LE ROUX ARTICLE ANALYSIS AND SUMMARY
Le Roux distinguishes two different judicial approaches to the question whether legislation
can be read in conformity. Discuss these two approaches, with reference to the case law
discussed in his article. Focus particularly on the judgments in National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Daniels v Campbell. Which of
these two approaches is preferable in your view?
Here's a breakdown of the two approaches as discussed by Le Roux:
1. Textualist Approach (Narrow Interpretation):
o Description: This approach, largely championed by Ackerman J in National
Coalition, emphasizes a strict adherence to the literal or ordinary meaning of the
words in the statute. Interpretation is limited to what the text is "reasonably capable
of meaning," and any construction that "distorts the linguistic meaning of the term" is
rejected. If the text cannot reasonably bear a constitutionally compliant meaning, then
the legislation is declared unconstitutional, and a constitutional remedy like "reading-
in" is applied to alter the text.
o Case Law:
National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs: The court held that the term "spouse" could not be
interpreted to include same-sex life partners because its ordinary meaning
connoted a married person (husband or wife). To do so would "distort the
linguistic meaning of the term." Thus, the legislation was unconstitutional
and required "reading-in" to include "or partner, in a permanent same-sex life
partnership."
Satchwell v Minister of Home Affairs: Madala J, following the textualist
approach, reiterated that "spouse" referred to "a party to a marriage that is
recognised by law" and could not reasonably be interpreted to include
unmarried couples. Again, reading-in was necessary.
Daniels v Campbell (Minority, Moseneke J): Moseneke J strongly
advocated for a narrow textualist interpretation, insisting that "spouse" should
be restricted to legally married couples only. He argued that the method of
construction laid down in section 35(2) of the interim Constitution (and now
section 39(2) of the final Constitution) meant that interpretation must not be
"fanciful or far-fetched" and must "reasonably arise from the challenged text
without unwarranted strain, distortion or violence to the language." If the text
didn't allow for a constitutionally compliant meaning, it should be declared
unconstitutional and remedied by reading-in.
Fourie v Minister of Home Affairs (Majority, Cameron JA): Cameron JA
adhered to the textualist approach, stating that the marriage formula requiring
"lawful husband (or wife)" could not reasonably be given a wider meaning to
include same-sex partners without "changing the word." This required
declaring the formula unconstitutional and applying reading-in.
2. Purposive/Functionalist Approach (Wider Interpretation):
o Description: This approach, visible in some judgments and advocated by writers like
Labuschagne and Devenish, looks beyond the mere linguistic meaning of the text to
Le Roux distinguishes two different judicial approaches to the question whether legislation
can be read in conformity. Discuss these two approaches, with reference to the case law
discussed in his article. Focus particularly on the judgments in National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Daniels v Campbell. Which of
these two approaches is preferable in your view?
Here's a breakdown of the two approaches as discussed by Le Roux:
1. Textualist Approach (Narrow Interpretation):
o Description: This approach, largely championed by Ackerman J in National
Coalition, emphasizes a strict adherence to the literal or ordinary meaning of the
words in the statute. Interpretation is limited to what the text is "reasonably capable
of meaning," and any construction that "distorts the linguistic meaning of the term" is
rejected. If the text cannot reasonably bear a constitutionally compliant meaning, then
the legislation is declared unconstitutional, and a constitutional remedy like "reading-
in" is applied to alter the text.
o Case Law:
National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs: The court held that the term "spouse" could not be
interpreted to include same-sex life partners because its ordinary meaning
connoted a married person (husband or wife). To do so would "distort the
linguistic meaning of the term." Thus, the legislation was unconstitutional
and required "reading-in" to include "or partner, in a permanent same-sex life
partnership."
Satchwell v Minister of Home Affairs: Madala J, following the textualist
approach, reiterated that "spouse" referred to "a party to a marriage that is
recognised by law" and could not reasonably be interpreted to include
unmarried couples. Again, reading-in was necessary.
Daniels v Campbell (Minority, Moseneke J): Moseneke J strongly
advocated for a narrow textualist interpretation, insisting that "spouse" should
be restricted to legally married couples only. He argued that the method of
construction laid down in section 35(2) of the interim Constitution (and now
section 39(2) of the final Constitution) meant that interpretation must not be
"fanciful or far-fetched" and must "reasonably arise from the challenged text
without unwarranted strain, distortion or violence to the language." If the text
didn't allow for a constitutionally compliant meaning, it should be declared
unconstitutional and remedied by reading-in.
Fourie v Minister of Home Affairs (Majority, Cameron JA): Cameron JA
adhered to the textualist approach, stating that the marriage formula requiring
"lawful husband (or wife)" could not reasonably be given a wider meaning to
include same-sex partners without "changing the word." This required
declaring the formula unconstitutional and applying reading-in.
2. Purposive/Functionalist Approach (Wider Interpretation):
o Description: This approach, visible in some judgments and advocated by writers like
Labuschagne and Devenish, looks beyond the mere linguistic meaning of the text to
