Page 11.1 Introduction

11 Interpretation Janet Kentridge Derek Spitz Page 11.1 Introduction................................. 11--1 THE INTERIM CONSTITUTION 11.2 Interpreting the Constitution as a whole................... 11--1 (a) The Preamble and the Afterword.................... 11--1 (b) The signed text............................. 11--2 (c) Definitions and interpretation...................... 11--3 (d) Drafting history............................. 11--5 11.3 Interpreting the Bill of Rights........................ 11--6 (a) Section 35(1).............................. 11--6 (b) Section 35(2).............................. 11--8 (c) Section 35(3).............................. 11--9 11.4 Differences between statutory interpretation and constitutional interpretation................................. 11--10 11.5 Differences between interpreting the Bill of Rights and the rest of the Constitution................................. 11--14 11.6 Supremacy of the Constitution........................ 11--16 11.7 Theories of interpretation.......................... 11--17 (a) Originalist interpretation: the primacy of drafters intent........ 11--17 (b) Political process theory: constitutional review to remedy dysfunctions in the political process......................... 11--21 (c) Value-based interpretation: upholding individual rights in the forum of principle............................... 11--23 11.8 Developing a purposive approach to interpretation............. 11--25 11.9 The pressures of the text........................... 11--28 11.10 The structure of constitutional interpretation: two-stage analysis...... 11--31 (a) Stage One: the content of the right................... 11--32 (b) Stage Two: limitation of rights..................... 11--33 (c) Onus and standard of proof at each stage................ 11--34 [REVISION SERVICE 5, 1999] 11--i

CONSTITUTIONAL LAW OF SOUTH AFRICA Page THE FINAL CONSTITUTION 11.11 The importance of the certification judgments.............. 11--35 11.12 Interpreting the Constitution as a whole.................. 11--37 (a) The Preamble............................. 11--37 (b) The signed text............................ 11--37 (c) Definitions and interpretation..................... 11--37 (i) The presumption of constitutionality.............. 11--37 (ii) International law........................ 11--38 (iii) Definitions........................... 11--39 (iv) Interpretation of existing legislation.............. 11--39 (d) Drafting history............................ 11--39 (e) Implied provisions........................... 11--40 11.13 The Bill of Rights............................. 11--41 11.14 Two-stage analysis under the final Constitution.............. 11--42 (a) Stage One ---- the content of the right................. 11--42 (b) Stage Two ---- limitation of rights................... 11--46 (c) Onus and standard of proof at each stage............... 11--46 11--ii [REVISION SERVICE 5, 1999]

INTERPRETATION 11.1 INTRODUCTION ICE 5, 19991 This chapter begins with a discussion of what the interim Constitution itself explicitly says about interpretation. 1 It discusses the provisions of the interim Constitution which are concerned with the interpretation of the Bill of Rights and those which deal with the interpretation of the Constitution as a whole. It considers what the interim Constitution says about statutory interpretation, and how this may have changed the approach to statutory interpretation which has prevailed until now. This leads to a broader consideration of the basic differences between constitutional and statutory interpretation. The question of the differences between interpreting the Bill of Rights and interpreting the rest of the Constitution is then briefly revisited. The next question considered is the implications of constitutional supremacy, and the place and meaning of judicial review of legislation in a democratic society. Various interpretative solutions to the puzzle of the power of unelected judges in a constitutional democracy are outlined. The conclusion reached is that the purposive, valuebased approach embraced by the South African courts is the soundest in principle and in practice. The implications of this approach for the structure of constitutional analysis are then examined. 2 The last four sections of the chapter consider questions of interpretation in relation to the final Constitution. 3 THE INTERIM CONSTITUTION All references to the Constitution, sections, Chapters, and Schedules in this part of this chapter, from 11.2 up to and including 11.10(c), must be taken as references to the interim Constitution unless another Constitution or statute is specifically referred to. 11.2 INTERPRETING THE CONSTITUTION AS A WHOLE (a) The Preamble and the Afterword The Preamble sets the tone of the Constitution as a whole. The Preamble speaks of the need to create a new social order within South Africa, a social order predicated on equality and fundamental human rights and freedom. The new constitutional state thereby envisaged will be regulated by a Constitution drawn up by the elected representatives of the South African people. In the interim period during which the final Constitution was being formulated the Constitution made provision for the promotion of national unity and the restructuring and continued governance of South Africa. These themes are reiterated in an Afterword headed National Unity and Reconciliation, which appears at the end of the Constitution. 4 The Afterword locates this Constitution in a 1 Constitution of the Republic of South Africa, Act 200 of 1993, hereafter referred to as the interim Constitution, or IC. 2 The authors would like to thank Stu Woolman for his extensive contribution to developing the ideas articulated in this Chapter. 3 Constitution of the Republic of South Africa, Act 108 of 1996, hereafter referred to as the final Constitution, or FC. 4 On the status of the Afterword, see Azanian People s Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at paras 12--14. [REVISION SERVICE 5, 1999] 11--1

