Interpretation of Legislation
PRACTICAL question
Now that we are finished with the section on
INTERPRETATION of legislation, and as a revision of this
section, prepare an answer to the following question:
With reference to Natal Joint Municipal Pension Fund v
Endumeni Municipality 2012 (4) SA 593 (SCA) or any other
authority, critically discuss how the courts view the present
state of the law and the proper approach to interpretation.
(10)
Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 (SCA)
• The Endumeni Municipality (Endumeni), the respondent,
is a participant in the Natal Joint Municipal Pension Fund
(the Fund), the appellant in the appeal. The dispute
between Endumeni and the Fund concerned an attempt
by the Fund to recover an adjusted contribution imposed
on Endumeni under the Fund regulations. The attempt
failed in the court a quo and went to the SCA, where the
appeal succeeded. To settle the dispute, the court had
to interpret the relevant regulations of the Natal Joint
Municipal Pension Fund.
• The court dealt with the proper approach to
interpretation in para [17] – [19] of the judgment
[17] The trial judge said that the general rule is that the words used in a statute are
to be given their ordinary grammatical meaning unless they lead to absurdity. He
referred to authorities that stress the importance of context in the process of
interpretation and concluded that:
‘A court must interpret the words in issue according to their ordinary meaning
in the context of the Regulations as a whole, as well as background material,
which reveals the purpose of the Regulation, in order to arrive at the true
intention of the draftsman of the Rules.’
Whilst this summary of the approach to interpretation was buttressed by reference
to authority it suffers from an internal tension because it does not indicate what is
meant by the ‘ordinary meaning’ of words, whether or not influenced by context, or
why, once ascertained, this would coincide with the ‘true’ intention of the
draftsman. There were similar difficulties in the heads of argument on behalf of
Endumeni. In one paragraph they urged us, on the basis of the evidence of the
actuary who advised the Fund to adopt the approach, that the proviso was not
intended to cater for ‘a Maltman type of event’ and in another cited authorities for the
rule that the ‘ordinary grammatical meaning of the words used must be adhered to’
and can only be departed from if that leads to an absurd result. In view of this it
is necessary to say something about the current state of our law in regard to
the interpretation of statutes and statutory instruments and documents
generally.
[18]
The present state of the law can be expressed as follows.
Interpretation is the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of
the document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar and syntax; the context in
which the provision appears; the apparent purpose to which it is directed and the
material known to those responsible for its production. Where more than one
meaning is possible each possibility must be weighed in the light of all these factors.15
The process is objective not subjective. A sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert to, and guard against, the
temptation to substitute what they regard as reasonable, sensible or businesslike for
the words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation. In a contractual context it is to
make a contract for the parties other than the one they in fact made. The ‘inevitable
point of departure is the language of the provision itself’,16 read in context and having
regard to the purpose read in context and having regard to the purpose of the provision
and the background to the preparation and production of the document.
[19] All this is consistent with the ‘emerging trend in
statutory construction’.[Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & others 2004 (4) SA 490
(CC) para 90]. It clearly adopts as the proper approach to
the interpretation of documents the second of the two possible
approaches mentioned by Schreiner JA in Jaga v Dönges
NO and another, namely that from the outset one considers
the context and the language together, with neither
predominating over the other. This is the approach that courts
in South Africa should now follow, without the need to cite
authorities from an earlier era that are not necessarily
consistent and frequently reflect an approach to
interpretation that is no longer appropriate.
NB:
Jaga v Dönges
Bato Star Fishing
