Statutory Interpretation:

LB 105 - Study Guide

Page 1 of 110
 Chapter 1: Introduction to statutory interpretation in Zimbabwe

1.1 UNDERSTANDING STATUTE LAW

The course on statutory interpretation entails the study of the rules and principles that
govern the process of assigning a specific meaning to a statutory provision for the
purposes of applying that meaning to a concrete situation. This shows clearly that
before one can embark on a study of these rules, one has to have adequate
understanding of the nature of statute as a law creating instrument. The questions that
must be answered are

What is statue law? How does statute law create legally binding rules? What does it
look like? What are its purposes? How does it develop? Who are the actors involved
in the shaping it? How does it relate with other sources of law?

1.2 WHAT IS STATUTE LAW?

Statute law may also be referred to as legislation or enactments. Statute law is the
generic term used to refer to the Acts of Parliament. The term includes subsidiary /
subordinate and delegated legislation. It should however be noted that not all Acts of
Parliament will end up in the statute books. Amendments to existing legislation are
effected through legislation known as “amending Acts” but, ordinarily, these amending
Acts do not enjoy an independent existence beyond the legislative process. They are
immediately absorbed into the principal legislation, modifying the amended portions of
the statute. Thus, for example, one does not ordinarily refer to provisions of the
Electoral Amendment Act [Act No. 3 of 2012] but to the Electoral Act [Chapter 2:13],
as amended.

Section 131(2) of the Constitution provides the following definition of an Act of

Parliament:
An Act of a Parliament is a bill which has been
a) Presented in and passed by both houses of Parliament; and

Page 2 of 110
 b) Assented to and signed by the president
In accordance with the Constitution

From this definition, we get several ideas about the nature of statute law which play a
role in the interpretation of the statute:

– A bill ordinarily originates elsewhere other than Parliament itself

– Three distinct entities are involved in the creation of valid statutes ( National
Assembly, Senate and the President)
– Statutes are created by Parliament therefore the creation of statute law involves
a political process
– Statues must comply with the Constitution

The place of statute law in the hierarchy of laws

There are several sources of law in Zimbabwe: the Constitution, statute law, common
law, African customary law and international law. These sources are not equal and it
is possible to discern a hierarchy. The position of statute law in this hierarchy has an
influence on the interpretation of statutes.

Section 2 of the Constitution provides that the Constitution is the Supreme Law of the
land. What this means is that the Constitution is the most important law in the country.
It is the standard against which the validity of all other laws in the country will be tested.
The Constitution itself is a special type of statute but strictly speaking, it is referred to
as a suis generis document, or a document that is of its own kind.

Section 192 of the Constitution provides that the law to be administered in Zimbabwe
is the law that was in force at the effective date as subsequently modified. The law
that was in force at the effective date is the law that was provided for under section 89
of the Lancaster House constitution. Section 192 understood in light of section 89 1 of

1
Section 89 of the Lancaster House Constitution provided: “Subject to the provisions of any law for the time
being in force in Zimbabwe relating to the application of African customary law, the law to be administered by
the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the
law in force in the Colony of the Cape of Good Hope on 10th June, 1891, ……..” This law consists mainly of the
Roman Dutch common law as interpreted by the South African courts and the elements of English Law that had
been incorporated into the South African legal system as at the indicated date.

Page 3 of 110
the previous Constitution and read with section 2, therefore establishes the following
hierarchy of laws:

1. The Constitution
2. Statute law ( including delegated legislation) ( including incorporated
international agreements)
3. Common law ( including customary international law)
4. African customary law

Overview of Zimbabwean Statute Law

Currently there are about 400 statutes in Zimbabwe, dealing with a wide range of
issues. All statutes deal with issues of either public law, private law or procedural law.
Public law consists of legal rules that seek to regulate the relationship between the
individual and the state or between or among public institutions. Examples of statutes
dealing with public law matters are the Administrative Justice Act [CAP 10: 28] and the
Police Act [CAP 11:10]. Private law consists of legal rules which regulate the
relationship between or among private individuals. Examples of statutes dealing with
issues of private law are the Marriage Act [CAP 5:11] and the Insurance Act [CAP
24:07]. Procedural law consists of rules that govern the process of bringing legal
disputes for adjudication before the courts. Examples of statutes dealing with
procedural law matters are the Supreme Court Act [CAP 7:13] and the Magistrates
Court Act [CAP 7:10]. This classification is not very helpful because in most cases,
one finds elements of all classifications of law in one statute.

Zimbabwean statutes are classified under 29 titles or chapters that group together the
statutes that deal with similar matters. For example, statutes dealing with defense,
security and public order matters are found in title 11 while those dealing with matters
to do with the President and Parliament are found in title 2. These classifications are
for convenience and reference purposes only and no special significance should be
read into them for purposes of interpretation.

1.3 HOW STATUTES ARE MADE2

2
The discussion in this paper is limited to the making of laws emanating from public bills and does not include
private members bills

Page 4 of 110
Statues are made by the legislature, which, in terms of section 117 of the Constitution,
consists of the President3 and Parliament. The power to make statutes includes the
power to vary, amend, alter or repeal them. The rules for making statute law are found
in the Constitution4 and in the Standing Orders of Parliament5.

1.4 WHY STATUTES ARE MADE (THE PURPOSES OF STATUTES)

Statutes serve many purposes, including the following:

PURPOSE EXAMPLE
To create the legal rules in a new field of Carriage by Air Act [CAP 13:04]
human activity
To create rules regulating conduct in a Betting and Totalizator Control Act [CAP
pre-existing field of human activity 10:02]
To prohibit and punish certain conduct Chemical Weapons (Prohibition) Act
[CAP 11:18]
To promote and reward certain conduct
To constitute public institutions University of Zimbabwe Act [CAP
11:10]
To raise revenue Customs and Excise Act [CAP 23:02]
To appropriate revenue Appropriation Act
To establish the legal procedures for Shop Licences Act, [CAP 14:17], the
how certain acts should be carried out Arbitration Act [CAP 7:15]
To alter / repeal existing statute law The Environmental Management Act
[CAP 20:27], repeals the Natural
Resources Act
To alter the common law The Contractual Penalties Act [CAP
8:04]
To delineate space and regulate its use Protected Places and Areas Act
To appoint pubic officers and confer Justices of the Peace and
special powers on them Commissioners of Oaths Act
To codify the common law The Companies Act [CAP 24:03]

3
It must be understood that although the President is part of the legislature he does not exercise primary law
making powers. His role is limited to assenting to bills that have been passed by Parliament.
4
Sections 130 – 134 of the Constitution
5
Standing Orders 103 – 153 of the House of Assembly Standing Orders (2005).

Page 5 of 110
 To codify African customary law The Traditional Leaders Act [CAP 29:17]
To incorporate the rules of international The Geneva Conventions Act [CAP
law 11:06]

1.5 HOW A STATUTE DEVELOPS

There are several important processes and actors in the development of a statute, and
these fall under three distinct stages, namely, pre-parliamentary, parliamentary and
post parliamentary stages. The processes and actors in each of these stages are
briefly described below. The different actors are underlined for easy identification:

Pre Parliamentary Stages

Statutes are basically the legal expression of public policy. All statutes therefore start
with policy formulation. A policy position is developed by the relevant Minister as a
response to a need or a challenge encountered in administering the activities in a
particular sector. For example the Minister of Health may formulate a policy to prioritize
infant nutrition in response to the challenge of infant malnutrition and consequent high
infant mortality rate. The Ministry may develop this policy out of its own initiative or in
response to lobby and advocacy activities by civil society groups. The media may have
also played a part by publishing stories on infant deaths related to malnutrition, thereby
raising the issue to the public fore. The Ministry may have also consulted the public
through a white paper, prior to formulating the policy. It may also be that the new policy
is based on the recommendations of the Law Development Commission6.

The new policy may have been influenced by Parliament itself in the exercise of its
oversight function. For example, a Committee of Parliament may have conducted a
visit on prisons and identified and reported on certain weaknesses in the prison
management system, together with recommendations. These recommendations may
then have formed the basis for a policy on prison reform.

All proposed policies must be approved by Cabinet. When cabinet approval has been
obtained, the Minister will prepare a memorandum of principles setting out the main
objectives of the proposed bill and the measures he intends to put in place to give

6
The Law Development Commission is an institution set up by the Law Development Commission Act [CAP
1:02] to promote the development and reform of the Law in Zimbabwe.

Page 6 of 110
effect to the new policy. It is this memorandum of principles which the Attorney
General’s Office’s Department of Legal Drafting will use to draft the provisions of the
bill.

Parliamentary Stage

Once the memorandum of principles has been approved by Cabinet, The Attorney
General’s Office will draft the bill in accordance with the principles. The final version
of the draft bill must be approved by the client Ministry. Once it has been approved by
the Ministry, the bill is then introduced to Parliament for the ordinary stages in the
legislative process including the following: First reading, referral to the Parliamentary
Legal Committee7, second reading and committee stage, third reading, referral to the
other House and finally, referral to the President for Presidential assent

The actors at this stage are the parliamentarians themselves who must debate on the
bill and vote on it at its various stages. The relevant portfolio committee should play a
leading role by subjecting the bill to more rigorous scrutiny than any other committee
and lead the debates during the Committee of the whole house. The portfolio
committee is also expected to submit a report on the bill at the second reading stage.

Other important players during the parliamentary stage are the parliamentary
secretariat, civil society organizations and the office of the Attorney General. The
secretariat of Parliament, particularly the committee clerks and the researchers play a
crucial role in research, documentation and custody of the discussions around the Bill
and facilitation of communication between Parliamentarians and external
stakeholders. Civil society organizations may also attempt to influence the outcome of
the bill through lobby and advocacy activities. Finally, the office of the Attorney General
is responsible for redrafting the bill to incorporate any amendments agreed upon.

Post-parliamentary Stages

Post Parliamentary stages commence when the bill has been passed by both houses.
The next stage is the submission of the Bill to the President for assent. Section 51 of
the Constitution provides that when a bill has been submitted to the President for

7
The Parliamentary Legal Committee is set up in terms of section 40A of the Constitution to examine all bills
and amendments to bills and report to Parliament on whether in the opinion of the committee the bill
contains any provisions which are in violation of the Declaration of Rights or any other provision of the
Constitution. It also examines statutory instruments and draft statutory instruments.

Page 7 of 110
assent, he must make a decision within 21 days. The reasons for which the President
may withhold his assent to a bill are not spelt out and he is not required to give reason
for acting either way.

When the bill has been assented to, the Clerk of Parliament is required to send a
certified copy to the High Court for enrollment8 and to the Government Printer for
publication in the Gazette. Generally, a bill becomes law upon its publication in the
Gazette9. It is thereafter assigned a place in one of the chapters of the statute books,
depending on its subject matter.

The President is the authority that assigns the Minister to administer any particular
statute.

The making of a statute ends formally with the promulgation of the Act of Parliament.
A law duly promulgated (or portions of it), may however be struck down by the
Supreme Court if it is found to be unconstitutional.

Legislative History

It should be noted that various documents are generated at each stage of the
legislative process. Some of these documents have value in the interpretation of
statutes as we shall see in a later part of the study when we look at external aids to
interpretation.

STAGE MATERIAL
Pre parliamentary  Policy statements
 Reports of the Law develop
Commission
 Reports of Commissions of inquiry
 Memorandum of principles
 Instructions to the AG’s office
legislative drafters
 Minutes of consultation meetings

Parliamentary  Reports of Portfolio committees

8
Section 53 of the Constitution
9
Section 51(5) of the Constitution

Page 8 of 110
  Reports of the Parliamentary
Legal Committee
 Second reading speech
 Debates
 Reports generated during the
mandatory pre-legislative
consultations
Post parliamentary  Reasons given by the President
for withholding his assent
 Advisory opinion of the
Constitutional Court

1.6 SUBSIDIARY LEGISLATION

The meaning of the term “statute” encompasses both the Act of Parliament and any
subsidiary legislation made under it10. Subsidiary legislation also known as delegated
or subordinate legislation is law which is made by other authorities other than
Parliament in terms of legislative powers delegated to that authority by Parliament.
Section 32 of the Constitution permits Parliament to delegate its law making functions
to “any person or authority”. Typically, Parliament will concern itself with the general
framework and scheme of the statute and leave the details to be dealt with in
regulations made by the responsible Minister.

Scope of Delegation

When passing subsidiary legislation, the Minister or other delegate must act strictly
within the confines of his delegated powers. The scope of these powers is set out in
the enabling provision of the principle legislation. Any provision in a subsidiary
legislation, which is in excess of his delegated powers is said to be ultra vires the
principle legislation and therefore invalid. All subsidiary legislation is tabled before
Parliament so that Parliament. Acting through its portfolio committees, can examine
them to ensure that the Minister has acted within his powers.

10
See the definition of “enactment” given in section 2 of the Interpretation Act [CAP 1:01].

Page 9 of 110
There are certain powers which, because of their far reaching consequences on
personal liberties and on the fiscus, Parliament will not readily delegate. These powers
include the power to raise taxes, to create offences and to pass laws that have
retrospective effect. The intention to delegate these powers can therefore never be
implied or inferred; there must be an express provision in the principle legislation.

Types of Delegated Legislation

All delegated legislation is published in Statutory Instruments but delegated legislation

takes many forms. The following are some of the more common types of delegated
legislation:

Type Made by: Example Enabling

Provision
regulations Minister of Health Public Health Section 74 of the
and Child (Breast-milk Public Health Act
Welfare Substitutes and [CAP 15:09]
Infant Nutrition)
Regulations, S.I
46/1998
Bye-laws City of Bulawayo Hawkers and Street Section 227 of the
Vendors (Adoption) Urban Councils
By-laws, 1977. S.I Act [CAP 29:15]
668/1977
Rules of court Chief Justice and High Court Rules of Section 56 of the
Judge President 1971 High Court Act
[CAP. 07:06]
Proclamation The President Proclamations Section 62 of the
announcing the Constitution
commencement
and ending of
sessions of
Parliament

Page 10 of 110
Codes of conduct National Collective section 79 of the
Employment Bargaining Labour Act
Council for the Agreement: [Chapter 28:01]
Insurance National
Industry of Employment
Zimbabwe Council for the
Insurance Industry
of
Zimbabwe
S.I 177 / 2007.

Advantages and Disadvantages of Delegated Legislation

Advantages:

a. Saves Parliamentary Time – The sitting times of Parliament are quite limited.
That time is best utilized in the consideration of the broader policy
considerations in the bill and leaving the details to be taken care of by members
of the executive because unlike Parliament, ministries work continuously and
are not subject to the time limits imposed by the lengths of sittings and sessions.
Further, the making of delegated legislation does not entail the lengthy process
that bills are subjected to.

b. Enables Deference to Experts – Parliamentarians are politicians and not

necessarily experts. They are involved in high-level decision-making. It is
prudent that they should leave the making of detailed rules to implement broad
policy to the technocrats, ordinarily found in the various ministries. For example,
while Parliament may be competent to legislate on a policy of compulsory
immunization, the rules and modalities pertaining to the immunization of
children can surely be best made by health professionals and experts working
under the Ministry of Health.

c. Enables a Bottom up Approach to Meet Local Needs - Parliamentarians are

elected to legislate on national issues from the centre. They may not be the

Page 11 of 110
 best authority on local conditions and needs. The Urban Councils Act and the
Rural District Councils Act empowers local authorities to legislate on specified
issues within their competence. This is in recognition of the fact that different
areas have different needs and that local political and administrative structures
are best placed to identify and address such needs. Accordingly, Parliament
has delegated to local authorities the power to legislate on certain matters
through byelaws.

d. Enables Better Consultation - Government Ministers are better placed to

consult interested bodies and parties before drafting regulations. In order for
rules to work properly, there is need to involve stakeholders in the formulation
of the rules. Because ministries are directly involved in the execution of laws,
they are better placed than Parliament to consult relevant stakeholders before
formulating the rules.

e. Delegated legislation is more flexible than an Act of Parliament - Delegated

legislation can be passed quickly and easily amended or revoked. In this way,
rules can be easily adjusted to suit prevailing needs, without the need to invoke
the long and laborious Parliamentary law making machinery. In this way, the
law is kept up to date and relevant.

Disadvantages of Delegated Legislation

a. Appears to be Undemocratic - Democracy entails that laws should be made by

elected representatives of the people. Seen from this perspective, delegated
legislation appears to be undemocratic in that it is made by the executive
contrary to the principle of separation of powers.

b. Lack of Transparency in the Making of Legislation - When a bill is passed in

Parliament, the process is transparent and the motives of the Minister are
articulated in the second reading speech. This kind of transparency is absent
from the process of delegated law making. Depending on the style of
management in the Ministry, It is possible for delegated legislation to be actually
made by low-level officers without adequate supervision from the permanent
secretary or the Minister.

Page 12 of 110
 c. Development of Different Regulatory Regimes - Byelaws governing the same
activities may differ from one local authority to another and this may be due to
more different capacities between the local authorities than to any real
differences in local conditions. This may result in unfair and unequal treatment
of citizens under similar conditions, resulting in competition and forum
shopping. For example, the laws on vending may be less strict in one local
authority as opposed to another without any real justification. This may cause
an influx of informal traders in that local authority resulting in detrimental socio
economic outcomes for that local authority.

1.7 The structure of a statute

Statutes contain the following features

feature Always
Short title 
Long title 
preamble
Definition into sections 
Demarcations into parts (e.g Criminal Law
Codification and reform Act)
Demarcations into Chapters
Sections and their components 
- Subsections
- Paragraphs
- Subparagraphs
Schedule
Punctuation 

Study Unit 2
Orthodox Text Based Approaches

Page 13 of 110
Cases

Nyamande &Anor. V Zuva Petroleum (Private) Limited

SC43/15
Moyo and Others v Zvoma and Another SC 62/10

" R v Judge of the City of London Court (1892)

Principal Immigration Officer V Hawabu 1936 AD 26

Whitely v Chapel, 1868 LR 4 QB 147

Lee v Knapp (1966) s AH ER 961

Bhyat v Commissioner for immigration 1932 AD 125

Commissioner , SARS V executor Friths estate 2001 (2) SA 273

Becke v Smith (1836) 2 M&W 195

Grey v. Pearson (1857) 6 HL Cas. 61

1877 (England) - The River Wear Commissioners v Anderson

1978 (England) - Register' Stock V Frank Jones (Tipton) Ltd 1978 1. WLR 231
Venter v Rex 1907 TS 910

R v Allen (1872) LR 1 CCR 367 -

S v Takawira, 1965 RLR 16

Re Sigsworth [1935] 1 Ch 98 –

Adler v George (1964) 2 QB 7

Heydon's Case [1584]3 CO REP 7

Smith v Hughes [1960] 1 WLR 830

Kuvarega v Registrar General, 1998 ZLR 188 (H)

In Commercial Farmers Union v Minister of Lands and Others, one of

Royal College of Nursing v DHSS [1981] 2 WLR 279

Lonrho Ltd v Salisbury Municipality 1970 (4) SA 1

Stellenbosch Farmers’ Winery Ltd v Distillers Corp (SA) Ltd: 1962 (1) SA 458 (AD)

Page 14 of 110
 S v Mpofu 1979 (2) SA 255 (R).

Engels v Allied Chemical Manufacturers (Pty) Ltd 1993 (4) SA 45

2.1 What is interpretation of statutes?

According to Maxwell, “The objective of all interpretation of statutes is to determine

what intention is conveyed, either expressly or impliedly by the language used, so far
as it is necessary for determining whether the particular case or the state of facts
presented to the interpreter falls within it”

Interpretation is the process by which people arrive at the meaning of a statutory

provision. Anybody can read a statute and decide what it means from their own
perspective. But the interpretation of statutes, as a discipline, is concerned with the
legal meaning of legislation - and the legal meaning is deemed to be what Parliament
intended and this is determined by the judiciary.

Statutory interpretation deals with the body of rules and principles used to
construct and justify the meaning of legislative provisions to be applied in practical
situations.

Du Plessis explains interprtation as follows:

Statutory (and constitutional) interpretation is about construing exacted law-texts with
reference to and reliance on other law-texts, concretising the text to be construed so
as to cater for the exigencies of an actual or hypothesised concrete situation.
Interpretation of legislation requires more than reading provisions. It’s not a
mechanical process. One cannot understand a legal text merely by concentrating on
its language. One must also understand how law works & what it seeks to achieve in
order to understand how it communicates with its subjects and what it wants to tell
them.

2.2 When is it necessary to interpret legislation?

In kellaway’s Principles of Legal Interpretation at page 77 the learned author states

“In the courts of Britain and South Africa it has often been said that if the intention
of the legislature is clearly expressed, there is no need for any rules of construction

Page 15 of 110
and that principles of interpretation are intended …. As aids to resolving any doubts
as to the legislature’s true intentions.

However Lord Watson said:

The intention of the legislature is a common but slippery phrase, which popularly
understood may signify anything from intention embodied in positive enactment to
speculative opinion as to what the legislature probably would have meant, although
there is an omission to enact it ….what the legislature intended to be done or not
to be done can only be legitimately ascertained from that which it has chosen to
enact, either in express words or by reasonable and necessary implication

Usually statutory provisions are very clear. They mean what they say. In some
cases however there is doubt as to the meaning and doubt can arise under a
variety of situations including the following:

- Ambiguity – the word or a provision is capable of more than one meaning.

E.g. “minister” can be minister of religion or minister of state. “Parent” means
natural parent but can also include step parent.