particular historical context ---- the demise of a brutal, inhumane and unjust regime and the birth of a new order based on the values of humanity (ubuntu) and social justice. Like the Preamble, the Afterword to the Constitution sets out the goals of the Constitution and makes clear the bridging function of the enactment. 1 Apart from describing the functions which the Constitution is required to fulfil, the Afterword provides a clear statement of the values underlying the Constitution. This means that in interpreting any section of the interim Constitution the historical context of the Constitution and the commitments which it makes to nation building, reconciliation, reparation and reconstruction must be taken into account. 2 The importance of the Preamble and the Afterword to the Constitution as statements of those values which are to inform the entire exercise of constitutional interpretation has been acknowledged by the courts. 2 (b) The signed text CONSTITUTIONAL LAW OF SOUTH AFRICA The Afrikaans text of the Constitution was signed by the State President and assented to on 25 January 1994. For as long as English and Afrikaans were the two official languages of the Republic of South Africa all statutes were drafted in both English and Afrikaans. The State President would sign the Afrikaans text of one statute and the English text of the next. 3 So it came about that the President signed the Afrikaans text of Act 200 of 1993. It has long been a rule of statutory interpretation in South Africa that, in cases of doubt, where the sense of the Afrikaans word used differs from the English, the sense conveyed by the signed text is definitive. 4 1 Chaskalson P has drawn attention to the fact that the interim Constitution proclaims itself to be an historic bridge, and not a final destination. It is not simply a bridge from the apartheid Constitution of the past to the present, governed by the interim Constitution. It is also an historic bridge from the present to the future, which will be governed by the new Constitution (Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 37. 2 It is a well-established principle of common law that reference to the preamble to a statute is a permissible, if limited, guide to the meaning of that statute: Mathebe v Regering van die Republiek van Suid Afrika en andere 1988 (3) SA 667 (A) at 689D--692D; Kauesa v Minister of Home Affairs & others 1995 (1) SA 51 (Nm) at 81C--82C, 1995 (3) BCLR 1 (Nm); G E Devenish Interpretation of Statutes (1992) 102--5; Lucas Cornelius Steyn Die Uitleg van Wette 5 ed (1981) 145--6. By virtue of s 232(4), the portion of the interim Constitution headed National Unity and Reconciliation (sometimes dubbed the post-amble ) does not have a lesser status than any other part of the Constitution and is deemed to form part of the substance of the Constitution. Section 232(4) is considered further below, 11.2(c). The Preamble and Afterword have figured in many of the cases in which Chapter 3 has been judicially considered. See in particular S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 262--4 (Mahomed J) and 363 (Sachs J); S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 112 (Sachs J); Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 221F--G, 1995 (2) BCLR 89 (W); Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 632A--G, 1995 (1) BCLR 75 (E); Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 597G--598B; Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) paras 75, 123, 125--6. 3 This practice appears to have continued thus far. 4 See H R Hahlo & Ellison Kahn The South African Legal System and Its Background (1973) 193--7; Devenish Interpretation of Statutes 144--55. The requirement that statutes be published in English and Afrikaans, that one be signed by the president, and that the signed text would prevail in the event of a conflict between the two derives originally from s 67 of the South Africa Act of 1909 (UK). This was repealed by the 1961 Constitution (Act 32 of 1961) and replaced by s 65 of that Act. The section was in turn replaced by s 35 of Act 110 of 1983, the previous Constitution, which was repealed in its entirety by the 1993 Constitution (cf s 230(1) read with Schedule 7). There [continued on page 11--3] 11--2 [REVISION SERVICE 5, 1999]

