MAXIMS OF INTERPRETATION
A maxim is a ‘saying that expresses a general truth or rule of conduct’. In legal language a
maxim is a saying or statement usually in Latin – used to denote a rule or principle.
1. Ejusdem generis (of the same kind) rule
This maxim literally translated means “of the same kind” and it holds that where
particular words are followed by general words in a statute. The meaning given to the
general words is limited to the same kind as the particular words e.g. where a statute
provided that “no tradesman, artisan, workman, labourer or other person whatsoever shall
do or exercise any worldly labour, business or work of their ordinary calling on
Sundays… ”. The words “or other person whatsoever” were construed as ejusdem
generis with those which preceded them such that an estate agent was deemed not to be
covered by this section (See Gregory v. Fearn 1953 (1) WLR 974). Another example is
where the court held that in a statute a department of conservation had the authority to
sell gravel, sand, earth or other material, the term ‘other material’ could only be
interpreted to include materials of the same general type and did not include commercial
timber.
The rationale behind this maxim is that it saves the legislature from having to spell out in
advance every contingent to which the maxim would apply
S v. Chitsa 1966 RLR 92
The accused was charged with contravening section 46(2) of the now repealed Law and
Order Maintenance Act, the question for determination was whether the smashing of
window panes by use of an object such as a club could be placed in the same category
as the “throwing or propelling of an article likely to cause damage at a building”
which was provided for in the relevant provision. Lewis J said, “…the particular
context of the statute in question may require a more restricted interpretation. It often
happens that a word of wide and general meaning receives a restricted interpretation
on application of the ejusdem generis rule.”
However, it must be noted that the mere existence of general words upon particular
words does not necessarily invoke he application of the ejusdem generis. According to
Van Heerden J in S v. Saidi 1962 (2) SA 128 the rule will only apply where the clear
category is followed by words which are not clear. In that case, the provision in question
prohibited the obstruction of free passage along the public street by means of any wagon,
cart, or other thing whatsoever. The court declined to interpret the general words as
meaning only wheeled vehicles, and decided that it included an obstruction caused by
boxes full of vegetables. This was because according to the court the object of the law
giver was clear – mainly to prevent the obstruction of public streets. The court ruled that
the words ‘or other things whatsoever’ were clear and unambiguous in the context in
which they were used i.e. they were words of the widest connotation and were obviously
used to include all things except persons.
S v. Vandermever 1977 (2) SA 774
The Respondent had been charged with contravening a provision of a statute in that he
had used fuel in his motor vehicle and then exceeded the speed limit. He admitted that
he had used the fuel known as methanol. Under the regulation in question fuel was
defined as including diesel, oil, petrol, or any other substance capable of being used as
a fuel. The trial magistrate had applied the ejusdem generis maxim to limit the
definition of fuel to oil products. On appeal it was ruled that the words ‘any other
substance’ in the definition of fuel referred directly to any other fuel which could be
used for the operation of a motor vehicle.
In decoding whether to apply the maxim one must first consider the scope and object of
the enactment to be considered as well as the mischief which the statute is targeting. Such
was the case in R v. Bono 1953 where the court held that the provision which prohibited
the collection of money in the public streets whether for charity purposes or otherwise
also included political objects.
The maxim cannot apply where the particular objects/words do not form a genus/class.
This was expressed in Amberly Estates (Pvt) Ltd v. Controller of Customs & Excise
1986 (2) ZLR 269B where Gubbay JA held for this rule (ejusdem generis) to operate,
there must be a distinct genus or category to which the wide general word is to be linked.
2. Expressio unius est exclusio alterius (what is not mentioned is absent) rule
Literally means that whatever is omitted should be understood as being excluded, e.g. if a
statute provides for a specific sanction for non-compliance with its other sanctions being
excluded they cannot be applied. The maxim is based on the rationale that if the
legislature had intended to accommodate a particular remedy or allowance it would have
done so expressly, e.g. in the case of Lead Smelting Co. v. Richardson (1763) 3 Burr
1241 it was ruled that the express mention of coal mines in the definition of lands
excluded the possibility that the word included mines of other minerals.
R v. Robinson 1975 (4) SA 438
Biedel AJ ruled that the power to demand information from council or an attorney
acting on behalf of a person did not exclude the power to demand such information
from the suspected person himself.
Thus it has been said that this maxim is a faithful servant but a dangerous master.
3. Noscitur a socii (words are chameleon like)
This maxim means that particular words are coloured by their association with other
words. A good example of the application of this maxim is found in the case of R v.
Greenland 1962 (1) SA 51 (SR) where the provision in question prohibited driving
“recklessly or negligently”. In that case the court had the task of trying to interpret the
two terms or the two words in such a manner as to give them different meanings. In the
end the court ruled that “only one offense of driving recklessly or negligently is
committed, this being so, it seems to me that this is the case where the maxim noscitur a
socii should be applied in interpreting the word recklessly”.
4. Contemporonea expositio (focus on the principle of precedent)
This maxim refers to the extent which courts will have regard to their judicial decisions
in interpreting a statute. When interpreting a statute, the courts do not approach it afresh
each time instead they are bound by precedent. Under English law, the doctrine of stare
decisis is rigidly followed however, under Roman-Dutch law there is room for
development and the court may even depart from a previous decision which it considers
to be legally in error. An example is the case of R v. Silas 1959 (4) SA 305 where the
court found that due to an oversight there was conflict between the previous Appellate
Division decisions of R v. Banksbird 1952 (4) SA 512 and R v. Mazimbuko 1958 (4)
SA. The court decided to follow the Mazimbuko decision since it believed it to be the
legally correct decision.
The modern attitude of the judiciary towards the doctrine of precedent is reflected in the
dictum by Botha J, in the case of National Chem. Search v. Borrowman and Anor,
“In the field of precedence and stare decisis it used to be sad that a decision otherwise
binding could be departed from if a later court considered it to have been clearly wrong.
Nowadays the more usual way of expressing the requirement is that the later court must
be convinced that it was wrong. The words used in formulating the principle are not
important. What matters is the degree of error or the degree of conviction but the test to
be applied is incapable of exact definition. If functioning under a virile living system of
law, a judge must not be faint-hearted, and when he is morally convinced that justice
requires a departure from precedence he will not hesitate to do so, but on the other hand,
he guards carefully against being overboard in substituting his own opinion for those of
others lest there be too much chopping and uncertainty in the law. A mere difference of
opinion without more ought not to justify departure from precedence.”
As regards to the doctrine of precedence in Zimbabwe, Section 24 of the Supreme Court
Act, now expressly provides that the Supreme Court shall not be bound by its previous
judgements e.g. Magaya v. Magaya.
In 1981 the then Chief Justice of Zimbabwe Feldstein CJ issued a directive in which he
stated that “The court is conscious that it is important that there being a degree of
certainty upon which people can rely on in the conduct of their affairs. Precedent is an
important 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 staring point for any developments in the
law. Nevertheless, particularly in a changing society, it is essential that the court 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
general principles accepted under our law.”
The maxim also refers to the extent to which courts will have regards to long established
customs in interpreting a statute. In R.V Lloyd it was noted that although custom is said
to be the best interpreter, it should not dictate absolutely the construction of the statute,
but where a statute may fairly be interpreted in either of two ways, custom may well be
evoked to tip the balance. The situation was clarified by Innes CJ when he said that
custom cannot prevail on a plain and unambiguous meaning of a statute but where
language is open to two constructions, then the fact that it has been uniformly read in one
sense by those entrusted.