- Obscurity – use of the word whose meaning is not obvious or precise e.g. sec
106 of the Public Health Act No person shall cause a nuisance, or shall suffer
to exist on any land or premises owned or occupied by him, or of which he is in
charge, any nuisance or other condition liable to be injurious or dangerous to
health. What is a nuisance?

- Lack of clarity in the language used e.g. section 1 of the Orange Free State
Ordinance 10 of 1977 “ in this ordinance unless the context otherwise indicates,
-
“Disaster” means a disaster or a state of emergency or a state of
disaster and which, in the opinion of the administrator or of the
local authority concerned, is a disaster, as defined in section 1 of
the Act or is likely to develop into such a disaster”

Page 16 of 110
 - The language used may be too wide so interpretation is required to determine
which circumstances are covered e.g. who exactly is covered by the word
parent. Who is covered by the terms “descendant”? Or “employee”?

- The outcome emanating from what might at first appear to be the correct
meaning is unsatisfactory or undesirable. e.g.
 “ No one shall carry any dangerous weapon upon a public
highway except for the purpose of killing a wild animal, or a
policeman in the execution of his duty!”
- Where there appears to be a gap or an omission in the legislation, (casus
omissus), interpretation may be required to fill the gap.

- There may be doubt as to whether the application of a statutory provision

applies to or covers a specific situation which is not clearly provided for or not
foreseen at the time of enactment.

2.3 What is the object of the rules of interpretation?

The most often stated object of the rules of interpretation is to ascertain the legal
meaning of the provision under consideration. This is the intention that Parliament is
deemed to have intended. It is not permissible to call Parliamentarians to give
evidence in court as to what exactly they intended when they enacted a particular law.
First there is the problem of who to call some statutes were enacted in 1924. All the
Parliamentarians were involved in the making of that law are dead! Then there is the
principle of separation of powers which precludes encroachment by the legislature into
the judicial sphere of legal interpretation.

Neither is it permissible to call the draftsman to explain what exactly he meant to say
( if he is even still available). The intention of Parliament must therefore always be
gleaned from the language of the statute. The language is always the starting point in
interpretation.

2.4 What are the rules of interpretation and where do they come from?

There are no legally binding rules, principles and doctrines of statutory interpretation.
The area is governed largely by common law. A common phenomenon in the
application of the rules of interpretation is that it is often possible to get two or more
Page 17 of 110
different or even diametrically opposed outcomes depending on which rule or principle
one chooses to resort to. It has been said that. The so called rules of interpretation are
not rules in the ordinary sense of them being binding. Rather, the Courts tend to adopt
that rule or principle which is convenient for the case and the decision intended. A
healthy perspective of the rules therefore is that they are the servants, rather than the
masters of the judiciary. The non-binding nature of the rules of interpretation have
often led to situations were different judges sitting on the same bench deciding the
same case, privy to the same facts and arguments have arrived at radically different
rulings. An example is the case of Moyo and Others v Zvoma and Another SC 62/10
where a full bench of Supreme Court Judges handed down three separate judgments.

In a widely quoted article, John Willis suggests that :

A court invokes whichever of the rules produces a result that satisfies its
sense of justice in the case before it. Although the literal rule is the one most
frequently referred to in express terms, the courts treat all three as valid and refer
to them as occasion demands, but, naturally enough, do not assign any reasons
for choosing one rather than another.

2.5 Reasons why the interpretation of statutes is not a rule-like activity:

 Interpretation is not mechanical process: multifaceted (complex), rules overlap

& cannot be compartmentalized:
 The circumstances & sets of facts will differ from case to case, as well as the
context of Legislation
 Courts are not of one mind when applying principles - interpretation has no
clear, predictable pattern of application.
 The law is not objective, neutral and value-free: All interpreters have particular
personal attributes which influence their understanding of legislation. These
attributes are as a result of the interpreter’s history, background, experiences
and prejudices
 Since the spirit & purport of the bill of rights must be promoted during the
interpretation of all legislation, the interpreters must of necessity involve value
judgments.

Page 18 of 110
  Other external factors (e.g. dictionaries or commission reports) may be used to
establish the meaning of the legislation. Sometimes the interpreter will be
confronted by the results of poor drafting, conflicting provisions or a lack of
resources to research the current law.
 Interpretation is not a mechanical exercise during which predetermined
formulae, well-known maxims and careful reading will reveal the meaning of the
legislative provision
 Technical aspects of the structure and language of legislation must be applied
together with substantive aspects of the constitutional values and fundamental
rights. The interpreter has to keep other interrelated issues in mind apart from
difficulties of language and meaning. Is it in force, amended, provisions,
regulations, conflicting law etc Read, understand and apply the provision within
the framework of the supreme constitution and the bill of rights.

2.6 What is the process of interpretation?

Because Interpretation is neither mechanical nor objective it can never be reduced to

a "road map". However If one must describe some sort a process of interpretation,
the following three phases would be discernible.
1. Initial phase
 The legislative text is read to find the initial meaning of the text
 A number of basic principles are used as a point of departure:
• The supreme Constitution & DoR are the cornerstones of the legal
order;
• Most important principle of statutory interpretation ascertain & apply the
purpose of the legislation in the light of the DoR;
 the common law presumptions are borne in mind, &
 a balance between the text & the context of particular legislation is kept in
mind.
2. Research phase
 The purpose of the legislation is determined by studying all the factors and
considerations that may have a bearing on the particular legislation:
o The Interpretation Act, presumptions, intra-textual aids and extra
textual aids.
Page 19 of 110
 o s46 of the Constitution obliges the interpreter to use the research
phase fully.
 Additional extra-textual (external) aids to interpretation are now at the disposal
of the interpreter of legislation.
 When the purpose of the legislation has been determined, the next stage
comes into play.
3. Concretisation phase
 The legislative text, the purpose of the legislation and the facts of the
particular case are harmonised to bring the process to a just, purposive and
meaningful end within the framework of the purpose of the legislation.
 During this process the spirit, purport and the aim of the fundamental rights in
the Constitution must be promoted.

Study Unit 3
Common law Approaches to interpretation

There are two main traditional approaches used by the judges to interpret legislation:
the text based approaches

a) The orthodox text based approach

b) The text in context approach

3.1 The orthodox text based approaches

This can be equated to the literal approach of interpretation, incorporating the literal
rule, the golden rule and the mischief rule

This approach has its origins in English law traditions. It has developed over the years.
According to this approach, the interpreter should concentrate primarily on the literal
meaning of the provisions in question. In its most unrefined form, the rule requires that
where the meaning of the text of the text is clear it should be deemed to be equal to
the intention of Parliament and should be applied regardless of the consequences.
According to the plain meaning rule, absent a contrary definition within the statute,
words must be given their plain, ordinary and literal meaning. If the words are clear,

Page 20 of 110
they must be applied, even though the intention of the legislator may have been
different or the result is harsh or undesirable. This thinking is encapsulated in the
following dictum by Lord Esher who said (in applying a literal approach)

"If the words of an Act are clear then you must follow them even if they lead
to a manifest absurdity. The court has nothing to do with the question
whether the legislature has committed an absurdity.

" R v Judge of the City of London Court (1892)

“It is the primary rule of interpretation that, if the meaning of the text is clear, it
should be applied, and indeed equated with the legislature’s intention”

Principal Immigration Officer V Hawabu 1936 AD 26

See the examples of

Whitely v chapel,

Lee v Knapp.

Over the years however, Acceptance has grown that it is permissible to depart from
the literal meaning of the provisions in those cases where the outcome achieved by
strict literalism would lead to clearly unsatisfactory outcomes. The following dictum of
Stratford JA in Bhyat v Commissioner for immigration is probably the classic
formulation of the current orthodox text based method of interpretation:

“The cardinal rule of construction of a statute is to endeavour to arrive at the

intention of the law giver from the language employed in the enactment …. In
constructing a provision of an act of Parliament, the plain meaning of its
language must be adopted unless it leads to an absurdity, inconsistency,
hardship or anomaly which from a consideration of the enactment as a whole,
a court of law is satisfied the legislature could not have intended.

This approach was reaffirmed by the supreme court of SA in

Commissioner , SARS V executor Friths estate 2001 (2) SA 273

“ The primary rule in construction of a statutory provision is ( as is well

established, ) to ascertain the intention of the legislator and, (as is equally well
established,) one seeks to achieve this, in the first instance, by giving the words

Page 21 of 110
 under consideration, their ordinary grammatical meaning, unless to do so would
lead to an absurdity so glaring that the legislature could not have contemplated
it.”

The exceptions to the strict the literalist approach described by Lord Esher in 1892
and developed over the years have come to be known under two distinct headings:
 The golden rule and
 The mischief rule

The golden rule: The essence of the Golden Rule is that the starting point to
interpretation is the literal meaning, but this is subject to the
consequences. If the consequences lead to a glaring absurdity or
to a result so outrageous that the legislature could not have
intended it, the literal meaning must be abandoned in favour of
some other meaning that the court will arrive at by employing
other aids to interpretation.

Development of the golden rule as an exception to the literal approach

1836 ( England) - The rule is usually based Becke v Smith (1836) 2 M&W 195
per Justice Parke (later Lord Wensleydale), which states:

“It is a very useful rule in the construction of a statute to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that is
at variance with the intention of the legislature to be collected from the statute
itself, or leads to any manifest absurdity or repugnance, in which case the
language may be varied or modified so as to avoid such inconvenience but no
further.”

1857 (England) - Lord Wensleydale restated the rule in different words in Grey v.
Pearson :

“In construing statutes, and all written instruments, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to
some absurdity or inconsistency with the rest of the instrument, in which case

Page 22 of 110
 the grammatical and ordinary sense of the words may be modified, so as to
avoid that absurdity or inconsistency, but not farther.

1877 (England) - The River Wear Commissioners v Anderson

“we are to take the whole of the statute together and construe it altogether, giving the
words their ordinary signification, unless when so applied they produce an
inconsistency, or an absurdity, or inconvenience, so great as to convince the court
that the intention could not have been to use them in their ordinary signification, and
to justify the court in putting on them some other signification, which, though less
proper, is one which the court thinks the words will bear.’

1978 (England) - Register' Stock V Frank Jones (Tipton) Ltd 1978 1. WLR 231

With time, the rule continues to become more refined and therefore to be a more
precise and effective tool for the courts. More than a century after Grey v. Pearson, a
court added this caveat: "Nowadays we should add to 'natural and ordinary meaning'
the words 'in their context and according to the appropriate linguistic use.

In South Africa, the circumstances in which a court will would be justified in departing
from the clear and unambiguous meaning of the section to avoid what the respondent
categorised as a manifest absurdity do so were stated by Innes CJ in Venter v Rex
1907 TS 910 at 914-915 to be –

‘when to give the plain words of the statute their ordinary meaning would lead
to absurdity so glaring that it could never have been contemplated by the
legislature, or where it would lead to a result contrary to the intention of the
legislature, as shown by the context or by such other considerations as the
Court is justified in taking into account . . . .’

The golden rule is applied in two distinct ways: the narrow approach and the broader
approach. The narrow approach is applied where there is some ambiguity or
absurdity in the words themselves while the broad approach is applied to avoid a

Page 23 of 110
result that is obnoxious / repugnant to principles of public policy or justice, even
where words have only one meaning.

Examples of cases where the golden rule was applied

Narrow approach:

R v Allen (1872) LR 1 CCR 367 - The defendant was charged with the offence of
bigamy under s.57 of the Offences against the Person Act 1861. The statute states
'whosoever being married shall marry any other person during the lifetime of the
former husband or wife is guilty of an offence'.

The Absurdity was that under a literal interpretation of this section the offence would
be impossible to commit since civil law will not recognise a second marriage. Any
attempt to marry in such circumstances would not be recognised as a valid marriage.

The court applied the golden rule and held that the word 'marry' should be
interpreted as 'to go through a marriage ceremony'. And so the defendant's
conviction was upheld.

S v Takawira, - The statute made it an offence to be in possession of subversive

material. If interpreted literally, the police officer who took possession of the subversive
material, the public prosecutor who tendered it as evidence, and the judicial officer
who examined it at the trial would all be guilty of the offence. The Literal Rule was
abandoned and the word unlawful was read into the statute. (This case provides an
example of how other approaches could have been used to achieve the same result.
The mischief rule and the exception to the casus ommissus doctrine could have been
invoked to achieve the same result)

Wide approach:
Re Sigsworth [1935] 1 Ch 98 - A son murdered his mother. She had not made a will.
Under the statute setting the law on intestacy he was her sole issue and stood to
inherit her entire estate. The court applied the Golden rule holding that an application
of the literal rule would lead to a repugnant result. He was thus entitled to nothing.

Page 24 of 110
Adler v George (1964) - The defendant was charged under the Official Secrets Act
1920 with obstructing a member of armed forces ‘in the vicinity of a prohibited place.’
The defendant argued that he was actually in the prohibited place, not in the vicinity
of it, that is, near to it. Had the court applied this literal interpretation of the phrase the
defendant would not have been guilty. The court therefore interpreted the phrase ‘in
the vicinity of’ to include ‘in’ a prohibited place to avoid absurd result.

The mischief rule: It is permissible to depart from the literal meaning of words if the
outcome achieved does not result in addressing the mischief
that parliament was clearly targeting.

The rule was first set out in Heydon's Case [1584]3 CO REP 7 where the.

Court ruled that there were four points to be taken into consideration when

interpreting a statute:

“ For the sure and true interpretation of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law), four things are to be
discerned and considered:

1. What was the common law before the making of the Act?

2. What was the mischief and defect for which the common law did not
provide?

3. What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth. And,

4. The true reason of the remedy; & The core principle of the last of is.
'and then the office of all the judges is always to make such
construction as shall suppress the mischief, and advance the remedy,
and to suppress subtle inventions and evasions for continuance of the

Page 25 of 110
 mischief, and ……. to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico

Examples of application of the mischief rule:

Smith v Hughes [1960] 1 WLR 830

The defendants were prostitutes who had been charged under the Street Offences
Act 1959 which made it an offence to solicit in a public place. The prostitutes were
soliciting from private premises in windows or on balconies so could be seen by the
public.

The court applied the mischief rule holding that the activities of the defendants were
within the mischief the Act was aimed at even though under a literal interpretation
they would be in a private place.

Royal College of Nursing v DHSS [1981] 2 WLR 279

The Royal College of Nursing brought an action challenging the legality of the
involvement of nurses in carrying out abortions. The Offences against the Person Act
1861 makes it an offence for any person to carry out an abortion. The Abortion Act
1967 provided that it would be an absolute defence for a medically registered
practitioner (ie a doctor) to carry out abortions provided certain conditions were
satisfied. Advances in medical science meant surgical abortions were largely
replaced with hormonal abortions and it was common for these to be administered
by nurses.

The court held that it was legal for nurses to carry out such abortions. The Act was
aimed at doing away with back street abortions where no medical care was
available. The actions of the nurses were therefore outside the mischief of the Act of
1861 and within the contemplate defence in the 1967 Act.

2.7 Features of the orthodox text based approach

Page 26 of 110
- Use of dictionaries - Because of the pre occupation with words, dictionaries are
resorted to in the use of the literal approach see Kuvarega v Registrar General,
the court consulted dictionaries to ascertain the meaning of the word ‘utter’. The
issue before the court involved the interpretation of the phrase ‘utter slogans’
as used in Section 118 (1) of the Electoral Act. Section 118 (1) provided that,
‘no person shall, within 100 metres of any polling station on any polling day
utter slogans’. The applicant, who was an opposition candidate in an election,
complained that members of the ruling party, ZANU(PF), were in breach of the
Act in that they were wearing T-shirts emblazoned with slogans, symbols and
pictures of their candidate. It was contended, on behalf of the applicant, that
‘utter[ing] slogans’ covered the wearing of T-shirts. The Shorter Oxford English
Dictionary defines ‘utter’ as ‘give vent to (joy, etc.) in sound; to burst out to (a
cry, etc.); to give out in an audible voice’. On the basis of the dictionary
meaning, the court concluded that the word ‘utter’ in Section 118(1)(c) denoted
the making of a sound. Thus slogans printed on t-shirts were held not covered
and therefore not prohibited under the Section.

In Commercial Farmers Union v Minister of Lands and Others, one of the issues
which arose was whether or not there existed a ‘programme of land reform’ as
contemplated in Section 16A of the Constitution of Zimbabwe.8 The court
referred to the Oxford English Dictionary for the meaning of the word
‘programme’. The dictionary defined it as ‘a definite plan or scheme of any
intended proceedings; an outline or abstract of something to be done (whether
in writing or not)’. On the basis of this meaning, it was held that the haphazard
occupation of farms by war veterans, villagers and other persons under the so-
called ‘Fast-Track Plan’ was not in accordance with a ‘programme of land
reform’ as provided for in the Constitution.

It must be emphasized that a dictionary meaning is not binding and may be

disregarded were the court is of the view that it is not appropriate. Where a
word acquires a meaning peculiar to a given community or society, the acquired
meaning may be regarded as the ‘ordinary’ meaning for purposes of the literal
rule. For example, South African courts have recognized that in South Africa,
Page 27 of 110
 the term ‘European’ refers to every white person, regardless of whether he/she
is from Europe, and that ‘Asiatic’ would never be applied to a white person
coming from Asia. Similarly, in Zimbabwe, the expression ‘African’ would never
be used to refer to a white person.

- Words can be given their technical meanings when used a technical statute.
This was succinctly explained by Beadle CJ in Lonrho Ltd v Salisbury
Municipality in the following words:

“ When, in a technical statute like a patent statute, the legislature uses words
which for some 300 years have been recognized as having a specialised
technical meaning, it must be assumed that the legislature intended to use the
words in their recognized technical sense and not in their popular sense,
unless, of course it appears from the context in which the words are used that
the legislature intended to depart from the proper technical meaning.”

- Words must be interpreted in their context.

A word can only be said to be clear and unambiguous after taking into account the
context in which it is used. In other words, the ordinary meaning must be qualified by
the context. So said Wessels AJA in Stellenbosch Farmers’ Winery Ltd v Distillers
Corp (SA) Ltd:
“It is the duty of the court to read the Section of the Act which requires
interpretation sensibly, i.e., with due regard, on the one hand, to the meaning
which permitted grammatical usage assigns to the words used in the Section in
question, and, on the other hand, to the contextual sense, which involves
consideration of the language of the rest of the statute as well as the matter of
the statute, its apparent scope and purpose, and within limits, its background.”

In the English case of Attorney General v Prince Ernest Augustus of Hanover, Viscount
Simonds emphasized the context as follows:
“Words, and particularly general words, cannot be read in isolation; their colour
and content are derived from their context. So it is that I conceive it to be my
right and duty to examine every word of a statute in its context, and I use context
in its widest sense which I have already indicated as including not only other
Page 28 of 110
 enacting provisions of the same statute, but its preamble, the existing state of
the law, other statutes in pari materia, and the mischief which I can, by those
and other legitimate means, discern the statute was intended to remedy ….No
one should prefer to understand any part of a statute or of any other
document before he has read the whole of it. Until he has done so, he is not
entitled to say that it, or any part of it, is clear and unambiguous.”

This dictum was quoted with approval by Baron JA in S v Meredith 1981(3) SA 29

(ZAD):

2.8 The Casus Omissus

A casus omissus is an omission in a statute arising out of error or inadvertence in such

a way as to leave out what appears to have been intended by the legislature. The
three rules considered above do not in themselves provide a satisfactory approach to
a casus omissus. Cross describes it as ‘the inexplicable and probably inadvertent
failure of the draughtsman to use words entirely apt to cover the instant case’

Hiding behind the theory of separation of powers, the courts Hiding behind the theory
of separation of powers, the courts are extremely reluctant to fill gaps, arguing that
this is the prerogative of the legislature. However, in a narrowly defined set of
circumstances, albeit in an inconsistent fashion, they have supplied missing words.
In S v Mpofu, the court held that it would supply the missing words in a statute if
there was clear evidence that the omission was a direct result of a printing error.
Similarly, Gubbay J (as he then was), commenting on Section 50 (2) of the 1969
Rhodesian Constitution, said that ‘it must be construed according to the dictates of
common sense and a glaring
absurdity avoided, even if to do so necessitates the interpolation of words.

I am satisfied that in enacting S50 (2) it must have been in the compilation of
the law-maker that the courts of the land would not be bound by a mere
draughtsman’s or printer’s error, which, depending on the nature of the statute

Page 29 of 110
 and the context in which it appears, could compel a court to make out
manifest injustice either to the individual or the state’.

This position was inspired by Beadle CJ in Van Heerden v Queen’s

Hotel (Pty) Ltd, where he said:
Courts are extremely loath to read into an Act words which are not there.
Notwithstanding the reluctance, English law has several examples of
courts filling the casus omissus to avoid an absurdity. In Adler v George
the court was faced with Section 3 of the Official Secrets Act 1920 which
provided that:
“No person shall in the vicinity of any prohibited place obstruct any member of
Her Majesty’s forces.”

