Chapter 5 - The interpretation process

Question 1

The orthodox text-based approach

Answer 1

In terms of this approach, the interpreter should concentrate primarily on the literal meaning of the provision to be interpreted, and the interpretation process should proceed along the following lines:

1. If the meaning of the text is clear, it should be applied and indeed equated with the legislature’s intention
2. If the plain meaning of the words is ambiguous, vague or misleading, or if a strict literal interpretation would result in absurd results, then the court ay deviate from the literal meaning to avoid such an absurdity.
3. Only when these secondary aids to interpretation prove insufficient to ascertain the intention, the courts will have recourse to the so-called tertiary aids to construction.
4. Misconception about the doctrines of separation of powers and sovereignty of parliament results in acceptance of the interpretation and application of the will of the legislature.
5. The doctrine of legal positivism influenced the literal approach in England. The positivist idea is based on the validity of the decree.
6. England has a common law tradition, in which the courts traditionally played a very creative role in regard to common law principles.
7. English legislation was drafted to be as precise and as detailed as possible, for the sake of certainty and to cover any number of possible future cases.

Question 2

The (purposive) text-in-context approach

Answer 2

The legislative function is a purposive activity. In terms of the text-in context approach, the purpose or object of the legislation is the prevailing factor in the interpretation

Question 3

The influence of the supreme Constitution

Answer 3

The most important reason why we should follow the contextual approach is that the Constitution prescribes the contextual or purposive approach in section 39(2) and section 233 respectively.