level lower than that of the
Constitutional Court to strike down legislation of that "parliament". This line of reasoning was rejected
by the Constitutional Court relying, inter alia, on definitions in the Interpretation Act to attribute a
meaning to the constitutional provision in question.10

(b) It has been held that "the state" ­ that is, the government and government bodies on a level other
than the local level ­ is not included in the definition of "person(s)" in section 2 of the Interpretation
Act.11 De Ville12 is of the opinion that this is a consequence of the presumption that statutes do not
bind the state.13 However, should it be accepted, as has been suggested, 14 that the said presumption
is inconsistent with the idea and practice of constitutional democracy, there is no reason to exclude the
state as such (or organs of the state at all levels of government) from the act's definition of "person". At
any rate, the Interpretation Act, for purposes of its application, apparently rebuts the presumption to
which De Ville refers, and proclaims that "[t]his Act shall bind the State".15

(c) The Interpretation Act16 defines "president" as "the President of the Republic, including any acting
 President, acting in terms of the Constitution". Prior to 1994, it was held that "state president" means
"State President acting by and under the advice of the Executive Council".17Section 85(1) o f the
Constitution confirms this position, stating that the president "exercises the executive authority,
together with the other members of the Cabinet".

(d) "Province" is (still) defined with reference to sections of the transitional Constitution.18 Provinces, for
purposes of retaining laws that were in force immediately prior to 27 April 1994 in any area presently
forming part of the national territory, are provinces as they existed under the 1983 Constitution. 19 In
the case of laws passed since the commencement of the transitional Constitution20 (including laws
passed after the commencement of the 1996 Constitution), a "province" is one of the nine provinces as
constitutionally defined.21

(e) "'State President' means, subject to section 232(1)(c) of the Constitution, the President or the Premier
of a province".22 "The Constitution" referred to is the transitional Constitution. Section 232(1)(c) of that
Constitution dealt, inter alia, with references to the state president in preserved legislation existing
immediately prior to 27 April 1994.

(f) According to section 6(a) of the Interpretation Act, statutory references importing the masculine gender
must be construed so as to include females,23 whereas the reverse, it would seem, is not true.24 The
transitional Constitution introduced an era of gender­friendliness in the drafting of legislative texts.
Presently, both the masculine and feminine genders are used; and the 1996 Constitution mentions, in
several places, the eligibility of a "woman or a man" for election or appointment to positions and
offices,25 some of which have never been held by women.26 I n President of the RSA v Hugo,27
interpretative weight was attached to the transitional Constitution's "repeated use of both sexes
throughout the Constitution". It was held to be a clear indication of the fact that the elimination of
gender discrimination and the promotion of gender equality were very high on the transitional
Constitution's agenda. The court added that the said repetition was "in emphasis of the break with the
former mindset and statutory drafting style (sanctified by s 6(a) of the Interpretation Act 33 of 1957)
which used the masculine gender only".
1 33 of 1957.
2 S 1.
3 S 2.
4 Constitution of the Republic of South Africa, 1996.
5 Constitution of the Republic of South Africa, Act 200 of 1993.
6 Magano v District Magistrate, Johannesburg (2) 1994 (4) SA 172 (W) 177C.
7 Zantsi v Council of State, Ciskei 1995 10 BCLR 1424 (CC) pars 36­37; Ynuico Ltd v Minister of Trade
and Industry 1996 6 BCLR 798 (CC) par 7; President of the RSA v Hugo 1997 6 BCLR 708 (CC) par
97.
8 S 101(3)(c).
9 1994 6 BCLR 136 (Ck).
10 Zantsi v Council of State, Ciskei supra par 36.
11 R v Stretton 1934 TPD 147 148 (per Grindley­Ferris J obiter); Union Government v Rosenberg (Pty) Ltd
1946 AD 120 127; Minister of Water Affairs and Forestry v Swissborough Diamond Mines (Pty) Ltd
1999 (2) SA 345 (T) 353G­J.
12 Constitutional and Statutory Interpretation 109.
13 See par 2C23 above.
14 See par 2C23 above.
15 S 24.
16 S 2.
17 Strydom v Staatspresident, Republiek Van Suid­Afrika 1987 (3) SA 74 (A) 83B­C.
18 Ss 229 and 124. The General Law Third Amendment A c t 1 2 9 o f 1 9 9 3 and the Constitutional
Consequential Amendments Act 201 of 1993 amended, amongst others, the Interpretation Act to bring
it in line with the provisions of the transitional Constitution. There have been no similar amendments of
the Interpretation Act subsequent to the commencement of the 1996 Constitution.
19 Republic of South Africa Constitution Act 110 of 1983; see Interpretation Act s 2(a).
20 Or before such commencement, but with reference to the transitional Constitution.
21 Interpretation Act s 2(b). The provinces were defined in s 124 of the transitional Constitution, and are
presently defined in s 103 of the 1996 Constitution. S 103(2), to some extent, obtains by force of
provisions of the 1993 Constitution. This section of the 1996 Constitution provides that the boundaries
of the provinces are those that existed when the Constitution took effect, and those boundaries existed
by virtue of s 124 of the transitional Constitution read with part 1 of sch 1 to that Constitution.
22 S 2.
23 S 6(a).
24 Heyns v Heyns 1978 (4) SA 530 (RAD) 536D.
25 C f eg ss 46(1) (members of the National Assembly), 86(1) (president of the country), 105(1)
(members of the provincial legislatures), 128(1) (provincial premiers) and 174(1) (judicial officers).
26 Eg president of the country.
27 Supra par 73.

2C37 Language is not used unnecessarily This rule, in its literalist manifestation,1 is the rule that each word of a
statute must be given a meaning. The literalist formulation of the rule is unduly narrow and encourages an
excessive peering at the words of legislative instruments. Words are not the only signifiers that generate statutory
meaning. Phrases, sentences, paragraphs, sections and, finally, the instrument or text as a whole all generate
meaning. The linguistic expression of the purposefulness of a statutory text should, therefore, be broader: all
language used ­ that is, every linguistic signifier and the syntax ­ must be taken seriously.
 This canon of construction is widely recognised in the case­law, albeit mostly in literalist­cum­intentionalist
terms,2 the point of departure being that different words or signifiers are meant to generate different meanings
because they are meant to express different ideas or to refer to different situations.3 Words should, therefore, not
lightly be construed as superfluous.4 The general rule is susceptible to exceptions, though5 ­ for instance, where,
for the sake of "emphasis, clarity, certainty, or some other purpose", specific provision "for a particular situation
which is, in any event, covered by a general provision" is made.6 Therefore, if repetition in different terms (ex
abundandi cautela, as it is said) occurs, it follows that different signifiers can be construed as meaning the same
thing.7

This canon of construction has not been affected, in any significant manner, by the advent of constitutionalism,
and can, moreover, also serve the purposes of constitutional interpretation in that a constitutional interpreter may
well be expected to take all linguistic signifiers in the constitutional text very seriously.
1 See eg Cockram Interpretation of Statutes 43, who deals with this rule as an instance of the literalist
rule, and Steyn Uitleg van Wette 17, who describes it as a natural outcome of his literalist­cum­
intentionalist approach.
2 See eg Attorney­General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 436;
Wellworths Bazaars Ltd v Chandler's Ltd 1947 (2) SA 37 (A) 43; R v Standard Tea and Coffee Co (Pty)
Ltd 1951 (4) SA 412 (A) 416D­F; Israelsohn v Commissioner for Inland Revenue 1952 (3) SA 529 (A)
536E­H; Santam Versekeringsmpy Bpk v Kemp 1971 (3) SA 305 (A) 322A­C; Regering van die
Republiek van SA v Gouws 1974 (4) SA 622 (T) 624E­F; Malan v Die Oranje­Vrystaatse Ongedierte
Bestrydings­ en Wildbewaringsvereniging 1976 (1) SA 830 (O) 845C­E; Stellenbosch Wine Trust Ltd v
Oude Meester Group Ltd 1977 (2) SA 221 (C) 241G; S v Weinberg 1979 (3) SA 89 (A) 98D­F; Kim
Investments (Pty) Ltd v Durban Valuation Appeal Board 1979 (4) SA 504 (N) 509A­B; S v Zwela
1981 (1) SA 335 (O) 343A­B.
3 Van den Berg v SAS & H 1980 (1) SA 546 (T) 558F; S v Makandigona 1981 (4) SA 439 (ZA) 443D­E;
Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) 561D;
SA Philips (Pty) Ltd v The Master 2000 (2) SA 841 (N) 845I­847E.
4 NST Ferrochrome (Pty) Ltd v Commissioner for Inland Revenue 2000 (3) SA 1040 (SCA) par 12;
Phillips t/a Southern Cross Optical v SA Vision Care (Pty) Ltd 2000 (2) SA 1007 (C) 1013D­E.
5 Daitsh v Osrin (1) 1950 (2) SA 334 (A) 341; Secretary for Inland Revenue v Somers Vine
1968 (2) SA 138 (A) 156; Johannesburg City Council v Tucker's Land Holdings Ltd 1971 (2) SA 478
(W) 486A­F.
6 Casely v Minister of Defence 1973 (1) SA 630 (A) 639B­C per Trollip JA.
7 R v Herman 1937 AD 168 174; Santam Versekeringsmpy Bpk v Kemp supra 322; Sekretaris van
Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk 1966 (4) SA 434 (A) 441E­H; Ovenstone v
Secretary for Inland Revenue 1980 (2) SA 721 (A) 737A­738C.

2C38 Statutory multilingualism By virtue of constitutional provisions since 1910, bilingualism became a
characteristic of legislation in South Africa, English and Afrikaans being the privileged official languages. This
bilingualism provided an opportunity for the comparison of the two versions of acts, thereby aiding their
construction.1

On 27 April 1994, English and Afrikaans began sharing their position as official languages with nine indigenous
languages.2Section 6(2) o f the Constitution recognises that the indigenous black languages used to enjoy a
diminished status, and enjoins the state to take "practical and positive measures to elevate the status and
advance the use of these languages". According to section 6(3), government in the various spheres may use any of
the eleven official languages for governmental purposes, taking into account usage, practicality, expense, regional
circumstances and the balance of the needs and preferences of the population it serves. The national and provincial
governments must, however, use at least two official languages. Further, according to section 6(4), they must also
regulate and monitor their use of official languages in such a way that all official languages enjoy parity of esteem
and are treated equitably.

Three successive constitutions from 1910 to 1994 each contained a provision relating to statutory bilingualism.3
The focal point of these almost identically worded sections was not, however, the meaning­enhancing potential of
statutory bilingualism. Rather, it was the predicament of possible conflict or inconsistency between the Afrikaans
and English versions of an act. In the event of a conflict (that is, in the event of irreconcilable inconsistency) of the
two versions of an act, the version signed by the (state) president prevailed.

The case­law on statutory multilingualism has always had, as its point of departure, an assumed compatibility of
the different versions of acts.4 The constitutional mechanisms to resolve deadlocks were usually invoked only as a
last resort. The courts were indeed uncommonly non­literalist in their interpretation of section 35 and its
predecessors. The fullest possible benefit was reaped from the existence of two versions of statutes in two
different languages and these versions were often used to clarify each other reciprocally, no matter which version
was signed.5

The conflict provisions were invoked in instances of an outright and inescapable incompatibility between the two
versions,6 but sometimes appeared to tip the balance in favour of the signed text in instances where the "conflict"
was not much more than a mere "difference".7 This tendency was, however, qualified by yet another approach, the
so­called "highest common factor approach",8 which required that, if possible, differences between the two versions
of an enactment had to be eliminated as far as possible by reconciling them, since "[a] conflict between the two
versions can only arise where one version says one thing and the other another".9 If, on reading the two versions
of a statute together, one of the versions is capable of generating more meanings than the other, preference is
given to the shared meaning(s) both versions generate.10 The highest­common­factor approach was, however, not
absolute,11 and proper care had to be exercised to invoke it only where the two versions were indeed capable of
reconciliation12 ­ that is, if they generated shared meanings.
 Though the pre­1994 case­law has so far been discussed in the past tense, this body of jurisprudence may well
provide a basis for the development of case­law dealing with post­1994 constitutional provision for multilingualism.
Potentially, the pre­1994 case­law forms part of the law as it stands ­ as developments (especially in constitutional
jurisprudence) since 1994 have, indeed, indicated.13

Section 240 of the Constitution states that, "[i]n the event of an inconsistency between different texts of the
Constitution, the English text prevails". This provision makes explicit reference to an inconsistency between the
versions.14 Pre­1994 case­law is, it is submitted, applicable to inconsistencies and conflicts between the different
versions of both Constitutions since 1994, because constitutional provision for such inconsistencies and conflicts is
not essentially dissimilar to pre­1994 provision for conflicts between the English and Afrikaans versions of statutory
texts. The compatibility of the different versions of the Constitution can, therefore, be assumed, and reliance on
mechanisms to resolve deadlocks is a last resort.

This seems to have been accepted in constitutional jurisprudence on the issue. In Du Plessis v De Klerk,15
Kentridge AJ, for instance, concluded (with section 240's predecessor in the transitional Constitution in mind)16 that
the English phrase, "all law in force", in section 7(2) of the transitional Constitution, had to be understood
extensively with reference to the Afrikaans version "alle reg wat van krag is". "All law in force" can be read as a
reference restricted to statute law. The more inclusive Afrikaans word, "reg", however, indicated that "law"
embraces common law as well as statute law. This much was clear from the Afrikaans wording of other sections of
the transitional Constitution, too ­ for example, sections 8(1) and 33(1) where "reg" was used as the Afrikaans
equivalent for "law". In Kentridge AJ's interpretation, section 7(2) of the Afrikaans version thus, in effect,
"prevailed", in spite of the requirement in section 15 that, for purposes of the interpretation of the transitional
Constitution, the English version had to prevail. Preference for the Afrikaans version, Kentridge AJ (relying on a
"well­established rule of interpretation") thought, was possible because there was no conflict between the two
versions:
[I]f one text is ambiguous, and if the ambiguity can be resolved by the reference to unambiguous words in the other text,
the latter unambiguous meaning should be adopted. There is no reason why this common­sense rule should not be applied
to the interpretation of the Constitution. Both texts must be taken to represent the intention of Parliament.17

Kentridge AJ finally justified his conclusion on the basis that Afrikaans had remained an official language with
undiminished status, in terms of section 3 of the transitional Constitution. Reference (albeit oblique) has, since Du
Plessis v De Klerk, been made to the Afrikaans versions of both the 1993 and the 1996 Constitutions for purposes of
clarification.18

Section 81 of the 1996 Constitution provides that a bill becomes an act of parliament as soon as it has been
assented to and signed by the president. It must then be published promptly, and takes effect either when
published or on a date determined in terms of the act itself. Section 82 then continues:
The signed copy of an Act of Parliament is conclusive evidence of the provisions of that Act and, after publication, must be
entrusted to the Constitutional Court for safekeeping.