The accused was actually on a Norfolk airfield (a prohibited place) when

he obstructed a member of the forces. Did the expression ‘in the vicinity
of’ include being ‘in’ the place in question? The court had no hesitation in
convicting the accused. Lord Parker CJ said:

“I am quite satisfied that this is a case where no violence is done to the

language by reading the words ‘in the vicinity of’ as meaning ‘in or in the
vicinity of’. Here is a Section in an Act of Parliament designed to prevent
interference with members of Her Majesty’s Forces, among others, who are
engaged on guard, sentry, patrol or other similar duty in relation to a
prohibited place such as this station. It would be extraordinary, I venture to
think it would be absurd if an indictable offence was thereby created when the
obstruction took place outside the precincts of the station, albeit in the vicinity,
and no offence at all was created if the obstruction occurred on the station
itself …. There may of course, be many contexts in which ‘vicinity’ must be
confined to its literal meaning of ‘being near in space’, but under this Section, I
am quite clear that the context demands that the words should be construed
in the way I have said.”

Orthodox Text Based Approach

Page 30 of 110
Advantages Disadvantages
Maintains separation of powers between Stifles development of the law
the judiciary and the legislature
Makes the law certain Perpetuates unjust laws
in Engels v Allied Chemical
Manufacturers (Pty) Ltd it was held
that:
The rules of construction of Acts of
Parliament … clearly state that they
must be construed according to the
intention of the legislature expressed in
the Acts themselves. One consequence
of this rule is the a statute may not be
extended to meet a case for which
provision has clearly & undoubtedly not
been made.
Encourages greater care in the drafting The literal approach is inherently
of laws subjective and depends on the
interpreter's understanding of the words:
Since The court will deviate from the so-
called ‘plain meaning’ of the text only if it
is unclear or
ambiguous, and the eventual application
of the intra- and extra-textual aids to
interpretation
depends on how clear the text may
seem to the particular interpreter. As a
result, the 'intention of the legislature' is
ultimately dependent on the court's
decision on the clarity of the particular
legislative text

Page 31 of 110
 In the South African case of Savage v
Commissioner for Inland Revenue,
Schreiner JA observed that:
What seems a clear meaning to one
man, may not seem clear to another.
The ‘literal’ meaning is not something
revealed to judges by a sort of authentic
dictionary:
it is only what individual judges think is
the literal meaning.
Ignores values as an important
consideration in assigning meaning to a
law. Glorifies legal positivism at the
expense of equity, justice
Ignores the reality that language is
seldom so clear as to admit one and only
one true meaning to the exclusion of all
other possibilities. The fact that there is a
discipline called “statutory interpretation”
shows that this is the case
Treats the legal system and the judiciary
like a computer program into which laws
and legal arguments can be fed and
processed according to precise
predetermined formulas and bring out
the outcomes that the law giver intended.
Treats the judiciary as a slave of the
legislature. Stifles the important laws
making function of the judge

3.2 The text in context Approaches

Cases

Page 32 of 110
 1. Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD
2. Maunsell v Olins [1975] AC 373
3. In R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)
[2003] 2 WLR 692
4. Jones v Tower Boot Co. (1997),
5. Pepper (Inspector of Taxes) v Hart
6. Jaga v Donges1959 (4) SA 653
7. University of Cape Town v Cape Bar Council and Another 1986 (4) SA
8. Thoroughbred Breeders’ Association v Price Waterhouse
9. Mjuqu v Johannesburg City Council 1973 (3) SA 421 (AD).
10. Ebrahim v Minister of the Interior 1977 (1) SA 665 (A)
11. S v Zuma CCT 5 / 94
12. Minister of Home Affairs V Fisher 1980 AC 319

The text in context approach to interpretation can be discussed under two headings:

– The purposive approach

– The teleological or value coherent approach

The Purposive Approach

The purposive approach to interpretation of statutes, in contrast to the orthodox textual

approach focuses on the purpose or objective of the law rather than on the intention
of parliament. It recognizes the weaknesses of the literal approaches found in the rules
associated with the textual approaches and particularly the problematic nature
inherent in the concept of intention. The term “intention” is deemed too subjective and
quite unsearchable, while the concept of “purpose” is deemed to be more objective
and therefore ascertainable by careful investigation.

The (text in context) purposive approach recognizes that statutes were created to give
legal backing to public policy and statute law is therefore inherently purposive in
nature. It therefore accepts, even directs that the interpretation of any statute or any
of its provisions should always start with an inquiry into the underlying policy objectives
of the statute. Once this is ascertained, then a correct meaning is one that promotes
these policy objectives. This approach encompasses the mischief rule but is wider

Page 33 of 110
than it. There is also the understanding that in pursuit of the policy objectives of a
statute, the court may consult material outside of the statute itself and may, in the
process, depart from the literal meaning of the statutes as long as the court is satisfied
that such a departure is necessary to achieve an outcome in keeping with the objects
of the statute.

The purposive approach is explained in the decision of Dadoo Ltd and others v
Krugersdorp Municipal Council 1920 AD 530 at 543 where Innes CJ remarked as
follows:
“Speaking generally, every statute embodies some policy or is designed to
carry out some object. When the language employed admits of doubt, it falls
to be interpreted by the Court according to recognized rules of construction,
paying regard, in the first place, to the ordinary meaning of the words used,
but departing from such meaning under certain circumstances, if satisfied that
such departure would give effect to the policy and object
contemplated……………. But there must, of course, be a limit to such
departure. A Judge has authority to interpret, but not to legislate, and he
cannot do violence to the language of the lawgiver by placing upon it a
meaning of which it is not reasonably capable, in order to give effect to what
he may think to be the policy or object of the particular measure.”

The search for the purpose of legislation requires a purpose- orientated approach
which recognises the contextual framework of the legislation right from the outset and
not only in cases where a literal text-based approach has failed. The purpose
orientated approach provides a balance between grammatical and overall contextual
meaning. The interpretation process cannot be complete until the object and scope
of the legislation are taken into account. In this way the flexibilities and peculiarities
of language, and all the internal and external factors are accommodated in the
continuing timeframe within which legislation operates.

The purposive approach was explained in Maunsell v Olins [1975] AC 373 a case
in which the House of Lords had to determine whether a farm cottage attached to
farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord Simon set out
the two tier test to be taken under the purposive approach as follows.

Page 34 of 110
 ‘The first task of a court of construction is to put itself in the shoes of the
draftsman – to consider what knowledge he had and, importantly, what
statutory objective he had …being thus placed…the court proceeds to ascertain
the meaning of the statutory language.’

In

In R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003]

2 WLR 692, the Pro Life Alliance argued that the Human Fertilisation and Embryology
Authority did not have authority under the Human Fertilisation and Embryology Act
1990 to licence research with regards to cloning because clones are not embryos as
defined in the Act. An embryo was defined in the Act as ‘a live human embryo where
fertilisation is complete’. However, embryos created using cloning are not fertilised.

The House of Lords held that the cloned embryos were covered by the statute taking
a purposive approach to statutory interpretation.

Lord Bingham reasoned as follows:

"The court's task, within the permissible bounds of interpretation, is to give

effect to Parliament's purpose. So the controversial provisions should be read
in the context of the statute as a whole, and the statute as a whole should be
read in the historical context of the situation which led to its enactment….While
it is impermissible to ask what Parliament would have done if the facts had been
before it, there is one important question which may permissibly be asked: it is
whether Parliament, faced with the taxing task of enacting a legislative solution
to the difficult religious, moral and scientific issues mentioned above, could
rationally have intended to leave live human embryos created by CNR outside
the scope of regulation had it known of them as a scientific possibility. There is
only one possible answer to this question and it is negative."

In Jones v Tower Boot Co. (1997), The Court of Appeal had to decide whether the
physical and verbal abuse of a young black worker by his workmates fell within ‘the
course of employment’ under s32 of the Race Relations Act 1976. The employer had
argued that these actions fell outside the course of the work mates’ employment,
because such behavior was not part of their job. The Employment Appeal Tribunal

Page 35 of 110
could not therefore be held responsible to the young black worker for his work
mates’ behaviour. This decision was reversed by the Court of Appeal using the
purposive approach to interpret s32 of the Act. The Court reasoned that Parliament’s
intention when enacting the Race Relations Act was to eliminate discrimination in the
workplace and this would not be achieved by applying a narrow construction to the
wording.

In Mukwereza V Minister of Home Affairs & Anor 2004 (1) ZLR 445 (S) the Supreme
Court held that a purposive approach could be used to resolve lack of clarity is a
statute. When it is not clear to the court what the intention of the legislature might have
been, it was permissible for the court to resort to speculative opinion as to what the
legislature probably would have meant and that in such speculation the court must
consider the following factors:

(a) One of the main purposes of the Police Act is to provide for the control of the
police force
(b) The question of police discipline
(c) What the legislature had actually enacted expressly or impliedly

In casu, the police’s main responsibility is to maintain law and order. A member who
commits an offence that attracts imprisonment acts against such responsibility. The
intention of the legislature is such that a member be dealt with severely. The legislature
must have intended that a member who has been sentenced to a term of imprisonment
without the option of a fine, irrespective of other dimensions of the same sentence which
may not be applicable, be visited with any of the penalties set out is section 48.

Use of extrinsic material

An unavoidable feature of the purposive approach to interpretation is the need for the
court to refer to material that is extrinsic to the statute in order to ascertain the objective
of purpose of the statutory provisions under consideration. In Pepper (Inspector of
Taxes) v Harts (1993) the issue was how to interpret s63 of the Finance Act 1976.
Teachers at an independent school for boys were having their children educated at
the school for a fifth of the price charged to the public. This was a taxable benefit based
on the ‘cash equivalent’ could be interpreted to mean either the additional cost of
providing the concession to the teachers or the average cost of providing the

Page 36 of 110
concession to the teachers or the average cost of providing the tuition to the public
and the teachers. The House of Lords referred to statements made by the Financial
Secretary to the Treasury during the committee stage which revealed that the intention
of Parliament to tax employees on the basis of the additional cost to the employer of
providing the concession.

It has been said that the purposive approach provides scope for judicial law-making
because the judge is allowed to decide what he/she thinks Parliament intended the
Act to say, in light of the purpose of the statute, rather than what the Act actually says.

The Purposive Approach in Roman Dutch Systems

In RD legal systems some of the earliest attempts to utilize the purposive approach
are seen in the following cases:

Jaga v Donges1959 (4) SA 653

Facts:
Jaga was caught selling unwrought gold and was sentenced to 3 months imprisonment
suspended for 3 years. The Minister declared Jaga an undesirable inhabitant of the
Union and a warrant for his deportation to India was issued.

Jaga challenged his deportation on the basis that he hadn’t been sentenced to
imprisonment and the Minister argued that a suspended sentence of imprisonment is
still a sentence of “imprisonment” within the ordinary meaning of the provision. Jaga
argued that “imprisonment” meant actual (as opposed to merely potential)
imprisonment and he wasn’t actually and physically held in prison.

Legal issue:
How should the phrase “sentenced to imprisonment” be interpreted?

Finding:
The majority of the court decided to adopt the textual approach and it was held that
“imprisonment” meant that the sentence imposed on the offender contained a period
of imprisonment (suspended or not) as an element and the warrant was legally
issued as Jaga did receive a sentence of imprisonment.

Page 37 of 110
Schreiner JA in his famous minority decision set out the following guidelines for the
interpretation of statutes:
i. Right from the outset the interpreter may take the wider context of provision (eg
its ambit and purpose) into consideration with the legislative text in question.
ii. Irrespective of how clear or unambiguous the grammatical meaning of the
legislative text may seem to be, the relevant contextual factors must be taken
into account.
iii. Sometimes the wider context may even be more important than the legislative
text.
iv. Once the meaning of the text and the context (language-in- context) is
determined, it must be applied, irrespective of whether the interpreter is of the
opinion that the legislature intended something else

He concluded that:

“. . . The legitimate field of interpretation should not be restricted as a

result of excessive peering at the language to be interpreted without
sufficient attention to the contextual scene.”

This was one of the concrete efforts in SA case law to move beyond the plain
grammatical meaning by using the wider context to ascertain the legislative purpose
After that, a few courts were more prepared to interpret the text of the legislation in
the light of the wider contextual framework.

In S v Zuma, CCT 5 / 94 the importance of words in constitutional interpretation was

stressed;
 Sometimes this wider context may even be more important than the actual
grammatical meaning of the legislative texts.
 Once the meaning of the text and contact is determined, it must be applied,
irrespective of whether the interpreter is of the opinion that the legislature
intended something else.

Page 38 of 110
In University of Cape Town v Cape Bar Council and Another 1986 (4) SA
903 (A) at 914D-E: Rabie CJ held correctly that the court has to examine all the
contextual factors in ascertaining the intention of the legislature, irrespective of
whether or not the words of the legislation are clear and unambiguous. He said:

‘I am of the opinion that the words of s 3(2)(d) of the Act,

clear and unambiguous as they may appear to be on the
face thereof, should be read in the light of the subject-
matter with which they are concerned, and that it is only
when that is done that one can arrive at the true intention
of the Legislature.’

This dictum was quoted with approval in the recent case of Thoroughbred
Breeders’ Association v Price Waterhouse, where it was ruled that:

“The days are long past when blinkered peering at an isolated provision
in a statute was thought to be the only legitimate technique in interpreting
it if it seemed on the face of it to have a readily discernible meaning”

The decision in Mjuqu v Johannesburg City Council 1973 (3) SA 421 can almost
be regarded as a model of the contextual approach, since the court utilised the entire
spectrum of available aids and surrounding circumstances to determine the purpose
and scope of the legislation in question.

According to the text-in-context approach, the court may modify or adapt the initial
meaning of the text to harmonise it with the purpose of the legislation. - The role of the
courts is therefore more flexible, and is not limited to mere textual analysis and
mechanical application of the legislation

Contextualists hold the view that the judiciary has inherent law- making discretion
during statutory interpretation. - This discretion is qualified by the prerequisite that
modification of the meaning of the text is possible (and admissible) only if and when
the scope and purpose of the legislation are absolutely clear, and also supports such
Page 39 of 110
a modification. Seen from this perspective, the law making function of the judiciary is
not an infringement of the legislature’s legislative function, but merely a logical
extension of the powers of the court during the interpretation and application of the
relevant legislation in each practical instance. Consequently, the application and
utilisation of the presumptions and the various aids to interpretation are very important
tools for the contextualists in the quest for the scope and purpose of legislation.

For a contrast between the orthodox contextual approach and the text in context
approach see Ebrahim V Minister of The Interior 1977 (1) SA 665 (A)

The Teleological or Value Coherent Approach

Teleology means the study of ends. A teleological approach to interpretation is an

interpretation that is more concerned with the end result of the interpretation process
than the process itself. The interpretation starts from a point of recognizing that there
are certain fundamental values underlying the legal system or that are valued by the
society that is subject to the law. The interpretation of statutes should therefore aim to
bring about an outcome which promotes those values. It is called “value coherent”
because it is an approach which seeks to bring harmony or coherence between the
law and its underlying values through the process of interpretation. Under this
approach, the clear language of a statute can be discarded in favour of the values.

Values can be “common law” values like justice, human dignity, Ubuntu, peace etc but
more and more, the values that a country subscribes to are being articulated in the
Constitution. In Zimbabwe the values are set out in section 3 of the Constitution:

(1) Zimbabwe is founded on respect for the following values and principles—
(a) supremacy of the Constitution;
(b) the rule of law;
(c) fundamental human rights and freedoms;
(d) the nation’s diverse cultural, religious and traditional values;
(e) recognition of the inherent dignity and worth of each human being;
(f) recognition of the equality of all human beings;
(g) gender equality;
(h) good governance; and

Page 40 of 110
 (i) recognition of and respect for the liberation struggle.
(2) The principles of good governance, which bind the State and all institutions and
agencies of government at every level, include—
(a) a multi-party democratic political system;
(b) an electoral system based on—
(i) universal adult suffrage and equality of votes;
(ii) free, fair and regular elections; and
(iii) adequate representation of the electorate;
(c) the orderly transfer of power following elections;
(d) respect for the rights of all political parties;
(e) observance of the principle of separation of powers;
(f) respect for the people of Zimbabwe, from whom the authority to govern is derived;
(g) transparency, justice, accountability and responsiveness;
(h) the fostering of national unity, peace and stability, with due regard to diversity of
languages, customary practices and traditions;
(i) recognition of the rights of—
(i) ethnic, racial, cultural, linguistic and religious groups;
(ii) persons with disabilities;
(iii) women, the elderly, youths and children;
(iv) veterans of the liberation struggle;
(j) the equitable sharing of national resources, including land;
(k) due respect for vested rights; and
(l) the devolution and decentralisation of

Section 46(1) of the Constitution provides:

(1) When interpreting this Chapter, a court, tribunal, forum or body—
(a) …………………
(b) must promote the values and principles that underlie a democratic society based
on openness, justice, human dignity, equality and freedom, and in particular, the
values and principles set out in section 3;
(c) ……………………….
(d) ……………………..
(e) ……………………..

Page 41 of 110
Thus, the Constitution directs that interpretation of Chapter 4 and consequently of any
statutory provisions giving effect to or concerned with the provisions of chapter 4
should be done teleologically, with an eye to section 3.
While there is acceptance that applying the teleological approach may entail a
departure from the literal text of the statute, there is need to guard against straying
into the realm of conjecture.

It was said in S v Zuma:

“While we must always be conscious of the values underlying the Constitution, it is

nonetheless our task to interpret a written instrument. I am well aware of the fallacy of
supposing that general language must have a single "objective" meaning. Nor is it
easy to avoid the influence of one's personal intellectual and moral preconceptions.
But it cannot be too strongly stressed that the Constitution does not mean whatever
we might wish it to mean”.

It was also cautioned in Minister of Home Affairs V Fisher 1980 AC 319 that “If the
language used by the lawgiver is ignored in favour of a general resort to "values" the
result is not interpretation but divination.

Advantages and disadvantages of the text in context approach to

interpretation

Advantages Disadvantages
 Leads to justice in individual  Makes the law less certain , it is
cases impossible to predict when
judges will use this approach
 Allows the application of the law  Provides room for unelected
to be extended to new officials ( judges) to make laws
technologies and development
 Recognises the role of judges to  Can lead to a naked usurpation
develop the law and allows for of the legislative function under
legal principles to adapt to the the thin disguise of interpretation.
needs of a dynamic society if a gap is disclosed, the remedy
lies in an amending Act‟.

Page 42 of 110
 STUDY UNIT 4
THE INFLUENCE OF THE CONSTITUTION ON THE INTERPRETATION OF
STATUTES

Cases
1. Hambly V Chief Immigration Officer 1995 (2) ZLR 264
2. Ngaru V Chief Immigtation Officer SC 26 / 04,
3. Mutumwa Dziva Mawere V Registar General CCZ 4 / 15
4. National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
5. R.M.D. Chamarbaugwalla v. The Union of India (UOI
6. Mudzuru and Tsopodzi v Minister of Justice, Legal and Parliamentary
Affairs and Anor CCZ 12 / 15
7. Holomisa v Argus Newspapers Ltd 1996 (2) SA 588
8. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
9. and Tourism 2004 (4) SA 490
10. Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd v Smit. 2001 (1) SA 545
11. Simon Francis Mann V Government Of Equatorial Guinea HH 1/ 2008
12. Barker McCormac (PVT) LTD v Government of Kenya 1983 (1) ZLR 137
(HC).
13. Sibanda V ICRC HH 54-2002
14. Mildred Mapingure V Minister of Home Affairs and ors SC 22/14

Zimbabwe enacted a new Constitution in 2013. This Constitution came in to preside

over a legal system that already had its own rules of statutory and legal interpretation.
The question we will seek to answer is how does the new Constitution affect the
existing rules and approaches to statutory interpretation?

It must be noted that some of the key provisions in the Constitution relating to
interpretation of statutes are modelled almost word for word on corresponding
provisions of the South African Constitution of 1996. Over the last 19 years the SA

Page 43 of 110
courts, particularly the Constitutional Court has developed an impressive
jurisprudence around the role of the Constitution in the interpretation of statutes. Given
the similarities between the SA and the Zimbabwe Constitutions and the fact that it is
yet too early for the Zimbabwean Constitutional court to have heard enough cases to
develop its own jurisprudence, we will be guided in this part of the study by South
African cases.

The Supremacy Clause

The starting point of this discussion is the principle of supremacy of the Constitution.
Section 2 of the Constitution reads:

(1) This Constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the
inconsistency.
(2) The obligations imposed by this Constitution are binding on every person,
natural or juristic, including the State and all executive, legislative and judicial
institutions and agencies of government at every level, and must be fulfilled by
them.

Thus:
– The Constitution is the supreme law of the Republic of Zimbabwe,
– law or conduct inconsistent with it is invalid, and
– the obligations imposed by it must be fulfilled.

The Constitution intersects with statutory interpretation in several ways. One of this
ways is through operation of the presumption that statutes should be ascribed a
meaning which is Constitutionally valid, not invalid, (the presumption of valid
meaning or presumption of Constitutionality.

THE ROLE OF THE COURTS

Section 175 of the Constitution

Page 44 of 110
Powers of courts in Constitutional matters

(1) Where a court makes an order concerning the Constitutional invalidity of any
law or any conduct of the President or Parliament, the order has no force unless it
is confirmed by the Constitutional Court.

