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11 InterpretationJanet Kentridge

Derek Spitz

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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 constitutionalinterpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11--10

11.5 Differences between interpreting the Bill of Rights and the rest of theConstitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

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11--ii [REVISION SERVICE 5, 1999]

PageTHE 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

CONSTITUTIONAL LAW OF SOUTH AFRICA

11.1 INTRODUCTION

1REVISION SERVICE 5, 1999This chapter begins with a discussion of what the interim Constitution itself explicitly saysabout interpretation.1 It discusses the provisions of the interim Constitution which areconcerned with the interpretation of the Bill of Rights and those which deal with theinterpretation of the Constitution as a whole. It considers what the interim Constitution saysabout statutory interpretation, and how this may have changed the approach to statutoryinterpretation which has prevailed until now. This leads to a broader consideration of the basicdifferences between constitutional and statutory interpretation. The question of the differ-ences between interpreting the Bill of Rights and interpreting the rest of the Constitution isthen briefly revisited. The next question considered is the implications of constitutionalsupremacy, and the place and meaning of judicial review of legislation in a democraticsociety. Various interpretative solutions to the puzzle of the power of unelected judges in aconstitutional democracy are outlined. The conclusion reached is that the purposive, value-based approach embraced by the South African courts is the soundest in principle and inpractice. The implications of this approach for the structure of constitutional analysis arethen examined.2 The last four sections of the chapter consider questions of interpretation inrelation to the final Constitution.3

THE INTERIM CONSTITUTIONAll references to the Constitution, sections, Chapters, and Schedules in this part ofthis chapter, from § 11.2 up to and including § 11.10(c), must be taken as references tothe 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 needto create a new social order within South Africa, a social order predicated on equality andfundamental human rights and freedom. The new constitutional state thereby envisaged willbe regulated by a Constitution drawn up by the elected representatives of the South Africanpeople. In the interim period during which the final Constitution was being formulated theConstitution made provision for the promotion of national unity and the restructuring andcontinued 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 articulatedin 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 ofSouth Africa 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at paras 12--14.

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particular historical context ---- the demise of a brutal, inhumane and unjust regime and thebirth of a new order based on the values of humanity (ubuntu) and social justice. Like thePreamble, the Afterword to the Constitution sets out the goals of the Constitution and makesclear the bridging function of the enactment.1 Apart from describing the functions which theConstitution is required to fulfil, the Afterword provides a clear statement of the valuesunderlying the Constitution. This means that in interpreting any section of the interimConstitution the historical context of the Constitution and the commitments which it makesto 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 ofthose values which are to inform the entire exercise of constitutional interpretation has beenacknowledged by the courts.2

(b) The signed text

The Afrikaans text of the Constitution was signed by the State President and assented to on25 January 1994. For as long as English and Afrikaans were the two official languages ofthe Republic of South Africa all statutes were drafted in both English and Afrikaans. TheState 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 longbeen a rule of statutory interpretation in South Africa that, in cases of doubt, where the senseof the Afrikaans word used differs from the English, the sense conveyed by the signed textis definitive.4

1 Chaskalson P has drawn attention to the fact that the interim Constitution proclaims itself to be ‘an historicbridge’, 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 begoverned by the new Constitution (Executive Council, Western Cape Legislature, & others v President of theRepublic 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, iflimited, 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 Uitlegvan Wette 5 ed (1981) 145--6. By virtue of s 232(4), the portion of the interim Constitution headed ‘National Unityand Reconciliation’ (sometimes dubbed the ‘post-amble’) does not have a lesser status than any other part of theConstitution and is deemed to form part of the substance of the Constitution. Section 232(4) is considered furtherbelow, § 11.2(c). The Preamble and Afterword have figured in many of the cases in which Chapter 3 has beenjudicially 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) BCLR793 (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) BCLR75 (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 besigned by the president, and that the signed text would prevail in the event of a conflict between the two derivesoriginally from s 67 of the South Africa Act of 1909 (UK). This was repealed by the 1961 Constitution (Act 32 of1961) and replaced by s 65 of that Act. The section was in turn replaced by s 35 of Act 110 of 1983, the previousConstitution, 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 theEnglish 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 Englishtext of that Act shall, for the purposes of its interpretation, prevail as if it were the signed text.’1

3REVISION SERVICE 2, 1998Where there is no conflict between the English and the Afrikaans version, and anambiguity in one text can be resolved with reference to the unambiguous words in the othertext, the latter, unambiguous meaning should be adopted.2 This rule of interpretation appliesequally to the interpretation of the Constitution.3

(c) Definitions and interpretation

The definitions of the Constitution are contained in s 233. In general this section is concernedmainly with terminology used in the Constitution.4 Certain terms used in the Constitutionare not explicitly defined, for example the term ‘Act of Parliament’. In the case of Zantsi vThe Council of State (Ciskei) & others the Constitutional Court unanimously held that theterm ‘Act of Parliament’ as used in those sections of the Constitution concerned with thejurisdiction of the Supreme Court included Acts of the Parliament of the Republic of SouthAfrica passed before and after the coming into effect of the Constitution, but excluded lawspassed 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 1983Constitution. 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 Constitutionprovides that ‘[r]ights relating to language and the status of languages at the commencement of this Constitutionshall not be diminished’. It is submitted that, in the context of the section as a whole, this cannot be taken to meanthat 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, therule embodied in s 35 of the 1983 Constitution (described above, 11-2n3) is defunct. The need for the passage ofthis 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, wasstill in force. Certain sections of the interim Constitution came into operation before 27 April 1995 (cf s 249(3), s251). Hence it may have been necessary to clarify which text prevailed during the interregnum. Alternatively, theamendment may be the product of force of habit (or caution as to the effect of s 3(2) of the Constitution). (On theeffect of s 3(2) see below, Currie ‘Official Languages’ § 37.4.) The amendment appears not to have been beforeFroneman 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) at636C--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 bythe 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 faithand must give serious consideration to the views of the party whom she or he is required to consult, the implicationbeing 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 inquireinto 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 oflegislation passed by the Parliament of the Republic of South Africa either before or after the commencement ofthe Constitution (Zantsi at paras 40--1).

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conclusion Trengove JA was aided by the definition of the words ‘law’ and ‘parliament’ in s2 of the Interpretation Act 33 of 1957.1 It therefore seems that, even though the Constitutionis ‘no ordinary statute’,2 but is the supreme law of the land, it is one of the laws to which theInterpretation Act applies.3

Section 232 of the Constitution is the interpretation section. This is an important sectionowing 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 boundariesof South Africa shifted. Yet the terrain, both geographical and legal, on to which these newboundaries were marked remained much the same. The new provinces are an amalgamationof the territory of what was legally defined as the Republic of South Africa prior to 27 April1994 and the territories of what were up to that date the nominally independent andself-governing territories. Similarly the Constitution, the fundamental law of the land, wassuperimposed on existing law and legislation.4 Section 232(1) deals with how terms such as ‘Republic’, ‘State President’, and ‘Admin-istrator’, as used in other laws,4 should be construed in the light of the changes brought aboutby the Constitution.

Section 232(3) provides:‘No law shall be constitutionally invalid solely by reason of the fact that the wording used is primafacie 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 notinconsistent with any such provision, in which event such law shall be construed as having ameaning in accordance with the said more restricted interpretation.’

Section 232(3) confers upon laws a presumption of constitutional validity. It provides thatwhere a law is capable of differing interpretations, one of which may be inconsistent withany provision of the Constitution, and another which is consistent with the Constitution, thenthe 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 interpretedin ways which would lead to their infringing the Constitution ought now, where possible, tobe interpreted so as to comport with the requirements of the Constitution. Where, however,an enactment infringes the Constitution on any sensible interpretation, that enactment isinvalid.5 The terms of s 232(3) suggest that if there is a reasonable interpretation availablewhereby 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 havingthe 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 amendedby 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.



Section 232(4) provides:‘In interpreting this Constitution a provision in any Schedule, including the provision under theheading ‘‘National Unity and Reconciliation’’, to this Constitution shall not by reason only ofthe fact that it is contained in a Schedule, have a lesser status than any other provision of thisConstitution which is not contained in a Schedule, and such provision shall for all purposes bedeemed to form part of the substance of this Constitution.’

In general the Schedules are concerned with technical matters.1 Schedule 4 contains theConstitutional Principles, which lay down the parameters within which the final Constitutionmust be drafted. The Principles provide a framework for the new constitutional dispensationin South Africa. They also articulate the values to which those who govern South Africa nowand in the future are pledged to adhere. Arguably, by virtue of s 232(4), the ConstitutionalPrinciples can inform our understanding of the provisions of the Constitution since referenceto other relevant portions of an instrument is often important in interpreting any particularprovision. It is clear, however, that s 232(4) does not mean that the Constitutional Principlesare themselves substantive constitutional rights, the contravention of which gives rise to aclaim in terms of the Constitution. It has been held that the statement in s 232(4) that theSchedules 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

5The Constitution was forged through the Multi-Party Negotiating Process (MPNP). Thisprocess was informed by the reports of a number of technical committees.3 The final draftwhich emerged from the MPNP was, with minor amendments, adopted by Parliament. In acareful consideration of the role of its legislative history in the interpretation of the Consti-tution, Chaskalson P has pointed out that the drafts of the reports of the technical committeesare equivalent to the travaux préparatoires upon which tribunals interpreting internationalconventions 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 precisenature of the evidence, and the purpose for which it may be tendered, will determine the weight tobe given to it.’4

1 Schedule 1, for example, is concerned with the definition of the provinces; Schedule 2 with the system forelection of national assembly and provincial legislatures; Schedule 3 with the oaths of office and solemn affirmationsto be taken by the President, Deputy Presidents, members of the national assembly, judges and so on; Schedule 5sets 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 & others1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 41. Chaskalson P examines the role and status of theConstitutional Principles at paras 24--41. Cf Premier, KwaZulu-Natal, & others v President of the Republic of SouthAfrica & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) at para 12. The status of the ‘afterword’ in thelight of s 232(4) is discussed by Mahomed J in Azanian People’s Organisation (AZAPO) v President of the Republicof 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 CorderUnderstanding 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).

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The judge was careful to point out that the actual intentions of individual actors in theprocess 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 theymight 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 soughtto be achieved in the drafting process:

‘Background evidence may, however, be useful to show why particular provisions were or were notincluded in the Constitution. It is neither necessary nor desirable at this stage in the developmentof our constitutional law to express any opinion on whether it might also be relevant for otherpurposes, 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 relevantto showing why particular provisions were or were not included in the Constitution, it can be takeninto 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 theinterpretation of the Bill of Rights.

(a) Section 35(1)

‘In interpreting the provisions of this Chapter a court of law shall promote the values whichunderlie 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 thisChapter, 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 theBill of Rights in interpreting its provisions. This subsection is heavily suggestive of thecorrect jurisprudential approach to the interpretation of the Constitution. The range ofjurisprudential theories of constitutional interpretation is discussed below, § 11.7. There it is arguedthat, as a matter of principle and coherence, a value-based analysis is the best way to proceed ininterpreting the Constitution. Section 35(1) is an explicit textual invitation to adopt that approachto 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 interpretationof statutes in South Africa and other Commonwealth jurisdictions. He noted that the scope of what is admissibleby way of background materials has in recent years been extended in England, New Zealand and Australia, but hepointed out that the question of whether South Africa should follow that trend was not directly in issue because thecourt was engaged in the interpretation of a Constitution, which is ‘no ordinary statute’ (at para 15). Chaskalson Pproceeded to consider the use of background materials in the interpretation of the Constitutions of other jurisdictionsin 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.



As we argue below,1 the approach to constitutional interpretation which says that themeaning of the Constitution is to be found in the intention of its drafters is fundamentallyflawed. Nor is the meaning of the Constitution to be found in a simple decoding of the writtentext. Rather, the meaning of the Constitution is to be determined with reference to itsunderlying values and commitments.2 Section 35(1) appears to endorse this view.3 Note that6A6B

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) SA642 (CC), 1995 (4) BCLR 401 (CC) at para 17: ‘I am well aware of the fallacy of supposing that general languagemust have a single ‘‘objective’’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual andmoral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we mightwish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, thelanguage of which is to be respected. If the language used by the lawgiver is ignored in favour of a general resortto ‘‘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-basedapproach to the interpretation of the bill of rights. It is similarly ironic that s 35(1) appears to articulate the drafter’sintention 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 theplain meaning or the drafter’s intention theory are forced to take into account the underlying values of theConstitution in interpreting the provision in question.

