THEME 4: THREE APPROACHES TO INTERPRETATION
4.1. THE ORTHODIX TEXT-BASED APPROACH
Lecture notes & slides
Lecture 8
The orthodox approach
- Text-based approach, literalist-cum-intentionalist approach
- Intention of legislature derived from plain meaning of words used
- Golden rule: only in plain meaning = ambiguous, vague or misleading, or would
result in absurd results, may deviate from strict literal interpretation, by looking at
secondary aids (e.g. long title, chapter headings)
˃ Venter v R 1907 TS 910
- Only when secondary aids are insufficient, may look at tertiary aids (e.g. common-
law presumptions)
- Derived from English law, introduced into SA law in De Villiers v Cape Divisional
Council (1875)
- Parliamentary sovereignty, separation of powers: limit power of courts, which must
give effect to words of legislation
- Legal positivism: apply law as it is, not how it ought to be
- Distinction common law & legislation recreative power of courts
Criticisms
- Do words have ordinary meaning?
- Is meaning of words usually clear & unambiguous?
- Why should context be considered only as last resort?
- Equation of intention w/ plain meaning of words
- Courts seen to play a mechanical role – interpret law, not make it – misunderstands
nature of courts’ task to concretise general provisions
˃ Example: bring three chairs
˃ Gap between words used and concrete context in which applied
˃ Creative function of courts
- E.g. constitution of the US 1st amendment: ‘congress shall make no law… abiding the
freedom of speech, or of the press’
1
, - What qualifies as speech?
˃ Waving/burning flag
˃ Pornography
˃ Hate speech
- Whose speech
˃ Big companies
˃ Social media bot
- When is freedom of speech abridged?
˃ Age restrictions
- Does no law really mean no law?
- Excuse for avoiding inconvenient moral dilemmas
- Holmes JA in Minister of the Interior v Lockhart 1961 (A):
˃ “The Group Areas Act represents a colossal social experiment and a long term
policy. It necessarily involves the movement out of Group Areas of numbers
of people throughout the country. Parliament must have envisaged that
compulsory shifts of persons occupying certain areas would inevitably cause
disruption and, within the foreseeable future, substantial inequalities. Whether
all this will prove to be for the common weal of all the inhabitants is not for
the Court to decide.... The question before this Court is the purely legal one
whether this piece of legislation impliedly authorises, towards the attainment
of its goal, the more immediate and foreseeable discriminatory results
complained of in this case. In my view, for the reason which I have given, it
manifestly does.”
˃ Persistence of the orthodox text-based approach – Frith’s Estate 2001 (SCA)
Language as a conduit
- Meaning controlled by speaker, listener is passive
- Writer/speaker puts ideas (objects) into words/expressions (containers) & sends them
(along a conduit) to reader/listener who extracts meaning from the words
- Applied to statutory interpretation
- What is hidden from view by this metaphor?
- E.g., intention of legislature, as derived from ordinary meaning of the words used
- Disregards role of context; interpreter; pre-understanding; biases and assumptions
2
4.1. THE ORTHODIX TEXT-BASED APPROACH
Lecture notes & slides
Lecture 8
The orthodox approach
- Text-based approach, literalist-cum-intentionalist approach
- Intention of legislature derived from plain meaning of words used
- Golden rule: only in plain meaning = ambiguous, vague or misleading, or would
result in absurd results, may deviate from strict literal interpretation, by looking at
secondary aids (e.g. long title, chapter headings)
˃ Venter v R 1907 TS 910
- Only when secondary aids are insufficient, may look at tertiary aids (e.g. common-
law presumptions)
- Derived from English law, introduced into SA law in De Villiers v Cape Divisional
Council (1875)
- Parliamentary sovereignty, separation of powers: limit power of courts, which must
give effect to words of legislation
- Legal positivism: apply law as it is, not how it ought to be
- Distinction common law & legislation recreative power of courts
Criticisms
- Do words have ordinary meaning?
- Is meaning of words usually clear & unambiguous?
- Why should context be considered only as last resort?
- Equation of intention w/ plain meaning of words
- Courts seen to play a mechanical role – interpret law, not make it – misunderstands
nature of courts’ task to concretise general provisions
˃ Example: bring three chairs
˃ Gap between words used and concrete context in which applied
˃ Creative function of courts
- E.g. constitution of the US 1st amendment: ‘congress shall make no law… abiding the
freedom of speech, or of the press’
1
, - What qualifies as speech?
˃ Waving/burning flag
˃ Pornography
˃ Hate speech
- Whose speech
˃ Big companies
˃ Social media bot
- When is freedom of speech abridged?
˃ Age restrictions
- Does no law really mean no law?
- Excuse for avoiding inconvenient moral dilemmas
- Holmes JA in Minister of the Interior v Lockhart 1961 (A):
˃ “The Group Areas Act represents a colossal social experiment and a long term
policy. It necessarily involves the movement out of Group Areas of numbers
of people throughout the country. Parliament must have envisaged that
compulsory shifts of persons occupying certain areas would inevitably cause
disruption and, within the foreseeable future, substantial inequalities. Whether
all this will prove to be for the common weal of all the inhabitants is not for
the Court to decide.... The question before this Court is the purely legal one
whether this piece of legislation impliedly authorises, towards the attainment
of its goal, the more immediate and foreseeable discriminatory results
complained of in this case. In my view, for the reason which I have given, it
manifestly does.”
˃ Persistence of the orthodox text-based approach – Frith’s Estate 2001 (SCA)
Language as a conduit
- Meaning controlled by speaker, listener is passive
- Writer/speaker puts ideas (objects) into words/expressions (containers) & sends them
(along a conduit) to reader/listener who extracts meaning from the words
- Applied to statutory interpretation
- What is hidden from view by this metaphor?
- E.g., intention of legislature, as derived from ordinary meaning of the words used
- Disregards role of context; interpreter; pre-understanding; biases and assumptions
2
