RVW UNIT 6.2

the court’s approach (1)

fluctuates between narrow, formalist literalism and broad, free-thinking purposivism, can’t pin it down finally,based on theories of interpretation

the court’s approach (2)

can fluctate from case to case, depending on the content, objectives, nature of legislative instrument

dominant trend in court’s approach

literalist-cum-intentionalist approach

interpretive formalism

most theories believe one form-related facet of the written text of a statute can help determine the meaning of its provisions decisively —> clear and unambiguous, approach purely textual

Literalism

formalistic, puts forward adhering to the linguistic form a legislated provision is written in; it defers to words and language a provision is couched in

SCA on literalism

interpretation —> the meaning of words used by the legislature + start the task by referring to words used + leave extra considerations later

Bato Star Fishing Pty Ltd v Minister of Environmental Affairs and Tourism

CC aligned itself with statutory construction that regards the context in which words occur even where words construed are clear and unambiguous

golden rule

the ordinary and grammatical sense od a statute (plain words) must be adhered to unless it would lead to an absurdity contrary to legislature’s intentions/inconsistency with the rest of the instrument, salvages and does not sink literalism

what may a court do to deal with an absurdity

a court may depart from the literal meaning of the provision to eliminate the absuridity/ give effect to the “true intention” of the legislature

req for dealing with an absurdity

language must properly and fairly allow for a departure from the literal meaning of the provision + must be clear that what the interpreter perceives as an absurdity could not have been intended by the legislature (intention clear + utterly glaring absurdity

BOR and literalism

an interpretive result that is contrary, varies, unjust, unreasonable to spirit, purport or object of BOR warrants a departure from the literal meaning of a provision

impact of literalism on the golden rule

assuages not abandons as clear and unambiguous language remains a statute’s primary source of meaning

Intentionalism

once discerned, the intention of the legislature must be given effect, seek out intention from studying provision of the statute, fundamental premise of stat interpretation

A formalised version of the legislature’s intention

the level of certainity given to the disclosure of the legislature depends on the clarity and unambiguity of language in the statute

intention of the legislature

ideas behind the written text, effect-directedness of the law, command of the supreme law giver

Literalist-cum-intentionalism(1)

determining the intention of the legislature is the object of stat interpretation intention of the legislature can be ascertained from the language of a statute (grammatical structure provides for fixed ordinary meaning + correct use of language = objective clarity —> saves from arb subjectivis)

Literalist-cum-intentionalism(2)

if the legislature had a specific intention, they would have used clear and unambiguous language to express it

SCA on Literalist-cum-intentionalism(2)

starting point for stat interpretation is to ascertain legislature’s intention from wording of provision (give words plain, ordinary and literal meaning)

Venter

the language of legislative instrument/relevant portion of the instrument of a whole must be looked at when placing grammatical construction on words in q and giving them ordinary effect —> stat interp beyond linguistic formalism that takes notice of intratextual context of a provision

Critiques of literalism (1)

const and reformative legislation —> broad const language, calls into question clarity of language + limits of literalism

Critiques of literalism (2)

natural language —> open system of lang used in everyday context —> legal language —> meaning constantly in flux + conflict, esp where legal conflicts are being resolved

Critiques of literalism (3)

language is not always clear + objective as interpreter will have their own understanding of lang, personal/moral/intellectual ideas + own understanding of context (this affects what is clear to them) + at times, the language used by the framer when applied to certain cases may go beyond what they had in mind

contextualism

the meaning of a provision is determinable by reading its langauge/word/provision in context + bg/hist taken into account where language renders intention of legislature unclear

interpretation ex visceribus actus

a specific provision must be understood as a part of the more encompassing legislative instrument that it is included in, harmonisation of different provisions in one and the same statute that appear to be conflicting

Jaga v Donges on language in context

idea that language of a provision must be consrued in light of its context has the same weight as the idea that language of statute must be construed in terms of its ordinary meaning

context according to Jaga

beyond the rest of the statute, looks at provision’s matter, its apparent scope and purpose and within limits, its bg

Approaches to stat interpretation from Jaga (1)

two approaches emerge —> interpreter starts by focusing on the ordinary and literal meaning of a provision only appealing to context when language admits more than one meaning OR ordinary meaning and context are dealt with simulataneously from the outset (same result as the object in both cases is to ascertain meaning of language in context)

Approaches to stat interpretation from Jaga (2)

approach 1 disregards context where language and plain ordinary meaning are clear while approach 2 requires simultaneous consideration of context and language even where language is clear

Interpreting const in context

imp to construe provisions in context, not isolation —> other const provisions (esp CH 3 which was BOR in IC at time) + legislative hist to drafting and adopting const (parli debates) + extra socio-political hist

purposivism

mischief rule —> enacted law seeks to suppress a mischief and promote the remedy designed to eliminate it —> defect in legal system is fixed by legislation

purposivism and const

old const system - fundmental mischief that requires application of new const to supress it —> so const —> remedial measure that must be construed generously to supress the mischief of past injustice

Hleka v Johannesburg City Council

what was the common law before the enactment of the provision, what was the mischief/defect for which the common law did not provide, what is the remedy resolved and appointed by the legislature to cure the disease of the commonwealth

Limitations for purposivism

accepted method of statutory interpretation to give effect to the purpose of the legisaltion but only appropriate where language of the statute is unclear/is ambiguous

Purposivism-cum-intentionalism

aligns with readiness of courts to go beyond the literal form of a provision and consider the purpose and design behind it —> pre-amble and statements of purpose

teleological approach

aspires to realise the scheme of values (aims + goals) the legal order is based on (the total const in SA)