Section 124 makes similar provision for the determination of the contents of provincial legislation as well as for its
safekeeping. Schedule 6 item 27 makes it clear that sections 82 a n d 124 do not affect the safekeeping of Acts
passed before the Constitution took effect. Those Acts are in safekeeping with the registrar of the Supreme Court
of Appeal.

Section 82 makes no reference to the possible inconsistency of various versions of an act. It simply states that
one version of an act (out of a possible eleven), namely the one signed by the president, shall be conclusive
evidence of the provisions of the act. The explicit exclusion of an inconsistency mechanism, it is submitted, is an
implicit recognition of the intrinsic concurrence of the different versions of legislative texts. It, therefore, opens the
door to the fullest possible development of the principles of the case­law as it stands.

Botha19 proposes that section 39(2) o f the Constitution be taken into account when various versions of a
statute are in conflict, and that the version that best reflects the spirit, purport and objects of the Bill of Rights be
preferred. This conclusion, he thinks, is justified also as an outcome of the requirement that statutes be read in
conformity with the Constitution.20 Botha's proposal is commendable. The existing case­law caters for the reading
together of the various versions of an enactment in a constructive way; and what can be more constructive than
reading provisions together in light of and in conformity with the Constitution? This can be done even in the
absence of any conflict between the different versions.

The absence of an explicit conflict­resolution mechanism in section 82 does, of course, have repercussions, and
much will, in future, depend on how the concept of "conclusive evidence" in section 82 is going to be construed. To
state, as De Ville21 does, that section 82 appears to have done away "with the equality between the two or more
versions of an enactment" and that "[o]nly the text that is signed will in future be regarded as being authoritative"
is, however, too glib. First, if, as in the past, the president is going to continue signing different versions of acts, by
turns, and the signing of a particular version is going to remain a matter of chance, there is no "qualitative" reason
for always preferring the signed text. Second, "conclusive evidence of the provisions of an Act" is not conclusive
evidence of the meaning of an act: it simply says that "these are the linguistic signifiers used ­ the signed version is
conclusive evidence of that". Nothing precludes the use of other versions of a provision to place a construction upon
the signifiers used in the corresponding provision of the signed version.22 De Ville's suggestion flies in the face of
both sound strategies of statutory interpretation in the light of the Constitution and a commendable body of case­
law on dealing with statutory multilingualism.

The Supreme Court of Appeal23 has held that the signed English version of provisions of a pre­1993 act of
parliament24 prevails over an inconsistent Afrikaans counterpart. Regrettably, the court reached this conclusion
without ado, making no reference to either section 82 of the 1996 Constitution or its predecessors in pre­1996
South African constitutions.
 The pre­1994 constitutional­conflict provisions did not apply to delegated legislation, nor does the successor to
these conflict provisions in the 1996 Constitution.25 On this point, pre­1994 case­law still reflects the law as it
stands. The difference, of course, is that, since 1994, there can be more than two (and, in principle, as many as
eleven) versions of a delegated instrument. The different versions of delegated enactments are readily used for
reciprocal clarification.26 If delegated legislation is struck down on account of vagueness, it is not done on
constitutional grounds but with reference to one of the common­law requirements for the validity of delegated
legislation.27
1 Devenish Interpretation of Statutes 144­146.
2 Namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, isiNdebele, isiXhosa and isiZulu.
S 3(1) of the (transitional) Constitution of the Republic of South Africa, Act 200 of 1993 made the
necessary provision. S 6(1) of the Constitution of the Republic of South Africa 1996 presently provides
for the eleven official languages.
3 To wit, the 1909 South Africa Act 9 Edw 7 c 9 s 67; the Republic of South Africa Constitution Act 32 of
1961 s 65 and the Republic of South Africa Constitution Act 110 of 1983 s 35.
4 Devenish 144.
5 See eg Commissioner for Inland Revenue v Witwatersrand Association of Racing Clubs
1960 (3) SA 291 (A) 302A­B; S v Roos 1963 (2) SA 671 (N) 677B; Cresto Machines (Edms) Bpk v Die
Afdeling Speuroffisier SA Polisie Noord­Tvl 1972 (1) SA 376 (A) 391D­E; SA Mutual Fire and General
Insurance Co Ltd v Mapipa 1973 (3) SA 603 (E) 606F­G; Mphosi v Central Board for Co­op Insurance
Ltd 1974 (4) SA 633 (A) 643E­F; A to Z Bazaars (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (A)
477F­G; Distillers Corp (SA) Ltd v Stellenbosch Farmers Winery Ltd 1979 (1) SA 532 (T) 535; Tuckers
Land and Development Corp (Pty) Ltd v Soja (Pty) Ltd 1979 (3) SA 477 (W) 481H­482A; S v Sekete
1980 (1) SA 171 (N) 172G­H; Rosenberg v SA Pharmacy Board 1981 (1) SA 22 (A) 30A­B; Kopel v
Marshall 1981 (2) SA 521 (W) 526G­H; Joint Liquidators of Glen Anil Development Corp Ltd v Hill
Samuel (SA) Ltd 1982 (1) SA 103 (A) 109A; Barclays Zimbabwe Nominees (Pvt) Ltd v Black
1990 (4) SA 720 (A) 723E­F.
6 See eg Reddy v Port Shepstone Borough 1955 (1) SA 302 (N) 304E­H; Ex parte Lewis 1969 (3) SA 9
(C) 12A; Ex parte General Chemical Corp Ltd 1971 (2) SA 159 (T) 160F­H; Ex parte Reckitt and
Coleman (Africa) Ltd 1971 (2) SA 545 (C) 549A­H; Northwest Townships (Pty) Ltd v Administrator Tvl
1975 (2) SA 288 (W) 291E­G.
7 See eg S v Jeffers 1976 (2) SA 636 (A) 642A­C; S v Makoula 1978 (4) SA 763 (SWA) 768­770; Willis v
Registrateur van Aktes Bloemfontein 1979 (1) SA 718 (O) 719B­D; S v Bedford 1979 (3) SA 656 (D)
657A­H; Saambou­Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A) 990A­D; S v Henckert
1980 (1) SA 178 (NC) 181A­D; Van Rensburg v Fouriesburg Hotel (Edms) Bpk 1980 (2) SA 26 (O)
32A­B; Subbulutchmi v Minister of Police 1980 (3) SA 396 (D) 399A­H; Law Society Tvl v Behrman
1981 (4) SA 538 (A) 555B­H.
8 R v Silinga 1957 (3) SA 354 (A) 358H; Peter v Peter 1959 (2) SA 347 (A) 350D­E; D v Minister of the
Interior 1962 (1) SA 655 (T) 659F­H.
9 New Union Goldfields Ltd v Commissioner for Inland Revenue 1950 (3) SA 392 (A) 406 per Van den
Heever JA (in a minority judgment); cf also Whitla v Standerton Town Council 1952 (3) SA 567 (T)
570H­572G; R v Singu 1954 (3) SA 555 (C) 559A­H; Ex parte Kommissaris van Kindersorg, In re:
Steyn Kinders 1970 (2) SA 27 (NC) 31A­32A; Santam Versekeringsmpy Bpk v Kemp 1971 (3) SA 305
(A) 320D­H; S v Moroney 1978 (4) SA 389 (A) 407H­409C; S v Collop 1981 (1) SA 150 (A) 162D­
163D; Cronje v Paul Els Investments (Pty) Ltd 1 9 8 2 ( 2 ) S A 1 7 9 ( T ) 1 9 0 C ­ 1 9 2 H ; S v M o l o i
1987 (1) SA 196 (A) 215H­216A; Prinsloo v Van der Linde 1997 6 BCLR 759 (CC) par 47.
10 Jaffer v Parow Management Board 1928 CPD 159­162. A shared meaning may also be a "wider"
meaning: Derby­Lewis v Chairman, Amnesty Committee of the Truth and Reconciliation Committee
2001 (3) SA 1033 (C) 1057H.
11 R v Silinga supra 358H­359A.
12 Cronje v Paul Els Investments (Pty) Ltd supra 192C­192F.
13 See the discussion infra.
14 However, the provision in the transitional Constitution implicitly referred to section 35 of the 1983
Constitution and was presumably, therefore, also only applicable in the event of a conflict or
inconsistency.
15 1996 5 BCLR 658 (CC) par 44.
16 Ie section 15 of the Constitution of Republic of South Africa Amendment Act 2 of 1994.
17 Par 44. See also De Waal 1995 SAJHR 4 fn 4, who, on an assumption similar to that of Kentridge AJ,
asserts that reference could be made to the Afrikaans version of the transitional Constitution to make
sense of the term "constitutional state". The Afrikaans version of this notion, namely "regstaat",
corresponds more closely to the original German term, Rechtsstaat.
18 Langemaat v Minister of Safety and Security 1998 4 BCLR 444 (T)448J; Wittman v Deutscher
Schulverein, Pretoria 1999 1 BCLR 92 (T)115H.
19 Statutory Interpretation 4 ed 78.
20 See par 2C13 above.
21 Constitutional and Statutory Interpretation 115.
22 See Du Plessis 1998 THRHR 281­283 for hypothetical examples.
23 In Middelburg v Prokureursorde Transvaal 2001 (2) SA 865 (SCA) par 6.
24 In casu s 20(1) and (4) of the Supreme Court Act 59 of 1959.
25 See also De Ville 119­120.
26 See eg Du Plessis v Southern Zululand Rural Licensing Board 1964 (4) SA 168 (D) 172F­G; S v De
Castro 1979 (2) SA 1 (A) 22C­D; S v Weinberg 1979 (3) SA 89 (A) 100F; S v Sparks 1980 (3) SA 952
(T) 953F­G; Mkrola v Samela 1981 (1) SA 925 (A) 934C; Manyasha v Minister of Law and Order
1999 (2) SA 179 (SCA) 188H­I.
27 See par 2C4 above.

2C39 Punctuation, paragraph and section divisions Punctuation marks fulfil a vital role ­ especially in written
language ­ and linguistic convention surely requires that, in writing and reading a written text, such marks must be
accounted for. 1 It seems rather odd, therefore, that there is a line of judicial thinking, especially in some older
cases, that denies the interpretative significance of punctuation marks because such marks are allegedly no
essential part of a statute.2 There is, however, an avenue of approach that recognises the grammatical relevance
and function of punctuation marks, especially when they are aimed at conveying a particular meaning which, in their
absence, would not have been possible.3 Judicial enthusiasm for the observation of punctuation marks in statutory
interpretation has, however, fluctuated from case to case, even in more recent years. 4 The courts probably want to
avoid situations where strained constructions based on artificial arguments about punctuation marks are placed
upon statutory provisions. There has been no indication, so far, that reading strategies induced by constitutionalism
will result in a changed attitude toward punctuation marks. The same applies to the judicial attitude that the
division of a legislative instrument into paragraphs and sections is also of little or no interpretative significance.5
1 There are cases in which the courts seem to agree with this observation: see eg R v Dhlamini
1950 (2) SA 175 (T) 176; S v Lukele 1964 (1) SA 718 (T) 718H­719H; S v Le Riche 1965 (4) SA 757
(T) 758D and H.
2 See eg Bosman's Trustee v Land and Agricultural Bank of SA and Registrar of Deeds Vryburg 1916
CPD 47 53; Commissioner for Inland Revenue v Dundee Coal Co Ltd 1923 AD 331 335; Sigcau v
Sigcau 1941 CPD 334 344.
3 Mavromati v Union Exploration Import (Pty) Ltd 1949 (4) SA 917 (A) 928; R v Njiwa 1957 (2) SA 5 (N)
8 B­C; Stadsraad Lichtenburg v Administrateur Tvl 1967 (1) SA 359 (T) 367G­H.
4 Cf eg the enthusiasm of Flemming J in Skipper International (Pty) Ltd v SA Textile and Allied Workers'
Union 1989 (2) SA 612 (W) 615F­J with Grosskopf JA's non­committal attitude in Government of
Lebowa v Government of the RSA 1988 (1) SA 344 (A) 359A­J.
5 Commissioner for Inland Revenue v Dundee Coal Co Ltd 1923 AD 331 335; Sigcau v Sigcau supra
345.

THE CANONS OF SYSTEMATIC INTERPRETATION

2C40 Preliminary observations Systematic interpretation is an instance of contextualisation. First, it calls for the
interpretation of individual legislative provisions in relation to and in light of other provisions and components of the
legislated text of which they form part,1 drawing on the "system", "logic" or "scheme" of the text as a whole. Von
Savigny2 referred to these procedures of intra­textual contextualisation as logical interpretation. Second, systematic
interpretation requires cognisance of the ("extra­textual") macro­text too ­ of meaning­generative signifiers in the
"textual environment". According to Von Savigny, 3 the very function of systematic interpretation is to forge links
with this macro­text. These two manifestations of contextualisation4 have gained in importance over the last few
years ­ partly due to reading strategies induced by statutory and constitutional interpretation in an era of
constitutionalism.

Tribe and Dorf, 5 writing about constitutional interpretation, see intra­textual, systematic interpretation as a
process of text­integration and warn against two opposite fallacies. On the one hand, dis­integration turns a blind
eye to the systematic interconnectedness of text­components and tries to understand them in splendid isolation
from one another. Hyper­integration, on the other hand, links text­components which, according to the scheme of
the text, are not inherently coherent.

Disintegration occurred in, for instance, S v Solberg,6 an appeal against a convenience store assistant's conviction
of contravening section 90(1) of the Liquor Act,7 proscribing wine sales on a Sunday. The assistant admitted to
selling wine on a Sunday, but she challenged the constitutionality of section 90(1) contending that it infringed,
amongst others, her right to freedom of religion entrenched (at the time) in section 14(1) of the transitional
Constitution.8 Six Constitutional Court judges thought that the challenge should not be upheld, but they were
divided 4­2 on the reasons for their finding, and especially on how to understand religious freedom and equality in
relation to each other. Three judges thought that the challenge had to be upheld, but agreed with the deviate view
of the minority of two judges in the group of six on the freedom­equality issue. (The three plus two judges will
hereinafter be referred to as "the five", and the remaining judges dismissing the appeal as "the four".)

Chaskalson P, speaking on behalf of the four, contended that Solberg's challenge, based on the right to freedom
of religion, required the court's consideration as a matter of religious free exercise only and not as a matter of
religious equality (and non­discrimination) ­ guaranteed in section 8(2) of the interim Constitution ­ as well,9 the
appellant herself, Chaskalson P pointed out, did not base her challenge on a right to equality or non­discrimination.