In fact, though, the Constitution was drafted in English and as a matter of accuracy the English text should be the decisive one as between the English and Afrikaans in cases of doubt. Hence s 15 of the Constitution of the Republic of South Africa Amendment Act 2 of 1994 provided: Notwithstanding the fact that the Afrikaans text of the principal Act is the signed text, the English text of that Act shall, for the purposes of its interpretation, prevail as if it were the signed text. 1 ICE 2, 1998Where 3 there is no conflict between the English and the Afrikaans version, and an ambiguity in one text can be resolved with reference to the unambiguous words in the other text, the latter, unambiguous meaning should be adopted. 2 This rule of interpretation applies equally to the interpretation of the Constitution. 3 (c) Definitions and interpretation INTERPRETATION The definitions of the Constitution are contained in s 233. In general this section is concerned mainly with terminology used in the Constitution. 4 Certain terms used in the Constitution are not explicitly defined, for example the term Act of Parliament. In the case of Zantsi v The Council of State (Ciskei) & others the Constitutional Court unanimously held that the term Act of Parliament as used in those sections of the Constitution concerned with the jurisdiction of the Supreme Court included Acts of the Parliament of the Republic of South Africa passed before and after the coming into effect of the Constitution, but excluded laws passed by the legislatures of the four nominally independent homelands. 5 In reaching this are now eleven official languages instead of two, and nothing has replaced the provisions of s 35 of the 1983 Constitution. There no longer appears to be a requirement that legislation is published in English and Afrikaans, nor any law requiring that the signed text should prevail in the event of conflict. Section 3(2) of the Constitution provides that [r]ights relating to language and the status of languages at the commencement of this Constitution shall not be diminished. It is submitted that, in the context of the section as a whole, this cannot be taken to mean that the requirements of s 35 of the 1983 Constitution have survived the demise of the provision itself. 1 Since the coming into effect of the 1993 Constitution, and the effective repeal of the 1983 Constitution, the rule embodied in s 35 of the 1983 Constitution (described above, 11-2n3) is defunct. The need for the passage of this particular amendment is therefore unclear. The amendment, to which the President assented on 2 March 1994, may have been effected because the 1993 Constitution was passed while the 1983 Constitution, and hence s 35, was still in force. Certain sections of the interim Constitution came into operation before 27 April 1995 (cf s 249(3), s 251). Hence it may have been necessary to clarify which text prevailed during the interregnum. Alternatively, the amendment may be the product of force of habit (or caution as to the effect of s 3(2) of the Constitution). (On the effect of s 3(2) see below, Currie Official Languages 37.4.) The amendment appears not to have been before Froneman J when he referred to the Afrikaans text, which he noted was the signed text, in interpreting the words law or provision as used in IC s 103 (Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 636C--F), 1995 (1) BCLR 75 (E). 2 S v Maroney 1978 (4) SA 389 (A) at 409. 3 Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) para 44; cf para 47. 4 Inter alia the section provides that the term organ of state includes any statutory body or functionary (subsec (1)(ix)). Subsection (3) provides that the term in consultation with means that a decision cannot be taken by the party required to consult without the approval of the party with whom it is required to consult. Subsection (4) provides that the term after consultation with means that the person required to consult must consult in good faith and must give serious consideration to the views of the party whom she or he is required to consult, the implication being that the approval of the consultee is not required. 5 1995 (4) SA 615 (CC). Hence local and provincial divisions of the Supreme Court have jurisdiction to inquire into the constitutionality of laws passed by the legislatures of the territories which were known as Transkei, Bophuthatswana, Venda and Ciskei. They do not, however, have jurisdiction to inquire into the constitutionality of legislation passed by the Parliament of the Republic of South Africa either before or after the commencement of the Constitution (Zantsi at paras 40--1). [REVISION SERVICE 2, 1998] 11--3

CONSTITUTIONAL LAW OF SOUTH AFRICA conclusion Trengove JA was aided by the definition of the words law and parliament in s 2 of the Interpretation Act 33 of 1957. 1 It therefore seems that, even though the Constitution is no ordinary statute, 2 but is the supreme law of the land, it is one of the laws to which the Interpretation Act applies. 3 Section 232 of the Constitution is the interpretation section. This is an important section owing to the potential for confusion engendered by the interim nature of the Constitution. With the coming into force of the Constitution, both the legal and the territorial boundaries of South Africa shifted. Yet the terrain, both geographical and legal, on to which these new boundaries were marked remained much the same. The new provinces are an amalgamation of the territory of what was legally defined as the Republic of South Africa prior to 27 April 1994 and the territories of what were up to that date the nominally independent and self-governing territories. Similarly the Constitution, the fundamental law of the land, was superimposed on existing law and legislation. 4 Section 232(1) deals with how terms such as Republic, State President, and Administrator, as used in other laws, 4 should be construed in the light of the changes brought about by the Constitution. Section 232(3) provides: No law shall be constitutionally invalid solely by reason of the fact that the wording used is prima facie capable of an interpretation which is inconsistent with a provision of this Constitution, provided such a law is reasonably capable of a more restricted interpretation which is not inconsistent with any such provision, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. Section 232(3) confers upon laws a presumption of constitutional validity. It provides that where a law is capable of differing interpretations, one of which may be inconsistent with any provision of the Constitution, and another which is consistent with the Constitution, then the latter is to be preferred. That then becomes the meaning of the law in question. The effect of this provision appears to be that laws which have hitherto been interpreted in ways which would lead to their infringing the Constitution ought now, where possible, to be interpreted so as to comport with the requirements of the Constitution. Where, however, an enactment infringes the Constitution on any sensible interpretation, that enactment is invalid. 5 The terms of s 232(3) suggest that if there is a reasonable interpretation available whereby the law in question is constitutional, then that interpretation should be adopted ---- even if that interpretation was explicitly rejected in the past. 6 1 Law is there defined as any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law. Parliament is defined as the Parliament of the Republic ; cf Zantsi at paras 36--7. 2 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P). See further below, 11.4. 3 Cf ss 1 and 2 of the Interpretation Act 33 of 1957. 4 This refers to all laws which were in force in any area of the national territory prior to the coming into effect of the Constitution. In terms of s 229 of the Constitution such laws remain in force until they are repealed or amended by a competent authority. 5 See S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 28. 6 Compare Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18. 11--4 [REVISION SERVICE 2, 1998]