( the conduct of administrative authorities can be declared unconstitutional without

the need for confirmation by the Constitutional court e.g. unlawful arrest or
detention, failure to observe the principles of natural justice in a disciplinary
hearing, refusal to grant citizenship, deprivation of citizenship )

(2) A court which makes an order of Constitutional invalidity referred to in

subsection (1) may grant a temporary interdict or other temporary relief to a party,
or may adjourn the proceedings, pending a decision of the Constitutional Court on
the validity of the law or conduct concerned.
(3) Any person with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or vary an order concerning Constitutional validity
by a court in terms of subsection (1).
(4) If a Constitutional matter arises in any proceedings before a court, the person
presiding over that court may and, if so requested by any party to the proceedings,
must refer the matter to the Constitutional Court unless he or she considers the
request is merely frivolous or vexatious.
(5) An Act of Parliament or rules of court must provide for the reference to the
Constitutional Court of an order concerning Constitutional invalidity made in terms
of subsection (1) by a court other than the Constitutional Court.
(6) When deciding a Constitutional matter within its jurisdiction a court may—
(a) declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of the inconsistency;
(b) make any order that is just and equitable, including an order limiting the
retrospective effect of the declaration of invalidity and an order suspending
conditionally or unconditionally the declaration of invalidity for any period to allow
the competent authority to correct the defect.

Page 45 of 110
The declaration of rights
The declaration of rights consists of chapter 4 of the Constitution. It is of fundamental
importance to the interpretation of statutes. What follows is an analysis of the DR
and its effect on statutory interpretation. Although the following discussion will
analyse the relevant provisins of the DR in a seemingly siloed approach this is just
for ease of explanation. It must be born in mind that the provisions of the
Constitutions must be taken holistically as an intergrtaed whole. They work together
to provide a signle interpretive regime where each provison contributes to the final
meanng arrived at.

The first section in the DR (section 44) states unequivocally that every person,
including juristic persons, and every institution and agency of government at every
level must respect, protect, promote and fulfil the rights and freedoms set out in the
DR.
How does this have a bearing on statutory interpretation?

Statutes exist to regulate the conduct of the same subjects on whom section 44
imposes obligations ( every person, including juristic persons, and every institution and
agency of government at every level) and statutes are subject to the Constitution. This
means that the obligations imposed by statutes must be understood in light of the
standard set out in section 44. In other words duties performed under statutory
direction must be performed fully cognisant of the obligation to respect protect fulfil
and promote the bill of rights. But what do these terms mean?
respect – refrain from doing anything that would violate individual rights and
freedoms
protect – take action to prevent or mitigate the violation of an individual’s rights by a
third party.
Fulfil – take deliberate actions to ensure that conditions exists in which individuals
can enjoy their fundamental rights
Promote – includes raising awareness of human rights and creating an environment
in which such rights are accepted and viewed positively.

Practical
Attempt to answer question 3 of exercise question 1
Page 46 of 110
Reading down, reading in & severance during Constitutional review
Section 2 of the Constitution declares that the Constitution is the supreme law of the
land and any law that is inconsistent with it is invalid to the extent of the inconsistency.
Embodies in this provision is the idea that a law need not be declared wholly invalid
just because it contains provisions which are contrary to the Constitution. It is possible
to address the problematic provisions and so preserve the statute or the provision in
a modified form, through the process of interpretation. This is made possible by the
presumption of legislative intent which holds that the legislature is aware of the
provisions of the Constitution and always intends to act Constitutionally. If therefore a
provision appears to be unconstitutional, the courts should try to modify the legislation
to keep it alive and Constitutional to avoid leaving a vacuum by simply invalidating it.
The courts use several devises to address the unconstitutionality of statutory
provisions:
Reading down, reading in and severance.

Reading Down
Reading down is a restricted Constitutional interpretation that will be preferred instead
of declaring the statute invalid. This remedy stems from the principle that: The courts
should try to keep legislation Constitutional and in line with common law presumption
that the legislation is not futile or meaning less. Therefore if legislation is, on the face
of it, unconstitutional, but is reasonably capable of a more restricted interpretation
which will be Constitutional and valid, such restricted interpretation should be followed
''reading down"

Hambly V Chief Immigration Officer 1995 (2) ZLR 264 & Ngaru V Chief
Immigtation Officer SC 26 / 04,

Section 22 of the Immigration Act provides that no information or reasons on which a

decision by the Minister to declare any person a prohibited person or a decision to
withdraw or cancel a permit was made may be disclosed in any court if the Minister
certifies that its disclosure is not in the public interest, and no court may question the
adequacy of the grounds for any such decision.

Page 47 of 110
At face value, this provision excludes the right of an immigrant to seek a judicial review
of the reason upon which a decision to expel him has been made, but in the case of
Hambly V Chief Immigration Officer 1995 (2)ZLR 264, and in Ngaru V Chief
Immigtation Officer SC 26 / 04, the Supreme Court has interpreted this provision in
light of the right of protection of the law provided for in section 18 of the Lancaster
House Constitution, such that where the Minister has declared any person to be a
prohibited person and has certified that disclosure of the reasons why he has made
the declaration is not in the public interest, the Minister is nevertheless obliged to
disclose these reasons in court, in camera as provided for in section 18(12) of the
Constitution. The modified outcome in keeping with the Constitution was possible
because the Court restricted ( read down) the powers of the Minister conferred by
Parliament.

See also Mutumwa Dziva Mawere V Registar General CCZ 4 / 15 where the Court
had to read down section 9 of the citizenship Act. Section 9 prohibits dual citizenship
for every citizen of Zimbabwe regardless of how that citizenship was acquired yet
section 39(2)(a) provides that citizenship by birth cannot be revoked merely because
the citizen acquired citizenship of another country. So the application of section 9 of
the Citizenship Act was “read down” and restricted to citizens by descent and by
registration.

Reading In
This is a more drastic remedy used by the courts to change legislation in order to
keep it Constitutional. In exceptional circumstances the court will "read" something
into a provision in order to rescue a provision, or a part of it from the fate of
unconstitutionality.
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
the

Facts:
The Constitutionality of Section 25(5) of the Aliens Control Act, SA, which allows the
spouse or child of a person with the status of a permanent resident to immigrate to
SA to join her/his spouse or parent, was disputed as gay and lesbian permanent

Page 48 of 110
residents were not allowed to rely on this section to arrange for the immigration of
their life partners. This, they claimed, was a form of unfair discrimination against
them on the basis of their sexual orientation.

The court could have simply declared section 25(5) unconstitutional and invalidated it
by they decided against this course action for the following reasons given by the court:
 "The striking down of s 25(5) will have the unfortunate result of depriving
spouses, as presently defined, from the benefits conferred by the section: it
will indeed be 'equality with a vengeance' and create 'equal graveyards'
 The benefits conferred on spouses express a clear policy of the government
to protect and enhance the family life of spouses.
 All these considerations indicate that, if reasonably possible, a striking down
order should not be the remedy resorted to [ ] Against the background of what
has been said above
 I am satisfied that the Constitutional defect in s 25(5) can be cured with
sufficient precision by reading in after the word 'spouse' the following words:
or partner, in a permanent same-sex life partnership' and that it should indeed
be cured in this manner.
 Permanent in this context means an established intention of the parties to
cohabit with one another permanently.
Finding:
It was held that the Constitutional defect in Section 25(5) can be cured with sufficient
precision by reading in after the word ‘spouse’ the following words: ‘or partner, in a
permanent same-sex life partnership’ and that it should indeed be cured in this
manner.

Principles to be followed before Reading In

CC laid down a number of principles to be considered and followed before "reading
in" or severance is applied:
– It should be applied with caution, since the court then changes the legislation.
– The legislative function is entrusted to bodies and persons authorised to enact
legislation.
– Results of severance or reading in must be consistent with the Constitution &
its values
Page 49 of 110
 – Result must have only minimal interference with existing legislation
– The courts must be precise in defining scope of modification to the meaning of
legislation in order to make it compliant
– The courts must endeavour to remain within legislative scheme (aim purpose)
as much as the Constitution allows
– Reading in remedy should not be employed where the result would impose
– unattainable/unsupportable budgetary burden.

Severance
This is the opposite of "reading in". The court will try to rescue a provision from the
fate of unconstitutionally by cutting out the offending part of the provision to keep the
remainder Constitutional and valid.

R.M.D. Chamarbaugwalla v. The Union of India (UOI ) is considered to be one of

the most important cases on the Doctrine of Severability. In this case, the court
observed that:

“The doctrine of severability rests, …….. on a presumed intention of the

legislature that if a part of a statute turns out to be void, that should not affect
the validity of the rest of it, and that that intention is to be ascertained from the
terms of the statute. It is the true nature of the subject-matter of the legislation
that is the determining factor, and while a classification made in the statute
might go far to support a conclusion in favour of severability, the absence of it
does not necessarily preclude it.”

The court further said that:

“When a statute is in part void, it will be enforced as regards the rest, if that is
severable “

See the case of Mudzuru and Tsopodzi v Minister of Justice, Legal and
Parliamentary Affairs and Anor CCZ 12 / 15 in which the Con Court Struck out
section 22 of the Marriages Act [Cap 5:11] for the reason that it contravened section

Page 50 of 110
78 of the Constitution in as far as it allowed the marriage of girls below the age of
18.

Section 2 must be read with the following sections:

Section 44 Which could be termed the obligation clause, which states

The State and every person, including juristic persons, and
every institution and agency of the government at every level
must respect, protect, promote and fulfil the rights and
freedoms set out in this Chapter.

Section 45(1) Which states that the D/R applies to all law and binds the
legislative, the executive, the judiciary and all organs of state.

The role of the declaration of rights

Interpretation of Statutes

Aids to interpretation of statutes

Cases

1. Vacher & Sons Ltd V London Society Of Compositors 1913 AC

2. Kanhym Bpk V Oudtshoorn Municipality
3. A.G. V Prince Ernest Augustus Of Hanover 1899 AC 99
4. Colonial Treasurer V Rand Water Board 1907 TS 479
5. S V Kola 1966 (4) Sa 322
6. S V Davidson 1988 (3) Sa 252 (ZS).
7. Bhyatt V Commissioner For Immigration 1932 Ad 125
8. Chotobai V Union Government 1911 Ad 13
9. Turffontein Estates V Mining Commissioner, Johannesburg 1917 AD 419
10. Hanlon V Law Society 1981 AC 124

The term “aids to interpretation” refers to the different materials that the judiciary
resort to in the process of statutory interpretation. Aids can be either found within the

Page 51 of 110
four corners of the statute itself (internal aids) or they can be found outside the
statute (external aids.)

I. Internal / Intrinsic / Intra-textual Aids

The use that can be made of the different parts of the anatomy of a statute in the
interpretation of that statute.

Features of a statute

Statutes contain the following features

feature Always
Short title 
Long title 
preamble
Definition into sections 
Demarcations into parts (e.g Criminal Law
Codification and reform Act)
Demarcations into Chapters
Sections and their components 
- Subsections
- Paragraphs
- subparagraphs
Schedule
Punctuation 

The use of internal aids is, in some, but not all respects, regulated under the
interpretation Act:

6 Preamble and punctuation to form part of enactments

The preamble to an enactment and any punctuation in an enactment shall form
part of the enactment and may be used as aids to the construction of the
enactment. (Nothing said about the short title & long title )
7 Headings, notes, tables and indexes
In an enactment—

Page 52 of 110
 (a) headings and marginal notes and other marginal references therein to other
enactments; and
(b) notes, tables, indexes and explanatory references inserted therein as part of
any compilation or revision in terms of the Statute Law Compilation and Revision
Act [Chapter 1:03]; shall form no part of the enactment and shall be deemed to
have been inserted for convenience of reference only.

While section 6 tells us that the preamble to an enactment and any punctuation in an
enactment shall form part of the enactment and may be used as aids to the
construction of the enactment, it does not go on to tell us how it is to be used. That is
determined by the common law rules. These rules have been developed by the
courts over time. Below we will discuss the principles governing the use of each of
the features of the statute that have developed through case law.

The short Title

This is the official name of the statute e.g Companies Act. Sometimes the short title
gives more detail about the purpose of the statute:

- Bank Use Promotion and Suppression of Money Laundering Act

- Criminal Law ( Codification and Reform Act)

In the case of Vacher & Sons Ltd v London Society of Compositors 1913 AC it
was said that the short title is a statutory nickname to obviate the necessity of always
referring to the Act under its full and descriptive title … its object is identification and
not description.

The definition section

The definition section is usually section 2 of the Act but definitions can also found in
other parts of the Act. Statutory definitions take precedence over dictionary, common
law or technical definitions unless the context clearly suggests otherwise. In
Kanhym Bpk v Oudtshoorn Municipality it was held that a deviation from the
meaning in the definition clause will only be justified if the meaning is not the correct
interpretation within the context of the particular provision.

Page 53 of 110
The Preamble

This can be said to be a prologue or preface to a statute. A recital, alyway in italics

and often in flowery and eloquent language setting out the background or purpose of
the satute. Examples of preambles can be found in the Supreme court act, the
citizenship act and the anti corruption commission act.

A preamble May be used as an aid to interpretation,

(i) where the words are ambiguous and

(ii) in restricting wide language which goes beyond the purpose of the legislation.

In the case of A.G. v Prince Ernest Augustus of Hanover 1899 AC 99 the

usefulness of a preamble was explained as follows:

When there is a preamble, it is generally in its recitals that the mischief to be

remedied and the scope of the Act are described. It is therefore clearly
permissible to have recourse to it as an aid to construing the enacting
provisions. The preamble is not, however, of the same weight as an aid to
construction of a Section of the Act as are other relevant enacting words to be
found elsewhere in the Act or even in related Acts. There may be no exact
correspondence between the preamble and the enactment, and the
enactment may go beyond or it may fall short of the indications that may be
gathered from the preamble. ………..When the plaintiff puts forward one
construction of an enactment and the defendant another, it is the court’s
business, in any case of some difficulty, after informing itself of what I have
called the legal and factual context, including the preamble, to consider in the
light of this knowledge whether the enacting words admit of both the rival
constructions put forward. If they admit of only one construction, that
construction will receive effect even if it is inconsistent with the preamble, but
if the enacting words are capable of either of the constructions offered by the
parties, the construction which fits the preamble may be preferred.

Page 54 of 110
In Colonial Treasurer v Rand Water Board 1907 TS 479 the preamble was
describes as

a key to open the minds of the makers of the Act and the mischiefs which they
intended to redress. But the key cannot be used if the meaning of the enacting
clauses is clear and plain. In cases, however, where the wording is ambiguous,
and in cases where the court is satisfied that the legislature must have intended
to limit in some way the wide language used, then it is proper to have recourse
to the preamble. It is often difficult to decide when the terms of an Act are so
clear that they must be taken as they stand, and when it is permissible to call
the aid of a preamble. The object must always be to ascertain the object of the
legislature. And it may be necessary in arriving at such intention to cut down
general language susceptible of restriction even though the words used are not
ambiguous in themselves.

In S V Kola 1966 (4) SA 322, A transgender man found wearing female clothes was
charged under a provision which made it an offence to wear disguise in public. After
considering the preamble the court concluded that the real mischief behind the
prohibition was to prevent the commission of crimes, such as robberies, by people in
disguise. In this case the accused was motivated by psychological issues to wear
female clothes so his conduct was not covered by the provision.

In S V Davidson 1988 (3) SA 252 (ZS), the Magistrates court gave an extended
meaning of the term “public place” in the Law and Order Maintenance Act, in the
interests of maintaining law and order after consulting the preamble but the appeal
court decided that there was no justification for extending the meaning of the term
beyond the definition section meaning since that definition was clear enough. Under
the Act, a ‘public place’ denoted an ‘open place’. Resorting to the preamble in order to
make a foyer a ‘ public place’ was held to be improper.

The Long Title

The ‘long title’ is set out at the beginning of the Act and describes the general purposes
of the Act. For example, the long title of the Domestic Violence Act says:

Page 55 of 110
AN Act to make provision for the protection and relief of victims of domestic
violence and to provide for matters connected with or incidental to the
foregoing.

The use of the long title in the interpretation of statutes is regulated by the same
principles applicable to the use of the preamble. In the case of

Bhyatt v Commissioner for Immigration 1932 AD 125 it was stated that It is

‘settled law’ that ‘in the process of ascertaining intention, it is permissible to have
regard to the title of the Act’.

Headings and Marginal Notes

The use of headings and marginal notes is regulated under section 7 of the
Interpretation Act

7. Headings, notes, tables and indexes In an enactment—

(a) headings and marginal notes and other marginal references therein to other
enactments; and
(b) notes, tables, indexes and explanatory references inserted therein as part of any
compilation or revision in terms of the Statute Law Compilation and Revision Act
[Chapter 1:03];

shall form no part of the enactment and shall be deemed to have been inserted for
convenience of reference only.

In the case of Chotobai V Union Government 1911 AD 13 it was stated that “ The
headings of different portions of a statute may be referred to for the purpose of
determining the sense of any doubtful expression in a section ranged under any
particular heading”

In Turffontein Estates V Mining Commissioner, Johannesburg 1917 AD 419, it

was said by the Court:

We are entitled to refer to the heading … for the elucidation of any clause to
which it relates. It is impossible to lay down any general rule as to the weight

Page 56 of 110
 which should be attached to such headings. The object in each case is to
ascertain the intention of the legislature , and the heading is an element in the
process …. Where the intention of the law giver as expressed in any particular
clause is quite clear, then it cannot be overridden by the words of a heading but
where the intention is doubtful, …… then the heading may become of
importance

Punctuation

Punctuation can totally change the meaning of a statement. Consider the two
statements below

A woman without her man is worthless v A woman: without her, man is

worthless.

Which is surprising that under old English law, punctuation was not considered part
of the statute. English law originally started on a note of disregarding punctuation. In
the English case of Duke of Devonshire v O’Connor, Lord Esher MR said:

“To my mind, however, it is perfectly clear that in an Act of Parliament there are no
such things as brackets any more than there are such things as stops”.

By 1981, that position had shifted. Thus in Hanlon v Law Society 1981 AC 124 it
was said

“I consider that not to take account of punctuation disregards the reality that
literate people, such as Parliamentary draughtsmen, punctuate what they
write, if not identically, at least in accordance with grammatical principles.
Why should not other literate people such as judges, look at the punctuations
in order to interpret the meaning of the legislation as accepted by Parliament?

Section 6 of the Interpretation Act makes it clear that any form of punctuation in an
enactment forms part of that enactment and may be used as an aid to interpretation.
This settles a matter that has been unclear for some time

Schedules

Page 57 of 110
A schedule is found at the end of a statute. It is part of the statute and may be used
as an aid to interpretation. Schedules are useful for avoiding crowding the main body
of the statute with too much detail and clutter. Schedules are typically used to deal
with peripheral issues like forms, procedures of meetings, lists of items etc.
Sometimes the Act will empower the minister to amend a schedule through
delegated legislation. The general rule is that where there is an irreconcilable conflict
between a Schedule and a Section in the main body of the statute, the latter prevails.

Section 5 (1) of the Interpretation Act, provides that where a form is prescribed or
specified by any enactment, deviations therefrom not materially affecting the
substance nor calculated to mislead shall not invalidate the form used.

Examples of Acts where schedules are found are: Criminal Procedure and Evidence
Act [Chapter 9 : 07], Privileges Immunities and Powers of Parliament Act [Chapter
2:08], Public Accountants and Auditors Act [ Chapter 27:12]

External Aids
Cases

1. Kuvarega v Registrar General, 1998 (1) ZLR 188 (H).

2. Minister of the Interior v Machadorp Investments (1957 (2) SA 395 (AD)
3. Slabbert v Minister van Lande (1963 (3) SA 620 (T), p. 621.
4. Commercial Farmers Union v Minister of Lands and Others 2001 (2) ZLR
5. Miller v Taylor 1769 (4) Burr:
6. Fothergill v Monarch Airlines Ltd, 1981 AC 251, pp. 279-80.
7. Davis v Johnson [1978] 2 WLR 553
8. Pepper v Hart [1992] 3 WLR 1032
9. Simon Francis Mann V The Government of Equatorial Guinea
10. Mildred Mapingure V Minister of Home Affairs and Ors SC 22/14
11. Mudzuru and Tsopodzi v Minister of Justice, Legal and Parliamentary
Affairs and Anor CCZ 12 / 15
12. Barras v Aberdeen Steam Trawling and Fishing Co. Ltd 1933 AC 402.
13. Wray v Minister of the Interior 1973 (3) SA 554
14. Tsvangirayi V Registrar General 245 / 202 (SC)
15. Practice Direction (Precedent) – 1981 (4) SA 981 (ZSC)

Page 58 of 110
 16. Katekwe v Muchabaiwa 1984 (2) ZLR 112 (S)
17. Magaya v Magaya 1999 (1) ZLR 100
18. United Bottlers V Murwisi

The term “aids to interpretation” refers to the different materials that the judiciary resort
to in the process of statutory interpretation. Aids can be either found within the four
corners of the statute itself (internal aids) or they can be found outside the statute
(external aids.)