O'Regan J, articulating the concerns of the five, held that the guarantee of a right to freedom of religion at any
rate entails entitlement to an even­handed (and therefore equal) treatment of religions and their adherents. She
disagreed with the contention of the four that issues of religious equality were not up for consideration in the
particular circumstances of the Solberg case, stating that the Constitution required more from the legislature than
that it refrained from coercion:10
It required in addition that the legislature refrain from favouring one religion over others. Fairness and even­handedness in
relation to diverse religions is a necessary component of freedom of religion.

According to the five, section 90(1) thus encroached on the appellant's right to religious freedom, but two of them
thought that the said encroachment was justifiable in terms of section 33, the general limitation clause in the
interim Bill of Rights. The other three did not agree with this view.

The narrow understanding of the right to freedom of religion by the four resulted from a disintegrated reading of
sections 14(1) and 8(2) of the transitional Constitution, whereas the fuller understanding of this right by the five,
stemmed from a duly integrated reading of the two subsections. The latter is the preferred systematic construction
of the right to freedom of religion in section 14(1) of the transitional (and section 15(1) of the 1996) Constitution.11

Though not always readily detectable, hyper­integration mostly occurs as an interpretive over­inclusion of some
sort. In S v Kola,12 for instance, the question was whether a male accused who, in public, expressed his sexual
identity by dressing as a woman, was guilty of contravening a statutory provision forbidding the "wearing or use of
masks, false beards, or other means whereby disguises are effected, in public roads or other public places".
Language­wise it is possible to read this provision either restrictively or extensively. The first reading would have
excluded the accused's conduct from the scope of the provision. The court, however, opted for the second more
extensive reading, assuming that the concealment of identity was the mischief that the provision sought to exclude
and holding that, in the absence of a feasible explanation from the accused, an intention to conceal his identity had
to be inferred. The hyper­integration of an assumed mischief targeted by the provision and an inferred (guilty) state
of mind on the part of the accused, yielded an interpretation casting what needed to be a circumspect construction
of a penal provision, to the four winds. A restrictive interpretation, excluding criminal liability of the accused, would
have been more appropriate in this case.

Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School,13 another case in which hyper­
integration occurred, was about the interpretation of section 60(1) of the South African Schools Act14 which
provided that "[t]he State is liable for any damage or loss caused as a result of any act or omission in connection
with any educational activity conducted by a public school and for which such public school would have been liable
but for the provisions of this section". Both a magistrate's court (as court of first instance) and a high court (as first
court of appeal) thought that the expression "act or omission" in section 60(1) not only referred to delictual liability,
but included contractual action (and inaction) as well. "The state" and not the school, so it was argued, was
therefore liable for specific performance in terms of a contract for the lease of photocopier equipment from a
supplier by the school. A majority of the Supreme Court of Appeal, however, cautiously considered the language (­
in­context) of the Act, and duly heeded textual indicia of the purpose of section 60(1). From this basis they
proceeded to undo the hyper­integration of delictual and contractual liability by the two courts a quo, a n d t o
advance cogent reasons why section 60(1) can be understood to deal with delictual liability only. Note that in this
instance due regard to the full context in which a provision occurred resulted in the exclusion of an overbroad
understanding of that provision.

Systematic interpretation reveals the (logical or systematic) scheme of the text. Much is nowadays made of the
interpretative value of "the scheme of the text", especially in constitutional interpretation.15 A s f a r a s t h e
conventional canons of construction are concerned, intra­textual, systematic interpretation sustains restrictive
interpretative (for instance, eiusdem­generis) reasoning16 or extensive interpretation17 (ex consequentibus, ex
correlativis or in the form of analogical interpretation). This takes place in accordance with the scheme of the specific
text to be construed, but also with a scheme attributed to legislated texts and legislative reasoning in general.
Furthermore, intra­textual, systematic interpretation lays the basis for relying on textual elements such as the
preamble18 and schedules to,19 as well as the long title20 of, a legislative instrument in the interpretation of any of
its specific provisions. The common­law equivalent of intra­textual, systematic interpretation is the ex visceribus
actus approach to statutory interpretation.21 Treating language as language­in­context 22 is an intra­textual,
systematic reading strategy, too.

The interrelated reading of various components of a statutory text is a further instance of intra­textual,
systematic interpretation which the Constitutional Court recognised in the context of constitutional interpretation in
the following terms:23
It is an accepted principle of interpretation that where two subsections deal with the same subject matter these are usually
read together. This rule of construction is applicable in constitutional interpretation. It is consistent with a purposive
interpretation of the Constitution.

This dictum forges, with good reason, it is submitted, links between systematic and purposive (or teleological)
interpretation:24 a purposive or purposeful reading of a statutory or constitutional text cannot be but a holistic (and
historically sensitive) reading.25 The preamble and long title of a legislated text, for instance, play a recognisable
role in the interpretation of its individual provisions. This is so because a systematic reading of individual provisions,
in the context of the text as a whole, requires the broadest possible spectrum of textual elements to be taken into
account.26 The preamble and the long title are, however, also statements of purpose, and this illustrates how
systematic and purposive interpretation can join forces. There may also be other less explicit statements of purpose
in the legislated text or provisions which, only on being read together with others, say something purposeful. The
purposive potential of all such provisions can be opened up only through a systematic reading of the provision to be
construed in the context of the instrument as a whole, and thereby in interaction with the provisions whose
purposive potential stands to be released.

The coalescence of systematic and purposive/teleological interpretation, furthermore, highlights the essential
unity of interpretation and application. The interpreter is called upon to make sense of a provision in a purposive
manner catering for the exigencies of an actual or hypothetical concrete situation. The situation poses a question,
as it were. A legislative instrument is construed to find a possible answer ­ on the assumption that it can assist the
formulation of an answer. The statutory text read systematically in relation to the particular situation (and in the
expectation that it is purposeful) does not generate any meaning in isolation from the question(s) posed by the
concrete situation. Actual or potential applications of a legislative provision determine its construction decisively. A
statutory provision acquires no meaning in isolation from or irrespective of either its de facto or its conceivable (or
hypothesised) realisation in specific situations where legal solutions/decisions are called for. "The jurist makes
sense of a law from out of a given case and for the sake of that given case".27 Müller28 prefers the appellation
Konkretisierung ("concretisation") to Auslegung ("interpretation") for this process of bringing to life legislative
provisions in concrete situations.29

It may happen that a purposeful concretisation of a statutory provision results in the conclusion that the
provision in question has nothing, or nothing meaningful, to say about the specific concrete situation. The
interpreter must then consider, first, whether the provision indeed applies in that situation; second, whether the
text perhaps contains a casus omissus; and, third, whether an interpretative alteration of the ipsissima verba of the
provision may be appropriate.30 Concretisation may also bring up the possibility of extending ("stretching") or
restricting ("shrinking") the meaning(s) that the provision generates ­ according to the procedures of extensive31
and restrictive32 interpretation respectively.

Extra­textual contextualisation takes place with reference to meaning­generative signifiers (themselves texts) in
the textual environment. There are a great many such signifiers, but in statutory and constitutional interpretation,
the focus is mainly on, first, other legal precepts and institutions and the legal system as a whole. Enactments
(including the Constitution) are, for instance, always construed as forming part of a wider network of legislation33
and other law­texts, such as precedents. Second, the political and constitutional order, society and its legally
recognised interests, and the international legal order are all consciously taken account of in constitutional and
statutory interpretation. Existing common­law canons of construction do provide for and, indeed, require cognisance
of the "non­legal" macro­text ­ for example, the presumption that statute law promotes the public interest.34
Actually, it is impossible to separate text and macro­text, especially since the macro­text is the "source of concrete
situations" without which, as was argued above, statutory interpretation is not possible. The distinction between
intra­textual and extra­textual contextualisation is, therefore, merely a convenient one facilitating a systematisation
of the canons of construction. Historical35 and comparative36 elements forming part of the macro­text will, in the
discussion that follows, be considered under separate headings.

The judgment of the Constitutional Court in Department of Land Affairs v Goedgelegen Tropical v Fruits (Pty) Ltd37
per Moseneke DCJ has all the makings to become a locus classicus on (especially macro­textual) systematic
interpretation. The central question posed in this case was how to construe the phrase "as a result of" in section
25(7) o f the Constitution38 and section 2 of the Restitution of Land Rights Act.39 Both provisions make an
entitlement to a land claim or to equitable redress dependent on, amongst others, an initial dispossession required
to have occurred as a result of "past racially discriminatory laws and practices". The Supreme Court of Appeal40
agreed with the Land Claims Court that "as a result of" denotes a "but for" link between an event and its
consequences, in other words, a once­off causal connection which in casu did not exist. Moseneke DCJ, however,
contended for an understanding
within the context of a grid . . . of related provisions and of the statute as a whole including its underlying values. Although
the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to the context
which is indispensable in identifying the purpose of a provision that stands to be construed.41 This is so even when the
ordinary meaning of the provision to be construed is clear and unambiguous.42

"Context" densely understood, includes "history" as well as a grid of discriminatory laws and practices back in
history.43
1 Cf eg Janse van Rensburg v The Master 2001 (3) SA 519 (W) par 7.
2 System des heutigen Römischen Rechts I 320.
3 262.
4 For judicial recognition of both manifestations, see Richtersveld Community v Alexkor Ltd
2001 (3) SA 1293 (LCC) par 88.
5 On Reading the Constitution 21­30.
6 1997 10 BCLR 1348 (CC), 1997 (4) SA 1176 (CC).
7 27 of 1989.
8 Constitution of the Republic of South Africa, Act 200 of 1993.
9 S v Solberg supra pars 99­102.
10 Par 128.
11 Constitution of the Republic of South Africa, 1996.
12 1966 (4) SA 322 (A).
13 [2008] 4 All SA 117 (SCA), 2008 (5) SA 1 (SCA).
14 84 of 1996.
15 See De Ville Constitutional and Statutory Interpretation 143­145 for a detailed yet succinct explanation
of schematic constitutional interpretation.
16 See par 2C42 below.
17 See par 2C43 below.
18 See par 2C44 below.
19 See par 2C45 below.
20 See par 2C44 below.
21 See par 2C14(e) above.
22 See par 2C14(e) above.
23 Executive Council of the Western Cape v Minister for Provincial Affairs and Constitutional Development
of the RSA; Executive Council of KwaZulu­Natal v President of the RSA 1999 12 BCLR 1360 (CC) par
52 per Ngcobo J.
24 See par 2C48 below.
25 This was also suggested in Olitski Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) par
12 where it was said that statutory interpretation "requires consideration of the statute as a whole, its
objects and provisions, the circumstances in which it was enacted, and the kind of mischief it was
designed to prevent". The judgment of Kriegler J in Minister of Defence v Potsane; Legal Soldier (Pty)
Ltd v Minister of Defence 2001 11 BCLR 1137 (CC) provides a telling example of a simultaneously
systematic/contextual, teleological and historical(­ly sensitive) reading of a constitutional provision (in
casu, s 179(1) of the Constitution of the Republic of South Africa, 1996) ­ cf, in particular, pars 26­42.
The court's articulate reading strategy makes it clear how and why "excessive peering at the language
to be interpreted without sufficient attention to the contextual scene" (Jaga v Dönges; Bhana v Dönges
1950 (4) SA 653 (A) 664H) can actually undermine longer­lasting value and policy objects of a
(constitutional or statutory) provision that stands to be construed.
26 See par 2C44 below.
27 "Der Jurist faßt den Sinn des Gesetzes von dem gegebenen Fall her und um dieses gegebenen Falles
 willen": Gadamer Wahrheit und Methode 308. See also par 2C14(i) above.
28 Juristische Methodik 186­208.
29 See also Sefalana Employee Benefits Organisation v Haslam 2000 (2) SA 415 (SCA) par 6.
30 See par 2C41 below.
31 See par 2C43 below.
32 See par 2C42 below.
33 See par 2C54 below.
34 See par 2C20 above.
35 See pars 2C52­2C57 below.
36 See pars 2C58­2C60 below.
37 2007 10 BCLR 1027 (CC), 2007 (6) SA 199 (CC).
38 Constitution of the RSA, 1996.
39 22 of 1994.
40 In Popela Community v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (2) SA 21 (SCA) par 15.
41 Department of Land Affairs v Goedgelegen Tropical v Fruits (Pty) Ltd supra pars 51, 52, 54.
42 Par 53.
43 Pars 56­63.

2 C 4 1 T h e casus omissus and the adaptation of the ipsissima verba of a provision The interpretative
procedures discussed under this heading are appropriate in (actual or hypothesised) concrete situations where the
purposeful concretisation of a statutory provision results in the conclusion that the provision has nothing, or nothing
meaningful, to say about a specific situation.1 The interpreter must then consider, first, whether the provision
indeed applies in that situation; second, whether the text perhaps contains a casus omissus; and, third, whether
an interpretative alteration of the ipsissima verba of the provision will be appropriate. The applicable procedures are
best conceived of as systematic interpretation because it is preferable to fill gaps and adjust formulations with
reference to the scheme of an enactment itself rather than with reliance on surmise or conjecture.

Constitutionalism instils in interpreters of statutes an awareness that tampering with the ipsissima verba of a
statute, though not precluded, should be an exercise in circumspection and restraint with due deference to one of
the cornerstones of constitutional democracy, namely the horizontal division of powers in the state.2 The wording of
a legislated text bounds state authority for trias politica purposes.3 The interpreter­judge is no legislator and must
constantly remind him­ or herself of that. Adaptive interpretation is meant to make sense of the legislature's law as
it stands and not to substitute the judge's law for it.

Where there is a casus omissus in a statutory text as it stands, in that, given its purpose and scope, it does not
cater for a situation or an eventuality it can be expected to provide for, the courts have consistently refused to fill
the gap.4 The legislature is presumed to have dealt with the subject­matter of a statute exhaustively. 5 However,
the courts have also maintained that, if more than one reasonable construction of an enactment is possible, the
reading that best avoids a casus omissus is to be preferred,6 heeding the presumption that an enactment does not
contain invalid or purposeless provisions.7 Furthermore, in view of the presumption that statute law does not alter
the existing law more than is necessary, the common law has been held to apply where there is a casus omissus in
a statute.8

The courts' reluctance to fill gaps may, in the course of time, give way to a readiness to maximise constitutional
protection. A high court was, for instance, on occasion prepared to fill a gap in the transitional Constitution9 and to
grant a form of interim relief, unspecified in the constitutional text, at the instance and to the benefit of a
constitutional litigant.10

Where a legislative text, as it stands, seems to have been couched in inappropriate or "wrong" language, an
interpreter may be called upon to consider rephrasing the provision to make sense of it, most often by trying to get
rid of an absurdity. 11 Such situations are closely related to instances in which omissions occur; and strategically
speaking, omissions and "wrong language" can be treated alike for interpretative purposes.