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REVISION SERVICE 5, 1999the 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 limitedby a law of general application which is both reasonable and justifiable in an open anddemocratic society based on freedom and equality and which does not negate the essentialcontent of the right in question. Hence both s 33(1) and s 35(1) exhort the courts to seek anddiscover the value basis of the Bill of Rights in interpreting its provisions.1 The obligationwhich s 35(1) places upon courts interpreting the Constitution to promote the values of anopen and democratic society based on freedom and equality applies both to the interpretationof the fundamental right itself and to the evaluation of any limitation against the criteria laiddown in s 33(1).2

7 Judges interpreting the Bill of Rights are also enjoined to have regard to public internationallaw applicable to the protection of the rights entrenched in the Chapter.3 It is interesting to notethat this exhortation is cast in peremptory terms. This brings public international human rightslaw into the very centre of human rights adjudication in South Africa. This is likely to be particularlyimportant in the early days of adjudicating under the Bill of Rights since there is no local bodyof precedent in the area on which to draw.4 Similarly important is the learning to be found incomparable foreign case law. While judges are not obliged to have regard to such comparableforeign case law, they are able to do so in terms of s 35(1).5 This allows them to look at thelaw of human rights as it is developing in other jurisdictions in Southern Africa which haverecently adopted bills of rights, such as Namibia and Zimbabwe, and also to consider the lawof those countries on whose bills of rights the drafters of the Constitution drew in formulatingthe 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 concernedwith 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 inquiryproceeds to the second stage, where the legitimacy of any restriction on the right is assessed. That the words ‘openand democratic society based on freedom and equality’ are used in s 35(1) and s 33(1) is significant, for it underlinesthe 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 ElizabethPrison, & others 1995 (4) SA 631 (CC) at para 11 (Kriegler J, for the majority). On the contiguity of the two stagesof 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 inInterpreting 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 Republicof South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 61; Ex parte Speaker of theNational Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National EducationPolicy Bill 83 of 1995 1996 (3) SA 289 (CC), 1995 (4) BCLR 518 (CC) at para 22; Ferreira v Levin NO & others1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 101; Thomson Newspapers Ltd v Director of Investigationand Research (1990) 67 DLR (4th) 161 at 279f--g. Compare O Kahn Freund ‘On the Uses and Misuses ofComparative Law’ (1974) 37 Modern LR 1.

INTERPRETATION


(b) Section 35(2)

‘No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalidsolely by reason of the fact that the wording used prima facie exceeds the limits imposed in thisChapter, provided such law is reasonably capable of a more restricted interpretation which does notexceed such limits, in which event such law shall be construed as having a meaning in accordancewith the said more restricted interpretation.’

8The similarity between s 35(2) and s 232(3) is clear, and the effect of both these subsectionsis broadly similar.1 Section 35(2) effects a change of emphasis to the standard rules ofstatutory interpretation. According to these rules, the object of the interpretive exercise is toascertain the intention of the legislature. The ‘golden rule’ of statutory interpretation is thatthe judge must give effect to the ordinary meaning of the clear wording of the statute unlessthis results in patent absurdity, in which case the court may resort to other clues to thelegislative intention.2 Resort to devices such as restrictive interpretation and purposiveinterpretation 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 thewords used in the text should not necessarily prevail. If the plain meaning of a statute suggeststhat it is unconstitutional, the court is required to consider whether the language permits aninterpretation which would accord with the requirements of the Bill of Rights.4 If analternative interpretation is available which does accord with the constitution, then thatinterpretation is to be preferred.

The effect of s 35(2) is to require every statute to be read, if possible, in such a mannerthat 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 PublicCarriers 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 thepresumption of constitutionality embodied in s 35(2). The rule provides ‘in ambigua voce legis ea potius accipiendaest significatio, quae vitio caret’. Where a statutory provision is ambiguous, that meaning which avoids invalidity of theprovision in question is to be preferred. See Ynuico Ltd v Minister of Trade and Industry & others 1995 (11) BCLR1453 (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 dependupon first establishing that the relevant statutory provision is ambiguous or would lead to absurd consequences. Seeparas 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 Governmentof the Republic of South Africa & another 1995 (4) SA 631 (CC), 1995 (12) BCLR 1579 (CC) (where it is possibleto do so, a law should be ‘read down’ so that a more restricted interpretation is applied which comports withconstitutional 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. Thesection deals with the use of force and subjects its legality to a test of reasonableness. The court read the section toincorporate an assessment of proportionality as this concept is understood under the limitation clause of theconstitution. The court therefore concluded that the section did not conflict with the constitution. The legality ofthe use of force would be determined on a case-by-case basis where an assessment would be made, against thebackground of the Constitution, of whether it was the minimum force possible, reasonable, necessary andproportionate 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 SAJHR92 at 96.



tribunals which do not have the jurisdiction to declare a statute invalid are required to considerstatutes in the light of the Bill of Rights. Where a plausible constitutional argument is raisedin relation to a statute an adjudicator cannot decline to consider the Constitution simplybecause she or he is not able to decide upon the constitutionality of the Act as a whole. Ifthere is an interpretation available which will bring the statute or the statutory provision underconsideration within the constitutional fold, then the adjudicator must consider the constitu-tional argument to that effect. As we have argued above in relation to s 232(3), this may meanthat an adjudicator is required to depart from the hitherto accepted interpretation of a statutein favour of an alternative interpretation which comports with the requirements of the Billof Rights, provided that the statute in question is reasonably capable of bearing the lattermeaning.

8A

INTERPRETATION


Section 35(2) does two things: first, as we have seen, it effects an important change to theordinary canons of statutory interpretation. Secondly, it effects a subtle but important changeto the doctrine of precedent. Points which might have been settled before the coming intoeffect of the Bill of Rights are now open to review in the light of the Bill of Rights.1 This isdiscussed further below.

(c) Section 35(3)

‘In the interpretation of any law and the application and development of the common law andcustomary law, a court shall have due regard to the spirit, purport and objects of this Chapter.’

9REVISION SERVICE 2, 1998The same process of exploration and articulation of the values of the Bill of Rights whichmust be conducted in reference to the interpretation of the Bill of Rights itself is to extendto the interpretation of any law. It was held in Du Plessis v De Klerk that s 35(3) introducesthe indirect application of the Bill of Rights to private law.2 Courts are enjoined to interpretstatutes 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 thecommon law and customary law.3

Section 35(3) has important implications for adjudication, even where the Constitutionitself is not directly in issue. Even where the litigants before the court do not claim theinfringement of a fundamental right, and even where the Constitution may not be of directapplication to the dispute between the parties, its principles must inform the way in whichthe matter is determined.4 The extent to which the substantive values embodied in Chapter3 are now required to inform the interpretation, development and application of every branchof the law means that points of law, including statutory, common and customary law, hithertoregarded 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 ofthe bill of rights are considered further by Kentridge AJ at paras 61--6. See also Mahomed J at paras 86--7; cfGardener v Whitaker 1996 (6) BCLR 775 (CC) esp at para 16; Holomisa v Argus Newspapers Ltd 1996 (2) SA 588at 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 s35(3) were interpreted to mean ‘all courts’, including the Appellate Division. Compare paras 141--3 (Kriegler Jdissenting); see also Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 16. Writing for the entire court in Nel v LeRoux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC), Ackermann J held that the words referred alsoto magistrates’ courts (para 18; see also paras 8--9). Mokgoro J emphasized, in a separate concurring judgment inDu Plessis v De Klerk, that s 35(3) assigns to courts an affirmative duty to apply and develop both common lawand customary law so as to imbue them with the values embodied in Chapter 3. Her judgment drew particular attention tothe need to develop customary law in light of such values. This issue was considered too at para 189 of Sachs J’sjudgment.

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) inHolomisa 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) SA588 (W) at 603G--H, 1996 (6) BCLR 836 (W). The effect of the infusion of constitutional values into the commonlaw 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]

INTERPRETATION


We submit, furthermore, that there may be important differences between the ‘interpreta-tion’ and the ‘development’ envisaged by s 35(3). A rule of common law may trench upon afundamental right in a manner which is not amenable to mere ‘interpretation’. That rule mayrequire ‘development’, even far-reaching ‘development’, in order to render it consistent withconstitutional 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 constitutionalityin s 35(2). In certain circumstances, by contrast, ‘development’ of the common law maynecessitate a process similar to the striking down of a statutory provision. This issue isconsidered in the context of freedom of expression and the common law of defamationbelow, § 20.8(b).

11.4 DIFFERENCES BETWEEN STATUTORY INTERPRETATION AND CONSTITUTIONAL

INTERPRETATION

10That there is a difference between statutory and constitutional interpretation is widelyacknowledged in cases on constitutional interpretation throughout the world. The PrivyCouncil decision in Minister of Home Affairs v Fisher, interpreting the Bermuda Constitutionof 1968, is a case in point.1 The question at issue was whether constitutional rights stated toapply to ‘a child of a citizen of Bermuda’ included an illegitimate child. Had the Constitutionbeen an ordinary statute, then the presumption, pertaining to statutes concerning property,succession and citizenship, that the word ‘child’ meant legitimate child unless there are clearindications to the contrary, would have applied. The Privy Council held, however, that thestatutory presumption did not apply in interpreting the Constitution.2 The court noted thatthe Constitution, as compared to other Acts of Parliament, had a number of special charac-teristics. The Constitution, in particular the Bill of Rights, was drafted in a broad and amplestyle which laid down principles of width and generality. The Constitution was modelled onthe Bills of Rights of other countries and various international instruments for the protectionof 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 toindividuals 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) BCLR658 (CC) at paras 86 (Mahomed J), 172--4 (Mokgoro J). Where common-law rights have been recorded in theConstitution the balances struck between them by the common law may now have to be reconsidered (perKentridge 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 ininterpreting 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). Thisdictum has been cited with approval in numerous cases on constitutional interpretation throughout the world, andby the Constitutional Court in S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 14; andsee 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.



REVISION SERVICE 5, 1999The court pointed out, however, that this did not mean that no rules of law ought to applyto the interpretation of a Constitution:

‘A Constitution is a legal instrument giving rise, amongst other things to individual rights capableof enforcement in a court of law. Respect must be paid to the language which has been used and tothe 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 forthe process of interpretation a recognition of the character and origin of the instrument, and to beguided by the principle of giving full recognition and effect to those fundamental rights andfreedoms with a statement of which a Constitution commences.’1

The court refers, in the passage quoted above, to ‘the character and origin of theinstrument’. This raises the question: what is the character of a Constitution and how doesit differ from other statutes? There are, of course, differences in the nature of the instrumentsthemselves and the way in which they are drafted. These are described by the court in Hunteret al v Southam Inc:10A10B

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 respectshould be paid to the traditions and usages which have given meaning to the language used in the Constitution, VanDijkhorst J’s decision in Wittmann v Deutscher Schulverein, Pretoria, & others 1998 (4) SA 423 (T), 1999 (1) BCLR92 (T) offers an interesting application of that principle. One of the issues which the court was required to determinewas the meaning of the phrase ‘state-aided institutions’ in IC s 14(2). IC s 14 deals with freedom of religion, beliefand opinion, and provides that ‘religious observances may be conducted at . . . state-aided institutions . . . providedthat . . . attendance at them is free and voluntary’. The court had to determine, inter alia, whether the German Schoolwas 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 educationstatutes which predated the coming into force of the interim Constitution. The relevance of the decision for IC s 14and FC s 15 is considered below, Smith ‘Freedom of Religion’ ch 19.

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. Aconstitution, by contrast, is drafted with an eye on the future. Its function is to provide a continuingframework for the legitimate exercise of governmental power and, when joined by a Bill or a Charterof rights, for the unremitting protection of individual rights and liberties. Once enacted, itsprovisions cannot easily be repealed or amended. It must, therefore, be capable of growth anddevelopment over time to meet new social, political and historical realities often unimagined by itsframers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions,bear these considerations in mind.’1

11REVISION SERVICE 3, 1998The Hunter et al v Southam Inc dictum does more than simply describe the differencesbetween statutory and constitutional interpretation. It provides the rationale for such differ-ences. It tells us that the function of a Constitution as a whole is ‘to provide a continuingframework 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 andallocates the powers of local, provincial and national government, and regulates the relation-ship between the three. It sets up the mechanisms of representative democracy at each ofthese levels. It also creates and defines the powers of the legislature, the executive and thejudiciary, 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 settingout the mechanisms and processes by which governmental power is to be transferred fromthe government of the past to the government of the future.3 Indeed, the primary function ofthe Constitution is to provide a set of instructions to guide the transition from apartheid todemocracy. This is necessitated by the fact that the elections of 27 April 1994 did notmerely usher in a new government ---- they ushered in a whole new form and mode ofgovernment.4

Chapter 3 of the Constitution, ‘Fundamental Rights’, is pertinently directed to therelationship between government and private persons.5 It secures to all persons a zone ofautonomy 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 hethen was) in S v Acheson 1991 (2) SA 805 (NmS). See also Nyamakazi v President, Bophuthatswana 1992 (4) SA540 (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 AmissahJP) 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 theprocess of adopting a new Constitution for the future, provision needs to be made ‘for the promotion of nationalunity 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).