II. External / Extrinsic / Extra-textual Aids

The use of external aids is regulated under section 15B of the Constitution which was
introduced by a 2003 amendment. The provisions of section 15B are repeated below

(1) Subject to subsection (3), in the interpretation of a provision of an enactment

consideration may be given to the material referred to in subsection (2) for the
purpose of
(a) confirming that the meaning of the provision is the ordinary meaning conveyed
by the text of the provision taking into account its context in the enactment and the
purpose or object underlying the enactment; or
(b) determining the meaning of the provision when
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account
its context in the enactment and the purpose or object underlying the enactment
leads to a result that is manifestly absurd or unreasonable.
(2) The following material may be used for the purposes of subsection (1)
(a) the material referred to in section seven; ( headings and marginal notes)
(b) any relevant report of a commission of inquiry appointed in terms of the
Commissions of Inquiry Act [Chapter 10:07], or the Law Development Commission
established in terms of the Law Development Commission Act [Chapter 1:02], or
any relevant report of a committee of inquiry or other similar body that was laid
before Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of Parliament that was made to Parliament
before the time when the provision was enacted;

Page 59 of 110
 (d) any treaty, convention or other international agreement that is referred to in the
enactment;
(e) any explanatory memorandum relating to the Bill containing the provision, or any
other relevant document, that was laid before or furnished to members of Parliament
by a Minister before the time when the provision was enacted;
( f ) the speech made to Parliament by a Minister on the occasion of the moving by
that Minister of a motion that the Bill containing the provision be read a second time,
and the committee stage proceedings relating to the Bill containing the provision, as
recorded in the Votes and Proceedings of Parliament or in any official record of
debates in Parliament;
(g) any document, whether or not a document to which a preceding paragraph
applies, that is declared by the enactment to be a relevant document for the
purposes of this section;
(h) any relevant material in the Votes and Proceedings of Parliament or in any official
record of debates in Parliament.
(3) In determining whether consideration should be given to any material in
accordance with subsection (1), or in considering the weight to be given to any such
material, regard shall be had, in addition to any other relevant matters, to
(a) the desirability of persons being able to rely on the ordinary meaning conveyed
by the text of the provision taking into account its context in the enactment and the
purpose or object underlying the enactment; and
(b) the need to avoid prolonging legal or other proceedings without compensating
advantage.

It should however be noted that section 15B is not exhaustive. Other external aids are
still regulated by common law. We will now discuss each of the extrinsic aids:

1. The Constitution

The subject of how the Constitution influences the interpretation of statutes was
discussed extensively in a previous lecture on the influence of the Constitution in the
interpretation of statutes but to recap:

Section 2 Supremacy of the Constitution

Page 60 of 110
Section 3 Founding values and principles

Section 8 National Objectives

Section 46 Declaration of Rights

Common law Presumption of Constitutionality also has a bearing on the use of the
Constitution as an extrinsic aid to interpretation.

2. The Interpretation Act [chapter 1:01]

The role of the Interpretation Act [Chapter 1:01] will form a separate, more detailed
discussion.

3. Dictionaries

It is permissible to resort to dictionaries to discover the meanings of words used in a

statute but the dictionary meaning should not override statutory definitions.

See Stellenbosch Farmers’ Winery Ltd v Distillers’ Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at
476 E-F. The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v
Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

‘Dictionary definitions of a particular word are very often of fundamental importance

in the judicial interpretation of that word in a statute or in a contract or in a will.
Nevertheless, the task of interpretation is not always fulfilled by recourse to a
dictionary definition, for what must be ascertained is the meaning of that word in its
particular context, in the enactment or contract or other document’”.

This use of a dictionary was endorsed by Uchena J in Makone v ZEC

Kuvarega v Registrar General, the Court consulted dictionaries to ascertain the

meaning of the word ‘utter’.

In Commercial Farmers Union v Minister of Lands and Others, The Court referred
to the Oxford English Dictionary for the meaning of the word ‘programme’.

As illustrated by the two cases above, dictionary meanings can provide a means of
evading the real purpose of a provision by resorting to literalism.

For examples of references to dictionaries in South Africa, see Minister of the

Interior v Machadorp Investments (1957 (2) SA 395 (AD), p. 402, and Slabbert v
Minister van Lande (1963 (3) SA 620 (T), p. 621.

Page 61 of 110
 4. Historical Background or Surrounding Circumstances

It is permissible to invoke the historical setting of a statute as an aid to the

interpretation of ambiguous or unclear provisions. Circumstances that may be taken
into account are those that the Courts may take judicial notice of rather than where
evidence of historical circumstances is required to be led. It may be said that the
circumstances must be such that the Court can say they are a matter of general
knowledge.

Examples would be the fact that Zimbabwe was operating under a multi-currency
system in 2012; or a certain statute was made during the era of the GNU; or there was
a war of liberation taking place in Zimbabwe in 1975.

5. Legislative History

Legislative history refers to all the processes preceding and leading up to and the
antecedents to an Act of Parliament. It consists of all the relevant material that is
generated during these processes. Legislative history can be discussed under two
headings: pre -Parliamentary material and Parliamentary material.

Exclusionary rule:

Until 1993, English law firmly excluded legislative history as an aid to statutory
interpretation. By ‘legislative’ it is meant to cover both the pre-Parliamentary materials
such as reports of committees and commissions of enquiry and the Parliamentary
process itself (Parliamentary debates, amendments in its passage in Parliament and
proceedings in committees).

Justification for the exclusionary rule was given in the case of Miller v Taylor 1769 (4)
Burr:

The sense and meaning of an Act of Parliament must be collected from what it
says when passed into law: and not from the history of the changes it underwent
in the house where it took its rise. That history is not known to the other house,
or to the sovereign.

And in Fothergill v Monarch Airlines Ltd, it was said:

Page 62 of 110
 “The Constitutional function performed by Courts of justice as interpreters of
the written law laid down in Acts of Parliament is often described as ascertaining
‘the intention of Parliament’ but what this metaphor, though convenient, omits
to take into account is that the Court, when acting in its interpretative role … is
doing so as mediator between the state in the exercise of its legislative power
and the private citizen for whom the law made by Parliament constitutes a rule
binding upon him and enforceable by the executive power of the state.
Elementary justice … demands that the rules by which the citizen is to be bound
should be ascertainable by him (or more realistically by a competent lawyer
advising him) by reference to identifiable sources that are publicly accessible.
The source to which Parliament must have intended the citizen to refer is the
language of the Act itself………….. If the meaning of those words is clear and
unambiguous and does not lead to a result that is manifestly absurd or
unreasonable, it would be a confidence trick by Parliament and destructive of
all legal certainty if the private citizen could not rely upon that meaning but was
required to search through all that had happened before and in the course of
the legislative process in order to see whether there was anything to be found
from which it could be inferred that Parliament’s real intention had not been
accurately expressed by the actual words that Parliament had adopted to
communicate it to those affected by the legislation.

Reasons for the exclusionary rule (as stated by Benion)

 It would be contrary to principle to allow reference to proceedings in Parliament.

 What is said in one House is not known to the other House or to the Sovereign.
 Allowing such reference would contravene the parole evidence rule.
 Allowing such reference might contravene Parliamentary privilege.
 Allowing such reference would breach the comity that should exist between the
Courts and Parliament.
 Allowing such reference would create difficulties for practitioners.
 Allowing such reference would add to costs.
 Parliamentary material is untrustworthy.
 Allowing such reference would tend to undermine the reliability of the statute
book.

Page 63 of 110
By 1978 however, there was growing dissatisfaction with the exclusionary rule as seen
in the case of Davis v Johnson [1978] 2 WLR 553 were Lord Denning, in interpreting
the provisions of the Domestic Violence and Matrimonial Proceedings Act 1976,
resorted to the Hansard, stating, that not to do so would be like 'groping in the dark
without switching on the light'. On appeal to the House of Lords the Lords (emotionally)
reprimanded Denning for referring to the Hansard and restated the rule that Hansard
must not be referred to. Each of them gave their reasons as set out below.

Lord “It has always been a well-established and salutary rule that
Kilbrandon Hansard can never be referred to by counsel in Court and therefore
can never be relied on by the Court in construing a statute or for
any other purpose."
Lord Scraman "There are two good reasons why the Courts should refuse to have
regard to what is said in Parliament or by Ministers as aids to the
interpretation of a statute. First, such material is an unreliable guide
to the meaning of what is enacted. It promotes confusion, not
clarity. The cut and thrust of debate and the pressures of executive
responsibility, essential features of open and responsible
government, are not always conducive to a clear and unbiased
explanation of the meaning of statutory language. And the volume
of Parliamentary and ministerial utterances can confuse by its very
size. Secondly, counsel are not permitted to refer to Hansard in
argument. So long as this rule is maintained by Parliament (it is not
the creation of the judges), it must be wrong for the judge to make
any judicial use of proceedings in Parliament for the purpose of
interpreting statutes."

Lord Dilhorne While, of course, anyone can look at Hansard, I venture to think
that it would be improper for a judge to do so before arriving at his
decision and before this case I have never known that done. It
cannot be right that a judicial decision should be affected by matter

Page 64 of 110
 which a judge has seen but to which counsel could not refer and
on which counsel had no opportunity to comment."

14 years later, in the case of Pepper v Hart [1992] 3 WLR 1032 The House of Lords
had to decide whether a teacher at a private school had to pay tax on the perk he
received in the form of reduced school fees. The teacher’s son went to the same
private school that he taught and the school had reduced the school fees payable by
him as a perk. The teacher sought to rely upon a statement in Hansard made at the
time the Finance Act was passed in which the minister gave his exact circumstance
as being where tax would not be payable.

The House of Lords departed from Davis v Johnson and took a purposive approach
to interpretation holding that Hansard may be referred to and the teacher was not
required to pay tax on the perk he received.

Lord Griffiths commented that:

The days have passed when the Courts adopted a literal approach. The Courts
use a purposive approach, which seeks to give effect to the purpose of
legislation and are prepared to look at much extraneous material that bears
upon the background against which the legislation was enacted."

And Lord Brown Wilkinson said:

My Lords, I have come to the conclusion that, as a matter of law, there are
sound reasons for making a limited modification to the existing rule (subject to
strict safeguards) unless there are Constitutional or practical reasons which
outweigh them. In my judgment, subject to the questions of the privileges of the
House of Commons, reference to Parliamentary material should be permitted
as an aid to the construction of legislation which is ambiguous or obscure or the
literal meaning of which leads to an absurdity. Even in such cases references
in Court to Parliamentary material should only be permitted where such material
clearly discloses the mischief aimed at or the legislative intention lying behind
the ambiguous or obscure words. In the case of statements made in Parliament,
as at present advised I cannot foresee that any statement other than the

Page 65 of 110
 statement of the Minister or other promoter of the Bill is likely to meet these
criteria."

In the UK, the ruling was met with anxiety and scepticism. It was feared that the ruling
would lead to a situation where the law would no longer be certain and where litigation
costs would become exorbitant due to more time being spent in legal research into
Parliamentary archives. Happily, in the 23 years since the ruling, these fears have not
been borne out.

The ruling was followed in Zimbabwe in several cases, most notably in Tsvangirayi
V Registrar General. Ten years later, in 2003, the Zimbabwean Parliament amended
the Interpretation Act to incorporate section 15B which permits the use legislative
history in the interpretation of statutes. In crafting section 15B however, the legislature
was careful to include provision that would safeguard the process of litigation from
becoming unduly burdened by unbridled resort to extrinsic material. First, section 15
provides that extrinsic material can be resorted to only for the purpose of confirming
that the meaning of the provision is the ordinary meaning conveyed by the text of the
provision taking into account its context in the enactment and the purpose or object
underlying the enactment; or determining the meaning of the provision when
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its
context in the enactment and the purpose or object underlying the enactment leads to
a result that is manifestly absurd or unreasonable.

Secondly, the Court has a discretion whether or not to allow the use of any extrinsic
material by having regard to the desirability of persons being able to rely on the
ordinary meaning conveyed by the text of the provision taking into account its context
in the enactment and the purpose or object underlying the enactment; and the need
to avoid prolonging legal or other proceedings without compensating advantage.

What other material published in the Hansard could the Court resort to:
Possibilities:-
- Reports of the PLC

Page 66 of 110
 - Reports generated during the pre- legislative consultations required by section
141 of the Constitution?
- References by the President in the SONA to impending Bills or in speeches
setting out the legislative agenda of the particular session?

6. International Law

Under section 15B (2)(d), of the Interpretation Act, the Court may have regard to any
treaty, convention or other international agreement that is referred to in the enactment.
More so, Sections 326(2) and 327(6) of the Constitution direct the Courts to take
international law into account in the interpretation of statutes.

Examples:
In Simon Francis Mann V The Government of Equatorial Guinea, the customary
international law principle of non refoulment was used to interpret the obligations of
the state to accused persons under the extradition Act
In Mildred Mapingure V Minister of Home Affairs and Anor. The Convention on the
elimination of all forms of discrimination against women was used to determine the
scope of obligations of public service providers under the termination of pregnancy Act
In Tsopodzi & Anor. V Minister of Justice, Legal and Parliamentary Affairs and
Anor. The Convention on the Rights of the Child and the African Union Convention of
the Rights and Welfare of the African Child were used to buttress the ruling that the
marriage of people under the age of 18 was unconstitutional.

7. Foreign Law
Section 46(1)(e) of the Constitution provides that when interpreting Chapter 4 of the
Constitution a Court, tribunal, forum or body may consider relevant foreign law
It must be noted that the Court has a discretion to consider foreign law as an influence
in interpretation, not to APPLY foreign law.

8. Statutes in Pari Materia

Page 67 of 110
Statutes in pari materia are comparable statutes or similar statutes. The extent to
which the Courts will refer to earlier judicial decisions on statutes in similar terms to
the one that they are currently interpreting. There are several circumstances giving
rise to statutes in pari materia:
 A statute dealing with specialised matters might repeal and replace an older
statute dealing with the same matters e.g The Natural Resources Act was
repealed and replaced by the Environmental Management Act
 A Zimbabwean statute might be modelled on the provisions of a similar statute
in another jurisdiction e.g the South African Public Finance Management Act
and the Zimbabwean Public Finance Management Act.
The British Companies Act and the Zimbabwean Companies Act

In the case of Barras v Aberdeen Steam Trawling and Fishing Co. Ltd 1933 AC
402 it was said that if an Act Parliament uses the same language which was used in
a former Act of Parliament referring to the same subject, and passed with the same
purpose, and for the same object, the safe and well known rule of construction is to
assume that the legislature In Wray v Minister of the Interior 1973 (3) SA 554 it was
stated that:

It is trite law that when the words of an older statute are either incorporated in
or made part of a later statute, this is understood to be done with the object of
adopting any legal interpretation which has been put on them by the Courts”

But

Before this rule can be applied, the previous judicial interpretation must be well settled
and recognised

9. Precedent

Courts do not approach the interpretation of a statute afresh each time. They are
bound by the doctrine of precedent to follow their previous decisions. Stare decisis is
part of our English Law heritage but the brand of the doctrine of precedent applied in
Roman Dutch systems is not as strict as the English Law. Precedent is desirable
because it promotes

• Orderly administration of justice

Page 68 of 110
 • Judicial comity

• Common sense

• Loyalty to higher tribunals in the hierarchy is essential for the smooth working
of the system

In the English law system, the doctrine of precedent is very strictly followed but under
Roman Dutch systems including Zimbabwe, the doctrine is somewhat more flexible.
A Court may depart from a previous decision which it considers to be legally in error.
It was said in National Chemsearch (SA) (PTY) Ltd v Borrowman & Anor 1979 (3)
SA 1092

“In functioning under a virile system of law, a judge must not be faint hearted
and when he is morally convinced that justice requires a departure from
precedent, he will not hesitate to do so; but on the other hand he must guard
carefully against being over bold in substituting his own opinion for those of
others lest there be too much chopping and changing and uncertainty in the law
… a mere difference of opinion without more ought not to justify a departure
from precedent”

In Zimbabwe, the lower Courts are bound to follow the precedents set by the higher
Courts.

Section 26 of the Supreme Court Act provides:

1) There shall be no appeal from any judgment or order of the Supreme Court.

( Sub section 1 is now clearly unconstitutional in view of the introduction of the

Constitutional Court by the new Constitution)

2) The Supreme Court shall not be bound by any of its own judgments, rulings or
opinions nor by those of any of its predecessors

According to Practice Direction (Precedent) – 1981 (4) SA 981 (ZSC) given by the
then Chief Justice Fieldsend:

The Court considers it of importance that there be a degree of certainty upon

which people can rely in the conduct of their affairs. Precedent is an important

Page 69 of 110
 factor upon which to decide what the law is and how it is to be applied in
particular cases. It also serves as a proper starting point for any development
of the law. nevertheless particularly in a changing society, it is essential for the
Court to have some flexibility so as not to restrict unduly its power to develop
the law in proper cases to meet changing conditions and injustice in particular
cases. For the future, this Court, while treating its past decisions and those of
its predecessors as normally binding, will depart from previous decisions when
it appears right to do so, applying the principles generally accepted under our
law.

A famous case in which the Supreme Court overturned an earlier judgment was
Magaya v Magaya 1999 (1) ZLR 100 in which The Supreme Court held that
Katekwe v Muchabaiwa had been wrongly decided.

In Katekwe, the Supreme Court had ruled that the Legal Age of Majority Act
was applicable to African women. The attainment of majority status by African
women meant that the father of an adult woman no longer had the locus standi
to claim seduction damages for her since the right to claim seduction damages
was based on the concept that African women had perpetual minority status
under the law.

The new position set by the later judgement was that the reason why a woman
could not sue for seduction damages was not because of her ‘minority’ status
but because of the very nature of African society. Accordingly, the conferring of
majority status by the Legal Age of Majority Act did not entitle a woman to
exercise rights not accorded to her by customary law. For instance, she could
not sue for seduction damages despite the enactment of the Legal Age of
Majority Act.

In United Bottlers (Pvt.) Ltd v Murwisi, the Supreme Court held that Section 3 of
SI371/85 (Termination of Employment Regulations) gave a labour relations officer only
two choices: either to authorize the dismissal of an employee or to order his/her
reinstatement. It emphasized that under that Section, the option to order the payment
of damages in lieu of reinstatement did not exist. A year later, in Hama v National
Railways of Zimbabwe, it departed from this decision.It held that the position in United
Bottlers (Pvt.) Ltd v Murwisi where a labour relations officer had only these two choices

Page 70 of 110
was incorrect. There was an additional option for a labour relations officer to order the
payment of damages as an alternative to reinstatement.
3. MAXIMS OF STATUTORY INTERPRETATION
Cases:
Quazi v Quazi [1979] 3 All ER 897 HL(E)
Skotnes v South African Library 1997 (2) SA 770 (SCA),
Carlis v Oldfield (1887) 4 HCG 379
S V Kohler, 1979 (1) SA 861 (T)
S v Van der Merwe, 1977 (2) SA 774 (T),
Grobbelaar v De Vyver 1954 (1) SA 255 (A),
In Gregory v Fearn [1953] 2 All ER 559
Casher v Holmes (1831) 2 B & Ad 592 199
Foster v Diphwys Casson (1887) 18 QBD 428,
R v Inhabitants of Sedgely (1831) 2 B & Ad 65
In Intro Properties (UK) Ltd v Sauvel, QB 1019 (1983), 2 All ER 495 (1983), 2
WLR 908 (1983).
Inland Revenue v Frere [1964] 3 All ER 796
Abrahams v Cavey, [1968] 1 QB 479
Bourne v Norwich Crematorium Ltd, [1967] 1 WLR 691
Tsitsi Veronica Muzenda V Patrick Kombayi and Zimbabwe Electoral
Commission Electoral Court of Zimbabwe, HH 47 / 08,
Hillary Simbarashe V Zimbabwe Electoral Commission And Mabel Chinomona
HH 45 / 08.
Overseers of Wigton v Overseers of Snaith,
S v Mujee. 1981(3) SA 800.
R v Barrington.
R v Gwantshu 1931 EDL 29

A maxim is a short, pithy statement expressing a general truth or rule of conduct. We

find maxims in the English language (blood is thicker than water) and in other
languages: (tsitsi dzinotsitsirira). Maxims help to convey meaning without saying
much. The legal profession is notorious for making use of latin maxims. Almost every
branch of law has its own maxims. Res ipsa loquita is a maxim used in relation to

Page 71 of 110
criminal law, which means the facts speak for themselves. Caveat subscripto means
signer beware, volenti non fit injuria means a person cannot be heard to complain
against injury arising from treatment that he has consented to.

Statutory interpretation as a discipline has its own Latin maxims which are sometimes
referred to as ‘rules of language’. These are not legal rules but are rough guides to the
way in which people speak in certain contexts. In fact, maxims are really presumptions
about what the intention of Parliament must have been when statutes use language in
certain ways or uses words in certain configurations.

There are many maxims applicable to the interpretation of statutes but we will look at
several of the most commonly used ones below.

1. ‘Ejusdem Generis’
The rule of construction embodied in the ejudem generis maxim was laid down in 1596
in the Archbishop of Canterbury case. Ejusdem generis literally means ‘of the same
kind’. This maxim is useful when a statute has explicitly set forth a series of terms to
which the statute applies, and one has to determine whether the statute also applies
to other people, things or situations not explicitly mentioned in the statute. According
to this maxim “general words that follow specific words in a statute should be construed
to embrace only objects similar in nature to those objects enumerate by the preceding
specific words.” In other words, the specific objects or things explicitly set forth in the
statute should be used to determine what other objects or things the legislature
intended to include. For example, if a law refers to automobiles, trucks, tractors,
motorcycles, and other motor-powered vehicles, and other vehicles a court might
use ejusdem generis to hold that the term “other vehicles” would include scooters
but not include airplanes, because the list included only land-based transportation.

Cockram explains this in the following words:

Where a list of items which form the genus or class is followed by a general
expression, the general expression is, in the absence of a contrary intention in
the statute, construed ejusdem generis to include only other particular words.