The prevailing point of view in the case­law is that the words of an enactment may be altered, provided the clear
intention of the legislature suggests such a course: "the intention of the legislature must be clear and not a matter
of surmise or probability".12 This view raises a crucial (and unanswerable) question, namely: "How can a clear
intention of the legislature exist in the absence of clear and unambiguous language?" It is, rather, the exigencies of
concretisation that call forth the need for an alteration. An alteration can only be considered with due regard to the
scheme of a statute as a whole, the need for a valid and purposeful realisation of the provision in question and to
other compelling reasons such as the reading of a provision in conformity with the Constitution13 or in accordance
with a presumption.14

In Moseneke v Master of the High Court,15 the Constitutional Court altered the words of a regulation by reading
"may" for "shall". This "woordwysigende uitleg" (to use the words of Steyn)16 formed part of a strategy designed to
preserve, with the minimum damaging effect, clearly unconstitutional legislation for a certain period of time in order
to allow the legislature and the administration to correct defects. The court thought that striking down the
unconstitutional provisions with immediate effect and without making practical alternative arrangements could
provoke confusion and risk injustice.17

The procedure of reading into the ipsissima verba of a legislative instrument to prevent its invalidation on
constitutional grounds18 may, in time, affect the conventional attitude towards the filling of gaps and the
adaptation of the ipsissima verba of legislative instruments fundamentally. It may be argued that "reading in" will
(and should) remain restricted to cases where legislation is impugned on constitutional grounds. However, those
"constitutional grounds" have become part of the legal system and all legislation is to be read in conformity with the
values embodied in them. "Reading in" has, at any rate, so far meant that the court intervened to rescue and
"make sense" of legislation on the assumption that judicially rephrased legislation is preferable to a lacuna (albeit
only for as long as the legislature itself is not in a position to step in).
1 See par 2C40 above.
2 De Ville Constitutional and Statutory Interpretation 135.
3 In the German context, and particularly with reference to constitutional interpretation, this
phenomenon is referred to as "der Wortlaut als Grenze der Staatsgewalt" ­ c f eg Depenheuer Der
Wortlaut als Grenze; Ogorek, "Der Wortlaut des Gezetses ­ Auslegungsgrenze oder Freibrief?" in
Rechtsanwendung in Theorie und Praxis 21­33.
4 See eg Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 562; Walker v Carlton Hotels (SA) Ltd
1946 AD 321 330; Barkett v SA National Trust and Assurance Co Ltd 1951 (2) SA 353 (A) 361F;
Minister van Waterwese v von During 1971 (1) SA 858 (A) 876F; Amalgamated Packaging Industries
Ltd v Hutt 1975 (4) SA 943 (A) 951H; Cullinan Properties Ltd v Tvl Board for the Development of Peri­
Urban Areas 1978 (1) SA 282 (T) 287B; Willis v Registrateur van Aktes Bloemfontein 1979 (1) SA 718
(O) 725A; S v McBride 1979 (4) SA 313 (W) 324D; Joint Liquidators of Glen Anil Development Corp Ltd
v Hill Samuel (SA) Ltd 1982 (1) SA 103 (A) 112F; Summit Industrial Corporation v Claimants against
the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A) 597A­
B; Bevray Investments (Edms) Bpk v Boland Bank Bpk 1993 (3) SA 597 (A) 622H­I; Caroluskraal
Farms (Edms) Bpk v Eerste Nasionale Bank van Suider­Afrika Bpk; Red Head Boer Goat (Edms) Bpk v
Eerste Nasionale Bank van Suider­Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van
Suider­Afrika Bpk 1994 (3) SA 407 (A) 422C.
5 Stafford v Special Investigating Unit 1999 (2) SA 130 (E) 140C.
6 Dhanabakium v Subramanian 1943 AD 160 170; Commissioner for Inland Revenue v Louis Zinn
Organisation (Pty) Ltd 1958 (4) SA 477 (A) 485G­H; Koller v Steyn 1961 (1) SA 422 (A) 429A­C;
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C) 240C; Davehill (Pty) Ltd v
Community Development Board 1988 (1) SA 290 (A) 300C­D.
7 Stafford v Special Investigating Unit supra 140H­I. See also par 2C26 above.
8 See par 2C24 above; Steyn Uitleg van Wette 16­17; see also SA Mutual Fire and General Insurance
Co Ltd v Mapipa 1973 (3) SA 603 (E); Kahan v Hydro Holdings (Pty) Ltd 1980 (3) SA 511 (T).
9 Constitution of the Republic of South Africa, Act 200 of 1993.
10 Ferreira v Levin; Vryenhoek v Powell 1995 4 BCLR 437 (W).
11 See eg Van Heerden v Queen's Hotel (Pty) Ltd 1973 (2) SA 14 (RA) 26B­C; Buren Uitgewers (Edms)
Bpk v Raad van Beheer oor Publikasies 1975 (1) SA 379 (C) 385D; Padiachy v Johannesburg City
Council 1979 (2) SA 1191 (W).
12 Shenker v The Master 1936 AD 136 143 per De Villiers JA. Cf also the cases discussed by Steyn 58­64
as well as S v Tieties 1990 (2) SA 461 (A) 464A­E.
13 See par 2C13 above.
14 On the assumption, of course, that presumptions are not merely tertiary canons of construction ­ see
pars 2C15 and 2C17 above.
15 2001 2 BCLR 103 (CC) par 27 and par 4.3 of the order of the court. See also par 2C12 above.
16 55­68.
17 Par 25.
18 See par 2C13 above.

2C42 Restrictive interpretation It has already been indicated that reading in conformity with the Constitution,1 in
so far as it requires a narrowing down of the scope of an impugned provision, could (but need not) take place in
accordance with standardised (and long­recognised) procedures of restrictive statutory interpretation.2 O t h e r
exigencies can, of course, also prompt reliance on the canons of restrictive interpretation ­ for instance, reading in
conformity with a presumption (should the interpretative status of the presumptions come to be enhanced) or
enhancing constitutional values in accordance with, amongst others, section 39(2) of the Constitution. Reading with
deference to purposive and teleological considerations (induced by the text itself or by the scheme of values on
which the legal order is premised3 or by the inclusive and open­ended style in which an enacted text has been
drafted)4 could also be exigencies that compel reliance on the canons of restrictive interpretation.

Cessante ratione legis cessat et ipsa lex (the "ratio rule" for short) is the first established canon of restrictive
interpretation. A provision ceases to have effect in situations where the reason for its existence falls away in that,
for example, provision has already been made, in some way or another, for that which the legislative measure in
question was supposed to cater. The ratio rule has not frequently been invoked in the case­law, 5 though its logic
has been heeded, from time to time, without explicit reference to it as a rule.6 The ratio rule (or ratio reasoning, in
general) may be relied on in an ad hoc manner ­ from situation to situation ­ only, and may not be invoked to
abrogate or revoke a provision that, in the opinion of a judicial interpreter, has, generally speaking, outlived its
usefulness.7 This last sentiment is enhanced by the trias politica as constitutional constraint cautioning the
interpreter to treat an alternation of the ipsissima verba of a statutory text with circumspection.8

T h e eiusdem­generis rule, the second established canon of restrictive interpretation, can be applied to the
construction of provisions made up of a phrase of general application preceded by a class or genus of words of a
limited or particular meaning. The semantic possibilities of the general phrase are then restricted to the narrower,
generic semantic possibilities of the preceding words,9 the interpreter all the while keeping in mind the scheme of
the provision in question. The more inclusive linguistic signifier usually, but not invariably, follows after (and relates
to) generic signifiers of a more limited or specific scope.

T h e eiusdem­generis rule has traditionally been invoked with circumspection10 a n d , i n v i e w o f trias politica
considerations, such circumspection is not inappropriate in a constitutional state. On the other hand, however,
reading in conformity with the Constitution could require more unqualified reliance on the rule than in the past ­
precisely to save a piece of legislation and thereby show respect for the product of an elected and deliberative
legislature's action.
 1 Constitution of the Republic of South Africa, 1996.
2 See par 2C13 above and cf also par 2C43 below.
3 Cf par 2C14(f) above.
4 See par 2C14(g) above.
5 See, for examples of its application and/or suggested mode of application, Green v Fitzgerald 1914 AD
88; Simons v Board of Executors Cape Town 1915 CPD 479 506; Head and Fortuin v Woolaston and
De Villiers 1926 TPD 549 558; Lekhari v Johannesburg City Council 1956 (1) SA 552 (A) 570C; S v
Maharaj 1962 (4) SA 615 (N) 617D­H; Labuschagne v Labuschagne; Labuschagne v Minister van
Justisie 1967 (2) SA 575 (A) 587D­588G; Avex Air (Pty) Ltd v Borough of Vryheid 1973 (1) SA 617 (A)
626H; Ex parte Vermaak 1977 2 SA 129 (N) 133G­H; Singh v Govender Construction 1986 (3) SA 613
(N) 618F. As will appear from especially the first three dicta above, the ratio rule is not invoked merely
for the interpretation of statute law strictu sensu.
6 In the leading case on restrictive interpretation, Venter v R 1907 TS 910 915, this rule was applied
without expressly referring to it. Cf also Storm & Co v Durban Municipality 1925 AD 49 53.
7 Cf also Labuschagne v Labuschagne; Labuschagne v Minister van Justisie supra 587F.
8 See par 2C41 above.
9 See eg Colonial Treasurer v Rand Water Board 1907 TS 479 484; Van Wermeskerken v Johannesburg
Municipality 1913 TPD 540 542; Director of Education, Transvaal v McCagie 1918 AD 616 623; Sacks v
City Council of Johannesburg 1931 TPD 443 447; Levy v Blairgowrie Estates Ltd 1944 TPD 112 118;
Malherbe v SA Medical and Dental Council 1962 (1) SA 825 (N) 832H­833A; Becker v Kellerman
1971 (2) SA 172 (T) 182H; Regering van die Republiek van SA v Gouws 1974 (4) SA 622 (T);
Hardman v Administrator Natal 1975 (1) SA 340 (N) 342F; Burton Construction (Pty) Ltd v Aviation
Insurance Co 1975 (4) SA 329 (W) 333G­H; S v Wood 1976 (1) SA 703 (A) 707B­E; S v Sampies
1977 (4) SA 88 (E) 89F; S v Kohler 1979 (1) SA 861 (T) 862G­863C; S v Henckert 1980 (1) SA 178
(NC) 181D­E; Joss v Secretary for Inland Revenue 1980 (1) SA 674 (T) 679F­680F; Ovenstone v
Secretary for Inland Revenue 1980 (2) SA 721 (A) 735D­736A; S v Russell 1981 (2) SA 21 (C) 31A­C;
S v Du Plessis 1981 (3) SA 382 (A) 404A; S v Elkon 1981 (4) SA 62 (T) 65H; Poovalingam v Rajbansi
1992 (1) SA 283 (A) 294A; Moodley v Scottburgh/Umzinto North Local 2000 (4) SA 524 (D) 530J­532D.
10 R v Nolte 1928 AD 377 382; Grobbelaar v Van der Vyver 1954 (1) SA 248 (A) 254C­255B; S v Cocklin
1971 (3) SA 776 (A) 781A­C 781A­B; Santam Versekeringsmaatskappy Bpk v Kruger supra 663E­F;
Pietermaritzburg City Council v PMB Armature Winders 1983 (3) SA 19 (A) 26B­G.

2C43 Extensive interpretation According to Steyn,1 common­law authorities are, in certain circumstances, wary of
the extensive reading2 of statutory provisions. These circumstances are, first, where a provision alters the common
law; second, where a provision imposes a burden or penalty;3 third, where restrictive language is used; and,
fourth, where a provision is aimed at specific persons. The reasons giving rise to this wariness are, given the
traditional judicial attitude towards statute law and its interpretation, quite understandable. There is a scepticism
about unduly extending provisions altering the existing law, or imposing burdens, anyway, and it is quite imaginable
that literalist­cum­intentionalist readers of a legislated text will be loath to tamper with particular, "clear and
unambiguous" language.4 To this must be added that the conventional (English) common­law style of drafting
legislation as exhaustively as possible, to cater for as many future situations5 as possible, also inhibits the
extensive reading of statutory provisions. However, in an era of constitutionalism, a wariness about reading
statutory provisions unduly extensively is still appropriate, not primarily for literalist­cum­intentionalist reasons, but
in the light of considerations of trias politica.6 Trias­politica constraints should, however, not trump considerations
compelling an extensive reading of a statutory provision in conformity with the Constitution7 or enhancing
constitutional values in accordance with, for instance, section 39(2) of the Constitution. Reading in accordance with
a presumption (should the interpretative status of the presumptions come to be enhanced) or with deference to
purposive and teleological considerations (induced by the text itself or by the scheme of values on which the legal
order is premised)8 could also increase reliance on extensive interpretation, given, in particular, the growing
tendency to draft legislation in an open­ended style.9 It is unsurprising that, as De Ville10 shows, extensive
interpretation has been relied on in constitutional interpretation to quite a significant extent.