Section 232(4) provides: In interpreting this Constitution a provision in any Schedule, including the provision under the heading National Unity and Reconciliation, to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the substance of this Constitution. In general the Schedules are concerned with technical matters. 1 Schedule 4 contains the Constitutional Principles, which lay down the parameters within which the final Constitution must be drafted. The Principles provide a framework for the new constitutional dispensation in South Africa. They also articulate the values to which those who govern South Africa now and in the future are pledged to adhere. Arguably, by virtue of s 232(4), the Constitutional Principles can inform our understanding of the provisions of the Constitution since reference to other relevant portions of an instrument is often important in interpreting any particular provision. It is clear, however, that s 232(4) does not mean that the Constitutional Principles are themselves substantive constitutional rights, the contravention of which gives rise to a claim in terms of the Constitution. It has been held that the statement in s 232(4) that the Schedules are for all purposes deemed to form part of the substance of the Constitution relates to their status and not to their function or operation. 2 (d) Drafting history INTERPRETATION 5The Constitution was forged through the Multi-Party Negotiating Process (MPNP). This process was informed by the reports of a number of technical committees. 3 The final draft which emerged from the MPNP was, with minor amendments, adopted by Parliament. In a careful consideration of the role of its legislative history in the interpretation of the Constitution, Chaskalson P has pointed out that the drafts of the reports of the technical committees are equivalent to the travaux préparatoires upon which tribunals interpreting international conventions are permitted to rely. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it. 4 1 Schedule 1, for example, is concerned with the definition of the provinces; Schedule 2 with the system for election of national assembly and provincial legislatures; Schedule 3 with the oaths of office and solemn affirmations to be taken by the President, Deputy Presidents, members of the national assembly, judges and so on; Schedule 5 sets out the procedure for the election of the President; Schedule 6 the legislative competences of the provinces; Schedule 7 the legislation repealed by the Constitution. 2 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 41. Chaskalson P examines the role and status of the Constitutional Principles at paras 24--41. Cf Premier, KwaZulu-Natal, & others v President of the Republic of South Africa & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) at para 12. The status of the afterword in the light of s 232(4) is discussed by Mahomed J in Azanian People s Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at para 14. 3 For a participant s perspective on the formulation of the bill of rights, see Lourens du Plessis & Hugh Corder Understanding South Africa s Transitional Bill of Rights (1994). 4 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 17 (Chaskalson P). [REVISION SERVICE 2, 1998] 11--5

CONSTITUTIONAL LAW OF SOUTH AFRICA The judge was careful to point out that the actual intentions of individual actors in the process of adopting the Constitution are not determinative of the meaning of the Constitution. Especially in view of the fact that the Constitution is a product of a multiplicity of actors, the comments of any of those involved in the process, no matter how prominent a role they might have played, are to be treated with circumspection. 1 The judge distinguished, however, between comments such as these and other materials throwing light on the purposes sought to be achieved in the drafting process: Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence. It is sufficient to say that where the background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a court in interpreting the Constitution. 2 11.3 INTERPRETING THE BILL OF RIGHTS 6Section 35, the final section of Chapter 3 of the Constitution, deals specifically with the interpretation of the Bill of Rights. (a) Section 35(1) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. Section 35(1) is an exhortation to the courts to seek and discover the values underlying the Bill of Rights in interpreting its provisions. This subsection is heavily suggestive of the correct jurisprudential approach to the interpretation of the Constitution. The range of jurisprudential theories of constitutional interpretation is discussed below, 11.7. There it is argued that, as a matter of principle and coherence, a value-based analysis is the best way to proceed in interpreting the Constitution. Section 35(1) is an explicit textual invitation to adopt that approach to interpretation. 1 S v Makwanyane at para 18 (Chaskalson P). 2 S v Makwanyane at para 19 (Chaskalson P). The implications of this conclusion are considered further below, 11.7(a). In reaching this conclusion Chaskalson P reviewed the status of legislative history in the interpretation of statutes in South Africa and other Commonwealth jurisdictions. He noted that the scope of what is admissible by way of background materials has in recent years been extended in England, New Zealand and Australia, but he pointed out that the question of whether South Africa should follow that trend was not directly in issue because the court was engaged in the interpretation of a Constitution, which is no ordinary statute (at para 15). Chaskalson P proceeded to consider the use of background materials in the interpretation of the Constitutions of other jurisdictions in which the Constitution is the supreme law (at para 16). See also Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 56 (per Kentridge AJ), para 84 (per Mahomed J); Ex parte Attorney-General, Namibia: In re The Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmS) at 1080D--J. 11--6 [REVISION SERVICE 2, 1998]

