IOS2601 Semester 01 Assignment 01
QUESTION 1
1.1 LIST the main grounds (at least five) on which the textualist approach to
interpretation may be criticized. (5)
• In the first instance, the normative role of the common-law presumptions during
the interpretation process is reduced to a mere ‘last resort’, to be applied only
if the legislative text is ambiguous.
• Another point of criticism of this narrow approach is that words (their literal
meaning) are regarded as the primary index to legislative meaning. According
to the court in R v Hildick-Smith1 there is only one kind of interpretation with one
definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act.
• Other important internal and external aids to interpretation, which could be
applied to establish the meaning of text-in-context, are ignored. The context of
the legislation is only used if the text is not clear. Unless the textual meaning is
ambiguous or unclear, the interpreter will not have recourse to the wide range
of aids to interpretation at his disposal.
• As a result, the ‘intention of the legislature’ is ultimately dependent on how clear
the language used in the legislation may be to the particular court.
• Very few texts are so clear that only one final interpretation is possible. The
mere fact that a discipline such as interpretation of statutes exists would, by
implication, suggest that legislation is seldom clear and unambiguous.
• The text-based approach leaves very little room for judicial law-making, and the
courts are seen as mere mechanical interpreters of the law. This view creates
the impression that once the legislature has spoken, the courts cease to have
any lawmaking function.2
1 R v Hildick-Smith 1924 TPD 68 81.
2 Christo Botha Statutory Interpretation: An introduction for students (5 ednJuta 2014) 95.
, 1.2 DEFINE what interpretation by implication means and then LIST the five (5)
main grounds of extension by implication. (7)
Interpretation by implication involves extending the textual meaning on the ground of
a reasonable and essential implication, which is evident from the legislation. There are
various grounds on which the provisions of the legislation may be extended by
implication:
• Ex contrariis: Here the implications arise from opposites. If the legislation
provides for a particular circumstance, by implication it provides the contrary
provision for the opposite circumstance.
• Ex consequentibus: If legislation demands or allows a certain result or
consequence, everything which is reasonably necessary to bring about that
result or consequence may be implied.
• Ex accessorio eius de quo verba loquuntur: If a principal thing is forbidden or
permitted, the accessory thing is also forbidden or permitted.
• Anatura ipsius rei: This refers to implied inherent relationships—for example,
the power to issue a regulation implies the power to withdraw it.
• Ex correlativis: This arises from mutual or reciprocal relationships (eg
prohibiting the purchase of certain things includes the prohibition of the sale of
such goods).3
1.3 NAME five (5) generally accepted methods of constitutional interpretation.
(5)
1. Grammatical interpretation (Important role of language), which focuses on linguistic
and grammatical meaning of words, phrases and sentences.
2. Systematic/contextual interpretation which concentrates on the meaning of a
specific provision in the context of the whole text (an holistic approach). Intra and extra
textual aids are often used.
3. Teleological interpretation (Fundamental constitutional values, value orientated
interpretation). The aim and purpose of the provision must be ascertained against
fundamental rights and the constitutional values must be taken into consideration.
3 Botha Statutory Interpretation 173.
QUESTION 1
1.1 LIST the main grounds (at least five) on which the textualist approach to
interpretation may be criticized. (5)
• In the first instance, the normative role of the common-law presumptions during
the interpretation process is reduced to a mere ‘last resort’, to be applied only
if the legislative text is ambiguous.
• Another point of criticism of this narrow approach is that words (their literal
meaning) are regarded as the primary index to legislative meaning. According
to the court in R v Hildick-Smith1 there is only one kind of interpretation with one
definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act.
• Other important internal and external aids to interpretation, which could be
applied to establish the meaning of text-in-context, are ignored. The context of
the legislation is only used if the text is not clear. Unless the textual meaning is
ambiguous or unclear, the interpreter will not have recourse to the wide range
of aids to interpretation at his disposal.
• As a result, the ‘intention of the legislature’ is ultimately dependent on how clear
the language used in the legislation may be to the particular court.
• Very few texts are so clear that only one final interpretation is possible. The
mere fact that a discipline such as interpretation of statutes exists would, by
implication, suggest that legislation is seldom clear and unambiguous.
• The text-based approach leaves very little room for judicial law-making, and the
courts are seen as mere mechanical interpreters of the law. This view creates
the impression that once the legislature has spoken, the courts cease to have
any lawmaking function.2
1 R v Hildick-Smith 1924 TPD 68 81.
2 Christo Botha Statutory Interpretation: An introduction for students (5 ednJuta 2014) 95.
, 1.2 DEFINE what interpretation by implication means and then LIST the five (5)
main grounds of extension by implication. (7)
Interpretation by implication involves extending the textual meaning on the ground of
a reasonable and essential implication, which is evident from the legislation. There are
various grounds on which the provisions of the legislation may be extended by
implication:
• Ex contrariis: Here the implications arise from opposites. If the legislation
provides for a particular circumstance, by implication it provides the contrary
provision for the opposite circumstance.
• Ex consequentibus: If legislation demands or allows a certain result or
consequence, everything which is reasonably necessary to bring about that
result or consequence may be implied.
• Ex accessorio eius de quo verba loquuntur: If a principal thing is forbidden or
permitted, the accessory thing is also forbidden or permitted.
• Anatura ipsius rei: This refers to implied inherent relationships—for example,
the power to issue a regulation implies the power to withdraw it.
• Ex correlativis: This arises from mutual or reciprocal relationships (eg
prohibiting the purchase of certain things includes the prohibition of the sale of
such goods).3
1.3 NAME five (5) generally accepted methods of constitutional interpretation.
(5)
1. Grammatical interpretation (Important role of language), which focuses on linguistic
and grammatical meaning of words, phrases and sentences.
2. Systematic/contextual interpretation which concentrates on the meaning of a
specific provision in the context of the whole text (an holistic approach). Intra and extra
textual aids are often used.
3. Teleological interpretation (Fundamental constitutional values, value orientated
interpretation). The aim and purpose of the provision must be ascertained against
fundamental rights and the constitutional values must be taken into consideration.
3 Botha Statutory Interpretation 173.