Analogical interpretation, the first established strategy of extensive interpretation, is premised on a "for the
same reason" argumentation: provisions applicable to an expressly mentioned instance can, ex identiate rationis, be
extended to other similar instances that have not expressly been mentioned. Analogical interpretation has probably
been the instance of extensive interpretation hardest hit by the courts' scepticism about extensive interpretation.11

Inclusive interpretation is interpretation by implication, and the implication may follow from one or more of the
following considerations:

(i) Other provisions of the legislative instrument as a whole provided that the implication is a necessary one.12

(ii) Ex contrariis Where a provision expressly caters for certain circumstances, it is inferred that, for opposite
circumstances, the contrary holds.13 The same reasoning, in a more restricted sense, is also expressed as
expressio unius est exclusio alterius14 ­ a maxim invoked with circumspection15 and held to be not a final but
only a prima facie indicator of meaning and, therefore, no hard and fast rule.16

(iii) Ex consequentibus Where a provision proscribes a certain consequence, it proscribes, by implication,

everything that may occasion such a consequence. Positively framed: where a provision permits a certain
consequence, it permits, by implication, everything reasonably necessary for ­ and, at the same time,
proscribes obstructions to ­ the achievement of the authorised consequence.17

(iv) Ex accessorio eius, de quo verba loquuntur S t e y n18 contends that considerations of this kind exist
independently from those in (iii) above. Point (iii) above, confers necessary powers by implication while, under
the present rubric, accessory powers can be thus conferred.19 In practice, however, it seems as though both
categories are often labelled with the same tag.
 (v) A natura ipsius rei An implication a natura ipsius rei follows by inherent relationship. The power to make a
regulation, for instance, implies the power to withdraw it,20 provided the functionary, after making the
regulation, has not become functus officio.21

(vi) Ex correlativis An implication ex correlativis arises from mutual or reciprocal relationship.22 A prohibition to
purchase includes a prohibition on sale; a prohibition to let implies a prohibition to hire, et cetera.
1 Uitleg van Wette 44­45.
2 Steyn relates this hesitation to analogical interpretation only, but it probably holds for other forms of
extensive interpretation, too.
3 Cf eg Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W) 80D.
4 See par 2C14(d) above.
5 See par 2C14(g) above.
6 See also pars 2C41 and 2C42 above.
7 Constitution of the Republic of South Africa, 1996. See par 2C13 above and cf also par 2C42 above.
8 For the latter, see par 2C14(f) above.
9 See par 2C14(g) above.
10 Constitutional and Statutory Interpretation 129­130 and the authority there cited.
11 Devenish Interpretation of Statutes 76­84; De Ville 127­128.
12 SA Medical Council v Maytham 1931 TPD 45 47­48; Taj Properties (Pty) Ltd v Bobat 1952 (1) SA 723
(N) 729E­730C; Collins v Minister of the Interior 1957 (1) SA 552 (A) 584B­H; The Firs Investments
(Pty) Ltd v Johannesburg City Council 1967 (3) SA 549 (W) 557B­H; Suliman v Rustenburg Town
Council 1979 (2) SA 435 (T) 444A­D.
13 Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 722; Rembrandt Fabrikante en
Handelaars (Edms) Bpk v Gulf Oil Corp 1962 (3) SA 158 (T) 162B­C; Mendelson and Frost (Pty) Ltd v
Pretoria City Council 1977 (3) SA 693 (T) 698A­B; S v Mjoli 1981 (3) SA 1233 (A) 1247A.
14 Johannesburg City Council v Crown Mines Ltd 1971 (1) SA 709 (A) 720G­H; Gentiruco AG v Firestone
SA (Pty) Ltd 1972 (1) SA 589 (A) 602E; Beaver Marine (Pty) Ltd v Wuest 1978 (4) SA 263 (A) 277C­D.
15 Dawood, Shalabi, Thomas v Minister of Home Affairs 2000 (1) SA 997 (C) 1020E­G and 1022F.
16 Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 28; R v
Vlotman 1912 AD 136 141; SA Estates and Finance Corp Ltd v Commissioner for Inland Revenue 1927
AD 230 236; Consolidated Diamond Mines of SWA Ltd v Administrator SWA 1958 (4) SA 572 (A) 648G­
H; SA Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) 16E­G; Administrator, Transvaal v
Zenzile 1991 (1) SA 21 (A) 37G­H; Makholiso v Makholiso 1997 (4) SA 509 (Tk) 517D; Woolworths
(Pty) Ltd v Whitehead (Women's Legal Centre Trust intervening) 2000 (3) SA 529 (LAC) par 123.
17 Middelburg Municipality v Gertzen 1914 AD 544; Johannesburg Municipality v African Realty Trust Ltd
1927 AD 163 173; Bloemfontein Town Council v Richter 1938 AD 195 226­227; Administrator, Cape
Province v Ruyteplaats Estates (Pty) Ltd 1952 (1) SA 541 (A) 556G­557A; Odendaalsrus Municipality v
Odendaalsrus Gold, General Investment and Extensions Ltd 1959 (1) SA 374 (A) 381H; S v Heavyside
1976 (1) SA 584 (A) 589C­590A; Nodala v The Magistrate, Umtata 1992 (2) SA 696 (Tk).
18 53­54.
19 Possible examples from the case­law are Johannesburg Consolidated Investment Co Ltd v Marshalls
Township Syndicate Ltd 1917 AD 662 666; Randfontein Estates GM Co Ltd v Randfontein Town Council
1943 AD 475 495; Makoka v Germiston City Council 1961 (3) SA 573 (A) 581H­582B; Association of
Chartered Certified Accountants v Chairman, Public Accountants' and Auditor's Board 2001 (2) SA 980
(W) 987H.
20 Brown v Leyds (1897) 4 OR 17 39; Blankfield v Barberton, Mining Commissioner of 1912 TPD 553.
21 Holden v Minister of the Interior 1952 (1) SA 98 (T). See also for further examples of this form of
extensive interpretation, Flamwood Estates (Edms) Bpk v Die Stadsraad van Klerksdorp
1959 (3) SA 731 (A) 746C; Mpehle v Government of the RSA 1996 7 BCLR 921 (Ck)930D­E (here
invoked as "the logic of the greater including the lesser"); DVB Behuising (Pty) Ltd v North West
Provincial Government 2000 4 BCLR 347 (CC) pars 20­21.
22 Steyn 55.

2C44 The preamble, statements of purpose and the long title One issue in respect of which the law of statutory
interpretation, as it stands today, differs most markedly from the law as it stood prior to the advent and evolution
of constitutional democracy is the admissibility and manner of invoking preambles as interpretative aids. Previously,
preambles were recognised as statements setting out the objects of statutes, but were not frequently used. They
introduced mainly statutory texts of a solemn nature ­ for example, those dealing with constitutional matters1 o r
private acts such as university acts.2 It was admissible to consult a preamble to shed interpretative light on the
meaning of the provisions of the legislative instrument they prefaced,3 but then only where individual provisions
that stood to be construed were ambiguous and uncertain due to imperfect or inept formulations.4 In this qualified
sense, a preamble formed part of the intra­textual context of a statute.5

Long titles couched in less solemn and more business­like, matter­of­fact language have traditionally been taken
more seriously and have been held to be structurally part of an act.6 A long title verbalises, in a nutshell, the
subjects with which a legislative instrument deals, and states, in a similarly general vein, its objects. Recourse to
the long title of a legislative instrument has, thus, been allowed in order to ascertain that instrument's scope and
purpose.7 However, the generally formulated statements in the long title have not been permitted to derogate from
or to substitute (presumably) clearly and unambiguously formulated specific provisions of an act.8 Long titles have
also been consulted in order to clear up ambiguities.9

An increased (and increasingly unqualified) reliance on preambulatory statements in statutes for interpretative
purposes has certainly been induced by a preamble­friendly, judicial attitude towards the preambles to the
transitional10 and 199611 Constitutions (and the transitional Constitution's postamble, too).12 The Constitutional
Court13 and, to a lesser extent, high courts14 have shown a readiness to rely on constitutional preambles for
interpretative purposes without imposing the qualification that such reliance is warranted only where constitutional
language lacks clarity and/or is ambiguous.

The more unqualified use of preambles in constitutional interpretation has met with response in statutory
interpretation, too. To begin with, it seems to have become a rule of thumb for statutory draftsmen to include
preambles in statutes dealing with a variety of matters. The pattern seems to be definitely to include preambles in
legislation dealing with matters incidental to the new political and constitutional dispensation,15 or legislation
replacing pre­1994 legislation in order to deal with the matters regulated by the latter legislation in a new manner,
often as a result of constitutional requirements.16 Generally speaking, courts other than the Constitutional Court,
namely the Supreme Court of Appeal17 and high courts,18 have shown a readiness to invoke preambles to
legislative instruments, irrespective of the perceived clarity and/or ambiguity of the language of individual provisions
that stand to be construed. In at least one instance, the preamble of a statute was in so many words held to be an
expression of the intention of the legislature.19 In some exceptional cases, reliance on the preamble was still not
unqualified, but was made dependent upon the perceived absence of clear and unambiguous language.20

It has become customary since 1994 to include in statutory texts a section stating the purpose(s)/object(s) of an
act21 or a section professing to lay down guidelines in respect of the interpretation and application of the Act,22 or
both.23 It is as if the legislature is urging the interpreters of legislated texts (and the courts, in particular) to let go
of the conventional literalist­cum­intentionalist shibboleths of statutory interpretation and to opt instead for more
constructive, systematic, purposive and purposeful readings of statutory texts. The legislature is, in other words,
seeking to minimise the interpretative effects of the conventional order of primacy of the canons of statutory
interpretation.24 It does so in quite a powerful way by including interpretative precepts and guidelines in the body
of statutory texts, thereby making it hard to deny them legal efficacy. This means that specific provisions of a
statute always have to be read and reconciled with interpretative directives such as statements of the objects of an
Act, interpretative guidelines, guiding principles and/or provisions piloting the application of an Act. It is noticeable
that these directives are not, like, for instance, definition clauses, made applicable, subject to the "unless" of a
contrary intention appearing or of a context indicating otherwise. The said directives do, in a more detailed way,
what long titles used to do in a nutshell, namely mention matters to which a legislative instrument is applicable and
state the objects sought to be achieved. This is not to say that these statements have taken the place of long
titles. On the contrary, they probably serve to confirm the primary status of long titles in statutory interpretation.25
1 See eg the Republic of South Africa Constitution Act 110 of 1983 and the Transkei Constitution Act 48
of 1963.
2 Eg the University of Stellenbosch (Private) Act (House of Assembly) 107 of 1992 or the University of
Natal (Private) Act 7 of 1960.
3 Colonial Treasurer v Rand Water Board 1907 TS 479 482; R v Zonele 1959 (3) SA 319 (A) 326C;
Kistasamy (also known as Naidoo) v Pillay 1979 (3) SA 1350 (N) 1353A; Sigaba v Minister of Defence
and Police 1980 (3) SA 535 (Tk) 539G­540A.
4 Law Union and Rock Insurance Co Ltd v Carmichael's Executor 1917 AD 593 597; R v Magano and
Madumo 1924 TPD 129 139; Cape Provincial Administration v Honiball 1942 AD 1 13; S v Kola
1966 (4) SA 322 (A) 326F­H; Green v Minister of the Interior 1968 (4) SA 321 (A) 327C.
5 Jaga v Dönges; Bhana v Dönges 1950 (4) SA 653 (A) 664H.
6 Perishable Products Export Control Board v Molteno Bros 1943 AD 265 274.
7 Sheeley v Registrar and Taxing Master of SC (TPD) 1911 TPD 295 299; Bhyat v Commissioner for
Immigration 1932 AD 125 129; R v Sisulu 1953 (3) SA 276 (A) 286H­287A; SA Master Dental
Technicians Association v Dental Association of SA 1970 (3) SA 733 (A) 742E; Kaplan v Incorporated
Law Society Tvl 1981 (2) SA 762 (T) 768G­A.
8 Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 49; Dedlow v
Minister of Defence and Provost Marshal 1915 TPD 543 554; Bhyat v Commissioner for Immigration
supra 129­130; Norden v Bhanki 1974 (4) SA 647 (A) 655A; S v Kock 1975 (3) SA 332 (O) 333.
9 S v Bhengu 1968 (3) SA 606 (N) 610B.
10 Constitution of the Republic of South Africa, Act 200 of 1993.
11 Constitution of the Republic of South Africa, 1996.
12 Cf eg S v Mhlungu 1995 7 BCLR 793 (CC) par 112.
13 S v Makwanyane 1995 6 BCLR 665 (CC) pars 130, 155, 156, 262, 278, 307, 514 and 363; S v Mhlungu
1995 7 BCLR 793 (CC) pars 64, 112 and 132; Executive Council of the Western Cape Legislature v
President of the RSA 1995 10 BCLR 1289 (CC) pars 30, 39 and 61; Shabalala v Attorney­General,
Transvaal 1995 12 BCLR 1593 (CC) pars 25 and 35; Ferreira v Levin; Vryenhoek v Powell 1996 1
BCLR 1 (CC) par 255; Bernstein v Bester 1996 4 BCLR 449 (CC) par 150; Ex parte Gauteng Provincial
Legislature, In re: Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School
Education Bill of 1995 1996 4 BCLR 537 (CC) par 52; Du Plessis v De Klerk 1996 5 BCLR 658 (CC)
pars 75, 123, 125­126, 132, 157 and 159; Key v Attorney­General, Cape Provincial Division 1996 6
BCLR 788 (CC) par 13; Brink v Kitshoff NO 1996 6 BCLR 752 (CC) pars 33 and 44; Fraser v Children's
Court, Pretoria North 1997 2 BCLR 153 (CC) par 20; Minister of Justice v Ntuli 1997 6 BCLR 677 (CC)
par 32; Fose v Minister of Safety and Security 1997 7 BCLR 851 (CC) par 94; Prinsloo v Van der Linde
1997 6 BCLR 759 (CC) par 21; Harksen v Lane NO 1997 11 BCLR 1489 (CC) par 123; Soobramoney v
Minister of Health, KwaZulu­Natal 1997 12 BCLR 1696 (CC) par 9; Pretoria City Council v Walker 1998
3 BCLR 257 (CC) par 108; New National Party of SA v Government of the RSA 1999 5 BCLR 489 (CC)
par 119.
14 Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E)79D­E; Khala v Minister of Safety and
Security 1994 2 BCLR 89 (W)91F­G; Baloro v University of Bophuthatswana 1995 8 BCLR 1018
(B)1044H­1045B; Holomisa v Argus Newspapers 1996 6 BCLR 836 (W)844E; Hugo v President of the
RSA 1996 (4) SA 1012 (D) 1020E.
15 Eg the Public Protector Act 23 of 1994, the Human Rights Commission Act 54 of 1994; the Promotion of
National Unity and Reconciliation Act 34 of 1995; the Land Reform (Labour Tenants) Act 3 of 1996, the
National Youth Commission Act 19 of 1996; the Communal Property Associations Act 28 of 1996; the
Upgrading of Land Tenure Rights Amendment Act 34 of 1996; the Commission on Gender Equality Act
39 of 1996; the Borrowing Powers of Provincial Government Act 48 of 1996; the Organised Local
Government Act 52 of 1997; the Prevention of Organised Crime Act 121 of 1998; 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.
16 Eg the Labour Relations Act 66 of 1995; the Remuneration of Traditional Leaders Act 29 of 1995; the
National Education Policy Act 27 of 1996; the Mine Health and Safety Act 29 of 1996; the National
Gambling Act 33 of 1996; the Choice on Termination of Pregnancy Act 92 of 1996; the National Water
Act 36 of 1998; the Sterilisation Act 44 of 1998; the South African Schools Act 84 of 1996; the
Competition Act 89 of 1998; and the Domestic Violence Act 116 of 1998.
17 Eg Van Heerden v Joubert 1994 (4) SA 793 (A) 794C­D; Bogoshi v Van Vuuren; Bogoshi v Director,
Office for Serious Economic Offences 1996 (1) SA 785 (A) 789B; Ngcobo v Salimba CC; Ngcobo v Van
Rensburg 1999 8 BCLR 855 (SCA) par 13; Stopforth v Minister of Justice; Veenendaal v Minister of
Justice 2000 (1) SA 113 (SCA) pars 21­22; National Director of Public Prosecutions v Carolus
2000 (1) SA 1127 (SCA) par 9; SA Raisins (Pty) Ltd v SAD Holdings 2001 (2) SA 877 (SCA) par 15.
18 Eg Frame Textile Corporation Ltd v Ciskei Peoples Development Bank Ltd 1995 (2) SA 177 (Ck) 179G­
I; Gardener v East London Transitional Local Council 1996 (3) SA 99 (E) 105C; Gcali v Member of the
Executive Council for Housing and Local Government, Eastern Cape 1996 (4) SA 456 (Tk) 470E; Zeem
v Mutual and Federal Insurance Co Ltd 1996 (4) SA 476 (W) 482D; Zulu v Van Rensburg
1996 (4) SA 1236 (LCC) 1246B­E; Nieuwoudt v Truth and Reconciliation Commission 1997 (2) SA 70
(SE) 75B; Williamson v Schoon 1997 (3) SA 1053 (T) 1062C­F and 1070D­E; Gaming Association of SA
(KwaZulu­Natal) v Premier, KwaZulu­Natal (No 1) 1997 (4) SA 494 (N) 501B; Dulabh v Department of
Land Affairs 1997 (4) SA 1108 (LCC) par 5 fn 9 and par 55; Hlatshwayo v Hein 1999 (2) SA 834 (LCC)
par 24; Premier, Eastern Cape v Cekeshe 1999 (3) SA 56 (Tk) 78F; Van Zuydam v Zulu
1999 (3) SA 736 (LCC) par 10; Malan v Gordon 1999 (3) SA 1033 (LCC) par 13; Nextcom (Pty) Ltd v
Funde 2000 (4) SA 491 (T) 496F.
19 Ngcobo v Salimba CC; Ngcobo v Van Rensburg supra par 10. See also par 24.
20 Eg Konyn v Special Investigating Unit 1999 (1) SA 1001 (Tk) 1007H. In fact, however, the court did
use the preamble in this case.
21 Eg the Films and Publications Act 65 of 1996 s 2.
22 Eg the South African Schools Act 84 of 1996 s 2; the Promotion of Access to Information Act 2 of 2000
s 2; the Promotion of Administrative Justice Act 3 of 2000 s 2.
23 Eg the Competition Act 89 of 1998 ss 2 a n d 3; Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 ss 2 and 3.
24 See par 2C15 above.
25 For examples of unqualified judicial reliance on statements of purpose, c f eg Standard Bank
Investment Corporation Ltd v Competition Commission; Liberty Life Association of Africa Ltd v
Competition Commission 2000 (2) SA 797 (SCA) 817A­C per Marais JA; Nextcom (Pty) Ltd v Funde
supra 496F­G.

