Chapter 9 - Constitutional Interpretation

Question 1

Constitutional Interpretation and Ordinary Interpretation

Answer 1

Section 39(2) of the Constitution prescribes the filtering of legislation through the fundamental rights during the ordinary interpretation process. Constitutional interpretation refers to the authoritative interpretation of the Supreme Constitution by the judiciary during the judicial review of the constitutionality of legislation and government action in terms of section 172 of the Constitution. This difference between constitutional and ordinary interpretation was explained by Froneman j in Matiso v Commanding Officer.

Question 2

The Supreme Constitution and ordinary legislation

Answer 2

The status of a supreme Constitution in the legal order is the main reason for the difference between constitutional interpretation and ordinary interpretation. The old system of parliament sovereignty is no more. The Constitution is now the frame of reference within which everything must function and against which all actions must be tested.

Question 3

Constitutional Guidelines

Answer 3

1. A supreme Constitution must be given a generous and purposive interpretation
2. Case law also refers to a liberal interpretation of the Constitution. A liberal interpretation does not have a political connotation but refers to flexibility and generosity. The Constitution must be liberally construed, taking into account its terms and spirit, the intention of the framers and the objectives of and reasons for the legislation.
3. During the interpretation of the Constitution, its spirit and tenor must be adhered to. This means the values and moral standards underpinning the Constitution must be taken into account though out the entire interpretation process.
4. A provision in the Constitution can’t be interpreted in isolation but must be read in the context as a whole. The context includes the historical factors that led to the adoption of the Constitution in general and the fundamental rights in particular.
5. Respect must be paid to the language employed in the Constitution. Although the text is balanced and qualified by various contextual factors, the context is anchored to the particular constitutional text.
6. In S v A Juvenile, the court stressed the fact that the Constitution, as the supreme law of the land, has bestowed on the court the sacred trust of protecting human rights.
7. The Constitution was drafted with a view to the future, providing a continuing framework for the legitimate exercise of governing power and the protection of individual rights and freedoms.
8. Some die-hard supporters of the orthodox text-based approach who do not understand a system of constitutional supremacy refer to the constitutional interpretation as a free-floating exercise.
9. These methods and principles of constitutional interpretation do not constitute a closed set of hard and fast rules. Constitutional interpretation is an inherently flexible process.

10 The principles of international human rights law and foreign law must be applied with due regard for the South African context.

11. All judges and judicial officers are obliged to continuously interpret and apply legislation to give effect to the fundamental values and rights in the Supreme Constitution.

Question 4

Reading-down

Answer 4

Section 35(2) and 232(2) of the interim Constitution provided that 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 .

Question 5

Reading-up

Answer 5

Reading up takes place when there is more than one possible reading of the legislative text, and a more extensive reading is adopted in order to keep the legislation in question constitutional.

Question 6

Reading-in

Answer 6

Reading-in is a more drastic remedy used by the courts in order to change legislation in order to keep it constitutional.

Question 7

Severance

Answer 7

In practical terms, severance is the opposite of reading in. Here the court will try to rescue a provision from the fate of unconstitutionality by cutting out a part of the provision from the rest of the text to keep the remainder constitutional and valid.