INTERPRETATION


Rights, then, are claims by individuals or groups against the majority. The Bill of Rightsprovides a mechanism by which individuals and minority groups can challenge the contentof decisions reached by a democratic majority, notwithstanding the fact that the process bywhich those decisions were reached was democratic.1

12 Understanding the character of the Constitution as a whole and the Bill of Rights inparticular is necessary in order to comprehend the essential difference between statutory andconstitutional interpretation. A statute is an instrument by means of which a legislatureelected by a majority of citizens governs those citizens. It is a set of instructions from thelegislature to the officials who enforce the statute and to the citizens who are required tocomply with its provisions. When judges interpret statutes they are attempting to read andunderstand those instructions, and to assist officials and citizens in understanding andobeying those instructions. A judge interpreting a statute is engaged in the task of attemptingto determine legislative intent.2

Judges interpreting the Constitution are engaged in a different task altogether. They areattempting to understand and to clarify the way in which government itself is required tofunction. In doing so they are trying to establish a scheme or pattern of government whichcomports with the values which the Constitution claims to uphold.3 More particularly, ininterpreting the Bill of Rights the courts are attempting to establish those values which allowindividuals to make claims against the majority. The Constitution gives to the courts thepower to strike down statutes which do not comply with the constitutional scheme. It fulfilsan entirely different institutional role from legislation. Unlike an ordinary statute, it is notthe voice of the people speaking through the legislature. Rather, it is the embodiment of asocial pact which acknowledges that democracy is something more than mere majority fiat;that there are areas into which the majority may not trespass. These areas are the domain ofrights and the gatekeepers of this domain are the courts.4 The courts, when interpreting theConstitution, are determining the way in which a commitment to a set of fundamental valuestranslates and applies in a specific context.

1 The democratic dilemma posed by this function of a bill of rights is considered below, § 11.6.2 It is important here to distinguish between legislative intent in the institutional sense and legislative intention

in some sort of historical or psychological sense. Statutory interpretation ought not to be an exercise in attemptingto discern the actual intention of the particular persons who were involved in the passing of the Act in question.Rather, it is an exercise in attempting to discover the institutional reasons for the passing of that Act. Thisunderstanding of statutory interpretation accords with the standard rules and presumptions of statutory interpreta-tion. The mischief rule, for example, seeks to discover the institutional intention behind the legislation by inquiringinto the problems or ‘mischief’ which the statute was calculated to remedy. Cf Aetna Insurance Co v Minister ofJustice 1960 (3) SA 273 (A) at 284H: ‘The real question that we have to decide is, what does the word mean in thecontext in which we here find it, both in the immediate context of the subsection in which the word occurs and inthe general context of the Act, having regard to the declared intention of the act and the obvious evil that it is designedto remedy.’ See also Jaga v Dönges NO & another; Bhana v Dönges NO & another 1950 (4) SA 653 (A) at 662--3,esp at 662G--H. On the problems of originalism as an approach to constitutional interpretation, see below, § 11.7(a).

3 See S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 15 (Chaskalson P).4 Cf De Klerk & another v Du Plessis & others 1995 (2) SA 40 (T) at 46D--G, 1994 (6) BCLR 124 (T).



13REVISION SERVICE 5, 1999The differences between constitutional and statutory interpretation are addressed byFroneman J in the case of Matiso v Commanding Officer, Port Elizabeth Prison, & another.1

Here the judge makes the point that although it seems to be widely accepted that there is adifference between statutory interpretation and constitutional interpretation, it is importantfor judges to be clear about why this is the case. This is particularly important, says the judge,for judges who have been schooled in the Westminster system, wherein Parliament issupreme.

‘In a constitutional system based on Parliamentary sovereignty it makes good sense to startfrom the premise of seeking ‘‘the intention of the Legislature’’ in statutory interpretation, becausethe interpreting judge’s value judgment of the content of the statute is, theoretically at least,irrelevant . . . The interpreter’s notion of ascertaining ‘‘the intention of the Legislature’’ does notapply in a system of judicial review based on the supremacy of the Constitution, for the simplereason that the Constitution is sovereign and not the legislature. This means that both the purposeand the method of statutory interpretation in our law should be different from what it was beforethe commencement of the Constitution on 27 April 1994. The purpose now is to test legislation andadministrative action against the values and principles imposed by the Constitution. This purposenecessarily has an impact on the manner in which both the Constitution itself and a particular pieceof legislation said to be in conflict with it should be interpreted. The interpretation of the Constitutionwill be directed at ascertaining the foundational values inherent in the Constitution, whilst theinterpretation of the particular legislation will be directed at ascertaining whether that legislation iscapable of an interpretation which conforms with the fundamental values or principles of theConstitution. Constitutional interpretation in this sense is thus primarily concerned with therecognition and application of constitutional values and not with a search to find the literal meaningof statutes.’2

This provides a particularly useful summary of the differences in the role of the judgewhen interpreting a statute from when interpreting a Constitution, and the differencesbetween statutory interpretation before and after the coming into effect of the Constitution.

The Constitutional Court has recently had occasion to consider certain important differ-ences between statutory and constitutional interpretation.3 Mahomed J pointed out that thepresumption that a statute does not operate retrospectively to affect pending proceedingsoperates only if there is no contrary intention. The fundamental nature of the Constitution,considered the judge, is itself an indication of such a contrary intention. Given that thepresumption is intended to protect against the invasion of rights, it is particularly inapplicableto Chapter 3, which seeks to expand rather than to curtail rights.4 Kriegler J stated thatit would be inappropriate to invoke common-law interpretive presumptions against retro-activity and retrospectivity of statutory amendments when interpreting the Constitution. Asthe supreme law, the Constitution does not fall to be interpreted along such lines.5 Sachs Jquestioned the applicability of common-law presumptions in interpreting the Constitution.6

1 1994 (4) SA 592 (SE) at 596F--599C. The case concerned the constitutionality of those sections of theMagistrates’ Courts Act 32 of 1944 which authorised the imprisonment of judgment debtors in certain circumstances.Froneman and Melunsky JJ concluded that the relevant sections were unconstitutional. This finding was upheld bythe Constitutional Court in the case of Coetzee v Government of the Republic of South Africa; Matiso v CommandingOfficer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC).

2 1994 (4) SA 592 (SE) at 596F--599C.3 S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).4 S v Mhlungu & others at paras 37--8.5 S v Mhlungu & others at para 99 (Kriegler J concurring in the result).6 S v Mhlungu & others at para 115 (Sachs J).

INTERPRETATION


Kentridge JA, in his minority judgment, took the view that the presumption against retrospec-tivity and retroactivity was helpful in attempting to explain the purpose of s 241(8) of theConstitution.1 He noted, however, that the terms of s 4(1) and s 7(2) indicate that Chapter 3prima facie has effect from 27 April, regardless of the effect on vested rights. In that sense,said the judge, the Constitution is retrospective.2

14 In practice the discernible differences between statutory and constitutional interpretationmay often be slight. The distinction between statutory and constitutional interpretation mayalso become blurred. In Minister of Land Affairs & another v Slamdien & others3 the LandClaims Court held that a purposive approach to statutory interpretation was required wherethe statutory provisions in question were enacted because the Constitution specificallyrequired their enactment to give content to and protect fundamental rights, and where thestatutory provisions substantially retained the wording of the comparable constitutionalprovision. Nevertheless, it is important to understand the difference in principle that underliesthe exercise in either case. The apparent similarity between the two tends to obscure the veryreal and important differences between them.

11.5 DIFFERENCES BETWEEN INTERPRETING THE BILL OF RIGHTS AND THE REST

OF THE CONSTITUTION

A remaining question is whether there is any difference of principle between the interpreta-tion of the Constitution as a whole and the interpretation of the Bill of Rights in particular.We have shown that there is a difference of principle between the Constitution as a wholeand an ordinary piece of legislation. Nevertheless, it must be conceded that many parts ofthe Constitution are technical instructions as to how government is going to run, rather thanlofty statements of principles and ideals. This point is made by Van Dijkhorst J in the caseof Kalla & another v The Master & others:4

‘Obviously, when one seeks to interpret the fundamental rights clauses of Chapter 3 . . . which set outbroad principles, this has to be done in the spirit of the Constitution. But surely not when one has todetermine whether Bloemfontein is the seat of the Appellate Division as provided for in s 106(2)?’5

1 S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 64--8. See further below, § 11.9.See also above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ § 6.2(e).

2 As indicated above, the justices of the Constitutional Court have emphasized on various occasions thedifferences between a Constitution and an ordinary statute. In particular, the implications of the supremacy of theConstitution for the application of principles of interpretation applying to ordinary statutes have been considered(for example, the comments of Mahomed, Kriegler and Sachs JJ cited in the last three footnotes). It is interestingthat the justices nevertheless unanimously concurred in the view of Trengove JA in Zantsi v Council of State, Ciskei,& others 1995 (4) SA 615 (CC) at paras 36--7 that the Interpretation Act is of application to the Constitution. Seefurther above, § 11.2(c). See also Executive Council, Western Cape Legislature, & others v President of the Republicof South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 33, 49; Premier,KwaZulu-Natal, & others v President of the Republic of South Africa & others 1996 (1) SA 769 (CC), 1995 (12)BCLR 1561 (CC) at paras 18--20; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) atpara 172.

3 1999 (4) BCLR 421 (LCC) at 421B--C.4 1995 (1) SA 261 (T) at 268--9.5 At 268G--H; cf the minority judgment of Schreiner JA in The Attorney-General v Unity Dow 1994 (6) BCLR

1 (Botswana) at 57I--58C.



The judge makes the point that the Constitution ‘does not only deal with lofty ideals andprinciples. It has many provisions on mundane matters.’1 He suggests that in relation to thesetechnical provisions in the Constitution the question remains as it always has been: what isthe intention of the legislature? ‘What did the draftsmen have in mind?’2

The primary aim in interpreting the more technical aspects of the Constitution is indeedto work out what the scheme of government actually contemplated by the Constitution is.The questions and answers involved in the inquiry are often mundane and matter of fact. For14A

1 At 269B--C.2 At 269C--D.

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REVISION SERVICE 1, 1996a number of reasons, however, ascertaining the intention of the legislature is not the primaryobject of the interpreter. First, the Constitution was the product of compromise and consensusamong negotiating parties who were not part of the legislature. The passing of the Constitu-tion by Parliament was something of a formality. Secondly, given that the Constitution setsdown a pattern for government, it can hardly be said that it is the intention of the legislaturewhich falls to be determined. In any event, the interpretation of ordinary statutes is concernedwith the institutional rather than psychological intention of the legislature and reference to‘the mind of the drafter’ should be understood only as a figure of speech.15 It is clearly the case that the words of the Constitution are the first place to look inattempting to discern its meaning.1 These words are not in themselves definitive, however.It is also quite clear that the old rules of statutory interpretation and of interpretation in generalhave not been rendered nugatory by the coming into effect of the Constitution.2 They, likeother principles of law which have hitherto governed our courts, ought not now to be ignored,for they contain much of lasting value.3 Nevertheless, while the laws of the land may not ingeneral have been abrogated by the Constitution, the Constitution does provide an entirelynew legal foundation to the law of South Africa.4

Even when interpreting the more technical sections of the Constitution the object of thecourt is to determine and to give effect to the values of the Constitution, obviously asexpressed in the actual wording used by the drafters of the Constitution.5 Those words are,however, a starting point rather than a finishing point in the exercise of interpretation.6

The differences between the interpretation of the Bill of Rights and the Constitution as awhole is more a difference of degree than a difference in kind. Because the Bill of Rights ismore widely worded, there is more room for explicit value judgments in interpreting the Billof Rights. Where other chapters of the Constitution are being interpreted the words themselvestend to provide a clearer indication of what is required. Nevertheless, whether it is more or

1 Cf S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 17.2 See S v Zuma & others at para 13; James v Commonwealth of Australia [1936] AC 578 at 613; Minister of

Home Affairs v Bickle 1984 (2) SA 439 (ZS) at 447F--H; R v Dubois (1986) 23 DLR (4th) 503 (SCC) at 528; GilbertMarcus ‘Interpreting the Chapter on Fundamental Rights’ (1994) 10 SAJHR 92 at 99. See also 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 paras 33, 49; Premier, KwaZulu-Natal, & others v President of the Republic of SouthAfrica & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC) at paras 18--20; Ferreira v Levin NO & others1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 172.

3 S v Zuma & others at para 17.4 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 paras 61--2; Shabalala v Attorney-General (Transvaal) 1996(1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at paras 26--8. Cf Kriegler J in S v Mhlungu & others 1995 (3) SA867 (CC), 1995 (7) BCLR 793 (CC) at paras 89 and 99, and Sachs J at para 111. See also Mahomed J in S vMakwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 262, Langa J at paras 220--3,Mokgoro J at paras 311--13, and O’Regan J at paras 322--3. The foundational nature of the Constitution may itselfrender inappropriate certain principles of statutory interpretation, such as the presumption against retrospectivityand retroactivity (Mhlungu at para 99 (Kriegler J)). See above, § 11.4.