2C45 Schedules Constitutionalism probably does not have an impact on the conventional treatment of schedules
as intra­textual sources of clarification and elucidation which are not necessarily consulted only in instances of
uncertainty or ambiguity.1 When a court strikes down an unconstitutional statutory provision of which a schedule is
structurally part, the schedule is struck down, too.2
1 Utopia Vakansie­Oorde Bpk v Du Plessis 1974 (3) SA 148 (A) 177E­F; S v Bechoo 1979 (3) SA 946
(A); Cowburn v Nasopie (Edms) Bpk 1980 (2) SA 547 (NC) 555H­556A; Secretary for Inland Revenue
v Teljoy Ltd 1980 (3) SA 314 (T) 315E; Fourie v Bakrivier (Edms) Bpk 1981 (4) SA 690 (NC) 698A­D.
2 See National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC) para
106.

2C46 Headings and marginal notes Headings to chapters and sections of a legislative instrument form part of
the instrument and may, in principle, be consulted in determining the meaning of doubtful and ambiguous parts of
the contents of the specific chapter or section to which they refer, 1 even if the uncertainty or ambiguity does not
arise from the wording of the provision(s) in question but from other considerations as well.2 The Constitutional
Court has held that headings can be consulted in constitutional interpretation, too.3

Marginal notes printed next to each section of an enactment have not been (and will probably continue not to
be) regarded as forming part of the enactment for interpretation purposes (rubrica non est lex).4
1 Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 24;
Turffontein Estates Ltd v Mining Commissioner Johannesburg 1917 AD 419 431 437; Bhagwan's v
Swanepoel 1963 (4) SA 42 ( E ) 4 3 C ­ E ; V a n R h y n v D u P l e s s i s 1974 (3) SA 605 ( A ) ; S v W
1975 (3) SA 841 (T) 844A­C; Mkrola v Samela 1981 (1) SA 925 (A) 934B 937G­938G; Greater
Johannesburg Transitional Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank 1997 (2) SA 591
(W) 607D­F; Malan v Gordon 1999 (3) SA 1033 (LCC) par 16.
2 Turffontein Estates Ltd v Mining Commissioner Johannesburg supra 431.
3 President of the RSA v Hugo 1997 6 BCLR 708 (CC) par 12.
4 Union Government v Tonkin 1918 AD 533 544; Durban Corp v Estate Whittaker 1919 AD 195 201;
Rose's Car Hire (Pty) Ltd v Grant 1948 (2) SA 466 (A) 474; Rossouw v Sachs 1964 (2) SA 551 (A)
561H; Cornelissen v Universal Caravan Sales (Pty) Ltd 1971 (3) SA 158 (A) 175A; Padayache v
Veerapan 1979 (1) SA 992 (W) 998E; PMB Armature Winders v Pietermaritzburg City Council
1981 (2) SA 129 (N) 134H­135A. Earlier decisions to the contrary (eg Ex parte Badat (1927) 48 NLR
435 439) did not correctly reflect the law: R v Scott 1947 (4) SA 583 (T) 585.

2C47 Footnotes The use of footnotes is a novelty in legislative texts, but whether this is directly ascribable to the
advent of constitutionalism is doubtful. Footnotes are used in, for instance, the Labour Relations Act,1 the Skills
Development Act,2 the Special Pensions Act,3 the Employment Equity Act4 and the Skills Development Levies Act.5 In
the instruments just mentioned, "this act" is, however, defined as not including the footnotes. 6 The minister
concerned may, in some instances, also amend the footnotes by regulation. 7 This seems to prompt the conclusion
that the footnotes are not to be regarded as part of the act in which they occur. 8 Whether this also means that
footnotes are of no interpretative value is, however, a different question. Footnotes, for instance, facilitate cross­
referencing and can, therefore, induce intra­textual contextualisation. A footnote has, for instance, been appended
to the definition of "employee" in section 213 of the Labour Relations Act, stating that "employee" is given a
different and specific meaning in section 78 (of the act). It is hard to see that, given the footnote, a court can
conclude that the definition of "employee" in the definition clause also applies to employees mentioned in section
78. This very conclusion could possibly have been drawn in the absence of the footnote.

There has been no jurisprudence on the use of footnotes, so far.

1 66 of 1995.
2 97 of 1998.
3 69 of 1996.
4 55 of 1998.
5 9 of 1999.
6 Labour Relations Act s 213; Skills Development Act 97 of 1998 s 1; Special Pensions Act s 31;
Employment Equity Act s 1; Skills Development Levies Act s 1.
7 Labour Relations Act s 88, Basic Conditions of Employment Act s 88.
8 De Ville Constitutional and Statutory Interpretation 159.

THE CANONS OF TELEOLOGICAL INTERPRETATION

2C48 Preliminary observations Purposive interpretation is not the panacea for all the ills of literalist­cum­
intentionalist interpretation.1 A purposive interpretation of legislative and constitutional provisions is, indeed, called
for to honour the fact that statute law and the Constitution2 are meant to be of effect;3 but purposiveness and
contextualism best go hand in hand.4 As has been pointed out above,5 teleological constitutional and statutory
interpretation is preferable to ad hoc, purposive (only) interpretation. Teleological interpretation endeavours to
realise the "scheme of values" that informs the legal order. Kroon and Froneman JJ sounded the following words of
caution, with reference to reliance on purposiveness in constitutional interpretation:6
[I]t serves little purpose to characterise the proper approach to constitutional interpretation as liberal, generous, purposive
or the like. These labels do not in themselves assist in the interpretation process and carry the danger of introducing
concepts or notions associated with them which may not find expression in the Constitution itself.

Purposive interpretation in the abstract and by itself can be counterproductive. The interpretative process cannot
start off (and proceed) as an exercise in giving effect to the purpose or objects of a statutory (or constitutional)
provision, simply because such purpose or objects cannot be known prior to interpretation. They must be
established through interpretation. If not so established, the door to surmise and conjecture is wide open. The
effect of provisions at odds with the scheme of values of the legal system can, furthermore, be maximised.7

Because of its vulnerability to misapplication, some authors think that purposive (and even teleological)
interpretation should enjoy the status of a secondary (as opposed to a primary) method of interpretation.8 The
value­realising dimension of teleological interpretation can, of course, hardly be said to be "secondary", but the
word of caution concerns mainly the purposive element as such. This does not mean that purposivism is uncalled
for. The interpreter begins from the assumption that a provision to be construed has a purpose that will emerge in
the course of the process of interpretation ­ that is, as the interpreter attributes meaning to the provision relying,
inter alia, on canons of construction associated with all the different methods of interpretation. This purpose has to
be taken seriously (and must eventually be realised). The said assumption informs, inter alia, the mischief rule9 and
the presumption that statute law is not invalid or purposeless.10 The purpose of a provision (or ratio legis) emerges
as the process of interpretation proceeds, and is eventually developed into a response to the contingencies of an
actual or hypothetical concrete situation. Purposive and, beyond that, teleological interpretation join forces with
systematic interpretation to emphasise the unity of interpretation and application ­ a topic raised, above.11 The
partnership of systematic interpretation and purposivism is not insignificant, because the determination of a ratio
legis in accordance with the scheme of a legislative instrument, as a whole, reins in the preferences and prejudices
of the interpreter. These latter "subjective factors" can, of course, not be totally banned from the interpretative
arena. However, they may be left unchecked if a purposive reading in the abstract is acceded to without ado ­ a
consequence as delusive as denying the effects of an interpreter's "inarticulate premises"12 on interpretative
outcomes. What may follow in both instances is what Kentridge AJ, in S v Zuma,13 called "divination" as opposed to
"interpretation" ­ and then not necessarily a divination of values but of the inarticulate premises of the interpreter.
Iudices est ius dicere sed non dare14 and the rule enjoining statutory interpreters to give general effect to provisions
framed in general terms15 are both canons of teleological interpretation seeking to counter such a divination of the
interpreter's preferences and prejudices.

Other canons of teleological interpretation pertain to the intensity of the operational effect of statutory
provisions in various circumstances. Questions regarding the hierarchy and status of legislation are, for instance,
essentially questions of legislative teleology, the key issue being with what measure of force various kinds of
legislation obtain vis­à­vis one another, should they be applicable in and to similar concrete situations. 16 T h e
interpretative precepts pertaining to peremptory and directory provisions are of the same order.17

Teleological interpretation is forward­looking interpretation based on what can be learnt from past experience.
This is a general way of restating the mischief rule,18 but also another way of saying that statutes and the
Constitution ought to be construed mindful of the continuing time­frame within which they obtain.19 This makes the
links between teleological and historical interpretation obvious. More will be said about these links when historical
interpretation is dealt with.20
1 Devenish 1995 TSAR 597.
2 Constitution of the Republic of South Africa, 1996.
3 See eg pars 2C10 and 2C26 above.
4 See eg par 2C40 above.
5 See par 2C14(f) above.
6 Qozoleni v Minister of Law and Order 1994 1 BCLR 75 (E)80D.
7 Mureinik 1986 SALJ 620. Cf also McCreath "The 'Purposive Approach' to Constitutional Interpretation"
in Constitution and Law II 65­68.
8 Müller 1999 Stell LR 275­276 and Juristische Methodik 248­249.
9 See par 2C14(f) above.
10 See par 2C26 above.
11 See par 2C40 above.
12 This is the terminology that Dugard Human Rights and the SA Legal Order 374 uses.
13 1995 4 BCLR 401 (SA) par 18.
14 See par 2C51 below.
15 See par 2C51 below.
16 See par 2C6 above.
17 See par 2C49 below.
18 See par 2C14(e) above.
19 See par 2C14(i) above.
20 See par 2C52 below.

2C49 Peremptory and directory provisions Simply to state that legislative precepts are purposive is not enough.
The courts, mainly in a series of "compliance cases" since the early 1960s, have maintained that in certain
circumstances and on specific conditions it may be necessary also to gauge the actual intensity of the operational
effect of such precepts. This can be important for two reasons. First, if a provision authorises an individual
functionary or a body to exercise a certain power or powers, it has to be determined exactly how strictly he, she or
it has to comply with the stipulations contained in the provision. Second, where a provision stipulates conditions for
the performance of a certain act, it is necessary to establish whether non­compliance (or defective or partial
compliance) with prescribed conditions will render such action null and void.1

In spite of a constitution's supremacy ­ and unequivocal statements of such supremacy in South Africa's t w o
Constitutions since 19942 ­ the Constitutional Court, invoking mainly semantic guidelines, has intimated that the
distinction between peremptory and directory provisions also applies to the Constitution and, therefore, in the
context of constitutional interpretation.3

However, it may be that the majority judgment of the Constitutional Court in African Christian Democratic Party
(ACDP) v The Electoral Commission4 has dealt the distinction between peremptory and directory provisions a blow,
since the court raised the question whether a provision can be ever so peremptory that eo nomine compliance with
it has to be preferred to realising its purpose, and the court itself, in point of fact, answered this question in the
negative.5 The Supreme Court of Appeal previously also voiced rejection of a categorical distinction between
peremptory and directory provisions in Weenen Transitional Local Council v van Dyk6 and the ACDP case thus actually
confirmed an already existing move away from such a distinction.
1 Du Plessis Re­Interpretation of Statutes 249.
2 Constitution of the Republic of South Africa, Act 200 of 1993 s 4, and Constitution of the Republic of
South Africa, 1996 s 2.
3 Executive Council of the Western Cape Legislature v President of the RSA 1995 10 BCLR 1289 (CC)
par 62; Azanian Peoples Organisation (AZAPO) v President of the RSA 1996 8 BCLR 1015 (CC) par 14;
Prinsloo v Van der Linde 1997 6 BCLR 759 (CC) par 13.
4 2006 5 BCLR 579 (CC) pars 25­26, 2006 (3) SA 305 (CC). See also par 2C14 (f) above.
5 Le Roux 2006 SA Public Law 388­394.
6 2002 (4) SA 653 (SCA) 659B­F per Olivier JA.

