Interpretation of Statutes

Study Unit 1
27 July
The outcomes of this unit:
• What is statutory interpretation?
• Why is statutory interpretation important? What is the significance
of statute law?
• What are the advantages of statute law? What are the
disadvantages of statute law?
• Who are the interpreters of statutes and the Constitution? What is
constitutionalism?
• What is majoritarianism?
• What is the counter-majoritarian difficulty
Prescribed materials:
 Class slides + notes.

 Fuller “The case of the speluncean explorers” 1949 Harvard Law Review
616.

 Van Staden "The case of the Speluncean explorers in the South African
Constitutional Court" 2015 Obiter 1.

 Klare “Legal culture and transformative constitutionalism” 1998 South

African Journal of Human Rights 146.
 Du Plessis: par 2C1 and 2C2 Introduction chapter.
Unpacking the questions, you will have to be able to answer regarding
this chapter.

1. What is Interpretation of Statutes?

There are 4 perspectives you can use to define Interpretation of
Statutes?
(It was said in the lecture that you only have to know one of these
perspectives.)
1. According to Du Plessis:” The subject Interpretation of Statutes is
concerned with the principle, method, rules and techniques which
jurists employ in order to understand statutes.ie legal precepts
deriving from legislative activity, and to apply their provisions to
concrete, practical situations. “
2. According to Popkin: “The process by which judges determine
statutory meaning.”
3. According to Barak: “ A rational activity that gives meaning to legal
texts.”
4. In Natal Joint Municipal Pension Fund v Endumeni Municipality
“ Interpretation is the process of attributing meaning to the words used in
a document, be it legislation, some other statutory instrument or
contract, having regard to the context provided by reading the particular
provision or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence.”

2.Why is statutory interpretation important? What is the significance of

Statute law? [4 reasons]
Indispensable source-This is because Legislation has become an
indispensable(necessary) source of contemporary law.
Inquire into interpretative approach- It is important to inquire into the
interpretative approach of the judiciary as it advances predictability of
legal dispositions.
Meaning-generation- Meaning-generation is a function of statutory
interpretation and every application of a text to particular circumstances
entails interpretation.
Legislature legislates- The legislature legislates both vague and precise
language which raises concerns related to the separation of powers and
the function of the legislature through the judiciary.
Judiciary’s potential to contribute- The judiciary has through its power of
interpretation the potential to contribute to the transformation of the
South African society.
The most important way of addressing deficiencies of the common law
effectively is by means of legislation.
Legislature is also an institution that is capable of responding quickly and
effectively to frequently fluctuating circumstances of a socio-economic
nature.
Emphasis on one of the abovementioned points:
Meaning-generation- Meaning-generation is a function of statutory
interpretation and every application of a text to particular circumstances
entails interpretation.
So here is an example how you would be tested and application/use of
meaning-generation:
Past paper example:
There is a park and there is a sign that says “no drinking” a person
decides they are going to go to a park and will take a non-alcoholic beer
and drink it, police officer approaches you and tells you, you are being
fined.
Does this person deserve this fine?
Tip: Your conclusion is determined by how you interpret that
provision.
You can interpret it by looking it at the purpose of the provision.
The case of the Speluncean Explorers: Illustrates the importance of
statutory interpretation.
Facts
  In a fictional country called New-Garth, there were a group of 5
Speluncean Explorers and they wanted to explore a cave and they
would this in mountains.
 Where they would go deep into the mountains and the caves but
then some rocks loosened and resulted in the explorers being
trapped into the cave.
 However, they were able to communicate with rescuers to tell them
that they stuck and they needed help.
 The rescuers could eventually locate where they were but
informed them that they would take time to reach them.
 A physician recommended that if they are out of food, they should
eat flesh to survive.
 They decided to roll a dice and Mr Roger was to be eaten.
 4 of them were left and when they returned to their country, they
were charged with the murder of Mr Roger.
Question:
Should the explorers be convicted of murder?
Take note of the law of the country:
Newgarth’s Statute: “Whoever shall willfully take the life of another shall
be punished by death.”
(Base your answer on the law and the circumstances)

Judgement: Note how the this shows how different approaches to

the interpretation of statutes can affect the outcome of cases:
Chief Justice Truepenny It seems to me that in dealing with
this extraordinary case the jury
and the judge followed a course
that was not only fair and wise
but the only course that was
open to them under the law.

That the language of the Statute

“Whoever shall willfullly take the
life of another shall be punished
by death.”
 This statute permits of no
exception applicable to this case.
If this is done then justice will be
accomplished without impairing
the spirit of our statutes and
without offering any
encouragement for the disregard
of law.

Affirms the conviction.

Justice Foster Set the conviction aside

On the basis of two arguments

centred on natural law.

1) That the defendants were

outside the jurisdiction of the
court and were in a state of
nature.

2) The purpose of criminal law

to deter would not be served
if the defendants are
convicted.
Justice Tatting There is deep uncertainty within
the law, the purpose of law is not
always clear.

Withdraws

Justice Keen Moral and personal feelings are

irrelevant when deciding cases.
A judge should apply the law that
has been enacted.

Affirms conviction
Justice Handy Public opinion should be
considered. In this instance public
opinion indicated that majority of
the people did the accused to be
convicted.
 Sets aside conviction.

What is the purpose of the construction of the case?

The case was constructed for the sole purpose of bringing into
common focus certain divergent philosophies of law and
government.
Those philosophies presented men with live questions of choice in the
days of Plato and Aristole.
The Constitutional Court’s approach to the interpretation of statutes:
 Klare has observed that legal interpretation in South Africa tends to
be more highly structured, technicist, literal and rule bound.
 Statutory interpretation in South Africa resembles the approach of
the Chief Justice and Justice Keen in the case of the Speluncean
Explorers.

The advantages of legislation:

 Easily accessible and knowable.
 Flexible- can be easily amended.
 Contributes to legal certainty as it is a written document.