5 In S v Mhlungu & others at para 63 Kentridge JA said, in relation to s 241(8) of the Constitution: ‘A purposiveconstruction is as appropriate here as in other parts of the Constitution.’ See also Executive Council, Western CapeLegislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR1289 (CC) at paras 61--2, 99--100.

6 While there is broad agreement amongst the judges of the Constitutional Court that the meaning of theConstitution is to be found in an interplay of the text and its underlying values, judges have differed as to where theemphasis is to be placed. This is discussed further below, § 11.9.

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less explicit or obvious, the exercise of interpretation is one of giving effect to constitutionalvalues.1

11.6 THE SUPREMACY OF THE CONSTITUTION

16The Preamble to the Constitution recognizes and records the need ‘to create a new order inwhich all South Africans will be entitled to a common South African citizenship in asovereign and democratic constitutional state’. The supremacy clause, s 4(1), encapsulatesthe import of the transition from parliamentary sovereignty to a society governed by theprinciples of constitutional democracy:

‘This Constitution shall be the supreme law of the Republic and any law or act inconsistent withits provisions shall, unless otherwise provided expressly or by necessary implication in thisConstitution, be of no force and effect to the extent of the inconsistency.’

Constitutional supremacy means that the Constitution provides the yardstick againstwhich to measure the validity of the products of the legislative process and the actions ofthe executive branch of government.2 The Constitution fundamentally alters the role of thejudiciary and greatly enhances its powers. Although judicial review is familiar to our commonlaw, its scope has been radically expanded. The combined effect of s 4(1) and the open textureof constitutional language means that judicial review will be more far-reaching and policy-laden. The courts will be expected to balance and resolve clashes between competing rights,values and social goals.3 While it is not the task of the courts to ‘second guess’ the policychoices of the legislature and executive, they are duty bound to exert the constitutional controlwith which they are vested in order to ensure that the democratic scheme laid out in theConstitution is observed by each branch of government.4

‘It is of crucial importance at this early stage of our new constitutional order to establish respectfor the principle that the Constitution is supreme.’5

All judges are bound to uphold and protect the Constitution and the fundamental rightsentrenched therein.6 The impact of the Constitution will be felt, to differing degrees, in all

1 See generally Executive Council, Western Cape Legislature, & others v President of the Republic of SouthAfrica & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC); Premier, KwaZulu-Natal, & others v Presidentof the Republic of South Africa & others 1996 (1) SA 769 (CC), 1995 (12) BCLR 1561 (CC).

2 Cf Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at paras 62, 99--100. The impact of the Constitution upon thecommon law and upon private disputes is considered above, Woolman ‘Application’ § 10.3.

3 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 302 (Mokgoro Jconcurring); Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 634F, 1995 (1) BCLR 75 (E).

4 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at paras 99--100.

5 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at para 100.

6 Section 98(7) and Schedule 3 ‘Oaths of Office and Solemn Affirmations’.



our courts.1 The Constitutional Court is the court of final instance, having jurisdiction ‘overall matters relating to the interpretation, protection and enforcement of the provisions of thisConstitution’.2 Its decisions bind all persons and all legislative, executive and judicial organsof state.3 The Constitutional Court is bound to declare any law or provision which isinconsistent with the Constitution invalid to the extent of the inconsistency.4 The Constitu-tional Court in particular, and the judiciary more generally, is therefore charged withprotecting the elements of our constitutional democracy.5

16AIn considering the new role for the courts Froneman J points out in Qozeleni v Ministerof Safety and Security & another that:

‘The role of judges in a system of judicial review based on the supremacy of the Constitution isbound to be controversial in any event, but the judicial history of this country makes it even morelikely if due regard is not given to the possible deficiencies of the past.’6

One of the ironies of the process of political transformation has been that the replacement ofgovernment by racial oligarchy with the principles of non-racial and representative demo-cracy has been accompanied by the constitutional entrenchment of a judicial power notmerely to regulate the products of a democratically elected legislature but also, on occasion,to act against the will of the majority as expressed through the legislature.7

The effect of the supremacy clause is to assign to the courts a role which extends beyondinterpreting and enforcing the majority will, to the protection of the fundamental rights ofindividuals and minorities. In fulfilling this role courts may declare the executive orlegislative acts of representative government to be unconstitutional. The judiciary thus actsas a countermajoritarian institution. Constitutional democracy embodies a tension betweenmajoritarianism and judicial review. Democratic government locates sovereign authority inthe will of the people. This popular will, in a representative democracy, is expressed throughpopularly elected representatives. At the same time the supremacy clause, which entrenchesconstitutional review, subjects the products of the legislative process to judicial scrutiny and,

1 Section 101(3) sets out those constitutional matters over which provincial and local divisions of the SupremeCourt have jurisdiction. Section 103 sets out the jurisdiction of other courts in respect of constitutional matters. Seealso Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 635D--638D, 1995 (1) BCLR 75 (E),which held that magistrates’ courts have jurisdiction to apply the provisions of the Constitution except wherespecifically precluded from doing so, as in s 103(2), (3) and (4). That magistrates do have the power to inquire intothe validity of laws other than statutes has subsequently been made clear by the amendment effected to subsecs (1)and (2) by s 5 of the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994. Cf § 11.3(c)above. In Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 63 the words ‘a court’ ins 35(3) were interpreted to mean ‘all courts’, including the Appellate Division. Cf paras 141--3 (Kriegler J,dissenting); see also Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 16. Writing for the entire court inNel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC), Ackermann J held that the wordsreferred also to magistrates’ courts (para 18; see also paras 8--9). For further consideration of the impact of theConstitution upon our courts, see above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ ch 6.

2 Section 98(2). 3 Section 98(4).4 Section 98(5). See also S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 39; 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 102.

5 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others1995 (4) SA 877 (CC), 1995 (10) BCLR 1298 (CC) at paras 99--100.

6 1994 (3) SA 625 (E) at 633B--C, 1995 (1) BCLR 75 (E).7 Dennis Davis, Matthew Chaskalson & Johan de Waal ‘Democracy and Constitutionalism: The Role of

Constitutional Interpretation’ in Dawid van Wyk, John Dugard, Bertus de Villiers & Dennis Davis (eds) Rights andConstitutionalism (1994) 62.

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where necessary, to judicial override. Unelected judges who are not directly accountable toany constituency may therefore invalidate the product of democratic deliberation.1 The out-come of constitutional review may occasionally be so unacceptable to the legislature that itcauses pressure for constitutional amendments.2 Nevertheless, the need to avoid weakeningthe fabric of constitutional democracy will prevent resort to constitutional amendment in allbut the most extraordinary of circumstances. Consequently, where the Constitutional Courtdeclares a statutory enactment or executive action to be unconstitutional it may thwart thewill of the people. It will then be exercising power and authority, not in the name of themajority, but against its wishes. This tension, at the heart of constitutional democracy, isknown as the countermajoritarian dilemma.3

16BIn the course of his judgment on the constitutionality of the death penalty as a competentsentence for murder4 Chaskalson P had occasion to consider the relationship between publicopinion and constitutional interpretation. His remarks provide insight into the tensionbetween majoritarianism and constitutional democracy and into the court’s perception of itsinstitutional role:

‘Public opinion may have some relevance to the inquiry, but in itself, it is no substitute for the dutyvested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. Ifpublic opinion were to be decisive there would be no need for constitutional adjudication. Theprotection of rights could then be left to Parliament, which has a mandate from the public, and isanswerable to the public for the way its mandate is exercised, but this would be a returnto parliamentary sovereignty, and a retreat from the new legal order established by the 1993Constitution. By the same token the issue of the constitutionality of capital punishment cannot be

1 Section 98(1) provides for a President of the Constitutional Court and ten other judges to be appointed, in termsof s 99, for a non-renewable period of seven years.

2 A majority of at least two-thirds of the total number of members of the National Assembly and the Senate at ajoint sitting is required to pass ordinary constitutional amendments (s 62(1)). Amendments to ss 126 and 144 of theConstitution require separate passage by both Houses by a majority of at least two-thirds of all the members of eachHouse together with the consent of the relevant provincial legislature (s 62(2)).

3 Alexander M Bickel The Least Dangerous Branch (1962) 16.4 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC). This case, holding that the death

penalty for murder, as authorized by s 277(1)(a) of the Criminal Procedure Act 51 of 1977, is unconstitutional, isconsidered in detail in other chapters of this volume. See below, Fedler ‘Life’ ch 15 and Van Zyl Smit ‘Sentencingand Punishment’ ch 28.


11--16B [REVISION SERVICE 1, 1996]

referred to a referendum, in which a majority view would prevail over the wishes of any minority.The very reason for establishing the new legal order, and for vesting the power of judicial reviewof all legislation in the courts, was to protect the rights of minorities and others who cannot protecttheir rights adequately through the democratic process. Those who are entitled to claim thisprotection include the social outcasts and marginalized people of our society. It is only if there is awillingness to protect the worst and the weakest amongst us, that all of us can be secure that ourown rights will be protected.’1

17ORIGINAL SERVICE, 1996One of the concerns about the new function of constitutional review is that there areinadequate mechanisms to discipline the judicial function so as to ensure that the judiciarydoes not usurp the role of the legislature. It is feared that the wider the scope for judicialdiscretion, the greater the risk that judges will import into the process of interpretation theirown values and beliefs about how society ought to be ordered. This concern has ledKentridge AJ to issue the reminder that ‘it cannot be too strongly stressed that the Constitu-tion does not mean whatever we might wish it to mean’.2

The countermajoritarian dilemma requires that close attention be paid to the scope andexercise of constitutional review. An adequate theory of constitutional interpretation there-fore requires more than a set of principles and protocols of textual interpretation. It mustconfront the countermajoritarian dilemma and provide justification for the exercise ofjudicial power. An adequate theory of interpretation must, in addition, establish principlesthat will enable the courts to determine how, under what circumstances, and with what degreeof intervention to exercise their power. A theory of interpretation must offer guidelines as tothose circumstances which demand aggressive judicial intervention, and those in whichgreater deference to the legislature is more appropriate. In what follows we consider severalinterpretive responses to these issues.

11.7 THEORIES OF INTERPRETATION

(a) Originalist interpretation: the primacy of drafters’ intent

One approach to the countermajoritarian dilemma is to attempt to minimize, as far aspossible, the scope for the exercise of judicial discretion. Interpretive procedures based uponthe search for the original intention of the drafters of the Constitution aim to reduce the riskthat judges will impose their own value judgments when interpreting the Constitution.Proponents of originalism argue that the meaning of constitutional provisions may beascertained by establishing the intent of the framers of the document, and that the onlyprincipled role for judges is to secure the implementation of the original intent.3

Originalism would have current legislatures and courts conform to earlier choices madeby the people through the drafters of the instrument. The boundaries of permissible constitu-tional interpretation, and the limits upon the exercise of judicial discretion, are therefore set

1 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 88. See also Didcott J atpara 188, Kentridge JA at para 200, Kriegler J at para 206, Madala J at paras 254--7, Mahomed J at para 266, andMokgoro J at para 305.

2 S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 17; see also S v Makwanyane &another at paras 206--7 (Kriegler J).

3 See e g E Meese (1986) 45 Public Admin LR 701; R Bork ‘Neutral Principles and Some First AmendmentProblems’ (1987) 47 Indiana LJ 1.

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[ORIGINAL SERVICE, 1996] 11--17

by those who drafted the document. According to proponents of originalism, the counter-majoritarian difficulty is weakened or dissolved by justifying constitutional review as amethod of ensuring fidelity to the intention of the drafters. The drafters themselves decidedto place certain areas of life beyond majority control. Provided the courts hew closely to theparameters of this original decision and go no further down the countermajoritarian road thandid the drafters, the courts do no more, in enforcing countermajoritarian principles, thansecure fidelity to the drafters’ original premise.1 The courts do no more than give expressionto the values to which the nation has already bound itself.2 Consequently originalism drawsa stark contrast between the original understanding of the framers of the text, which it isbelieved may be ascertained in a neutral manner, and the imposition of judicial valuejudgments.3

18 The inadequacies of originalism lie not so much in the theory’s formulation of the problemas in the solution which is proposed. Objections take two forms: pragmatic objections, whichcast serious doubt on the ability to ascertain with accuracy the intention of the drafters, andprincipled objections, which argue that even if it were possible to ascertain original intent,it is doubtful whether courts, legislatures and future generations should be bound by thatintent.