2C50 It is for a court to interpret and not to re­enact legislation The maxim iudicis est ius dicere sed non
dare/facere ("it is the province of the judge to expound the law, but not to make it") has gained wide recognition in
the case­law.1 It professes to verbalise democratic values closely associated with trias politica,2 b u t i n a n
undemocratic, pre­1994 South Africa, it served to contain the judiciary from "interfering in politics", thereby leaving it
entirely up to the government of the day to decide what was just and what not, with regard to legislation.
According to the literalist­cum­intentionalist version of iudices est ius dicere sed non dare, it is not competent for the
interpreter­adjudicator to depart from or go beyond the clear words of a statutory provision he or she construes.3

The dominant judicial attitude regarding the interpretation of politically controversial provisions (or handing down
politically controversial judgments) has been dealt with above.4 The preparedness of judges to construe statutes
so as to avoid injustice or individual hardship has always been inversely proportionate to the degree of clarity and
lack of ambiguity of the language of the provision in question: the greater the latter, the lesser the former, and vice
versa. This is best illustrated by the courts' conventional reliance (or lack of reliance) on the presumption that
statute law is not unjust, inequitable or unreasonable.5

The advent of constitutional democracy has had and will continue to have a dramatic impact on conventional
judicial perceptions of iudices est ius dicere sed non dare. All judicial officers are now "bound by their oath of office" to
construe all legislation subject to the supreme Constitution6 and in a manner promoting the spirit, purpose and
objects of the Bill of Rights.7 Decisions on the interpretation of statutes can no longer be justified in terms of canons
of construction hierarchised with deference to literalist­cum­intentionalist sentiments,8 but have to withstand the
test of conforming to the Constitution and promoting values congruous with such conformity.

Iudices est ius dicere sed non dare has, however, not become functus officio in the realm of statutory
interpretation9 and can still play, as has been indicated, 10 the purposive (and teleological) role of restraining a
divination of interpreters' preferences and prejudices. To this end, the maxim could, perhaps, be rephrased thus: it
is the province of the interpreter of an enacted law­text primarily to give the best possible effect to the text as it stands
and not to (try and) re­enact (or rewrite) it.
1 See eg Seluka v Suskin and Salkow 1912 TPD 258 270; Harris v Law Society of the Cape of Good
Hope 1917 CPD 449 451; Union Government (Minister of Mines) v Thompson 1919 AD 404 425; Estate
Reid v Goodwin 1920 AD 367 373; Santy's Wine and Brandy Co (Natal) Ltd v The District Commandant
SA Police 1945 NPD 115 117; R v Tebetha 1959 (2) SA 337 (A) 346G; S v Khanyapa 1979 (1) SA 824
(A) 835; S v Blaauw 1980 (1) SA 536 (C) 537H; S v Ncokazi 1980 (3) SA 789 (Tk) 797E­F.
2 See pars 2C41­2C43 above.
3 Bulawayo Municipality v Bulawayo Waterworks Ltd 1915 CPD 435 445; Bhyat v Commissioner for
Immigration 1932 AD 125 129; R v Goldes 1944 OPD 54 59; Wellworths Bazaars Ltd v Chandler's Ltd
1947 (2) SA 37 (A) 45; Administrateur Tvl v Carletonville Estates Ltd 1959 (3) SA 150 (A) 153E­G; S v
Diedericks 1969 (3) SA 270 (C) 274G­H; List v Jungers 1979 (3) SA 106 (A) 123C­D; Spinnaker
Investments (Pty) Ltd v Tongaat Group Ltd 1982 (1) SA 65 (A) 75B­E.
4 See par 2C12 above.
5 See par 2C18 above. See also Surtee's Silk Store (Pty) Ltd v Community Development Board
1977 (4) SA 269 (W) 273G­H.
6 Constitution of the Republic of South Africa, 1996 s 2; see par 2C2 above.
7 S 39(2). See also s 174(8) read with sch 2(6)(1).
8 See par 2C15 above.
9 And courts are still eg slow to imply words into a statute: Road Accident Fund v Clayton
2001 (3) SA 305 (C) 309C.
10 See par 2C48 above.

2C51 Provisions framed in general terms must be understood to have a general effect General terms are
inclusive terms not unduly allowing for exceptions.1 Read with the presumption that an enactment applies to
general and not to particular instances,2 the rule that provisions framed in general terms must be understood to
have a general effect requires a reading of a statutory or constitutional provision that discourages undue
restrictions of the scope of the provision as well as overeager searches for loopholes. Exceptions to general rules
are read restrictively. 3 In principle, this applies to the general limitation clause in the Constitution,4 too, but the
Constitutional Court has not simply treated this clause (and its predecessor in the transitional Constitution)5 in this
manner.6

Reading generally can, of course, be no hard and fast rule and, like all canons of construction, obtains as a
starting point of interpretative reasoning, subject to qualifications and exceptions. This means that a
constitutionally required restrictive reading of a provision ­ for instance, a "reading down"7 or a reading promoting
constitutional values in accordance with section 39(2) o f the Constitution ­ prevails over any general reading
compatible with the requirement that general language be understood generally.
1 See eg Bulawayo Municipality v Bulawayo Waterworks Ltd 1915 CPD 435 443; Oberholzer v
Johannesburg City Council 1951 (4) SA 115 (T) 118A­B; Commissioner for Inland Revenue v NST
Ferrochrome (Pty) Ltd 1999 (2) SA 228 (T) 232D­E.
2 See par 2C19 above.
3 Norwich Union Life Insurance Society v Dobbs 1912 AD 395 399; SA Broadcasting Corporation v
Pollecutt 1996 (1) SA 546 (A) 556D.
4 Constitution of the Republic of South Africa, 1996 s 36.
5 Constitution of the Republic of South Africa, Act 200 of 1993 s 33.
6 De Ville Constitutional and Statutory Interpretation 113.
7 See par 2C13 above.

THE CANONS OF HISTORICAL INTERPRETATION

2C52 Preliminary observations According to Von Savigny, 1 historical interpretation requires entry into and
identification with the historical situation from which a law emerged. The spirit of this history is more significant than
the "historical facts" (in other words, the events connected with the genesis of that law). From this "spirit of
history" much can be learnt about the ratio legis. Teleological interpretation lacking a historical foundation is, in fact,
empty. The mischief rule, for instance, as a manifestation of teleological interpretation, 2 shows an alertness to the
historicity of a legislated text. The provision to be construed is perceived as a response to a mischief that existed in
a given historical situation, which situation, as well as the law as it then stood, must be appreciated in order fully to
apprehend the effects of the provision as the measure aimed at redressing it.3 The "new Constitution" has itself
also been described as the remedy to a fundamental mischief in South Africa's history, namely the previous
constitutional system.4

In South Africa, historical interpretation has generally been thought of as genetic interpretation ­ in other words,
as a method of interpretation that focuses on the genesis of an enacted law­text (and on "preceding
deliberations")5 or on the history of the wording of the text.6 However, custom, 7 references to the predecessors
and successors of a provision to be construed,8 and surrounding circumstances more or less coinciding with the
adoption of the provision9 have all been held to be allowable historical indicia of the meanings that may be
attributed to a provision. The historical source from which a provision derives is also sometimes consulted.10
1 Savigny System des heutigen Römischen Rechts I 252­253.
2 See par 2C14(f) and par 2C48 above.
3 The judgment of Marais JA, Farlam JA and Brand AJA in Thoroughbred Breeders' Association v Price
Waterhouse 2001 (4) SA 551 (SCA) is a good example of a judicial endeavour to do precisely this. See
also par 74 per Nienaber JA.
4 Qozeleni v Minister of Law and Order 1994 1 BCLR 7581G­H per Kroon and Froneman JJ referring to
the (transitional) Constitution of the Republic of South Africa, Act 200 of 1993.
5 For the distinction between historical and genetic interpretation, see Müller Juristische Methodik 204­
206.
6 De Wet Interpretasie van Wette 7­8; see par 2C57 below.
7 See par 2C53 below.
8 See par 2C54 below.
9 See par 2C57 below.
10 See par 2C55 below.

2C53 Custom as interpreter of legislation It is not clear (yet) to what extent reliance on custom in statutory (and
constitutional) interpretation has been (or may be) affected by the advent of constitutionalism. Traditionally, the
courts have attached interpretative weight to customs evolving on a vertical level ­ that is, those customs that have
come into being as a result of the conduct of authorised functionaries of the state.1 Court decisions dealing with the
interpretative value of custom refer almost exclusively to customs which have evolved on a vertical level. It is,
therefore, quite conceivable that, over time, certain ways of dealing with the Constitution,2 and with the business
of the constitutional state, may establish themselves as customs that will carry interpretative weight in statutory
and constitutional interpretation.
1 Labuschagne 1979 De Jure 96­99.
2 Constitution of the Republic of South Africa, 1996.

2C54 References to other statutes The courts sometimes refer to the similar or related predecessor(s) (and, less
often, successors) of a statutory provision in an attempt to attribute to that provision the best possible present­day
meaning.1 This used to be done on the literalist­cum­intentionalist2 condition that the provision that stands to be
construed had to be couched in less­than­clear­and­unambiguous language.3 However, De Ville 4 is of the opinion
that this condition has, in recent times, been relaxed.5 The preceding (or subsequent) legislation qualifying to clarify
the provision under consideration must also be "kindred legislation" ­ that is, legislation in pari materia.6

Generally speaking, it is also admissible to have regard to the way in which a particular word or phrase is
interpreted or defined in another contemporary act. However, if meaning can be attributed to a word or phrase from
the section that stands to be construed itself, or from other provisions of the act under consideration, resort to
unconnected statutes is unwarranted.7 A statute may, as a rule, also not be interpreted by reference to delegated
legislation.8

Provisions in the 1996 Constitution9 essentially similar to provisions in the transitional Constitution10 have been
attributed meanings corresponding to those they have acquired in jurisprudence on the latter, or have, at least,
been construed or elucidated with reference to the earlier meanings attributed to them.11 "A change in expression
between the interim Constitution and the Constitution could conceivably indicate that the drafters intended a
change in meaning. However, it should not necessarily be understood to convey a change in meaning if the
language in its context does not require this".12

Can the Constitution be understood in light of statute law? The rule of thumb, no doubt, is that legislation is to
be read in the light of the supreme Constitution, and not vice versa. However, the growing body of subsidiary
constitutional statute law that augments and gives fuller and more detailed effect to constitutional provisions13 and
jurisprudence on its interpretation, will somehow probably impact on constitutional interpreters' understanding of
some of the expansive and open­ended provisions of the Constitution in much the same way as the (subordinate)
Interpretation Act14 may shed interpretative light on provisions of the Constitution.15 However, the meaning
attributed to words and phrases in legislation dating from the era prior to the advent of constitutional democracy
m a y n o t d i c t a t e t h e a t t r i b u t i o n o f m e a n i n g t o t h e s a m e w o r d s a n d p h r a s e s w h e n t h e y a r e u s e d i n the
Constitution.16
1 Cf eg Principal Immigration Officer v Purshotam 1928 AD 435 440; Union Government v Rosenberg
(Pty) Ltd 1946 AD 120 128; Joosub Ltd v Ismail 1953 (2) SA 461 (A) 466D­467H; Youngleson
Investments (Pty) Ltd v South Coast Regional Rent Board, Graham Properties Ltd v South Coast
Regional Rent Board 1971 (1) SA 405 (A) 413G­H; Durban City Council v Shell and BP Southern Africa
Petroleum Refineries (Pty) Ltd 1971 (4) SA 446 (A) 454E­H; Johnston v Leal 1980 (3) SA 927 (A) 937E­
G; Rosenberg v SA Pharmacy Board 1981 (1) SA 22 (A) 28F­H; Suliman v Minister of Community
Development 1981 (1) SA 1108 (A) 1119C­H; Law Society Tvl v Behrman 1981 (4) SA 538 (A) 547G­H
554G­H.
2 See par 2C14(d) above.
3 Ex parte Minister of Justice, In re: R v Masow 1940 AD 75 90; Ex parte Minister of Justice, In re: R v
Demingo 1951 (1) SA 36 (A) 44A­B; Brink v Wiid 1968 (1) SA 536 (A) 541H­542A; Collie v The Master
1972 (3) SA 623 (A) 629H; S v Cocklin 1971 (3) SA 776 (A) 781G­H; Ebrahim v Minister of the Interior
1977 (1) SA 665 (A) 680.
4 Constitutional and Statutory Interpretation 233­234.
5 De Ville refers to judgments such as Protective Mining and Industrial Equipment Systems (Pty) Ltd
(Formerly Hampo Systems (Pty) Ltd) v Audiolens (Cape) (Pty) Ltd 1987 (2) SA 961 (A) 981­987;
 Hollywood Curl (Pty) Ltd v Twins Products (Pty) Ltd (2) 1989 (1) SA 255 (A) 258­262; S v Malindi
1990 (1) SA 962 (A) 971­974; Conshu (Pty) Ltd v Commissioner for Inland Revenue 1994 (4) SA 603
(A) 620F­I; Nel NO v Body Corporate of the Seaways Building 1996 (1) SA 131 (A) 135­136; Golden
China TV Game Centre v Nintendo Co Ltd 1997 (1) SA 405 (A) 410­412; Nissan SA Pty Ltd v
Commissioner for Inland Revenue 1998 (4) SA 860 (SCA) 870­874.
6 Nkabinde v Nkabinde and Nkabinde 1944 WLD 112 122; Johannesburg City Council v Makaya 1945 AD
252 259; Hleka v Johannesburg City Council 1949 (1) SA 842 ( A ) 8 5 0 ; R v v o n Z e l l ( 2 )
1953 (4) SA 552 (A) 558F­G; Estate Brownstein v Commissioner for Inland Revenue 1957 (3) SA 512
(A) 523B­G.
7 Metropolitan Council v Eskom 2000 (1) SA 866 (SCA) par 20.
8 Levi Strauss & Co v Coconut Trouser Manufacturers (Pty) Ltd 2001 (3) SA 1258 (SCA) par 8.
9 Constitution of the Republic of South Africa, 1996.
10 Constitution of the Republic of South Africa, Act 200 of 1993.
11 National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 12 BCLR 1517 (CC) par 15
and pars 33­35; S v Twala (Human Rights Commission Intervening) 2000 1 BCLR 106 (CC).
12 S v Twala supra par 17.
13 See par 2C10 above.
14 33 of 1957.
15 See par 2C13 above.
16 Ex parte President of the RSA: In re Constitutionality of the Liquor Bill 2000 1 BCLR 1 (CC) par 60,
2000 (1) SA 732 (CC).