INTERPRETATION As we argue below, 1 the approach to constitutional interpretation which says that the meaning of the Constitution is to be found in the intention of its drafters is fundamentally flawed. Nor is the meaning of the Constitution to be found in a simple decoding of the written text. Rather, the meaning of the Constitution is to be determined with reference to its underlying values and commitments. 2 Section 35(1) appears to endorse this view. 3 Note that 6A 6B 1 Below, 11.7(a). 2 The argument here is that the values underlying the Constitution play a vital role in the interpretation of the text. The text itself, however, remains important. As Kentridge JA pointed out in S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 17: I am well aware of the fallacy of supposing that general language must have a single objective meaning. Nor is it easy to avoid the influence of one s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce s reminder that even a constitution is a legal instrument, the language of which is to be respected. If the language used by the lawgiver is ignored in favour of a general resort to values the result is not interpretation but divination. 3 There is something of an irony in the fact that the plain meaning of s 35(1) can be said to support a value-based approach to the interpretation of the bill of rights. It is similarly ironic that s 35(1) appears to articulate the drafter s intention that the value-based approach should prevail over that which accords primacy to the intention of the drafter. The effect of s 35(1) seems to be that even judges who are minded to interpret the bill of rights according to the plain meaning or the drafter s intention theory are forced to take into account the underlying values of the Constitution in interpreting the provision in question. [REVISION SERVICE 2, 1998] 11--6A

INTERPRETATION ICE 5, 1999 the phrase used in s 35(1) ---- an open and democratic society based on freedom and equality ---- echoes s 33(1)(a), which states that the rights contained in Chapter 3 can only be limited by a law of general application which is both reasonable and justifiable in an open and democratic society based on freedom and equality and which does not negate the essential content of the right in question. Hence both s 33(1) and s 35(1) exhort the courts to seek and discover the value basis of the Bill of Rights in interpreting its provisions. 1 The obligation which s 35(1) places upon courts interpreting the Constitution to promote the values of an open and democratic society based on freedom and equality applies both to the interpretation of the fundamental right itself and to the evaluation of any limitation against the criteria laid down in s 33(1). 2 7 Judges interpreting the Bill of Rights are also enjoined to have regard to public international law applicable to the protection of the rights entrenched in the Chapter. 3 It is interesting to note that this exhortation is cast in peremptory terms. This brings public international human rights law into the very centre of human rights adjudication in South Africa. This is likely to be particularly important in the early days of adjudicating under the Bill of Rights since there is no local body of precedent in the area on which to draw. 4 Similarly important is the learning to be found in comparable foreign case law. While judges are not obliged to have regard to such comparable foreign case law, they are able to do so in terms of s 35(1). 5 This allows them to look at the law of human rights as it is developing in other jurisdictions in Southern Africa which have recently adopted bills of rights, such as Namibia and Zimbabwe, and also to consider the law of those countries on whose bills of rights the drafters of the Constitution drew in formulating the provisions of Chapter 3, such as the United States, Canada and Germany. 1 As is considered further below, 11.10, constitutional analysis proceeds in two stages. The first is concerned with whether the law or act under review impinges upon a right. This inquiry involves the definition of the right, the delimitation of its boundaries. If the law or act subject to complaint encroaches on those boundaries, the inquiry proceeds to the second stage, where the legitimacy of any restriction on the right is assessed. That the words open and democratic society based on freedom and equality are used in s 35(1) and s 33(1) is significant, for it underlines the fact that the same values inform both phases of the inquiry. 2 Coetzee v Government of the Republic of South Africa & others; Matiso v Commanding Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC) at para 11 (Kriegler J, for the majority). On the contiguity of the two stages of inquiry, see the remarks of Sachs J in his separate judgment concurring in the order in the same case at paras 45--6. See further below, 11.10. 3 See below, Dugard Public International Law ch 13. See also John Dugard The Role of International Law in Interpreting the Bill of Rights (1994) 10 SAJHR 208, esp at 211--14. 4 Cf S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 34--6. 5 S v Makwanyane at paras 37--9. Foreign authorities are not, however, to be imported wholesale into local constitutional jurisprudence regardless of their suitability. See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 132--3 (Kriegler J); Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 127 (per Kriegler J); Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 61; Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 1996 (3) SA 289 (CC), 1995 (4) BCLR 518 (CC) at para 22; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 101; Thomson Newspapers Ltd v Director of Investigation and Research (1990) 67 DLR (4th) 161 at 279f--g. Compare O Kahn Freund On the Uses and Misuses of Comparative Law (1974) 37 Modern LR 1. [REVISION SERVICE 5, 1999] 11--7