The pragmatic objections highlight the immense difficulties in ascertaining originalintent. These include attempting to excavate the intent of a collective body; to extract, out ofthe mass of ambiguous and frequently contradictory historical material, a stable and coherentstatement of intent.4

In S v Makwanyane & another Chaskalson P held that background material may be usedas an aid to constitutional interpretation where it is clear, is not in dispute, and casts light onwhy certain provisions were included in or excluded from the Constitution.5 Chaskalson Ppertinently distinguishes between the comments (and hence the intentions) of participants inthe constitution-making process and background evidence such as the reports of the technicalcommittees.6 It is therefore clear that the acceptance of the use of background materials doesnot betoken an acceptance of the originalist method of interpretation. Rather, the recourse to

1 R Bork ‘Neutral Principles’ (1987) 47 Indiana LJ 1 at 2--3.2 For examples in our law of interpretation based upon originalism, see e g Government of the Republic of

Bophuthatswana v Segale 1990 (1) SA 434 (BA) at 448G--H (‘The task of the Courts is to ascertain from the wordsof the statute in the context thereof what the intention of the Legislature is. If the wording of the statute is clear andunambiguous they state what the intention is. It is not for the Court to invent fancy ambiguities and usurp the functionof the Legislature.’) The narrowness of the Segale approach was explicitly disapproved by Kentridge JA in hisminority judgment in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 84. Otherexamples of an originalist approach are to be found in: S v Saib 1994 (2) BCLR 48 (D) at 53I--J (‘Nor do I thinkthat the rules for the interpretation of the Constitution differ materially from the ordinary rule of the interpretationof statutes. One still has to ascertain and give effect to the intention of the legislature’); Kalla & another v TheMaster & others 1995 (1) SA 261 (T) at 269C--D, 1994 (4) BCLR 79 (T) (seeking the intention of the legislature,at least in so far as provisions other than those dealing with fundamental rights are concerned).

3 Robert H Bork The Tempting of America: The Political Seduction of the Law (1990). For an elaboration andcritique of originalist theories see Davis, Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role ofConstitutional Interpretation’ in Van Wyk et al (eds) Rights and Constitutionalism 11--14; Dennis Davis ‘Democracy---- Its Influence Upon the Process of Constitutional Interpretation’ (1994) 10 SAJHR 103 at 106--12.

4 On the pragmatic difficulties associated with the enterprise, see e g De Klerk & another v Du Plessis 1995 (2)SA 40 (T) at 47E--G, 1994 (6) BCLR 124 (T); Laurence H Tribe & Michael C Dorf On Reading the Constitution(1991) 8--13.

5 1995 (3) SA 391 (CC) at paras 17--19; cf above, § 11.2(d).6 S v Makwanyane at paras 18--19.


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historical background is part of the process of purposive interpretation.1 The use of back-ground materials, in the form of technical committee reports, as opposed to anecdotalrecollections of the participants, is permissible to the extent that it sheds light upon thepurpose of the provision in question and not because it is an index of the drafters’ intent.19 It is our submission that the flaws of originalism render it inappropriate as an approachto statutory interpretation, and still more inappropriate to constitutional interpretation.2

Difficult as it is to establish whose intention must be discovered in interpreting a statute, itis still more difficult when one attempts to decide who the drafters of the Constitution were.3

Furthermore, statutory provisions attempt to specify permissible and prohibited conduct withas much precision as possible. Certainty is a virtue and ambiguity, at least beyond a certainlimit, is often seen as an indication of poor draftsmanship. By contrast, constitutionalinstruments, and particularly bills of fundamental rights, contain wide-ranging declarationscast in open-ended language of great generality. The nature of constitutional instrumentstherefore makes it difficult to determine the level of generality at which to specify the drafters’intent. The more concrete, particular and specific the intention is believed to be, the narrowerthe scope for judicial discretion. Concomitantly, however, the more resistant will theinterpretive product be to any change over time. By contrast, the higher the level of generalityat which intent is identified, the less able is originalism to resolve the countermajoritariandifficulty by confining the exercise of judicial discretion.4

The more fundamental objections to originalism are those of principle. Even if it werepossible to identify original intent with sufficient precision, and at a meaningful level ofgenerality, it is not at all clear why the courts should base their interpretations upon suchintent. The merit of binding successive generations to the values, beliefs and intentions of

1 For a more detailed consideration of purposive interpretation, see below, § 11.8.2 Statutory interpretation is an exercise of discerning the institutional intention of the legislature. This must not

be confused with the actual intentions of those originally responsible for passing the legislation.3 In the US context see e g Ronald M Dworkin Life’s Dominion: An Argument About Abortion and Euthenasia

(1993) 133 (‘whose intention should today’s judges consult ---- the intentions of the congressmen who debated andrecommended the amendments, of the state legislatures who ratified them or of the public whose wishes thesepoliticians were supposed to be enforcing?’) cited in Davis ‘Democracy ---- Its Influence Upon the Process ofConstitutional Interpretation’ (1994) 10 SAJHR 103 at 111.

4 For elaboration of these arguments, see Terrance Sandalow ‘Constitutional Interpretation’ (1981) 79 MichiganLR 1033 at 1034--9. See also Ronald Dworkin ‘The Forum of Principle’ in A Matter of Principle (1985); Paul Brest‘The Misconceived Quest for the Original Understanding’ (1980) 60 Boston University LR 204; Cass R SunsteinThe Partial Constitution (1993) 103.

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an earlier generation becomes increasingly open to question with the passage of time.1 Evenwhere the drafters actually held a discernable intention it is not clear why changed circum-stances, attitudes and values should not inflect subsequent interpretation. Such inflectionwould enable the Constitution to remain responsive to contemporary problems. The flexibil-ity offered by non-originalist interpretation provides necessary stability and an acceptablecombination of continuity and change. Furthermore, new questions will arise which thedrafters did not foresee, and could not reasonably have foreseen, but which require resolutionby the courts. In order to sustain the originalist position it would be necessary for itsproponents to demonstrate why it is that constitutional democracy is better served by acommitment to past values than by a forthright effort to make of the Constitution a livingdocument which remains open to adaptation.2 Fidelity to democracy may itself require courtsto move beyond the original understanding of the substance of democracy.3

20 Although originalism reflects a methodologically conservative approach to interpretation,it should not be assumed that originalism is always politically conservative. Particularly inrelation to statutory interpretation, the judicial restraint engendered by originalism is wel-comed by those who place great importance on the achievement by the majority of its objects.In South Africa at present the reigning in of the political will of the majority by an unelectedsocial elite is viewed by many progressives as something to be kept within strict bounds. Thedistinctive character of originalist interpretation lies not in its substance but rather in its beliefthat the judicial function may be appropriately restrained by a formal and methodologicalcommitment to the drafters’ intent.4

1 Some of the possible consequences of originalism may be illustrated by considering two US cases.In Scott vSandford 60 US 393 at 425 and 426, 15 LEd 691 (1857) the US Supreme Court was called upon to decide ‘whethera person of African race can be a citizen of the United States’. The Court held that: ‘No one, we presume, supposesthat any change in public opinion or feeling . . . should induce the Court to give the words of the Constitution amore liberal construction in their favour than they were intended to bear when the instrument was framed andadopted. Such an argument would be altogether inadmissible in any tribunal called upon to interpret it. If any of itsprovisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; butwhile it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not onlythe same in words, but the same in meaning.’ And in McGautha v California 402 US 183 at 226, 91 SCt 1454 (1971)(separate opinion of Black J) the prohibition against ‘cruel and unusual punishments’ was stated, on the basis oforiginal intent, not to render the death penalty unconstitutional: ‘In my view, these words cannot be read to outlawcapital punishment because the penalty was in common use and authorized by law here and in countries from whichour ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to endcapital punishment by the Amendment.’ For detailed consideration and critique of originalism in the United States,see Sandalow ‘Constitutional Interpretation’ (1981) 79 Michigan LR 1033, from which these examples are taken.

2 The Attorney-General v Dow 1994 (6) BCLR 1 (Botswana) at 41F--H (‘We must not shy away from a basicfact that whilst a particular construction of a constitutional provision may be able to meet the demands of the societyof a certain age such construction may not meet those of a later age. In my view the overriding principle must bean adherence to the general picture presented by the Constitution into which each individual provision must fit inorder to maintain in essential details the picture of which the framers could have painted had they been faced withcircumstances of today. To hold otherwise would be to stultify the living Constitution in its growth. It seems to methat a stultification of the Constitution must be prevented if this is possible without doing extreme violence to thelanguage of the Constitution. I conceive it that the primary duty of the Judges is to make the constitution grow anddevelop in order to meet the just demands and aspirations of an ever developing society which is part of the widerand larger human society governed by some acceptable concepts of human dignity’ (Aguda JA).

3 Sunstein The Partial Constitution (1993) 103.4 Paradoxically, fidelity to the original intention of the drafters of the interim Constitution appears to require

judges to adopt a value-based approach to interpretation ---- see the discussion of ss 33(1), 35(1) and 35(3) above,§ 11.3(a).



(b) Political process theory: constitutional review to remedy dysfunctions in thepolitical process

21According to political process theory, the role of constitutional review is to protect theinterests of those individuals and groups who are otherwise excluded from the politicalprocess because they are not powerful enough to make their voices heard in the majoritarianinstitutions of government.1 On this view the function of the courts is to reinforce the processof democratic representation by correcting defects in the political process and thereby toperfect democracy.2 This approach attempts to describe representation-reinforcement as avalue-neutral method which is hostile to any imposition of judicial value-judgments.3

The foundation for the view that searching constitutional review is justifiable in order toprotect minorities and reinforce the process of representation may be traced to the famousfootnote 4 to the US case of United States v Carolene Products Company.4 In this footnoteStone J suggested that a stricter standard of judicial review might appropriately be appliedwhen determining the constitutionality of statutes which are ‘directed at particular religiousor national or racial minorities’ because ‘prejudice against discrete and insular minoritiesmay be a special condition, which tends seriously to curtail the operation of those politicalprocesses ordinarily to be relied upon to protect minorities’.

The process-based approach has the virtue of attempting to provide principled guidelinesfor the exercise of constitutional review and also of offering a basis for judicial activism asa means of reinforcing the democratic process. Nevertheless, two major interconnectedobjections may be levelled at this theory of interpretation.

The first objection is that constitutional instruments are concerned with far more thansimply specifying a set of procedures to regulate the democratic process. Many constitutionalcommitments are unavoidably value-based and substantive. They express the belief thatcertain rights are fundamental to meaningful individual security and self-fulfilment and tocollective development. These commitments cannot be explained on the basis that the aimof constitutional instruments is merely to specify the procedures for optimal democraticrepresentation.5 Even rights which have a primarily procedural function have the additionalpurpose, beyond securing the integrity of the political process, of furthering substantivevalues such as dignity, equality and privacy. Finally, even the products of a well-functioningpolitical process will be struck down as unconstitutional where they infringe fundamentalindividual rights.6

1 See e g S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 88.2 John Hart Ely Democracy and Distrust: A Theory of Judicial Review (1980) 103 (constitutional review is best

understood as a form of representation-reinforcement). For a helpful summary of political process theory, see Davis,Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in Van Wyket al (eds) Rights and Constitutionalism 16--19.

3 Ely Democracy and Distrust 72--3.4 304 US 144 at 152, 58 SCt 778 (1938).5 For persuasive arguments that a Constitution specifies many substantive values which cannot be accounted for

by a process-orientated model without doing violence to the instrument itself, see e g Sunstein The PartialConstitution 104--5; Tribe & Dorf On Reading the Constitution (1991) 26--7; Ronald Dworkin ‘The Forum ofPrinciple’ (1981) 56 New York University LR 469.

6 Peter W Hogg Constitutional Law of Canada 3 ed (1992) p 33-25.

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The second and related objection is levelled at the claim of political process theory toneutrality. Political process theory seeks to draw a rigid distinction between neutral process,the reinforcement of which falls within the appropriate institutional competence of the courts,and substantive value-judgments, which are considered to be illegitimate usurpations of thelegislative prerogative. The second objection questions whether this distinction can besustained. This critique of process theory goes beyond showing that the procedural featuresof constitutional instruments are themselves based upon substantive values. More fundamen-tally, it calls upon process theory to demonstrate why the process-based conception ofconstitutional democracy is superior to competing democratic visions.1

22 A more adequate political theory of constitutional interpretation would therefore have todevelop and defend a substantive conception of the meaning of democracy. This conceptionwould have to be wide enough to embrace the many non-procedural guarantees embodiedin constitutional instruments. It would also have to provide justifiable guidelines as to whenheightened judicial scrutiny or greater deference is most appropriate.

Our constitutional commitment to ‘an open and democratic society based on freedom andequality’2 invites the development and articulation of such a political theory of interpretation.At the most abstract level the interpretation clause embraces both those who would empha-size the fraught and often irreconcilable relationship between freedom and equality, and thosewho would harmonize these values in the belief that meaningful liberty and autonomy requirea measure of substantive equality.