Page 72 of 110
 It was also explained by Diplock LJ in Quazi v Quazi [1979] 3 All ER 897
HL(E), as follows:

The presumption then is that the draughtsman’s mind was directed only to the
genus indicated by the specific words and that he did not, by his addition of the
word ‘other’ to the list, intend to stray beyond its boundaries, but merely to bring
within the ambit of the enacting words those species which complete the genus
but have been omitted from the preceding list either inadvertently or in the
interests of brevity.

In the South African case of Sacks v City Council of Johannesburg, the court
considered a traffic by-law which provided that ‘no person shall sit or lie down on any
street, nor shall any person stand, congregate, loiter or walk, or otherwise act in such
manner as to obstruct free traffic’. It was held that the general words ‘otherwise act
in such manner as to obstruct traffic’ must be restricted to the same character, as
the particular words referred to an obstruction by a direct physical act of the accused.
In casu, the obstruction was caused by a crowd that had gathered to listen to the
accused, who was speaking during an industrial dispute from a car in a public street.
The accused himself had not obstructed anything.

Five different conditions needs to be fulfilled for this rule of construction to be

applicable. They are:

 The statute contains an enumeration of specific words.

For example, in an English statute entitled the ‘Sunday Observance Act 1677’, it was
provided that ‘no tradesman, artificer, workman, labourer or other person whatsoever,
shall do or exercise any worldly labour, business, or work of their ordinary callings
upon the Lord’s Day’. It was held that the expression ‘other person whatsoever’ must
be restricted to ‘other persons’ following callings of the similar kind to those specified.
A barber was held not covered.

 The subjects of enumeration must constitute a class or category.

Page 73 of 110
A genus is a reasonably identifiable category of items or values and must have at least
two members. In Amberley Estates (Pvt) Ltd v Controller of Customs and Excise the
court had to consider the scope of the definition of ‘manufacture’ in Section 2 of the
Customs and Excise Act. This section provided that ‘manufacture’ includes ‘the mixing,
brewing, distilling or production of goods’. It was argued that on the basis of the
ejusdem generis rule, the word ‘mixing’ had to be qualified by these same words. The
court rejected this argument on the following basis: For this rule to operate, there must
be a distinct genus or category to which the wide general word is to be linked …. And
I cannot accept that the words following upon ‘mixing’, particularly, ‘or production of
goods’, constitute a definite or clear class.

In S v Makandigona S v Makandigona 1981 4 All SA 626 (ZA) the Prevention of

Corruption Act referred to ‘any receipt, account or other document’. The court took the
view that no genus was created by ‘receipt’ or ‘account’ and dismissed the contention
that the ‘genus’ was one of ‘documents relating to money’. While it accepted that an
‘account’ is associated with money, it noted that a ‘receipt’ could be an
acknowledgement of something else other than money. In the absence of a genus,
the court declined to apply the ejusdem generis rule and gave the expression ‘other
documents’ its ordinary grammatical meaning. Accordingly, it held that the rule applied
to the issuing of a certificate of competence by a driving examiner to a woman
indicating that she had passed when in fact she had not.

In the South African case of Skotnes v South African Library 1997 (2) SA 770
(SCA), section 2(1)(b) of the Legal deposit of publications Act provides that a copy of
every publication published in the Republic of South Africa be supplied free of charge
to every legal deposit library if copies of such a publication are intended to be sold to
members of the public. The definition of “publication” in the Act included a printed
book, newspaper magazine periodical journal, pamphlet, brochure, sheet card or
portion thereof of any other similar material.

The appellant refused to supply a free copy of a publication to the responded on the
basis that it was not a “printed book” as defined in the Act. It was argued for the
appellant that the words following “printed book” in the definition restrict its meaning.
Since these items were all mass produced, inexpensive and machinery produced
Page 74 of 110
publications involving essentially commercial printing, it created a distinct category.
As a result of the distinct category, the ejusdem generis rule applies, the Skotnes
book falls outside that category and the Act does not apply to it.

The court took the view that unless there is a distinct category formed by the specific
words, the ejusdem generis rule cannot be applied. It was held that the words
following “printed book” in the definition section did not clearly indicate a genus of
printed material which would restrict the meaning of “printed book” to some species
of that genus. The intention of the legislature with the Act was to build up a national
collection of books providing a record of cultural and scientific activities. The scope
and purpose of the Act did not support such a restrictive interpretation and so the
ejusdem generis rule did not apply.

 The class or category should not have been exhausted by the enumeration.
In a case where the members of the class or genus are exhausted, it is assumed
that the general words refer to a broader genus and therefore cannot be interpreted
restrictively Carlis V Oldfield 4 HCG 379

 The general terms should follow the enumeration.

 There is no indication of a different legislative intent.

In S V Kohler, 1979 (1) SA 861 (T) The court heard an appeal against a conviction
by a magistrate’s court, which convicted Kohler of having contravened a municipal
poultry regulation by keeping a peacock within the municipal boundaries without a
licence. The regulation defined ‘poultry’ as any fowl, duck, goose, turkey, guinea
fowl, partridge, pheasant, pigeon or the chickens thereof, or any other bird. The
defence alleged that peacocks are not poultry.

After consulting dictionaries, the court found a peacock to be “a chicken-like

decorative bird”. Since there already is a definite genus (i.e. poultry), the general
words “any other bird” are restricted to that genus. A peacock is a species of that
genus and the appeal was dismissed.

Schreiner JA, in Grobbelaar v De Vyver 1954 (1) SA 255 (A), said this:
Page 75 of 110
 ‘The instrument of interpretation denoted by ejusdem generis or nascitur
sociis must always be borne in mind where the meaning of general
words in association with specific words has to be ascertained; but what
is often a useful means of finding out what was meant by a provision in
a contract or statute must not be allowed to substitute an artificial
intention for what was clearly the real one.’

The ejusdem generis rule does not apply if it defeats a clear purpose of the legislation
or is contrary to the clear intentions of the legislature. In such cases, the words are
given their wider meaning in order to accord with the legislative object. For example,
it is inappropriate to resort to the rule where the statute uses the word ‘include’.41
Thus, in S v Van der Merwe, 1977 (2) SA 774 (T), the statute defined ‘fuel’ as ‘includes
diesel oil, gas, petrol or any other substance capable of being used as a fuel’. Although
the accused was charged with using methanol (a combustible liquid), the magistrate
applied the ejusdem generis rule and limited this definition to oil-based products. As
methanol is not an oil-based product, he acquitted the accused. On appeal by the
Attorney General, this was reversed – the Appeal Court held that the expression ‘any
substance’ clearly referred to any other fuel that could be used to operate a car engine.

In Munarwo V Grain Marketing Board, 2009 (1) ZLR 304 (S), it was held that the
ejusdem generis principle is not a rule of general application. It has to be applied with
caution and not pushed too far. It is a mere presumption in the absence of other
indications from the legislature. It should not be invoked automatically whenever
general words follow particular words. Special care should be taken when applying the
rule to employment codes because in general such codes are not drafted with the
same expertise and precision required for the drafting of statutes, almost invariably
they are drafted by lay men.

2. The Rule of Rank

Where a string of particular words belonging to items of a certain rank are followed by
general words, it is presumed that the general words are not intended to include items
of a higher rank. The favourite illustration is the statement by Blackstone in the
following words: A statute, which treats things or persons of an inferior rank, cannot
Page 76 of 110
by any general words be extended to those of a superior. So a statute, treating of
deans, prebendaries, parsons, vicars and others having spiritual promotion,
is held not to extend to bishops, though they have spiritual promotion, deans being the
highest persons named, and bishops being of a still higher order. In Gregory v Fearn
[1953] 2 All ER 559 it was held that the string ‘tradesman, artificer, workman, labourer
or other person whatsoever’ did not include persons above the artisan class. In
Casher v Holmes (1831) 2 B & Ad 592 199, the string ‘copper, brass and tin, and all
other metals’ was not taken to include precious metals such as gold and silver.
So a list comprising book keepers, paralegals and teaching assistants might include
clerks but will not include lawyers or accountants.

3. Noscitur a Sociis
This maxim literally means, ‘a thing is known by its associates’. It is a broader linguistic
rule that refers to the fact that words derive their meaning from the words which
surround them. Or the meaning of a word is or may be known from the accompanying
words. Under the doctrine of noscitur a sociis, the meaning of questionable words or
phrases in a statute may be ascertained by reference to the meaning of words or
phrases associated with it.

In Bourne v Norwich Crematorium Ltd, [1967] 1 WLR 691 Stamp J said:

English words derive colour from those which surround them. Sentences are
not mere collections of words to be taken out of the sentence, defined
separately by reference to the dictionary or decided cases, and then put back
into the sentence with the meaning which you have assigned to them as
separate words.

For example, in Abrahams v Cavey, [1968] 1 QB 479 the accused was charged with
contravening Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 which
penalised ‘riotous, violent, or indecent behaviour’ in churches and churchyards. 44
The accused had shouted out during a Methodist Church Service (held in connection
with the Labour Party Conference), ‘Oh you hypocrites, how can you use the word of
God to justify your policies?’ It was held that the word ‘indecent’ did not have its usual

Page 77 of 110
sexual connotation, but, because of the surrounding words, it must be taken to refer
to the indecency, i.e., impropriety, of causing a disturbance within a sacred place.

In Inland Revenue v Frere [1964] 3 All ER 796, the respondent sought to deduct
the interest paid on a short term loan from his income for the purposes of assessing
his liability to pay tax. The Income Tax Act of 1952 allowed "the amount of interest,
annuities or other annual interest" to be deducted from the income. It was held that
Under the noscitur a sociis rule, the mention of amount of interest related only to
annual interest as the other items related to annual payments. The respondent's
interest payment was not an annual interest payment and therefore he could not
deduct it from his income and he was required to pay tax on it.

In the case of Foster v Diphwys Casson (1887) 18 QBD 428, which involved a statute
which stated that explosives taken into a mine must be in a "case or canister"; the
defendant had used a cloth bag. The courts had to consider whether a cloth bag was
within the definition. Under noscitur a sociis, it was held that the bag could not have
been within the statutory definition, because parliament's intention was referring to a
case or container of the same strength as a canister.

The maxim should however be applied with caution. A Canadian Judge once
remarked: “The principle of noscitur a souis does not in my judgment entitle one to
overlook self-evident facts. If you meet seven men with black hair and one with red
hair, you are not entitled to say that here are eight men with black hair."

4. Expressio Unius est Exclusio Alterius

Here, the literal meaning is that the express mention of one or more things is to exclude
the others of the same class that are not mentioned. When one or more things of a
class are expressly mentioned others of the same class are excluded.

Bennion aptly explained the application of this maxim as follows:

It is applied where a statutory proposition might have covered a number of matters but
in fact mentions only some of them. Unless these are mentioned merely as examples,
or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be
excluded from the proposition. For example:
Page 78 of 110
Section 11(2) of the Public Finance Management Act [Chapter 22:19] provides:
Where any public resources have been written off in terms of subsection (1)(b) or (c)
during any financial year, the Minister shall lay before the House of Assembly,
within thirty days before or not later than thirty days after the end of that financial
year, a statement of the public resources so written off.

The express mention of the House of Assembly means that the Senate is excluded
from the operation of this section.

A leading example is the English case of Lead Smelting Co v Richardson. The Poor
Relief Act, 1601, imposed a poor rate on the occupiers of ‘lands, houses, tithes, and
coal mines’. The court held that the express mention of ‘coal mines’ meant that the
word ‘lands’ did not include mines. Thus, the argument that mines other than coal
mines were included under ‘lands’ was rejected.
. In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC) at 434D-E
GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate
recourse of construing the general words “any sentence” in subs (6) as excluding the specific
reference to “a sentence of death” in subs (5). This is no more than an application of the rule
embodied in the maxim “expressio unius exclusio alterius”. It draws attention to the fairly
obvious linguistic point that in many contexts the mention of some matters warrants an
inference that other cognate matters were intentionally excluded. See Maxwell on The
Interpretation of Statutes 12 ed at p 293”.

In the case of Eagle Insurance Co Ltd v Grant 1989 (3) ZLR 278 (SC) at 280F KORSAH JA
commenting on the operation of the maxim said:

“A rule which is variably resorted to in the interpretation of statutes the expressio unius rule
– is that the mention of one or more things of a particular class may be regarded as silently
excluding all other members of the class”.

R v Inhabitants of Sedgely (1831) 2 B & Ad 65, A statute raised taxes on 'lands,

houses and coalmines'. The court held that it did not apply to limestone mines as

Page 79 of 110
these were not specifically mentioned nor did the statute suggest that it would apply
to other types of mines.

In Intro Properties (UK) Ltd v Sauvel, QB 1019 (1983), 2 All ER 495 (1983), 2 WLR
908 (1983). the Diplomatic Privileges Act 1964 protected, in relation to a foreign
mission (diplomatic offices/residences), what were defined as the physical ‘premises
of the mission’. The definition of this phrase in the legislation was:

The buildings or parts of buildings and the land ancillary thereto, irrespective of
ownership, used for the purposes of the mission including the residence of the head
of the mission. The court had to determine whether or not the private dwelling occupied
by a financial counsellor at the French Embassy in London was protected.
It was held that the specific mention of the residence of the Head of Mission excluded
the residences of the other members of the mission.

In Tsitsi Veronica Muzenda V Patrick Kombayi and Zimbabwe Electoral

Commission Electoral Court of Zimbabwe, HH 47 / 08, and Hillary Simbarashe
V Zimbabwe Electoral Commission And Mabel Chinomona HH 45 / 08.

Counsel for the applicant objected to the citation of 1 st respondent in the petition. He
relied on the definition of respondent found in Part XX III in section 166 of the Act. The
section reads as follows: In this Part—

“respondent” means the President, a member of Parliament or councillor whose

election or qualification for holding the office is complained of in an election petition.

It was submitted and accepted that the legislature deliberately defined respondent in
the Act so as to exclude the 1st respondent in circumstances where it would
automatically have been included by virtue of its overarching role in running and
conducting elections.

In Sunfresh Enterprises (Pvt ) Ltd V ZIMRA 2004 (1) ZLR 506 (H), the court had to
interpret paragraph 1 of the 17th schedule to the Income Tax Act which read

“fees” means any amount from a source within Zimbabwe payable in respect of any
services of a technical, managerial administrative or consultative nature …. “

Page 80 of 110
The court applied the expressio unius principle to hold that the express mention of
the source of the fees emanating from within Zimbabwe had the effect of excluding
from the ambit of the provision, amounts paid from a source outside Zimbabwe

This maxim does not apply where its application would lead to a defeat of the
legislative intention. In this regard, it is important to bear in mind what Cross has said,
namely:
It is doubtful whether the maxim does any more than draw attention to a fairly obvious
linguistic point, viz., that in many contexts the mention of some matters warrants an
inference that other cognate matters were intentionally excluded. Allowance must
always be made for the fact that the ‘exclusio’ may have been accidental, still more for
the fact that there may have been good reason for it. It was on this basis that the
Rhodesian Appellate Division refused to apply the expressio unius rule in R v
Barrington. The statute had specifically penalized persons who unlawfully ‘offer to
sell gold’ and was silent on those who ‘offer to buy gold’. It was held that to apply the
maxim to exclude the latter would defeat the intention of the legislature.

5. Reddendo Singula Singulis’

This maxim literally means ‘arranging or applying each to each’. Its application is
expressed as follows in Bennion:

Where a complex sentence has more than one subject, and more than one
object, it may be the right construction to render each to each, by reading the
provision distributively and applying each object to its appropriate subject.

A similar principle applies to verbs and their subjects, and to other parts of speech.
Two examples that illustrate this maxim are:
1. ‘Men and women may become members of fraternities and societies’. This can be
interpreted as being gender-specific, i.e., that men may become members of
fraternities and women members of societies.
2. ‘Anyone who shall draw or load a sword or gun’ can, however, be interpreted as
anyone who draws a sword or load a gun. In the English case of Overseers of Wigton
v Overseers of Snaith, the issue concerned interpretation of Section 5 of the Poor
Law Amendment Act 1849. This provided for the transfer of a lunatic pauper from one

Page 81 of 110
poor law union to another and gave the receiving union a right to compensation from
the other. This right was expressed as one to receive the expenses incurred ‘in and
about the obtaining any order of justices for the removal and maintenance of a lunatic
pauper’. The question that arose was whether or not the receiving union could claim
for the ongoing maintenance of the pauper. The wording, on the face of it, suggested
that what could be claimed was not the maintenance per se, but only costs of obtaining
an order from the justice for the removal and maintenance. It turned out that an order
of the justices was required only for removal and not for maintenance. The court held
that the intention was to give a right to compensation for two separate issues, namely
(a) the cost of obtaining the removal order, and (b) the ongoing maintenance of the
pauper. This interpretation was arrived at by assigning the phrase ‘in and about’ to
each of the removal order and the maintenance of the pauper. The Section was
subsequently rephrased to read: ‘The receiving union shall be entitled to the expenses
incurred ‘in and about’ the obtaining any order of justicesfor the removal of a lunatic
pauper and ‘in and about’ the maintenance of a lunatic pauper so removed.’

6. Cessante Ratione Legis, Cessat Ipsa Lex

The meaning of this maxim is ‘if the reason for the law falls away, the law falls away’.
A widely quoted example is Willes CJ in Davis v Powell: Reason is the soul of the
law, and when the reason of any particular law ceases, so does the law itself.Taken
literally, this maxim has little application in modern statutory interpretation because the
courts can neither modify nor repeal a statute on the basis of changed circumstances.
This would be in violation of the principle of separation of powers. However, it may be
employed to give effect to the intention of the legislature in circumstances that justify
making some provisions of a statute inoperative.

The maxim was applied by Gubbay J (as he then was) in S v Mujee. 1981(3) SA 800.
The accused had been convicted by the Magistrates Court of failing to make payments
under a contribution order made in terms of the Maintenance Act (then Chapter 35).
The contribution order had been made by a juvenile court in respect of his minor child
who had been placed under a certified institution. The payments were ordered to be
made to the named institution. The accused had been convicted of failing to make
payments for the period 1 April 1980 to 1 August 1980. However, it emerged that the
minor child had, in fact, been discharged from the named certified institution on 28
Page 82 of 110
February 1980, but that the order requiring the accused to make payments had not
been withdrawn. The High Court set aside the accused’s conviction by applying the
maxim ‘cessante ratione legis cessat ipsa lex’. Gubbay J (as he then was) had this to
say:
It seems to me that, if ever there was a case in which this maxim applies, it is the
present. The ratio for the contribution order was to compel the accused in the fulfilment
of his parental duty of support – to contribute towards the cost incurred by the certified
institution in maintaining his child. The ratio fell away completely with the removal of
the child from the certified institution in February 1980. It could not have been the
intention of the lawmaker to treat as valid a maintenance or contribution order when
the entire object for which the order was made has ceased to exist.

7. Lex Posterior Derogat Priori

A later statute takes precedence over an earlier statute in conflict with it.

8. Generalia Specialibus Non Derogant.

A statute that deals with specific matters takes precedence over one that deals with
general matters:
Government of the Republic of South Africa v Government of KwaZulu 1983(1) SA

in R v Gwantshu 1931 EDL 29 at 31 it was held:

"When the Legislature has given attention to a separate subject and made provision for
it, the presumption is that a subsequent general enactment is not intended to interfere
with the special provision, unless it manifests that intention very clearly. Each enactment
must be construed in that respect according to its own subject-matter and its own terms.

Lord Hobhouse delivering the judgment of the Privy Council in Barker v A Edger ([1898}
AC at 754):
'Where general words in a later Act are capable of reasoning and sensible application
without extending them to subjects specially dealt with by earlier legislation, that earlier
and special legislation is not to be held indirectly. .. altered. .. merely by force of such
general words, without any indication of a particular intention to do so. "In such cases it

Page 83 of 110
 is presumed to have only general cases in view and not particular cases which have been
already otherwise provided for by the special Act. Having already given its attention to
the particular subject and provided for it, the Legislature is reasonably presumed not to
alter that special provision by a subsequent general enactment unless that intention be
manifested in explicit language . . .(Maxwell Interpretation of Statutes 7th edat 153)."

4. UNIVERSITY OF ZIMBABWE DEPARTMENT OF PUBLIC LAW

INTERPRETATION OF STATUTES

Presumptions of legislative intent

Cases:

1. Zimbabwe Electoral Commission ( ZEC) & Anor V Commissioner

General of the Zimbabwe Republic Police 2014 (1) ZLR 405
2. Zimbabwe Township Developers (Pvt) (Ltd) v Lou’s Shoes Pvt Ltd
1983 (2) ZLR 376).
3. Devlin in National Assistance Board v Wilkinson [1952] 2 QB 648:
4. Telecel Zimbabwe V Attorney General the Court SC 1 2014,
5. Commissioner of Taxes v First Merchant Bank ltd 1997 (1) ZLR 350 (S);
6. Henks Construction v Zimbabwe Defence 1998 (1) ZLR 49 (S).
7. Faria v Claridge 1988 (2) ZLR 202 HC).
8. Nyamande V Zuva Petroleum SC 43 / 15
9. Simon Francis Mann v Government of Equatorial Guinea
10. S V Mapanzure and Anor, 141 / 11,
11. S v Mutandwa and Another 1973 (3) SA 391
12. S V Mzanywa HB 9 / 06
13. De Villiers & another v. Sports Pools Pvt. Ltd (No. 2) 1976
(2) RLR 233 (AD);

Page 84 of 110
 14. Holland & Ors v Ministry of Public Service, Labour & Social
Welfare 1997 (1) ZLR 186
15. Tamanikwa & Ors V Zimbabwe Manpower Development
Fund. 2013 (2) ZLR 46,
16. City Treasury & Rayes Collection, Newcastle TC v Shaikjee
1983 (1) 506 SA;

Presumptions of legislative intent are assumptions about the intention of the legislature in
given circumstances. Certain intentions are attributed to the legislature in the absence of
express provisions communicating that intent. As a result, the statute is interpreted with
that intention in mind. Presumptions are to be treated like any other rule or principle of
interpretation, that is to say, they should not be applied automatically. They are servants
and not masters of the Court and should not be applied in circumstances where their
application would go against the clear intention of the legislature as indicated by other
relevant factors. Like any other presumption. They are rebuttable.