(b) Section 35(2) CONSTITUTIONAL LAW OF SOUTH AFRICA No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. 8The similarity between s 35(2) and s 232(3) is clear, and the effect of both these subsections is broadly similar. 1 Section 35(2) effects a change of emphasis to the standard rules of statutory interpretation. According to these rules, the object of the interpretive exercise is to ascertain the intention of the legislature. The golden rule of statutory interpretation is that the judge must give effect to the ordinary meaning of the clear wording of the statute unless this results in patent absurdity, in which case the court may resort to other clues to the legislative intention. 2 Resort to devices such as restrictive interpretation and purposive interpretation is allowed also where the words used are themselves ambiguous. 3 Section 35(2) of the Constitution provides that the prima facie obvious meaning of the words used in the text should not necessarily prevail. If the plain meaning of a statute suggests that it is unconstitutional, the court is required to consider whether the language permits an interpretation which would accord with the requirements of the Bill of Rights. 4 If an alternative interpretation is available which does accord with the constitution, then that interpretation is to be preferred. The effect of s 35(2) is to require every statute to be read, if possible, in such a manner that it comports with the requirements of the Constitution. 5 Hence even adjudicators in 1 S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 26. 2 Union Government (Minister of Finance) v Mack 1917 AD 731 at 739; Pick n Pay Retailers (Pty) Ltd v Minister of Mineral and Energy Affairs 1987 (2) SA 865 (A) at 876D; Public Carriers Association & others v Toll Road Concessionaries (Pty) Ltd & others 1990 (1) SA 925 (A) at 942I--J; Boland Bank Ltd v The Master & another 1991 (3) SA 387 (A). 3 See Union Government (Minister of Finance) v Mack at 748. See the dictum by Smalberger JA in Public Carriers Association & others v Toll Road Concessionaries (Pty) Ltd & others at 943I--944B. 4 A rule of interpretation originating in Roman law and adopted into our common law accords broadly with the presumption of constitutionality embodied in s 35(2). The rule provides in ambigua voce legis ea potius accipienda est significatio, quae vitio caret. Where a statutory provision is ambiguous, that meaning which avoids invalidity of the provision in question is to be preferred. See Ynuico Ltd v Minister of Trade and Industry & others 1995 (11) BCLR 1453 (T), upheld in Ynuico Ltd v Minister of Trade and Industry & others 1996 (3) SA 989 (CC), 1996 (6) BCLR 798 (CC). We submit, however, that, unlike the common-law rule of interpretation, the applicability of s 35(2) does not depend upon first establishing that the relevant statutory provision is ambiguous or would lead to absurd consequences. See paras 59--64 of Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) per Ackermann J. 5 See S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC); Coetzee v Government of the Republic of South Africa & another 1995 (4) SA 631 (CC), 1995 (12) BCLR 1579 (CC) (where it is possible to do so, a law should be read down so that a more restricted interpretation is applied which comports with constitutional requirements). Thus, for example, in Govender v Minister of Safety and Security 1999 (5) BCLR 580 (D) at 594--5 Booysen J applied IC s 35(2) in interpreting s 49(1) of the Criminal Procedure Act 51 of 1977. The section deals with the use of force and subjects its legality to a test of reasonableness. The court read the section to incorporate an assessment of proportionality as this concept is understood under the limitation clause of the constitution. The court therefore concluded that the section did not conflict with the constitution. The legality of the use of force would be determined on a case-by-case basis where an assessment would be made, against the background of the Constitution, of whether it was the minimum force possible, reasonable, necessary and proportionate in the circumstances. Cf Zimbabwe Township Developers (Pvt) Ltd v Lou s Shoes (Pvt) Ltd 1984 (2) SA 778 (ZS) at 783A--D, cited in Gilbert Marcus Interpreting the Chapter on Fundamental Rights (1994) 10 SAJHR 92 at 96. 11--8 [REVISION SERVICE 5, 1999]

INTERPRETATION tribunals which do not have the jurisdiction to declare a statute invalid are required to consider statutes in the light of the Bill of Rights. Where a plausible constitutional argument is raised in relation to a statute an adjudicator cannot decline to consider the Constitution simply because she or he is not able to decide upon the constitutionality of the Act as a whole. If there is an interpretation available which will bring the statute or the statutory provision under consideration within the constitutional fold, then the adjudicator must consider the constitutional argument to that effect. As we have argued above in relation to s 232(3), this may mean that an adjudicator is required to depart from the hitherto accepted interpretation of a statute in favour of an alternative interpretation which comports with the requirements of the Bill of Rights, provided that the statute in question is reasonably capable of bearing the latter meaning. 8A [REVISION SERVICE 5, 1999] 11--8A