In the United States Cass Sunstein has commenced the task of developing a political theoryof interpretation based upon the requirements of what he calls ‘deliberative democracy’, thatis, a democracy based upon the imperative to provide reasoned debate and justification.3

Sunstein suggests that an aggressive role for the courts may be justified in two sets ofcircumstances: first, when rights that are central to the democratic process, such as the rightto vote, freedom of speech and equal educational opportunity, are infringed, and theirinfringement is unlikely to call up a political remedy; secondly, where a group faces obstaclesto organization, pervasive prejudice or hostility.4

For Sunstein a democratic theory of interpretation would be able to respond to thecountermajoritarian problem only by acknowledging that it was underpinned by and embod-ied substantive value choices which were capable of justification. While preserving theinsights of process theorists, such an approach would acknowledge that constitutional reviewis appropriately a value-driven enterprise. A fully argued democratic theory might permit theconclusion that:

‘It appears as well that the much-vaunted opposition between constitutionalism and democracy,or between rights and democracy, tends on this account to dissolve entirely. Many rights areindispensable to democracy and to democratic deliberation. If we protect such rights through the

1 Sunstein The Partial Constitution 105.2 Sections 33(1) and 35(1).3 Sunstein The Partial Constitution 142. For an influential South African approach to interpretation which shares

certain affinities with Sunstein’s position and which advocates an interpretive method which would further theentrenchment of a culture of justification, see E Mureinik ‘A Bridge to Where?: Introducing the Interim Bill ofRights’ (1994) 10 SAJHR 31. See also Matiso & others v Commanding Officer, Port Elizabeth Prison, & others1994 (4) SA 592 (SE) at 598F--I, 1994 (3) BCLR 80 (SE) at 88F--I.

4 Sunstein The Partial Constitution 142--3.



Constitution we do not compromise self-government at all. On the contrary, self-governmentdepends for its existence on firmly protected democratic rights. Constitutionalism can thus guar-antee the preconditions for democracy by limiting the power of majorities to eliminate thosepreconditions. Moreover, rights-based constraints on the political process are necessary for a well-functioningdemocracy; they are not antithetical to it. Unchecked majoritarianism should not be identifiedwith democracy. A system in which majorities are allowed to repress the views of those who disagreecould hardly be described as democratic.’1

(c) Value-based interpretation: upholding individual rights in the forum ofprinciple

23A value-based approach to interpretation grounds the search for constitutional meaningneither in the intention of the drafters nor solely in the demands of the political process.Instead, the approach recognizes the value-laden nature of constitutional review and arguesthat the proper approach to interpretation requires the courts to excavate and give expressionto the values which underpin particular constitutional guarantees.2 This approach is particu-larly applicable at the first stage of constitutional analysis, where the scope of the constitu-tional right in question must be determined in order to decide whether the conduct which isthe subject of complaint infringes that right. But the language of s 33(1) of the Constitutionmeans that value-based interpretation is not exhausted at the first stage of the inquiry butoperates under limitation clause analysis as well.3

Like other interpretive approaches, value-based interpretation is also grounded upon avision of the appropriate institutional role of the judiciary and reflects a particular responseto the countermajoritarian dilemma. Its proponents acknowledge the countermajoritariannature of constitutional review and argue that this role is most appropriate to the protectionof individual rights. The majoritarian institutions of government possess different institu-tional competencies from those of the judiciary. The role of the courts is not to make socialpolicy, but rather to articulate principle.4 Consequently, the relative insulation and weakermechanisms of democratic accountability characteristic of the judiciary provide the neces-sary space within which to perform the proper judicial function. If the role of the legislatureis to give expression to the majority will, the role of the courts, at least in constitutionalmatters, is to protect individual rights which may be countermajoritarian in nature. The courtsare far more than clearing-houses for the products of the legislature. They protect certainspheres of personhood against incursion by the majority. Meaningful enforcement ofindividual rights may have, as its consequence, large-scale social intervention. One ofthe functions of constitutional review is to determine when such intervention is justified bythe duty to protect individual rights. Viewed in this light, insulation from the vagaries of the

1 Sunstein The Partial Constitution 142.2 See e g S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 303 (Mokgoro J

concurring); Matiso & others v Commanding Officer, Port Elizabeth Prison, & others 1994 (4) SA 592 (SE) at597F--H, 1994 (3) BCLR 80 (SE) at 87F--H; Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 633G--I,1995 (1) BCLR 75 (E); Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 222--4.

3 For further discussion of the stages of constitutional analysis, see below, § 11.10.4 Dworkin A Matter of Principle (1985); Dworkin ‘The Forum of Principle’ (1981) 56 New York University LR

469; Dworkin Taking Rights Seriously (1977).

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political process is an advantage. Instead of being a participant in majoritarian bargainingthrough the political process, the judiciary may consider questions of principle and politicalmorality. Large questions of distributive justice, freedom of political dissent, racism andsexism, the demands of equality, the dimensions of human sexuality, and the requirementsof criminal justice raise questions of principle which are best resolved by the judiciary. Oneneed not believe that these political and moral questions are capable of yielding ‘correct’answers to acknowledge that their proper public consideration is well served by the institutionof constitutional review.24 In S v Makwanyane & another1 Didcott J concurs with Chaskalson P that the deathsentence for murder, previously permitted by s 277(1)(a) of the Criminal Procedure Act 51of 1977, is unconstitutional. In the course of his opinion the judge reflects upon the role ofpublic opinion and the different institutional functions of legislature and judiciary:

‘Whether capital punishment ought to be abolished or retained amounted, so it was said, to aquestion of policy which Parliament should decide, representing as it did the citizens of the countryand expressing their general will. The issue is also, however, a constitutional one. It has been putbefore us squarely and properly. We cannot delegate to Parliament the duty that we bear to determineit, or evade that duty otherwise, but must perform it ourselves. In doing so, we were counselled inthe alternative, we had to pay great attention to public opinion, which was said to favour the retentionof the death penalty. We have no means of ascertaining whether that is indeed so, but I shall assumeit to be the case. One may also assume, with a fair measure of confidence, that most members ofthe public who support capital punishment do so primarily in the belief that, owing to its uniquelydeterrent force, they and their families are safer with than without its protection. The feeling is quiteunderstandable, given its basis. But it deserves no further homage if the premise underlying andaccounting for it is fallacious or unfounded, as I consider that one to be. To allow ourselves to beinfluenced unduly by public opinion would, in any event, be wrong. Powell J disparaged suchexternal pressures on constitutional adjudication when he said in Furman v State of Georgia (408US 238, 92 SCt 2726 (1972)) (at 443):

‘‘(T)he weight of the evidence indicates that the public generally has not accepted either themorality or the social merit of the views so passionately advocated by the articulate spokesmenfor abolition. But however one may assess (the) amorphous ebb and flow of public opiniongenerally on this volatile issue, this type of inquiry lies at the periphery ---- not the core ---- of thejudicial process in constitutional cases. The assessment of popular opinion is essentially alegislative, not a judicial function.’’

In similar vein were these remarks passed by Jackson J on the earlier occasion of West VirginiaState Board of Education v Barnette & others 319 US 624 (63 SCt 1178) (1943) (at 638):

‘‘[T]he very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes ofpolitical controversy, to place them beyond the reach of majorities . . . and to establish them aslegal principles to be applied by the courts. One’s right to life . . . and other fundamental rightsmay not be submitted to (the) vote; they depend on the outcome of no elections.’’ ’2

We submit that these reflections support the argument set out above that constitutionalreview is frequently and properly a countermajoritarian function aimed at securing theprotection of individual rights.

1 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC).2 At para 188. See also Chaskalson P at para 88, Kentridge JA at para 200, Kriegler J at para 206, Madala J at

paras 254--7, Mahomed J at para 266, and Mokgoro J at para 305.



11.8 DEVELOPING A PURPOSIVE APPROACH TO INTERPRETATION

REVISION SERVICE 3, 1998Early constitutional cases were quick to recognize the similarity between value-basedinterpretation and the method of purposive interpretation applied in Canadian constitu-tional law.1

25 The judgment of Dickson J in the Canadian Charter case of R v Big M Drug Mart Ltd hasbecome the locus classicus of purposive interpretation:

‘In Hunter v Southam Inc(2) . . . this court expressed the view that the proper approach to thedefinition of rights and freedoms guaranteed by the Charter was a purposive one. The meaning ofa right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purposeof such a guarantee; it was to be understood, in other words, in the light of the interests it was meantto protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom inquestion is to be sought by reference to the character and larger objects of the Charter itself, to thelanguage chosen to articulate the specific right or freedom, to the historical origins of the conceptenshrined, and where applicable, to the meaning and purpose of the other specific rights andfreedoms with which it is associated within the text of the Charter. The interpretation should be, asthe judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling thepurpose of a guarantee and securing for individuals the full benefit of the Charter’s protection. Atthe same time it is important not to overshoot the actual purpose of the right or freedom in question,but to recall that the Charter was not enacted in a vacuum, and must therefore . . . be placed in itsproper linguistic, philosophical and historical contexts.’3

This passage was cited with approval by Kentridge AJ, writing for a unanimous court inS v Zuma.4 While the contours of a purposive approach to the interpretation of the Constitu-tion remain to be fully elaborated, the Constitutional Court has already articulated threeimportant principles of purposive interpretation.

First, a purposive interpretation must give proper weight to the fact that it is the SouthAfrican Constitution, and not an international instrument or the Constitution of some foreigncountry, that our courts are called upon to construe.5 Hence, as Kentridge AJ points out inS v Zuma & others:

‘[R]egard must be paid to the legal history, traditions and usages of the country concerned, if thepurposes of its Constitution are to be fully understood.’6

The emphasis placed on developing an indigenous South African jurisprudence maybe stated negatively. Section 35(1) requires regard, where applicable, to public internationallaw, and permits consideration of foreign case law. Nevertheless, caution is required toavoid the importation of foreign doctrines which are not appropriate to our own history,

1 See e g Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 634G--I, 1995 (1) BCLR 75 (E) at 81C--E.For Supreme Court cases holding that the proper approach to interpretation is a purposive approach, see e g S vGqozo & another (2) 1994 (1) BCLR 10 (Ck) at 13D--H; Khala v Minister of Safety and Security 1994 (4) SA 218(W) at 222H--I, 1994 (2) BCLR 89 (W) at 92G--H; Rattigan & others v Chief Immigration Officer & others 1995(1) BCLR 1 (ZS) at 4I--J; De Klerk v Du Plessis 1995 (2) SA 40 (T) at 46B, 1994 (6) BCLR 124 (T); Park-Ross vDirector: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 161D--H, 1995 (5) BCLR 652 (C).

2 (1985) 11 DLR (4th) 641. 3 (1985) 18 DLR (4th) 321 at 359--60.4 1995 (2) SA 642 (CC) at para 15. See also S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR

665 (CC) at para 9; S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 8; Ferreira vLevin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 172.

5 S v Makwanyane & another at para 39.6 S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 15; see also S v Makwanyane at para 39

(Chaskalson P); African National Congress & another v Minister of Local Government and Housing, KwaZuluNatal, & others 1998 (3) SA 1 (CC), 1998 (4) BCLR 399 (CC) at paras 4--19.

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circumstances and aspirations.1 At the same time, however, the paucity of local judicialprecedent upholding human rights means that public international law and foreign case lawwill provide guidance for some time to come.2 In S v Makwanyane3 the point is articulatedpositively. Concern to develop a South African constitutional jurisprudence also requires thatburied and repressed local knowledge and values be disinterred. Langa J elaborates themeaning and relevance of the concept of ubuntu for constitutional jurisprudence.4 Mokgoro Jemphasizes the importance of indigenous South African values in performing interpretationin accordance with s 35.5 Sachs J stresses that recognition must be given to African law andlegal thinking.6

26 Secondly, paying proper attention to our legal history, traditions and usages does not implythat constitutional rights should be cut down ‘by reading implicit restrictions into them, soas to bring them into line with the common law’.7 In other words, a purposive interpretationprovides no grounds for assuming that the existing common-law protection of individualrights exhausts the meaning and scope of constitutional guarantees.