There are many presumptions of legislative intent and perhaps it is possible to write a book
just of the subject of presumptions. What this chapter will seek to do is to clearly set out the
nature of presumptions and the mechanics of how they are used by reference to some of
the more commonly used presumptions.

Presumption of Constitutionality

According to this presumption, Parliament is deemed to always intend to act constitutionally

and to pass laws that are in conformity with the Constitution. The effect of this presumption
is that all statutes are deemed to be in compliance with the Constitution until their
Constitutionality is successfully challenged. Further, the person who alleges that any
provision is unconstitutional has the onus of proving it. If an enactment is prima facie
unconstitutional but is capable of another meaning which would bring it within the bounds

Page 85 of 110
of the Constitution, the Court will presume that the legislature intended for the
Constitutional meaning to apply. This presumption provides the basis for the devises of
reading up, reading in and reading down.

(see Zim Township Developers (Pvt) (Ltd) v Lou’s Shoes Pvt Ltd 1983 (2) ZLR
376).

In the case of Zimbabwe Electoral Commission ( ZEC) & Anor V Commissioner

General of the Zimbabwe Republic Police 2014 (1) ZLR 405, the Court was asked to
decide on the Constitutionality of the conduct of ZEC. The facts of the case were that in the
period leading to the 2013 General Elections, ZEC, acting in terms of Part XIVA of the
electoral Act [Chapter 2:18], had made arrangements for special votes to enable members
of the disciplined forces to cast their votes. Due to logistical constraints, ZEC was not able to
post the requisite ballot paper to each special voter within the stipulated time frame with the
result that about 41% of the special voters were not able to cast their special votes. ZEC
then announced that those who had not been able to cast their special votes would be able
to vote in the general elections on the normal polling day. The opposition objected to this
decision on the grounds that section 81B of the Act provides that special voters shall not be
entitled to vote in any other manner than by casting a special vote in terms of Part XIVA of
the Act. ZEC brought an application before the Constitutional Court arguing that to apply
section 81B(2) would deprive the voters of their Constitutional right to vote.

The Court held that one commences the process of interpretation of the provision with the
presumption of Constitutionality. Every statute is presumed to be Constitutional, that is to
say, the Legislature is presumed to have acted within the parameters of the Constitution.
Thus, where a provision in a statute is capable of two possible interpretations, one contrary
to the Constitution and the other in keeping therewith, the Court conducting the inquiry into
the Constitutionality or otherwise of the provision must adopt the meaning which will give
effect to the Constitution.

The Court also held that the right to vote is absolute. No derogation therefrom is provided for
by the Constitution. The Court must proceed from the premise that Parliament intended to
act constitutionally and, in casu, to respect the sacred right of the special voters to vote. It

Page 86 of 110
therefore could not have intended to deprive special voters of their right to vote should the
necessary measures not be put in place by the State to enable them to cast their special votes
on the dates prescribed.

The legislature does not intend to alter the existing or the common law law
more than is necessary.

This applies to alteration of both the common law and the statute law. So a statute.
will not be presumed to have altered the existing law in the absence of express
provisions to that effect. One of the paramount principles of statutory construction is
that the law should not be subject to casual change. As was succinctly put by Lord Devlin
in National Assistance Board v Wilkinson [1952] 2 QB 648:

“It is a well-established principle of construction that a statute is not to

be taken as effecting a fundamental alteration in the general law unless
it uses words that point unmistakably to that conclusion”.

Bennion: Statutory Interpretation, at p. 317, elaborates the principle against casual

change as follows:
“It is a principle of legal policy that law should be altered deliberately rather than
casually, and that Parliament should not change either common law or statute
law by a sidewind, but only by measured and considered provision. In the case of
common law, or Acts embodying common law, the principle is somewhat
stronger than in other cases. It is also stronger the more fundamental the
change is.

Page 87 of 110
 The Court, when considering, in relation to the facts of the instant case,
which of the opposing constructions of the enactment would give effect
to the legislative intention, should presume that the legislator intended
to observe this principle. The Court should therefore strive to avoid
adopting a construction which involves accepting that Parliament
contravened the principle.”

Common law is always favoured by Courts unless it is expressly or by

necessary implication overridden by statute. Thus, In the case of Telecel
Zimbabwe V Attorney General the Court SC 1 2014, the Supreme Court had to
decide on the correctness of the decision of the Attorney General to
decline Telecel’s application for a nolle prosequi on the grounds that as a
juristic person, it did not have that right under the Criminal Procedure
and Evidence Act. After considering the relevant contextual factors
including provisions of the English law and South African law
antecedents to our Criminal Procedure and Evidence Act, the Court found
that there was a common law right held by juristic persons to be issued
with a nolle prosequi under certain circumstances and that there was
nothing in the criminal procedure and Evidence Act to suggest that that
common law right had been extinguished by statute.

On the other hand, in the event of any direct conflict between Statute
and Common law, Statute law always prevails. See Commissioner of Taxes
v First Merchant Bank Ltd 1997 (1) ZLR 350 (S); Henks Construction (Pvt) Ltd v
Zimbabwe Defence 1998 (1) ZLR 49 (S) Nyamande V Zuva Petroleum SC 43 / 15

Presumption in favour of upholding international obligations

International law is a source of law in Zimbabwe under the conditions provided for in terms
of section 326 and 327 of the Constitution. In terms of section 326, the rules of customary

Page 88 of 110
international law are part of the laws of Zimbabwe (unless they are in conflict with the
Constitution or an Act of Parliament) and must be given effect to. Section 326 (2) provides:

When interpreting legislation, every Court and tribunal must adopt any reasonable
interpretation of the legislation that is consistent with customary international law
applicable in Zimbabwe, in preference to an alternative interpretation inconsistent with
that law.

The provisions of section 326 of the Constitution are new to our system in the sense
that the Lancaster House Constitution was silent on the question of the status of
customary international law. Notwithstanding this silence, the Courts had always
considered customary international law to be applicable in Zimbabwe to the same
extent as the common law11.

The case of Simon Francis Mann v Government of equatorial Guinea is an example of the high
Court using a rule of customary international law to interpret legislation. In that case, Mr.
Mann, a British citizen had been arrested in Zimbabwe while he was enroute to Equatorial
Guinea to conduct mercenary activities to overthrow the government of that country, ( so it
was alleged). At that time, Zimbabwe did not have legislation in respect of which it could have
charged Mr. Mann for terrorist activities and had to contend with charging and convicting him
on relatively minor charges relating to the illegal possession of firearms. He was sentenced to
a few months in jail. Towards the time scheduled for his release, the government of Equatorial
Guinea requested the Government of Zimbabwe to extradite Mr. Mann to Equatorial Guinea
so that he could face charges of attempting to other throw the government.

Mr. Mann applied to the Court for an order refusing the request on the grounds that
Zimbabwe had an obligation under the international law principle of non refoulment to
refuse to extradite an accused person to any country where that person is likely to face
torture. The principle of non refoulment is a principle that is expressly provided for in the
Convention against Torture which Zimbabwe is not party to but which is also recognized

11
S v Mharapara, Barcomacomic v Government of Kenya, Sibanda v ICRC

Page 89 of 110
 as a peremptory norm of customary international law (jus congens norm). The extradition
Act did not make any reference to the principle of non refoulment but the Court
interpreted it to read in that principle.

The position with regard to international agreements, also known as treaty law is that
international agreements have to be approved by Parliament and subsequently ratified
at the international level before they can be incorporated into Zimbabwean law. When
an agreement has been ratified, it is binding on Zimbabwe at the international level,
that is to say, Zimbabwe can be held accountable by other states that are parties to the
agreement for the fulfilment of her obligations under that agreement, but before such
an agreement has been incorporated into Zimbabwean law by an Act of Parliament, its
provisions cannot be applied by the Courts directly12. Section 327(6) however provides:

When interpreting legislation, every Court and tribunal must adopt any reasonable
interpretation of the legislation that is consistent with any international convention,
treaty or agreement which is binding on Zimbabwe, in preference to an alternative
interpretation inconsistent with that convention, treaty or agreement.

The reference to any international convention, treaty or agreement “which is binding on

Zimbabwe” suggests that in the interpretation of statutes, the Courts are obliged to consider
unincorporated treaties as extrinsic aids to interpretation. Thus there is a possibility that the
content of Zimbabwean law could be influenced by the provisions of international
agreements that Zimbabwe has not domesticated as long as they have been ratified.

It is also worth mentioning that section 15B of the Interpretation Act provides that the Court
is permitted to treat international agreements as extrinsic aids to interpretation, albeit under
restrictive conditions13. Given the express wording of the Constitution, it is safe to conclude

12
Examples of statutes incorporating international agreements include the Geneva Conventions Act, the
Refugees Act, the Trafficking in Persons Act and the Privileges and Immunities Act
13
The conditions, interalia, are that the agreement ought to have been referred to in the statute under
consideration and that there should be some ambiguity or other lack of clarity concerning the meaning of the
provision under consideration.

Page 90 of 110
that the provisions of the Interpretation Act have been superseded by section 327(6) of the
Constitution, which are much more generous.

Presumptions against Retrospectivity

Retrospectivity can be defined as the quality or capability of directing

backward or of influencing past events. In relation to law, retrospectivity
refers to the ability of a rule to be used to govern events that pre exist
the rule. It a general principle of law that So far as possible, legislation
should not be given retrospective effect. Observance of the presumption
against retrospectivity is a fundamental principle of our law. The
presumption against retrospectivity preclude an interpretation of
statutes to give provisions retrospective effect.

“It is wrong in principle to change the character of past acts and

transactions which were validly carried out upon the basis of the then
existing law.”

Page 91 of 110
If the lawmaker intends an enactment to have retrospective effect, then
that must be
stated expressly and clearly in the enactment. Under our Constitution
However, penal provisions can never be given retrospective effect, even
by Parliament itself (see section 70(1)(k) of the Constitution.
Constitution). In regard to subordinate legislation, only Parliament has
the power to legislate retrospectively or to authorize retrospective
legislation, so that retrospective operation of the provisions of
subsidiary legislation is never to be countenanced unless specifically
authorized by the Act under which the subsidiary legislation is made. An
exception to the general presumption against retrospectivity is that
alterations in the form of procedure can operate retrospectively unless
there is some good reason why they should not (see Henks Construction v
Zimbabwe Defence 1998 (1) ZLR 49 (S). Faria v Claridge 1988 (2) ZLR 202 HC).

While it is clear that the law cannot be applied retrospectively to convist a person of conduct
which was not an offence at the time it was committed an interesting question is whether a
statutory sentence which came into force after the crime was committed but before the
accused person was convicted can be applied in sentencing that person.

We have two opposing case law positions on that point in our system:

The stock Theft Amendment Act came into force with effect from 27 August 2004. Section
12 provides:

“Any person who is convicted of the theft or attempted theft of any equine or
bovine animal or receiving knowing it to habe been stolen or inciting or conspiring
with any other person to commit any of the foregoing offences shall, if there are no
special circumstances in the particular case ….. be liable to not less than 9 years or
more than twenty five years…..

Thus a minimum mandatory sentence of 9 years is set for stock theft. In both cases, the
accused persons had committed or were deemed to have committed stock theft before 27
August 2004 ( that is to say, before the mandatory sentence became operational). The

Page 92 of 110
question which the Court had to decide in both cases was whether the mandatory sentence
was applicable.

In 4 cases decided at the same time which we will call S V Mzanywa HB 9 / 06 the High
Court division in Bulawayo ruled that the mandatory sentence provisions had prospective
application because according to the wording of section 12, the sentence was applicable
upon conviction and not upon commission of the crime.

Five years later, in 2011, the Harare Division of the High Court in the case of S V
Mapanzure and Anor, 141 / 11, had the opportunity to consider the same question. This
time, the Court declared its opinion that the Mzanywa judgment had been in error and
departed from it. In a judgment supported by a long line of case, which were anchored on
the ratio set in the case of S v Mutandwa and Another 1973 (3) SA 391 Court ruled
that the mandatory sentence provisions did not have retroactive effect. Justice Kudya with
Justice Chitakunye agreeing, stated:

In my view, the distinction sought to be drawn by NDOU J in the wording of the present
section does not confer retroactive effect to the section. If the legislature intended the
section to have retroactive effect it should have expressly said so. It did not. After all
it was radically increasing the punishment for the theft of a bovine or equine animal.
In addition, the legislature repeated the same wording which was held had no
retrospective effect in 1976. The legislature is assumed to have been aware of that
decision when it promulgated the present section in identical terms.

Accordingly, I would, with respect, differ with the conclusion reached in Mzanywa’s
case. I find myself in agreement with the decisions which hold that it has no retroactive
effect.

Presumption that the legislature does not intend to be unreasonable or to cause

injustice.

Page 93 of 110
The legislature is presumed to be reasonable and to act in good faith. So a statute is to be
construed so as to impose the least possible burden upon those affected by it. Statutes that
encroach the people’s rights, whether as regards persons or property, will be strictly
construed.

In regard to property rights, there is a presumption that expropriation should be accompanied

by compensation. This presumption is reinforced by section 71 of our Constitution. If a law
proposes to expropriate any person, it must provide for compensation in the manner provided
in that section,.

In cases of doubt the most beneficial interpretation will be adopted.The Statute law, like the
common law, is not presumed to require the impossible. This presumption provides the basis
for the golden rule of interpretation: the Courts will depart from a literal meaning that will
lead to absurd, anomalous or unjust results.

Presumption in Favour of the Principles of Natural justice.

When an enactment confers quasi-judicial powers on a person or authority, or empowers such

person or authority to exercise a power that may diminish or deprive another person’s rights,
then it is presumed that those powers must be exercised in accordance with the rules of
natural justice, that is to say, the person affected by exercise of a statutory power

 should receive prior notice of the action

 should have an opportunity to be heard (the audi alteram partem rule).
 should have an opportunity for an impartial hearing.

The elements of the principles of natural justice were embodied in section 18 of the
Lancaster house Constitution but the same elements are now found in section 68 which
protects the right to just administrative action and section 69 which protects the right to
a fair hearing and section 70 which provides for the rights of accused persons.

So, if a statute confers on a public authority to make a decision that could adversely affects
the rights of an individual but says nothing or little about how that power should be
exercised or does not provide for a procedure to be followed in arriving at the decision,

Page 94 of 110
 then the judiciary will read into that statute the requirement to follow a procedure which
fully or substantially incorporates the elements of natural justice

See De Villiers & another v. Sports Pools Pvt. Ltd (No. 2) 1976 (2) RLR 233
(AD); and Holland & Ors v Ministry of Public Service, Labour & Social Welfare
1997 (1) ZLR 186.

Presumptions against ouster or restriction of the jurisdiction of the Courts.

Under our Constitution, it is impossible to totally ouster the jurisdiction of the Courts except
in exceptional cases involving the exercise of Presidential prerogatives (powers) or acts of
state. It should be noted that under the current Constitution the powers of the executive to
exercise prerogatives outside the scrutiny of the judiciary has been severely whittled down.
Almost every action of the executive is justiciable. Even the power of Parliament to ouster
the jurisdiction of the Courts in the exercise of Parliamentary privildges has also been
whittled down by the new Constitution.

This presumptions means that when a statutory provision purports to ouster the jurisdiction
of the Courts, this should not be taken at face value. This should be understood in light of
section 68 of the Constitution which protects the right to administrative justice. An
aggrieved party should still be able to seek redress in terms of the administrative justice Act.

For example Section 19(2) of the War Veterans Act and section 16(2) of the Ex-
political
Prisoners, Detainees and Restrictees Act.
empower the respective Boards to make decisions determining who to register as a War
veteran or dependant in terms of the Acts; and to make determinations of any assistance to
be granted to beneficiaries in terms of any scheme; and further provides that any person who
is aggrieved by the decision of the board may appeal to the Minister. The Minister may, on an
appeal in terms of subsection (1), either confirm the decision of the Board or remit the matter
to the Board for further consideration subject to such recommendations regarding the appeal
as the Minister may consider appropriate, and the decision of the Board after reconsideration
of the matter in terms of this subsection shall be final. The word “final” should not be taken

Page 95 of 110
at face value to mean that further recorse to the Courts has been thereby ousted. Only the
domestic remedies have been exhausted.

In the case of Tamanikwa & Ors V Zimbabwe Manpower Development Fund. 2013
(2) ZLR 46, it was held that the jurisdiction of the Labour Court to entertain a labour dispute
brought to it by am employee of ZIMDEF was not oustered notwithstanding the provisions of
a statutory instrument which purportedly ousted it.

Presumption against delegation of Parliament’s powers

The power of Parliament to delegate its lawmaking function is regulated under section 134 of
the Constitution and is quite broad. It is however subject to greater restriction or even
excluded altogether in the following cases. This is because there are certain powers of
Parliament which have important and far reaching consequences on the state and on
individuals to the extent that they are powers that cannot be readily delegated or which if
delegated should not be exercised outside the close scrutiny of parliament

Presumption against delegation of Parliament’s taxing powers (“No Taxation Without

Representation”)
The principle of “No Taxation Without Representation” is a fundamental principle of
Parliamentary democracy grounded in the doctrine of the “separation of powers”. It applies
equally at the national and local government level. Although it is not expressly written into
our Constitution, it is a well-established and widely recognised principle in all countries deriving
their Constitutional traditions from the Parliamentary model of democracy (see, for example,
City Treasury & Rayes Collection, Newcastle TC v Shaikjee 1983 (1) 506 SA; “The
power to impose or vary taxation is, in general, too important to be delegated by Parliament”
(de Smith, Constitutional and Administrative Law, 3rd Edition, p. 328).

No statutory instrument can impose a charge or levy in the nature of a tax unless the making
of such a statutory instrument is specifically authorised by an Act of Parliament:

Note that a “tax” should be distinguished from a “fee”: the latter denotes a charge for some
item or service provided to the payer, and a statutory instrument imposing fees does not

Page 96 of 110
normally require Parliamentary confirmation. No fee may, however, be imposed by statutory
instrument unless the imposition is specifically authorised by the enabling Act.

Presumption against delegation of Parliament’s penal powers

No statutory instrument can impose criminal or civil liability upon a person unless the
imposition and the extent of the imposition is specifically authorised by the enabling Act.

Presumption against delegation of Parliament’s power to abridge individual rights

Allowable derogations from the rights and freedoms of individuals that are enshrined
in the Declaration of Rights must be spelt out in the statute itself and not left to be
determined by a Minister or other official or delegated lawmaker by statutory
instrument, general notice or administrative action.

Presumption against delegation of Parliament’s power to exempt any person or class

of persons from compliance with its laws
Such exemptions and the extent to or circumstances under which they may be granted
must be spelt out in the statute itself and not left to be determined by a Minister or
other official or delegated lawmaker by statutory instrument, general notice or
administrative action. In addition, the allowable exemptions must not be such as to
conflict with the presumption in favour of equality of treatment

Presumption that taxation statutes will be interpreted against the fiscus

Statutory provisions that impose pecuniary burdens, such as taxing statutes, will be
strictly construed by the Courts, i.e. a Court will only decide that a tax is payable when
satisfied that the language of the statute has clearly imposed that tax in the
circumstances of that particular case before it; in a case where the statute is
ambiguous on the issue whether a potential taxpayer is indeed to be subjected to a
tax, the statute be interpreted contra fiscum (against the fiscus) in favour of the
potential taxpayer.

Presumption of legal incapacity on the part of certain classes of persons

Minors, persons of unsound mind, insolvents and prodigals are presumed not to be as
capable in all respects as other persons of exercising rights or fulfilling obligations
under the law, nor to be equally culpable as other persons for failing exercise or fulfil
such obligations. Accordingly, minors should generally be assisted by their guardians
in exercising their rights or fulfilling their obligations, and similarly the curators or legal
representatives of other persons without full legal capacity must act on behalf of such

Page 97 of 110
 persons. As regards the criminal liability of such persons, this has been codified in the
Criminal Law Code. There is accordingly no need to restate in a statute any of the
exceptions to civil and criminal liability made on behalf of such persons, unless it is
desired to depart from this presumption in certain very limited circumstances. For
example, the lawmaker may wish to capacitate minors above a specified age where
the nature of the transaction is such that the assistance of the guardian may be
superfluous, or where there are good public policy grounds for excluding the rights of
the guardian.