8B

Section 35(2) does two things: first, as we have seen, it effects an important change to the ordinary canons of statutory interpretation. Secondly, it effects a subtle but important change to the doctrine of precedent. Points which might have been settled before the coming into effect of the Bill of Rights are now open to review in the light of the Bill of Rights. 1 This is discussed further below. (c) Section 35(3) INTERPRETATION In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter. ICE 2, 1998 9The same process of exploration and articulation of the values of the Bill of Rights which must be conducted in reference to the interpretation of the Bill of Rights itself is to extend to the interpretation of any law. It was held in Du Plessis v De Klerk that s 35(3) introduces the indirect application of the Bill of Rights to private law. 2 Courts are enjoined to interpret statutes and common-law principles in the light of the values underlying the Bill of Rights. These values and principles are also to inform the application and development of the common law and customary law. 3 Section 35(3) has important implications for adjudication, even where the Constitution itself is not directly in issue. Even where the litigants before the court do not claim the infringement of a fundamental right, and even where the Constitution may not be of direct application to the dispute between the parties, its principles must inform the way in which the matter is determined. 4 The extent to which the substantive values embodied in Chapter 3 are now required to inform the interpretation, development and application of every branch of the law means that points of law, including statutory, common and customary law, hitherto regarded as settled, now stand to be re-evaluated. 5 1 See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18. 2 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 60. The implications of the indirect application of the bill of rights are considered further by Kentridge AJ at paras 61--6. See also Mahomed J at paras 86--7; cf Gardener v Whitaker 1996 (6) BCLR 775 (CC) esp at para 16; Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 at 596D--598G and 603E--I. 3 In Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) para 63 the words a court in s 35(3) were interpreted to mean all courts, including the Appellate Division. Compare paras 141--3 (Kriegler J dissenting); see also Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 16. Writing for the entire court in Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC), Ackermann J held that the words referred also to magistrates courts (para 18; see also paras 8--9). Mokgoro J emphasized, in a separate concurring judgment in Du Plessis v De Klerk, that s 35(3) assigns to courts an affirmative duty to apply and develop both common law and customary law so as to imbue them with the values embodied in Chapter 3. Her judgment drew particular attention to the need to develop customary law in light of such values. This issue was considered too at para 189 of Sachs J s judgment. 4 See Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 86 (Mahomed J, concurring), and 141--3 (Kriegler and Didcott JJ, dissenting). See Cameron J s discussion of the effect of s 35(3) in Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 598B--G, 603F--I, 1996 (6) BCLR 836 (W). 5 See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18; Shabalala v Attorney-General (Transvaal) 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at para 9; Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 603G--H, 1996 (6) BCLR 836 (W). The effect of the infusion of constitutional values into the common law on the doctrine of stare decisis is a question of the proper interpretation of a common-law principle. As such, it is a question which falls within the jurisdiction of the Supreme Court and not the Constitutional Court. See further [continued on page 11--10] [REVISION SERVICE 2, 1998] 11--9

CONSTITUTIONAL LAW OF SOUTH AFRICA We submit, furthermore, that there may be important differences between the interpretation and the development envisaged by s 35(3). A rule of common law may trench upon a fundamental right in a manner which is not amenable to mere interpretation. That rule may require development, even far-reaching development, in order to render it consistent with constitutional principles. We submit that the process of interpretation referred to in s 35(3) is similar to the process of reading down envisaged by the presumption of constitutionality in s 35(2). In certain circumstances, by contrast, development of the common law may necessitate a process similar to the striking down of a statutory provision. This issue is considered in the context of freedom of expression and the common law of defamation below, 20.8(b). 11.4 DIFFERENCES BETWEEN STATUTORY INTERPRETATION AND CONSTITUTIONAL INTERPRETATION 10 That there is a difference between statutory and constitutional interpretation is widely acknowledged in cases on constitutional interpretation throughout the world. The Privy Council decision in Minister of Home Affairs v Fisher, interpreting the Bermuda Constitution of 1968, is a case in point. 1 The question at issue was whether constitutional rights stated to apply to a child of a citizen of Bermuda included an illegitimate child. Had the Constitution been an ordinary statute, then the presumption, pertaining to statutes concerning property, succession and citizenship, that the word child meant legitimate child unless there are clear indications to the contrary, would have applied. The Privy Council held, however, that the statutory presumption did not apply in interpreting the Constitution. 2 The court noted that the Constitution, as compared to other Acts of Parliament, had a number of special characteristics. The Constitution, in particular the Bill of Rights, was drafted in a broad and ample style which laid down principles of width and generality. The Constitution was modelled on the Bills of Rights of other countries and various international instruments for the protection of human rights. It was therefore appropriate to apply to the Bill of Rights a generous interpretation avoiding... the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. 3 above, Loots & Marcus Jurisdiction ch 6. See also Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 86 (Mahomed J), 172--4 (Mokgoro J). Where common-law rights have been recorded in the Constitution the balances struck between them by the common law may now have to be reconsidered (per Kentridge AJ at para 55; cf para 83 (Mahomed J)). 1 [1980] AC 319, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC). 2 The question of whether the common-law presumption that statutes are not intended to be retroactive or retrospective applied to the Constitution was considered by the Constitutional Court in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 37--8 (Mahomed J), para 99 (Kriegler J), para 115 (Sachs J), and paras 64--8 (Kentridge JA, dissenting). Sachs J questioned the usefulness of common-law presumptions in interpreting the Constitution. See Thomson Newspapers v Canada (1990) 67 DLR (4th) 161 at 192 (Wilson J, dissenting). See further below, 11.5. 3 Minister of Home Affairs v Fisher [1980] AC 319 at 328H, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC). This dictum has been cited with approval in numerous cases on constitutional interpretation throughout the world, and by the Constitutional Court in S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 14; and see 651I. See also Attorney General v Moagi 1982 (2) Botswana LR 124 at 184; S v Marwane 1982 (3) SA 717 (A) at 748--9; Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (NmS) at 361--2. 11--10 [REVISION SERVICE 2, 1998]