Purposive interpretation must give proper weight both to continuity and to rupture. Itclearly does not imply that all previous rules of law are henceforth to be ignored.8 Neverthe-less, the degree of continuity with the past should not be exaggerated. As Mahomed J pointsout in his concurring opinion in S v Makwanyane:

‘All Constitutions seek to articulate, with differing degrees of intensity and detail, the sharedaspirations of a nation; the values which bind its people, and which discipline its government andits national institutions; the basic premises upon which judicial, legislative and executive power isto be wielded; the constitutional limits and conditions upon which that power is to be exercised;the national ethos which defines and regulates that exercise; and the moral and ethical directionwhich that nation has identified for its future. In some countries the Constitution only formalizes,in a legal instrument, a historical consensus of values and aspirations evolved incrementally froma stable and unbroken past to accommodate the needs of the future. The South African Constitutionis different: it retains from the past only what is defensible and represents a decisive break from,

1 In Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 132--3 Kriegler J, in a separateconcurring judgment to which Didcott J subscribed, decried a frequent and facile resort to foreign authorities. Heemphasized the care and study required in locating such authorities in their proper context and determining whetherthey were indeed applicable and of relevance to the matter under enquiry. See also Kriegler J’s statements on thisissue in Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at para 127; 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 61; Ex parte Speaker of the National Assembly: In re Dispute Concerning theConstitutionality 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; S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579(CC) at para 26; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 101 (AckermannJ); Thomson Newspapers Ltd v Director of Investigation and Research (1990) 67 DLR (4th) 161 at 279f--g; Fose vMinister of Safety and Security 1996 (2) BCLR 232 (W) at 237F--238A, 242C and G; Berg v Prokureur-Generaalvan Gauteng 1995 (11) BCLR 1441 (T) at 1445G--1446E. Compare O Kahn Freund ‘On the Uses and Misuses ofComparative Law’ (1974) 37 Modern LR 1. Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 633F--G,1995 (1) BCLR 75 (E); Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 160F--H,1995 (5) BCLR 652 (C).

2 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 304 (Mokgoro J concurring).3 Supra. 4 At paras 223--7.5 At paras 300 and 307--8. 6 At para 365.7 S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 15 (citing Attorney-General v Moagi 1982

(2) Botswana LR 124 at 184).8 S v Zuma at para 17.



and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular,and repressive, and a vigorous identification of and commitment to a democratic, universalistic,caring and aspirationally egalitarian ethos expressly articulated in the Constitution. The contrastbetween the past which it repudiates and the future to which it seeks to commit the nation is starkand dramatic.’1

27REVISION SERVICE 5, 1999Thirdly, a purposive interpretation will not always coincide with a liberal and generousinterpretation. It is important to maintain a conceptual distinction between purposive andgenerous approaches.2 In some instances a generous or liberal interpretation may overshootthe purpose of the right.3 In many other instances a purposive approach will result in agenerous interpretation, but this would be the consequence of ascertaining the purpose of theright in question, and not a premise for interpretation.4 In the course of giving meaning tothe right to life enshrined by s 9 of the Constitution in her concurring opinion in S vMakwanyane, O’Regan J draws the pertinent distinction:

‘This purposive or teleological approach to the interpretation of rights may at times require agenerous meaning to be given to provisions of Chapter 3 of the Constitution and at other times anarrower or specific meaning. It is the responsibility of the courts, and ultimately this court, todevelop fully the rights entrenched in the Constitution. But this will take time. Consequently anyminimum content which is attributed to a right may in subsequent cases be expanded anddeveloped.’5

The particular context in which a right is claimed may be very important in decidingwhether it should be construed broadly or with greater specificity.6 The purposive approachis therefore allied to a contextual approach.7 This approach

1 S v Makwanyane & another at para 262, Langa J at paras 220--3, Mokgoro J at paras 311--13, and O’Regan Jat paras 322--3; see also S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at paras 89, 99(Kriegler J), 111, 127 (Sachs J); Executive Council, Western Cape Legislature, & others v President of the Republicof South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 62; Shabalala v Attorney-General (Transvaal) 1996 (1) SA 725 (CC), 1995 (12) BCLR 1593 (CC) at paras 26--8.

2 In South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6)BCLR 615 (CC) at para 28 O’Regan J said: ‘In previous cases, it has been said that at times the interpretation ofrights should be generous and such as to accord individuals the full protection of the rights, although it has alsobeen said that a purposive interpretation of rights will not always require a generous one.’

3 Nortje & another v Attorney-General of the Cape & another 1995 (2) SA 460 (C) at 471J--472D, 1995 (2)BCLR 236 (C).

4 In South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6)BCLR 615 (CC) the Constitutional Court considered and invalidated s 126B of the Defence Act 44 of 1957 to theextent that it prohibited members of the South African National Defence Force from participating in public protestand joining trade unions. In considering the prohibition against membership of a trade union the court had to decidewhether members of the Permanent Force were ‘workers’ within the meaning of FC s 23(2), which guaranteed everyworker the right to form and join trade unions. The court concluded, at para 28, that the proper interpretation of theright was a generous one. The result is that members of the Permanent Force are indeed ‘workers’ for purposes ofthe constitutional protection afforded by FC s 23(2). See also De Klerk & another v Du Plessis & others 1995 (2)SA 40 (T) at 45J--46D, 1994 (6) BCLR 124 (T).

5 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 325. See also Soobramoney v Ministerof Health, KwaZulu Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC) at para 17.

6 See Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 170, 172, 181--5(Chaskalson P); Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696(CC) at para 17.

7 Cf Mahomed J in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 15; S vMakwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 655 (CC) at para 10; Ferreira v Levin NO & others 1996 (1)SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 170, 172 (Chaskalson P).

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‘recognizes that a particular right or freedom may have a different value depending on thecontext . . . The contextual approach attempts to bring into sharp relief the aspect of the right orfreedom which is truly at stake in the case as well as the relevant aspects of any values in competitionwith it’.1

11.9 THE PRESSURES OF THE TEXT

The adoption of a purposive, value-based approach to interpretation unavoidably raisesthe question of the limits upon possible interpretations, and requires a consideration of thedevices available to discipline interpretation. Without recourse to the intention of the framersor the demands of the political process, it is the language of the text, and the fact that theConstitution remains a legal instrument, which provides a safeguard against judicial over-reaching. The proper role and function of the text in the exercise of constitutional interpre-tation will emerge gradually. Nevertheless, one may already identify subtle but importantdifferences of emphasis amongst the judges of the Constitutional Court.28 In S v Zuma the Constitutional Court laid down basic guidelines to the interpretation ofthe Constitution.2 In doing so it approved dicta emanating from courts in other jurisdictionsstating that constitutional rights are to be generously interpreted,3 as well as dicta indicatingthat a Bill of Rights should be purposively interpreted.4 The court endorsed the view thatcourts interpreting the Constitution should give expression to the values embodied in theConstitution, as indeed they are enjoined to do by s 35. Nevertheless, Kentridge AJ was atpains to emphasize that this process of constitutional evaluation does not entail the abandon-ment of those principles of law which are themselves of lasting value, nor the neglect of thelanguage of the Constitution:5

‘While we must always be conscious of the values underlying the Constitution, it is none the lessour task to interpret a written instrument. I am well aware of the fallacy of supposing that generallanguage must have a single ‘‘objective’’ meaning. Nor is it easy to avoid the influence of one’spersonal intellectual and moral preconceptions. But it cannot be too strongly stressed that theConstitution does not mean whatever we might wish it to mean . . . If the language used by thelawgiver is ignored in favour of a general resort to ‘‘values’’ the result is not interpretation butdivination.’6

The entire court concurred in the judgment of Kentridge AJ. Subsequent decisions of theConstitutional Court have, however, revealed that within the parameters of the approacharticulated in the Zuma case there is scope for significant judicial variation.

1 Edmonton Journal v Alberta (Attorney General) (1989) 64 DLR (4th) 577 at 583--4 per Wilson J.2 1995 (2) SA 642 (CC) at paras 13--18 per Kentridge AJ, giving judgment for a unanimous court.3 At para 14.4 At para 15.5 S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at paras 17--18.6 At paras 17--18.



In S v Mhlungu & others1 the court was called upon to determine whether five personscharged with murder prior to the commencement of the Constitution were prevented by s 241(8)of the Constitution from challenging the constitutionality of confessions obtained from themin accordance with s 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977.2 In resolvingthis question the court was required to give meaning to s 241(8). The section is contained inthe chapter dealing with transitional arrangements for the judiciary, and provides:

‘All proceedings which immediately before the commencement of this Constitution were pendingbefore any court of law, including any tribunal or reviewing authority established by or under law,exercising jurisdiction in accordance with the law then in force, shall be dealt with as if thisConstitution had not been passed: Provided that if an appeal in such proceedings is noted or reviewproceedings with regard thereto are instituted after such commencement such proceedings shall bebrought before the court having jurisdiction under this Constitution.’

The minority judgment of Kentridge AJ emphasizes the most linguistically plausible inter-pretation.3 The judge acknowledges the scope for purposive interpretation, and adverts to

28A

1 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).2 The case is more fully considered elsewhere in this volume. See above, Loots & Marcus ‘Jurisdiction, Powers

and Procedures of the Court’ ch 6.3 Chaskalson P, Ackermann and Didcott JJ concurred in the judgment of Kentridge AJ.

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the fallacy of believing that language has a single objective meaning. Moreover, the judgmentspecifically disapproves a narrow approach to the language of a Constitution.1 The minoritynevertheless takes the view that the language of the text is not infinitely malleable, but definesthe limits of generous interpretation.2 Hence the minority concludes that

‘there are some provisions, even in a Constitution, where the language used, read in its context, istoo clear to be capable of sensible qualification. It is the duty of all courts, in terms of s 35, topromote the values which underlie a democratic society based on freedom and equality. In the longrun, I respectfully suggest, those values are not promoted by doing violence to the language of theConstitution in order to remedy what may seem to be hard cases’.3

29REVISION SERVICE 1, 1996In consequence the minority was compelled to refuse the five accused the constitutional rightsthat would be enjoyed by those accused persons charged after the commencement of theConstitution.

Writing for the majority, Mahomed J held that s 241(8) did not prevent the five accusedfrom raising constitutional defences.4 After noting the harsh and anomalous consequencesfor the accused which would result from the alternative interpretation, the judge states:

‘None of these very serious difficulties can justify a refusal to give effect to the words of the sectionif they were not reasonably capable of an alternative construction. Such an alternative constructionwould have to be based not only on the literal meaning of the words ‘‘as if this Constitution hadnot been passed’’ in isolation, but in its proper context. The relevant context would be s 241(8) itself,s 241 as a whole, and the larger context of the Constitution regarded as a holistic and integrateddocument with critical and important objectives. The crucial question is whether, adopting thisapproach, such an alternative construction to s 241(8) is reasonably available.’5

Mahomed J is content to work within the fabric of the written document. An interpretationwhich does violence to the language cannot be adopted, no matter how desirable itsconsequences. To this extent the written document exercises its limiting, containing, and,ultimately, disciplinary function upon interpretation. Nevertheless, the judge strives todevelop a reasonable alternative to what he calls the ‘literal interpretation’ of the minority.In Mahomed J’s view the text accommodates an alternative interpretation which avoids thedistressingly anomalous consequences of the minority approach. Mahomed J concedes thatthe alternative interpretation is not without difficulties. Nevertheless, concludes the judge, itis to be preferred because it

‘gives force and effect to the fundamental objectives and aspirations of the Constitution, becauseit is less arbitrary in its consequences and because it is more naturally in harmony with the contextof s 241(8) itself and the Constitution as a whole’.6

These advantages are absent from the literal interpretation, which, the majority considers‘is not compelled by the text of the section, read in its context and with regard to the objects of theConstitution’.7

1 At para 84. 2 At para 78.3 At para 84.4 Langa, Madala, Mokgoro and O’Regan JJ concurred in the judgment of Mahomed J. Kriegler J agreed with

the order formulated by Mahomed J, but gave a separate judgment; Sachs J likewise agreed with the order, and withthe conclusion reached by Mahomed J, but reached that conclusion by a different interpretive route, in the courseof which he sought to reconcile s 241(8) with the provisions of Chapter 3 (at paras 102--46).

5 S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 15; see also paras 8 and 9.6 At para 45; see also para 24. 7 At para 46.

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The differences articulated between the majority and the minority in the Mhlungu caseare differences of emphasis rather than differences of principle.1 Both Mahomed J andKentridge AJ adopt the view that there may be different plausible and reasonable interpreta-tions of the same constitutional provision. Both accept and apply a purposive approach tointerpretation. Both accept that they are bound by the disciplining functions of the writteninstrument itself, and that they would overreach the legitimate boundaries of interpretationwere they to develop a construction which had no basis in the language of the text.30 The minority, however, considers that where the meaning of language is clear theimportation of an alternative meaning which appears to be more consonant with underlyingvalues is impermissible. The mere fact that the clear meaning gives rise to certain anomaliesis no licence to search for an alternative interpretation. By contrast, the majority considersthat where the literal meaning of a text gives rise to anomaly, and perpetuates injustice, an alterna-tive approach which avoids such consequences must be sought. If an interpretation moreconsonant with the deepest commitments of the Constitution can reasonably be accommo-dated within the confines of the text, then such an interpretation should be preferred.

As between the majority and the minority, there is a difference of approach, and adifference of opinion. The difference of approach is that the minority regards clarity oflanguage as conclusive of the meaning of the provision, whereas the majority sees languageas the outer perimeter within which the expression of constitutional values is ultimatelyconfined. The difference of opinion is that the majority considers that the literal interpretation isnot compelled by the wording of the provision, whereas the minority considers that the wordsare not reasonably capable of bearing the meaning which the majority would give them.