2C55 The historical source from which a provision derives The South African law of statutory interpretation
derives, to a large extent, from English common law.1 English dicta are, therefore, often cited in support of the use
of canons of construction or in justification of a certain approach to statutory interpretation. South African common
law stands to be developed in accordance with the spirit, purport and objects of the Bill of Rights.2 Any English­ (or
Roman­Dutch­) law maxim or canon of construction inconsistent with deference to the said constitutional injunction
will have to be "developed" into something more acceptable. Canons of construction that have been invoked to give
expression to the English idea of parliamentary sovereignty can no longer find application (in that manner) in South
Africa. Compliance with constitutional (and constitutionalist) demands has come to overshadow the long­standing
historical debate about which of the historical sources of the law, namely Roman­Dutch or English law, should enjoy
preference in the interpretation of statutes.
1 Du Plessis Re­Interpretation of Statutes 121­123.
2 Constitution of the Republic of South Africa, 1996 s 39(2).

2C56 Surrounding circumstances It is permissible to take into consideration relevant surrounding circumstances
that existed at the time a statute (or constitution) was passed, in order to explore the meaning possibilities of the
text.1 These circumstances must be such that a court can take judicial cognisance of them.2

Reliance on surrounding circumstances emphasises the close connection of the mischief rule3 with historical
interpretation.4 It is, therefore, not surprising that, in the interpretation of South Africa's two Constitutions since
1993,5 both of which seek to redress the mischief of a previous constitutional system,6 reference is readily made to
the circumstances surrounding and, indeed, occasioning the adoption of these two key texts.7 It may well happen
that liberal reliance on references to surrounding circumstances in constitutional interpretation may, in time, result
in an increased (and increasingly unqualified) reliance on such references in statutory interpretation too.
1 R v Detody 1926 AD 198 208 229; SAR&H v Smith's Coasters (Prop) Ltd 1931 AD 113 127; Harris v
Minister of the Interior 1952 (2) SA 428 (A) 457A­B. For a more indirect application of this canon, see
also Malan v Die Oranje­Vrystaatse Ongedierte Bestrydings­ en Wildbewaringsvereniging
1 9 7 6 ( 1 ) S A 8 3 0 (O) 836A­F; Komani v Bantu Affairs Administration Board Peninsula Area
1980 (4) SA 448 (A) 463F­H; Bamford v Minister of Community Development and State Auxiliary
Services 1981 (3) SA 1054 (C) 1057F­H; Minister of Land Affairs v Slamdien 1999 4 BCLR 413 (LCC)
pars 14 and 17­26.
2 Consolidated Diamond Mines of SWA Ltd v Administrator SWA 1958 (4) SA 572 (A) 657F­H; Diepsloot
Residents' and Landowners' Association v Administrator, Transvaal 1994 (3) SA 336 (A) 347D­E;
Christian Lawyers Association of SA v Minister of Health 1998 11 BCLR 1434 (T)1438H­1440H.
3 See par 2C14(f) above.
4 Devenish Interpretation of Statutes 132. See also Thoroughbred Breeders' Association v Price
Waterhouse 2001 (4) SA 551 (SCA), the judgment per Marais JA, Farlam JA and Brand AJA, as well as
par 74 per Nienaber JA.
5 Constitution of the Republic of South Africa, Act 200 of 1993, and Constitution of the Republic of South
Africa, 1996.
6 Qozeleni v Minister of Law and Order 1994 1 BCLR 7581G­H; S v Makwanyane 1995 6 BCLR 665 (CC)
par 323.
7 For examples, see De Ville Constitutional and Statutory Interpretation 231­232.

2C57 The genesis of the text The common law (as reflected in the case­law) excludes reliance on travaux
préparatoires in statutory interpretation.1 Sources of information thus excluded are parliamentary debates (as
reported in Hansard),2 bills,3 the reports of parliamentary committees,4 and explanatory memoranda accompanying
bills.5 Reference to press reports is also not admitted.6

In Case v Minister of Safety and Security; Curtis v Minister of Safety and Security,7 the speech of the Minister of
Justice during the second reading of a bill was referred to for the purpose of sketching the background to an
impugned statutory provision.8 The Constitutional Court was at pains, however, to emphasise that this modus
operandi did not amount to condonation of the use of the said information in deciding the meaning of the provision
in question.9

The reports of parliamentary and other commissions of investigation recommending the adoption of specific
legislation may more readily be consulted when that legislation is construed.10 Nowadays, the publication of a bill is
often accompanied by the publication of an explanatory memorandum from its drafters. Such a memorandum, it
would seem, may readily be relied on to help determine the purpose of statutory provisions eventually resulting
from the bill.11

The Constitutional Court's view of the use of travaux préparatoires relaxes, for purposes of constitutional
interpretation, the common­law taboo on a similar modus operandi in statutory interpretation. In S v Makwanyane,12
Chaskalson P held that "[b]ackground evidence may . . . be useful to show why particular provisions were or were
not included in the Constitution".13 The court did not, however, profess to deduce a possible meaning of specific
constitutional provisions from this background evidence and, moreover, gleaned the evidence from a fairly
"objective" source, namely reports of a technical committee advising the constitution­makers.14 The court refrained
from expressing an opinion as to whether reliance on "background evidence" would be admissible in the
construction of enacted instruments other than the (transitional) Constitution.
1 Bok v Allen (1884) 1 SAR 119; Mathiba v Moschke 1920 AD 354 361 362; Mavromati v Union
Exploration Import (Pty) Ltd 1949 (4) SA 917 (A) 927; Shalom Investments (Pty) Ltd v Dan River Mills
Incorporated 1971 (1) SA 689 (A) 705B; S v M 1979 (4) SA 1044 (BT) 1048A­B.
2 Bok v Allen supra 152­153; Mathiba v Moschke supra 361­362; Mavromati v Union Exploration supra
927; S v Shangase 1972 (2) SA 410 (N) 414E­G; S v Nkosi 1972 (2) SA 753 (T) 755C­D; S v Naidoo
1974 (4) SA 574 (N) 598C.
3 R v Ristow 1926 EDL 168 173.
4 Mavromati v Union Exploration Import (Pty) Ltd supra 927; Shalom Investments (Pty) Ltd v Dan River
Mills Incorporated supra 705B; S v M supra (B) 1048A­B.
5 Ngcobo v Van Rensburg 1999 (2) SA 525 (LCC) par 27.
6 S v Naidoo supra 598C.
7 1996 5 BCLR 609 (CC) par 12 per Mokgoro J.
8 The Obscene Photographic Matter Act 37 of 1967 s 2(1) read with s 1.
9 Par 12 fn 18.
10 Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) 562J­
563A. See also S v Mphetha 1985 (3) SA 702 (A) 712H­713D; Trident Steel (Pty) Ltd v John 1987 8 ILJ
27 (W) 34G­I; Attorney­General, Eastern Cape v Blom 1988 (4) SA 645 (A) 668G­669F.
11 National Union of Mineworkers of SA v Driveline Technologies 2000 (4) SA 645 (LAC) pars 79­80;
Shoprite Checkers (Pty) Ltd v Ramdaw 2001 (3) SA 68 (LC) par 59.
12 1995 6 BCLR 665 (CC) par 19.
13 Ibid. This finding is not uncontroversial: c f Davis, Cheadle and Haysom Fundamental Rights in the
Constitution 8­11.
14 S v Makwanyane supra par 25 and especially fn 33.

TRANSNATIONAL CONTEXTUALISATION

2C58 Preliminary observations Von Savigny1 did not mention comparative interpretation as one of his methods
of legal interpretation (nor did he make any reference to international law), but comparative interpretation has
been added to the preceding Savignian quartet of interpretive methods in the course of time. Two modes of
transnational contextualisation will be considered below: first, the interpretation of municipal statute law and the
Constitution2 in light of international law and, secondly, the interpretation of domestic statute law and the
Constitution in light of foreign law. The first instance of transnational contextualisation is not "comparative" in the
same way as the second, since a court (and the state) may in some cases be under an obligation to observe
international law.

In constitutional interpretation in particular the Constitutional Court has on occasion mistakenly conflated the
interpretive observance of international law, on the one hand, and comparative interpretation in light of foreign law,
on the other. 3 As will be shown below these are two distinct procedures both relating to the transnational context
in which both constitutional and statutory interpretation take place.
1 System des Heutigen Römischen Rechts I.
2 Constitution of the Republic of South Africa, 1996.
3 S v Makwanyane 1995 6 BCLR 665 (CC) p a r 3 9 , 1995 (3) SA 391 ( C C ) , 1995 2 SACR 1 ( C C ) ;
Sanderson v Attorney­General, Eastern Cape 1997 12 BCLR 1675 (CC) par 26, 1998 (2) SA 38 (CC);
a l s o c f D u P l e s s i s Interpretation in Woolman, Roux, Klaaren, Stein, Chaskalson and Bishop,
Constitutional Law of SA (CLoSA) 2 ed 32­137.

2C59 International law Reliance on international law in statutory interpretation as required by section 233 of the
Constitution, as well as the constitutional requirements for international law to become binding law, were discussed
previously when the presumption that statute law does not violate international law was dealt with.1

Section 39(1)(b) of the Constitution2 enjoins interpreters of the Bill of Rights to consider international law. Such
deference to international law situates South Africa in the comity of those nations which, jointly and severally,
profess to take to heart the realisation of democracy and the protection of fundamental rights and freedoms in
accordance with transnationally recognised standards.3 Much reliance was placed, in the drafting of both of South
Africa's constitutional texts, on international human rights instruments.4 I n S v Makwanyane,5 the Constitutional
Court consulted such instruments to try and establish whether capital punishment is at odds with "international
standards" and by that token unconstitutional in South Africa too. The said standards were actually gleaned from
binding as well as non­binding international law, including customary international law, and even regional human
rights treaties to which South Africa cannot become a party ­ for example, the European Convention on Human
Rights. Jurisprudence on all these sources of international law may presumably also be consulted for purposes of
constitutional interpretation in South Africa. De Ville6 points out that judges of the Constitutional Court have not,
however, always been consistently and equally enthusiastic about reliance on international law (and comparative)
sources for purposes of constitutional interpretation.
1 See par 2C22 above.
2 Constitution of the Republic of South Africa, 1996; the predecessor to this provision was s 35(1) of the
Constitution of the Republic of South Africa, Act 200 of 1993.
3 In Azanian Peoples Organisation (AZAPO) v President of the RSA 1996 8 BCLR 1015 (CC) par 26,
1994 (4) SA 671 (CC) Mahomed DP, for instance, observed that "the lawmakers of the Constitution
should not lightly be presumed to authorise any law which might constitute a breach of the obligations
of the State in terms of international law".
4 Eg the Universal Declaration on Human Rights; the International Covenant on Civil and Political Rights;
the International Covenant on Economic, Social and Cultural Rights; and the European Convention on
Human Rights. See also Du Plessis and Corder Understanding South Africa's Transitional Bill of Rights
47 120­121. This, at least, was the case with the drafting of the interim Constitution, but many of the
provisions of the 1996 Constitution are based (sometimes almost verbatim) on provisions of the
interim Constitution thus drafted.
5 1995 6 BCLR 665 (CC) pars 33­39, 1995 (3) SA 391 (CC).
6 Constitutional and Statutory Interpretation 243.

2C60 Foreign (case) law The question of dealing with the interpretation of statute law taken over from or
substantially akin to English law has been dealt with, above, as an issue related to historical interpretation, since
English law is one of the historical sources of South African law.1 It can also be dealt with as a matter of
comparative interpretation.2

Section 39(1)(c) of the Constitution3 authorises, but does not require, an interpretation of the Bill of Rights with
reference to foreign law. Foreign constitutions were consulted in drafting South Africa's post­1994 Constitutions and
Bills of Rights, in particular. 4 South African courts have relied on comparative jurisprudence in the interpretation of
the bills of rights especially, but have done so subject to the caveat that the jurisprudence in other jurisdictions will
not necessarily always offer a safe guide to constitutional and bill­of­rights interpretation in South Africa.5 T h e
(constitutional) law of foreign jurisdictions will be consulted especially in areas where conventional wisdom on
constitutional matters has not established itself in South Africa.6 Due regard will then be had to the experience in
other countries in order to find principles rather than to extract "rigid formulae, and to look for rationales rather
than rules". 7 Chaskalson P's reminder in this regard is apt:8
[W]e must bear in mind that we are required to construe the South African Constitution, and not . . . 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 . . . foreign case law, but we are in no way
bound to follow it.

1 See par 2C55 above.

2 De Ville Constitutional and Statutory Interpretation 238­240.
3 Constitution of the Republic of South Africa, 1996. The predecessor to this provision was s 35(1) of the
Constitution of the Republic of South Africa, Act 200 of 1993.
4 The Canadian, German and Namibian Constitutions had a major impact on the drafting of the 1993
Constitution (Du Plessis and Corder Understanding South Africa's Transitional Bill of Rights 47). This
influence persists in the 1996 Constitution.
5 S v Makwanyane 1995 6 BCLR 665 (CC) par 37.
6 Mistry v Interim Medical and Dental Council of SA 1998 7 BCLR 880 (CC) par 3.
7 Coetzee v Government of the RSA; Matiso v Commanding Officer, Port Elizabeth Prison 1995 10 BCLR
1382 (CC) par 57 per Sachs J.
8 S v Makwanyane supra par 39. See also Qozeleni v Minister of Law and Order 1994 1 BCLR 75 (E)80B­
C ; S v Botha 1994 3 BCLR 93 (W)110F­G; Park­Ross v Director: Office of Serious Economic Offences
1995 2 BCLR 198 (C)208C­E; Ferreira v Levin; Vryenhoek v Powell 1996 1 BCLR 1 (CC) par 72;
Bernstein v Bester 1996 4 BCLR 449 (CC) par 133; Ex parte Speaker of the National Assembly. In re:
Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill No
83 of 1995 1996 4 BCLR 518 (CC) pars 13­15; Du Plessis v De Klerk 1996 5 BCLR 658 (CC) par 144;
Brink v Kitshoff NO 1996 6 BCLR 752 (CC) pars 34­40; Fose v Minister of Safety and Security 1997 7
BCLR 851 (CC) par 58; Prinsloo v Van der Linde 1997 6 BCLR 759 (CC) pars 18­21; S v Lawrence; S
v Negal; S v Solberg 1997 10 BCLR 1348 (CC) par 141; Sanderson v Attorney­General, Eastern Cape
1997 12 BCLR 1675 (CC) par 26.

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