Chapter 5 - Interpretation of the Bill of Rights

Question 1

Methods of interpretation

Answer 1

1. Textual interpretation
2. Purposive interpretation
3. Generous interpretation
4. Contexual and systematic interpretation interpretation

Question 2

Textual interpretation

Answer 2

The starting point of interpreting the Bill of Rights in the first stage of inquiry is the text itself. The court should reflect on the text to determine the meaning of a provision of the Bill of Rights. In the very first judgment of the Constitutional Court, S v Zuma 1995 (2) SA 642 (CC), Kentridge AJ warned against undermining the importance of the text. However, constitutional disputes can seldom be resolved with reference to the lateral meaning of the provisions of the Constitution.

Question 3

Purposive interpretation

Answer 3

Purposive interpretation of a provision that best supports and protects the core values that underpin an open and democratic society based on human dignity, equality and freedom.

In the S v Zuma case, the Constitutional Court adopted the approach followed by the Canadian Supreme Court in R v Big Drug Mart Ltd. It tells us the following:

1. Identify the purpose of a right in the Bill of Rights
2. Determine which value it protects, and then determine its scope.

Question 4

Generous interpretation

Answer 4

This method is in favour of rights and against their restriction. It entails drawing boundaries of rights as widely as the language in which they have been drafted and the context in which they are used will allow. The importance of generous interpretation was also stressed by the Court in the case of S v Mhlungu.

Question 5

Contextual and systematic interpretation

Answer 5

The meaning of words depends on the context in which they used. The provisions of the Constitution must therefore be read n context in order to certain their purpose. The narrower sense of context is provided by the text of the Constitution itself, while the wider sense is the historical and political context of the Constitution.

Question 6

The interpretation clause

Answer 6

Section 39 is the interpretation clause. Section 39(1)(a) requires interpretations that promote values that underlie an open and democratic society based on human dignity, equality and freedom.