Presumption that mens rea is a requirement for criminal liability

This means that there is an unassailable presumption against imposing absolute
liability in criminal cases, i.e. liability even where the accused person can prove any
or all of the following circumstances (the first two relating to mens rea, the last to
voluntariness)—
- The absence of intentional wrongdoing; and
- The absence of negligent wrongdoing; and
- That his or her conduct was compelled by a human or natural agency beyond
his or her control
However, the presumption does not prevent Parliament from legislating a strict
liability offence (that is, an offence imposing liability for the slightest degree of
negligence, the disproof whereof lies on the accused). According to State v
Zemura 1973 (2) RLR 357 (A), the courts may even interpret a statutory offence
to be a strict liability offence, if:—
1. requiring proof of a mental element for that offence would render the detection or
prosecution of the offence impossible or practically impossible; and
2. the offence’s object would be defeated if proof of a mental element were to be
required; and
3. the penalty for the offence is not mandatory imprisonment or imprisonment
without the option of a fine.

Presumption against reversing the onus of proof in criminal cases

Page 98 of 110
This presumption (also referred to as the “presumption of innocence”) is codified in
section 70(1)(a) of the Constitution. The law allows exceptions to this safeguard “to
the extent that the law in question imposes upon any person charged with a criminal
offence the burden of proving particular facts” (whether relating to mens rea or the
actus reus), especially with regard to facts within the exclusive knowledge of the
person concerned. Where it is desirable to shift the onus of proof in the manner
allowed by the Constitution, the drafter must do so in the clearest terms. Reversing
the onus of proof in subsidiary legislation is never to be countenanced unless
specifically authorised by the Act under which the regulations were made.

6. ACTS DONE CONTRARY TO STATUTORY PROVISIONS

Acts done contrary to statutory provisions

Prescribed reading: Chapter 8 of C. Botha.

Cases:

1) Sterling Products International V Zulu 1988 (2) ZLR 293 (SC)

2) Ex Parte Mothuloe (Law Society, Transvaal, Intervening 1996 (4) SA 1131
3) Weenen Transitional Local Council v S J Van Dyk Case 399 / 2000
4) Commercial Union Assurance Company of South Africa v Clarke, 1972
(3)SA 508
5) Municipality of Butterworths v Bezuidenhout 1986 (3) SA 543
6) Comrie and Another v Liquor Licensing Board for Area 31 and Others
1975 (2) SA 494 (N)
7) Maharaj and Others v Rampersad
8) Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA
1222 (SCA).
9) Unlawful Occupiers, School Site V City of Johannesburg City Council,
2005 (4) SA 199.
10) Bezuidenhout V AA Mutual Insurance Association Ltd 1978 (1) SA 703

Page 99 of 110
11) Messenger of the Magistrates’ Court, Durban V Pillay 1952 (3) SA 687
South African Police Service v Public Servants Association 2007(3)
SA521(CC),
12) Amalgamated Packaging Industries V Hutt 1975 (4) SA 943.
13) Santo V General Accident Insurance Company 1995 (1) ZLR 322 (SC)
14) R V Sopete 1950 (3) SA 796.
15) Leibrandt V SA Railways 1941 AD 9
16) Chizikani & Anor V CABS 1998 (1) ZLR 371 (SC)
17) Motorvoertuigassuransiefonds v Gcwabe 1979 (4) SA 986 (A)
18) African Christian Democratic Party v IEC of SA 2006(5) BLCR 579 SCA,
19) Zimbabwe Unity Movement (ZUM) V Mudede NO & ANOR. 1989 (3) ZLR 62
(SC),
20) Pio V Franklin NO & Anor 1949 (3) SA 442.,
21) R V Lewinson 1922 TPD 366
22) Trans-Afrika Credit and Savings Bank Ltd. V Union Guarantee and
Insurance Co. Ltd 1963 (2) SA 92
23) Salisbury Hellenic Company V City of Salisbury, 1973 (1) SA 543
24) S V Takaendesa 1972 (4) SA 72 (RAD)
25) Forum Party of Zimbabwe and Ors V Minister of Local government, Rural
and Urban Development and Ors 1996 (1) ZLR 162 (HC)
26) Kutama V Town Clerk of Kwekwe 1993 (2) ZLR 137 (SC),
27) S V Gatsi (2) S V Rufaro Hotel (PVT) LTD T/A Rufaro Buses 1994 (1) ZLR 7
(HC)
28) Zimbabwe Unity Movement (ZUM) V Mudede NO & ANOR. 1989 (3) ZLR 62
(SC)
29) (R v Lewinsohn 1922 TPD 336]
30) Johannesburg City Council V Arumgan 1961 (3) SA 748 (W)
31) Masuka V Chitungiza Town Council and Anor. 1998 (1) ZLR 15 (HC) A
32) Hurwitz V SA Mining and General Insurance Company Ltd 1958 (4) SA 133
(W)
33) Mc Loughlin V Turner 1921 AD 537
34) City of Gweru V Kombayi 1991 (1) ZLR 333 (SC)
35) Ramewa V Secretary of the PSC 1988 (1) ZLR 257 (HC)

Page 100 of 110

 36) Macara V Minister of Information, Immigration and Tourism & Anor. 1977
(2) SA 264 (R)
37) Quintas V Controller of Customs and Excise 1977 (1) 845 (RA)
38) Orpen V Cilliers 20 264.
39) Le Roux V Grigg-Spall 1946 AD 244.

The primary purpose of statutes is to lay down the law on a specific subject. They
create rules and communicate legal commands to the people. The commands could
direct either that something ought to be done, that the doing of something is prohibited
or that something ought to be done in a certain manner.

Some statutory provisions are very clear about the consequences of non-compliance
with statutory provisions. Consequences range from penalties to the nullification of the
the purported action. If the Act is explicit about the consequences of non-compliance,
well and good but unfortunately, In many cases, the statute is silent about what should
be done where there is non-compliance or incomplete compliance. This leaves the
judiciary with the task of deciding of the fate of the action.

The fate of acts done contrary to statutory provisions is governed by the roman dutch
law principle :quid fit contra legem est jure nullum which means literally, that anything
done contrary to the law is null and void. This is however too simple a way of looking
at it because circumstances differ from case to case and there may be certain factors
which could persuade the judge that justice would not be served by applying this
principle too strictly. For example

1. If a statute provides that an application must be written on 1 page should an

application be thrown out just because it spilled onto two lines on the next page?
2. If a name is wrongly spelt eg “Philip” instead of “Phillip” should the application
be disqualified?
3. If an application is submitted out of time?
4. What about if an entire stage in a prescribed sequence of events has been
omitted?
5. What if a marriage was solemnised by a “marriage officer” whose designation
was defective (maybe he did not meet the criteria set out in the Marriage Act)

Page 101 of 110

 and the defect is discovered years later. What does this mean for all the
marriages that he purportedly solemnised? Are they valid marriages?
6. What about if a judge was sworn in who had not served 7 years as a registered
legal practitioner as required by the Constitution and the matter was discovered
later. Is he a judge? What happens to the judgements that he handed down?
Are they valid?

Of course not all cases will be treated the same. We are going to look at some of the
factors that the courts consider in deciding the fate of acts done contrary to statutory
provisions.

Peremptory and Directory Provisions

A traditional devise in determining what to do is to characterise the provision in

question as being either peremptory or directory. A provision that has been
characterised as peremptory or ( obligatory or mandatory ) is one that requires strict
compliance and failure to comply with it will render the purported action null and void.
If, on the other hand, a provision has been characterised as directory (or permissive),
then non-compliance with it will not lead to nullification because exact compliance is
not a pre requisite.

This terminology is strictly speaking not quite correct. As Wiechers points out:

“In principle, all legislative provisions are peremptory, they are after all the law,
and legally binding. Were this not so, we would not call them law by suggestions
or recommendations for good conduct.”

The correct approach in our law is as is given in the case of Sterling Products
International V Zulu 1988 (2) ZLR 293 (SC) where it was held that in deciding
whether the regulations had nevertheless been complied with, the court must look not
at the quality of the command and whether it is characterised as “peremptory “ or
directory”, but at the intention of the legislature, which can only be derived from the
words of the enactment, its general plan and its objects. Having discovered the object
of the enactment, the court must decide whether that object is defeated or frustrated
by the non-compliance complained of. The degree of observance and non-compliance
is another relevant consideration

Page 102 of 110

This was the position in South Africa prior to the current SA Constitution as seen in
the case of Ex Parte Mothuloe (Law Society, Transvaal, Intervening 1996 (4) SA
1131 (T)) which confirmed a trite principle of statutory interpretation that when
considering whether a statutory provision has been complied with, the answer is to be
found by having regard to the intention of the legislature as ascertained not only from
the language, but also from the scope and purpose of the enactment as a whole. The
approach it seems has survived the new Constitution as was seen in the 2002 case
of Weenen Transitional Local Council v S J Van Dyk Case 399 / 2000

In that case, the court dealt with local authority ordinances that provided that rates
levied by the local authority would fall due on a date determined only after certain
processes in particular advertisements of the proposed rates had been carried out by
council. Council had not fully complied with advertisement requirements and so the
applicant argued that the rates were not due and therefore Council could not demand
payment thereof.

The court upheld that argument and had the following to say:

“It seems to me that the correct approach to the objection that the appellant had
failed to comply with the requirements of s 166 of the Ordinance is to follow a
common sense approach by asking the question whether the steps taken by
the local authority were effective to bring about the exigibility of the claim
measured against the intention of the legislature as ascertained from the
language, scope and purpose of the enactment as a whole and the statutory
requirement in particular ……. Legalistic debates as to whether the enactment
is peremptory (imperative, absolute, mandatory, a categorical imperative) or
merely directory; whether 'shall' should be read as 'may'; whether strict as
opposed to substantial compliance is required; whether delegated legislation
dealing with formal requirements are of legislative or administrative nature, etc
may be interesting, but seldom essential to the outcome of a real case before
the courts. They tell us what the outcome of the court's interpretation of the
particular enactment is; they cannot tell us how to interpret. These debates
have a posteriori, not a priori significance.

Substantial Compliance

Page 103 of 110

According to the doctrine of substantial compliance, non-compliance with a
peremptory provision will not lead to nullity if it can be shown that there was substantial
compliance with the provision in question. The question is not whether mechanical
(formal) compliance with the statutory requirements is required, but rather substantial
compliance. Full compliance is not necessarily literal compliance but substantial
compliance. In other words the court gives priority to substance over form. This is
essentially a purposive (text in context) approach. For example, in the case of
Commercial Union Assurance company of South Africa v Clarke,14 in terms of
the Motor Vehicle Insurance Act, a claim for compensation, accompanied by a medical
certificate, had to be sent by registered post or delivered by hand. The claim was
delivered by ordinary post. The court found that there was substantial compliance with
the provision. It was not necessary to follow the requirements to the finest detail – as
long as the purpose of the provision had been complied with.

In the case of Unlawful Occupiers, School Site V City of Johannesburg City

Council, 2005 (4) SA 199. The Court has to decide whether the failure by
Johannesburg city Council to comply exactly with the formalities required in eviction
under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19
of 1998 (PIE) was fatal to the eviction process that it sought to institute. While noting
that indeed, council had not complied with certain requirements including ensuring that
the eviction notice was in vernacular languages, the court observed that

“It is clear from the authorities that even where the formalities required by
statute are peremptory it is not every deviation from the literal prescription that
is fatal. Even in that event, the question remains whether, in spite of the defects,
the object of the statutory provision had been achieved ……. The purpose of s
4(2) is to afford the respondents in an application under PIE an additional
opportunity, apart from the opportunity they have already had under the rules
of court, to put all the circumstances they allege to be relevant before the court
…. The two subsections of s 4(5) that had not been complied with were (a) and
(c). The object of these two subsections is, in my view, to inform the
respondents of the basis upon which the eviction order is sought so as to enable

14
1972 (3) SA 508

Page 104 of 110

 them to meet that case. The question is therefore whether, despite its defects,
the s 4(2) notice had, in all the circumstances, achieved that purpose. With
reference to the appellants who all opposed the application and who were at all
times represented by counsel and attorneys, the s 4(2) notice had obviously
attained the legislature's goal.

In these circumstances it must, in my view, be held that, despite its stated

defects, the s 4(2) notice served upon the respondents had substantially
complied with the requirements of s 4(5).

This case should be compared with Cape Killarney Property Investments (Pty) Ltd v
Mahamba 2001 (4) SA 1222 (SCA). Wherein it was held that the same notice issued the same
Act had to conform with the previously obtained directions of the court, with reference to both
its contents and the manner in which it is to be served. The difference was in the different
circumstances of the two cases.

Municipality of Butterworths v Bezuidenhout15 it was ruled that the law is

concerned with real compliance rather than literal compliance.

Semantic Guidelines
The purpose of the relevant legislation remains the primary consideration in
determining the fate of acts done contrary to statutory provisions but there is a way in
which language is used that could be a relevant consideration in determining what
parliament could have intended. These guidelines act more like presumptions which
means that thy are capable of being rebutted where appropriate given the context of
the statute and other relevant considerations.
i. The use of words with an imperative character is an indication that the provision
requires strict compliance ( ie is peremptory) such words includes “shall” or
“must”. See Bezuidenhout V AA Mutual Insurance Association Ltd 1978 (1)
SA 703 and Messenger of the Magistrates’ Court, Durban V Pillay 1952 (3)
SA 687 ; Chizikani & Anor V CABS 1998 (1) ZLR 371 (SC)
On the other hand, in Motorvoertuigassuransiefonds v Gcwabe 1979 (4) SA
986 (A) the court held that “shall” does not necessarily indicate a peremptory
meaning

15
1986 (3) SA 543

Page 105 of 110

 ii. On the other hand, the use of permissive such words such as “may” and
“consider” indicate a discretion and will be interpreted as conferring a discretion
on the doer unless the purpose of the statute having regard to its context
indicates otherwise. For example, in the case of South African Police Service
v Public Servants Association 2007(3) SA521(CC), the Constitutional Court
held that the effect of the word “may” had to be determined in light of the
provisions of the Constitution, particularly the Bill of Rights. See also
Amalgamated Packaging Industries V Hutt 1975 (4) SA 943.

Again the word may may be found to be actually peremptory if it appears, after
taking into account relevant factors that the legislature intended it to have that
meaning. In Santo V General Accident Insurance Company 1995 (1) ZLR
322 (SC), it was ruled that the word “may” is ambiguous. It could be permissive
or mandatory in its application depending on the context
iii. Where a statute prohibits the doing of something unless something else is done
first as a condition precedent, it is a general rule of interpretation that the
provisions of the Act are obligatory and not directly. That is to say, the thing
purportedly done without first fulfilling the condition precedent is null and void.
S V Takaendesa 1972 (4) SA 72 (RAD)
Conversely in Kutama V Town Clerk of Kwekwe 1993 (2) ZLR 137 (SC), it
was held that under the relevant regulations, it was a mandatory requirement
that a copy of a petition alleging irregularities in the conduct of an election be
served on every person compline of in such petition. This provision was there
to ensure that any person accused of wrong doing be informed of the
accusation and be given an opportunity to answer it. Appelant’s failure to
comply with this requirement was a fatal flaw in his petition.
iv. Negative language indicates a peremptory connotation eg “The Registrar
General shall not accept the application for registration as a citizen by or on
behalf of any person who has not met the criteria set out in section …., and the
Registrar General shall not register such a person as a citizen of Zimbabwe”
see R V Sopete 1950 (3) SA 796.
In Salisbury Hellenic Company V City of Salisbury, 1973 (1) SA 543, the
provision under consideration, sec. 149(4) of the Municipal Act which read:

Page 106 of 110

 “ No objection to the valuation roll shall be considered by the valuation court
unless made in the form and within the time prescribed” were ruled to be
peremptory and faiulure to comply rendered the ensuing actions void.
v. The formulation of a provision in flexible or vague terms may be seen as an
indication that it is directory only. E.g. “If the Minister deems it desirable to do
so, and after considering any such facts as may appear to him to be relevant,
he may direct the Commissioner of Police to investigate the matter” or “the
Minister shall endeavor to ensure that both men and women are adequately
represented on the Board”
Leibrandt V SA Railways 1941 AD 9

Jurisprudential Guidelines

Jurisprudential Guidelines are tests based on legal principles which have been
developed and formulated by the courts. These guidelines lean towards the
teleological approach to interpretation as they are more concerned with the
consequences of characterizing the relevant provision as being either directory or
peremptory. These guidelines are said to be more influential than the semantic
guidelines.

- Supremacy of the Constitution

The correct characterization is one that is in line with the constitution.

As in all questions regarding the interpretation of statutes, the starting point is
the Constitution and the principle of constitutional supremacy. In African
Christian Democratic Party v IEC of SA 2006(5) BLCR 579 SCA, the
Constitutional Court upheld the validity of an action that was clearly non-
compliant with statutory provisions because a contrary finding would have not
been in keeping with Constitutional values. The reasoning of the Court is
evident in the following dictum:

I should emphasise that this judgment holds that the applicant had
complied with the provisions of sections 14 and 17 in respect of the
payment of the deposit ………. It holds that in approaching the

Page 107 of 110

 interpretation of provisions of electoral legislation, courts and the
Electoral Commission must understand those provisions in the light of
their legislative purpose within the overall electoral framework. That
framework must be understood in the light of the important constitutional
rights and values that are relevant. In the circumstances, I conclude that
the interpretation of sections 14 and 17 of the Municipal Electoral Act
proffered by the respondent is not correct. Accordingly, the Electoral
Commission erred in law in concluding that the applicant had not
complied with the provisions of sections 14 and 17 of the Act and in
disqualifying the applicant from contesting the elections to be held in the
Cape Metropolitan area.
See also Zimbabwe Unity Movement (ZUM) V Mudede NO & ANOR. 1989 (3) ZLR
62 (SC), where the President was held strictly accountable for his Constitutional duty
to seek the views of the Electoral Supervisory Commission before promulgation of
statutory instruments dealing with electoral matters.

Preservation of Justice and Convenience

- If, on weighing up the ambit and aims of the provision, nullity would lead to
injustice or inconvenience, among others, and provided there is no express
statement that the act would be void if the relevant prescription is not complied
with, there is a presumption in favour of validity. See the cases of Pio V
Franklin NO & Anor16., R V Lewinson17 and Trans-Afrika Credit and
Savings Bank Ltd. V Union Guarantee and Insurance Co. Ltd18
- Another example of this approach is found in Forum Party of Zimbabwe and
Ors V Minister of Local government, Rural and Urban Development and
Ors 1996 (1) ZLR 162 (HC) where it was held inter alia that the publication of
a notice calling for nominations one day earlier than permitted by the Act was
a technical breach and was insufficient to set aside the election. The court here
weighed the consequences of nullifying a whole election just to fulfil what a
considered a technical requirement.

16
1949 (3) SA 442
17
1922 TPD 366
18
1963 (2) SA 92

Page 108 of 110

 - If the provision is couched in positive language, and no penal sanction is
included for non-compliance with the requirements, then the provision should
probably be regarded as being directory only, in favour of validity of the ensuing
acts. This test should be applied with caution because it could be the intention
of the legislature that the only penalty for non-compliance should be nullity of
the purported acts.
- The importance of the interest that is served by the requirement that has not
been complied with can be a decisive criterion. In S V Gatsi (2) S V Rufaro
Hotel (PVT) LTD T/A Rufaro Buses 1994 (1) ZLR 7 (HC) it was held that the
failure to lay regulations before parliament within the specified time was fatal
because the purpose of the tabling procedure was to allow parliament to amend
or revoke regulations which could be very wide and which could prevail over
any other law. Parliamentary scrutiny of delegated legislation had to be
respected and the tabling procedure provided for it.

- If the validity of the Act would defeat the purpose of the legislation, this is an
indication that the conduct should be null and void (R v Lewinsohn 1922 TPD
336]
- If strict compliance with the provision would lead to injustice and even fraud it
is presumed that the provision is directory see Johannesburg City Council V
Arumgan 1961 (3) SA 748 (W)

Presumptions about Specific Situations

The court has also developed a number of presumptions relating to specific practical
situations. Still when applying them, it must be kept in mind that the primary
consideration is the intention of the legislature and these presumptions may be
rebutted by the clear intention of the legislature for a contrary outcome.
- Where legislation protects the public revenue such as rates and taxes, there is
a presumption against nullity even if a penal clause has been added – Mc
Loughlin V Turner 1921 AD 537, Quintas V Controller of Customs and
Excise 1977 (1) 845 (RA), City of Gweru V Kombayi 1991 (1) ZLR 333 (SC)
- Where legislation confers a right, privilege or immunity, the immunity cannot be
validly obtained unless the prescribed formalities are fully complied with (Orpen

Page 109 of 110

 V Cilliers 20 264. Where the freedom of an individual is at stake, the court will
stress the peremptory nature of the requirement. Masuka V Chitungiza Town
Council and Anor. 1998 (1) ZLR 15 (HC) A; Ramewa V Secretary of the PSC
1988 (1) ZLR 257 (HC); Macara V Minister of Information, Immigration and
Tourism & Anor. 1977 (2) SA 264 (R)
- If other provisions in the legislation could become superfluous when
noncompliance with prescribed requirements results in the nullity of the act,
there is a presumption that the requirements are merely directory. For example
in Hurwitz V Sa Mining and General Insurance Company Ltd 1958 (4) SA
133 (W) the court found that sec. 3(2) of the Motor Vehicle Insurance Act was
merely directory since ss 24 and 31 would otherwise be superfluous.
- Statutory provisions on time limits are generally peremptory if the court has not
been empowered to grant an extension of the time limit. See Patrick
Chabvamuperu &Ors V Edmond Jacob HH 46 / 08 and Le Roux V Grigg-
Spall 1946 AD 244. William Bain & Co. (PVT) LTD V Pringlewood, NO. 1973
(4) SA 443 (R)

Page 110 of 110