INTERPRETATION ICE 5, 1999The court pointed out, however, that this did not mean that no rules of law ought to apply to the interpretation of a Constitution: A Constitution is a legal instrument giving rise, amongst other things to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which a Constitution commences. 1 The court refers, in the passage quoted above, to the character and origin of the instrument. This raises the question: what is the character of a Constitution and how does it differ from other statutes? There are, of course, differences in the nature of the instruments themselves and the way in which they are drafted. These are described by the court in Hunter et al v Southam Inc: 10A 10B 1 Minister of Home Affairs v Fisher [1980] AC 319 at 329E--G, [1979] 3 All ER 21, [1979] 2 WLR 889 (PC), cited with approval in S v Zuma & others at para 14. Although it does not expressly refer to the principle that respect should be paid to the traditions and usages which have given meaning to the language used in the Constitution, Van Dijkhorst J s decision in Wittmann v Deutscher Schulverein, Pretoria, & others 1998 (4) SA 423 (T), 1999 (1) BCLR 92 (T) offers an interesting application of that principle. One of the issues which the court was required to determine was the meaning of the phrase state-aided institutions in IC s 14(2). IC s 14 deals with freedom of religion, belief and opinion, and provides that religious observances may be conducted at... state-aided institutions... provided that... attendance at them is free and voluntary. The court had to determine, inter alia, whether the German School was a state-aided institution within the meaning of IC s 14(2). In giving meaning to the words state-aided institution the court had regard to the history and usage of the words state-aided schools in various South African education statutes which predated the coming into force of the interim Constitution. The relevance of the decision for IC s 14 and FC s 15 is considered below, Smith Freedom of Religion ch 19. [REVISION SERVICE 5, 1999] 11--10A

INTERPRETATION The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye on the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind. 1 ICE 3, 1998The 11 Hunter et al v Southam Inc dictum does more than simply describe the differences between statutory and constitutional interpretation. It provides the rationale for such differences. It tells us that the function of a Constitution as a whole is to provide a continuing framework for the legitimate exercise of governmental power. The task of a Bill of Rights, it says, is the unremitting protection of individual rights and liberties. The Constitution as a whole establishes the structure of government. It establishes and allocates the powers of local, provincial and national government, and regulates the relationship between the three. It sets up the mechanisms of representative democracy at each of these levels. It also creates and defines the powers of the legislature, the executive and the judiciary, and deals with the separation of the powers of the three branches of government. In general the Constitution regulates the conduct of government. 2 More particularly, the South African Constitution is largely concerned with setting out the mechanisms and processes by which governmental power is to be transferred from the government of the past to the government of the future. 3 Indeed, the primary function of the Constitution is to provide a set of instructions to guide the transition from apartheid to democracy. This is necessitated by the fact that the elections of 27 April 1994 did not merely usher in a new government ---- they ushered in a whole new form and mode of government. 4 Chapter 3 of the Constitution, Fundamental Rights, is pertinently directed to the relationship between government and private persons. 5 It secures to all persons a zone of autonomy into which neither the state, nor any other person under colour of law, may trespass. It also gives to private persons certain rights which they can claim against the government. 1 Hunter et al v Southam Inc (1985) 11 DLR (4th) 641 at 649. A similar point is made by Mahomed AJ (as he then was) in S v Acheson 1991 (2) SA 805 (NmS). See also Nyamakazi v President, Bophuthatswana 1992 (4) SA 540 (B), 1994 (1) BCLR 92 (B); Ntenteni v Chairman, Ciskei Council of State 1993 (4) SA 546 (Ck), 1994 (1) BCLR 168 (Ck); The Attorney-General v Dow 1994 (6) BCLR 1 (Botswana) at 7B--9D, esp at 7B--G (per Amissah JP) and at 40F--41I (per Aguda JA); De Klerk & another v Du Plessis & others 1995 (2) SA 40 (T) at 45E--I, 1994 (6) BCLR 124 (T); Swart v Minister of Home Affairs, Namibia 1998 (3) SA 338 (Nm) at 343G--344C. 2 See S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P). 3 See Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 7. 4 As mentioned above, this particular function of the interim Constitution is very clearly acknowledged in the Preamble, which records that while the elected representatives of all the people of South Africa are engaged in the process of adopting a new Constitution for the future, provision needs to be made for the promotion of national unity and the restructuring and continued governance of South Africa. 5 See Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC). [REVISION SERVICE 3, 1998] 11--11