On the relationship between textual construction, underlying values and policy considera-tions, the case of Du Plessis v De Klerk2 provides a particularly interesting sequel to S vMhlungu.3 In that case the justices of the Constitutional Court unanimously held that,notwithstanding the interpretation given to s 241(8) in Mhlungu’s case, the Constitution didnot operate retrospectively.4

Sharp differences emerged, however, on the question of whether the Bill of Rights was ofdirect application to the common law in disputes between private parties, not involving anylegislative or executive authority.5 On this issue, Mahomed J concurs with Kentridge AJ,

1 It would be inaccurate to distinguish between the two approaches on the basis that the majority is moreconcerned with substantive values than with language, while the minority orders the priorities in reverse. Both arealive to the joint pressure of text and value. The emphasis, however, is different. The majority judgment is acutelysensitive to the historical experience of justice denied and delayed, and this inflects the manner in which the writtendocument exerts its pressure. For the minority the values of a democratic society are best served by securing thelong-term stability which is derived from the rule of law and a proper regard for the limits which the written textimposes on constitutional adjudication.

2 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC). 3 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC).4 At paras 13--14, 20. The court left open the possibility that the enforcement of rights acquired prior to the

coming into force of Constitution may be declined in particular cases where such enforcement would be grosslyunjust and abhorrent. See also Mahomed J at para 69.

5 Chaskalson P, Langa J and O’Regan J concurred in Kentridge AJ’s judgment. Mahomed DP wrote a separateconcurring judgment, in which Langa J and O’Regan J also concurred. Mokgoro J wrote a separate judgment inwhich she agreed with Kentridge AJ and Mahomed DP. Ackermann J and Sachs J wrote separate judgmentsconcurring with Kentridge AJ. Kreigler J, in a judgment with which Didcott J agreed, vigorously dissented fromthe majority on this question. Madala J concluded that certain rights in Chapter 3 lend themselves to direct horizontalapplication, whereas others are indirectly horizontally applicable.



writing for the majority, in finding that the Bill of Rights does not apply directly to suchdisputes. Like Kentridge AJ, Mahomed J considers that the relevant provisions of the text ofthe Constitution indicate that the Bill of Rights does not apply directly to common-law rulesin litigation between private parties.1 He makes it clear that he would have been profoundlyuncomfortable with such an interpretation had it facilitated the private perpetuation ofinequalities created by apartheid and surviving its official demise. Mahomed J is persuaded,however, that the practical consequences of indirect application of the Bill of Rights by virtueof s 35(3) are substantially similar to those flowing from the direct application of the Bill ofRights to private common law.2 Were it otherwise, he declared, he would have been‘compelled to ask whether the interpretation favoured by Kentridge AJ is perhaps not flawedin some respect which I might have overlooked or whether I have not perhaps accordedinadequate weight to some of the relevant considerations so forcefully articulated in thejudgment of Kriegler J’.3 Mahomed J thus makes it clear that his fidelity to what he regardsas the most linguistically plausible interpretation of the text is conditional upon thatinterpretation according with his conception of the fundamental purposes and values of theConstitution.4

31 Kriegler J, on the other hand, is firmly convinced that a simple application of ‘theinterpretational tools with which lawyers are familiar’ to the relevant provisions of the textof the Constitution clearly indicates that the Bill of Rights applies directly where rules ofcommon law are invoked in legal disputes between private parties.5 In Kriegler J’s view, hisstraight-forward reading is more faithful to the wording of the text and its underlying valuesthan that of the majority:

‘My reading of Chapter 3 gives the Constitution a simple integrity. It says what it means and itmeans what it says. There is no room for the subtleties and nice distinctions so dear to the heartsof medieval theologians and modern constitutional lawyers. The Constitution promises ‘‘an openand democratic society based on freedom and equality’’, a radical break with the ‘‘untold sufferingand injustice’’ of the past. It then lists and judicially safeguards the fundamental rights and freedomsnecessary to render those benefits attainable by all. No one familiar with the stark reality of SouthAfrica and the power relationships in its society can believe that protection of the individual onlyagainst the state can possibly bring those benefits.’6

11.10 THE STRUCTURE OF CONSTITUTIONAL INTERPRETATION: TWO-STAGE ANALYSIS

Chapter 3 of the Constitution, like the Canadian Charter of Rights and Freedoms, containsa general limitation clause.7 The inclusion of s 33 in the Chapter has significant implicationsfor the structure of constitutional analysis. Where a Bill of Rights has no general limitationclause8 limitations must be read into the very definition of the right. The presence of alimitation clause means that constitutional analysis proceeds in two stages.

1 Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC), in particular paras 44--9 (Kentridge AJ),paras 76--83 (Mahomed J).

2 At paras 72--3. 3 At para 85.4 Cf para 75; cf Mokgoro J at paras 166--9; Sachs J at paras 175, 190.5 See, in particular, paras 128--38. 6 At para 145.7 For a discussion of the limitations clause, see below, Woolman ‘Limitation’ ch 12.8 For example, those of the United States and Hong Kong.

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‘First, has there been a contravention of a guaranteed right? If so, is it justified under the limitationclause?’1

32It is suggested in the Zuma and Makwanyane judgments that the two-stage approach maycall for a broad interpretation of the right at the first stage, qualified only at the second stage.2

While it is doubtless true that the presence of a general limitation clause defers questions ofwhether infringements of rights are justified to the second stage of analysis, it is submittedthat this does not obviate the need for the careful delineation of rights at the first stage. Thevery question of whether a right has been infringed presupposes a definition of that right.Whereas the first stage involves demarcating the boundaries of a particular right, the secondis concerned with scrutinizing incursions into those predefined boundaries. It is thereforesuggested that the first stage aims to establish the content of the right in question, whereasthe second is astutely concerned with considerations justifying the limitation of the right. Atthe first stage the ambit of the right is defined with reference to the terms in which the rightis cast and to the constitutional values which are served by entrenching that right in the Billof Rights. The second stage measures the constitutional values thus articulated againstcompeting rights, values and ideals and against the requirements of social policy.

(a) Stage One ---- the content of the right

The initial inquiry at the first stage is whether the law or act under scrutiny impinges at allon the domain of the right at issue. This is the point at which the ambit of the right itself mustbe defined. This involves articulating the values which the right seeks to uphold andidentifying the interests which it seeks to protect; in other words, a purposive interpretationof the right.3 As O’Regan J points out, purposive interpretation requires at times that agenerous meaning be given to the right in question and, at other times, a narrower or specificmeaning.4 A broad interpretation is not necessarily that which best comports with the valuesunderlying the right itself.5 For example, most human activities, including acts of physicalviolence, can be seen as a form of ‘expression’. Yet the protection of the freedom to commitsuch acts is not the purpose of s 15 of the Constitution. Hence it is not the case that thefreedom to commit such acts is protected by s 15, but that the limitation of the freedom ispermissible in terms of s 33. Were the act found to be covered by s 15, its limitation wouldclearly be justified. But that is not the point. The point is that the rights enshrined in Chapter 3give expression to the most profound commitments of our society. Section 35(1) makes it

1 S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 21 (Kentridge AJ); see also S vMakwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at paras 100 (Chaskalson P) and 208--10 (Kriegler J);S v Williams & others 1995 (3) SA 632 (CC), 1995 (7) BCLR 861 (CC) at para 54 (Langa J); Coetzee v Governmentof South Africa & others; Matiso v Commanding Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC) at para 9(Kriegler J, for the majority); S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC) at para 9.

2 S v Zuma & others at para 21 (Kentridge AJ); S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665(CC) at para 100 (Chaskalson P); cf Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC)at paras 82, 90 (Ackermann J), but see Chaskalson P at paras 181--4.

3 Cf R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 359--60, approved in S v Zuma 1995 (2) SA 642 (CC),1995 (4) BCLR 401 (CC) at para 15.

4 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 325.5 As Dickson J points out in R v Big M Drug Mart Ltd 18 DLR (4th) at 360, while constitutional interpretation

must aim to secure for individuals the full benefit of constitutional protection, it is important not to overshoot theactual purpose of the right or freedom in question.



clear that courts interpreting the provisions of Chapter 3 must promote these underlyingvalues and commitments. Together with the language in which each right is framed, thesevalues serve to establish the scope and content of each right.33 It is therefore our submission that although the presence of a general limitation clausemay mean that the interpretation at the first stage is broader than it would be were there nosecond stage at all, certain types of interest and activity are simply beyond the scope of theprotection offered by the right and must be screened out at the first stage.1

In giving meaning to a particular right at the first stage it will often be useful to haveregard to associated rights.2 This is not the stage, however, at which potentially competingrights should be considered.3 Only at the second stage of the inquiry should competing rightsbe balanced. The scope of the right is not to be defined, at the first stage of the inquiry, bynarrowing or qualifying the right in order to accommodate the exercise of another right.4 Anyprocess of mutual modification of rights should take place at the second stage, and throughthe application of the provisions of the limitation clause. On this approach the courts neednot determine a general hierarchy of rights in the abstract.5 They need only balance competingrights in the context of a specific law or act and in a specific factual context.6

If the interest in question does fall within the domain of a particular right, the next questionis whether the law or act of which complaint is made in fact encroaches upon that right. Thisaspect of the inquiry will be satisfied by demonstrating that either the purpose or the effectof the impugned law or act is to encroach upon the right.7 Only if this is established does theinquiry proceed to the second stage.

(b) Stage Two ---- limitation of rights

If the law or conduct impugned has been found at the first stage to infringe a Chapter 3 right,the question at the second stage is whether the limitation thus effected is permissible in thatit is reasonable, justifiable in an open and democratic society based on freedom and equality,and does not negate the essential content of the right in question. In respect of certain rights8

as well as those aspects of other rights9 which relate to free and fair political activity thelimitation must, in addition to being reasonable, be necessary.

In assessing whether the limitation of a particular right is permissible in terms of s 33(1)close attention must be paid to the values which the right seeks to uphold and protect, asidentified at the first stage of the inquiry. The nature and importance of such values will affectthe extent to which limitations of the right in question can be tolerated. Hence even where

1 The function of the Constitution is to articulate and give effect to certain substantive values, not to protect allinterests and activities.

2 S v Makwanyane & another at paras 10 and 95 (Chaskalson P).3 But see Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607E--F.4 R v Keegstra [1991] 3 CRR (2d) 193 (SCC) at 218 (Dickson CJ), 289--91(McLachlin J).5 Hogg Constitutional Law of Canada sec 33.7(g).6 See Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607B--608B.7 R v Big M Drug Mart (1985) 18 DLR (4th) 321 (SCC) at 350; In re Munhumeso & others 1995 (1) SA 551

(ZS) at 561D--E.8 The rights entrenched in ss 10, 11, 12, 14(1), 21, 25, 30(1)(d), 30(1)(e) and 30(2).9 The rights entrenched in ss 15, 16, 17, 18, 23 and 24.

INTERPRETATION


the necessity standard does not apply the standard of justification under s 33(1) will differ inrelation to different rights. Important too will be the type of infringement at issue and its severity.1

34 At the first stage the ambit of the right is defined with reference to its underlying valuesand the purposes it serves. At the second stage the value of the right as defined is balancedagainst the social and political objects which may require its limitation. In certain casescompeting rights must also be balanced at the second stage.2 This balancing exercise is thedistinctive feature of the second stage of constitutional analysis. Whatever compromises arestruck at this stage, they must serve the values of an open and democratic society based onfreedom and equality. Where these values are themselves threatened by the limitation of aright the compromise is not permissible in terms of s 33(1) and there is an unlawful violationof a fundamental right.

(c) Onus and standard of proof at each stage

In accordance with well-established principles of law, the onus of proving the infringementof a fundamental right rests with the party who alleges such an infringement.3 We havesuggested that the inquiry at the first stage separates into two related questions. The first isessentially a normative question. The court must decide whether the protection afforded bythe right in question extends to the interest which is allegedly subject to interference. In somecases this will be so clear as to obviate the need for inquiry. In others it will be a complexand difficult question of law. As with any question of law, the party who claims that theinterest is protected by the right must persuade the court that its view of the law is correct.This is not an onus properly speaking, but a burden of legal persuasion. If the court ispersuaded that the interest at stake is protected by a particular right, then the substantivequestion arises of whether the law or conduct impugned interferes with that interest and thusinfringes a fundamental right. The onus is upon the complainant to establish that, as a matterof fact, there is an infringement. This must be proved on a balance of probabilities.

The onus of proving that the limit on the fundamental right is permissible in terms ofs 33(1) rests upon the party seeking to uphold the limitation.4 Here again, as at the first stage,there are two aspects to a s 33(1) inquiry. The first is normative: as a matter of law, is thebasis upon which the party is seeking to uphold the limitation reasonable and justifiable? Inother words, if all the facts alleged by that party are proved, does the limitation meet therequirements of s 33(1)? The second is an evidential question ---- has the party seeking touphold the limit established as a matter of fact that the requirements of s 33(1) are met? In regardto the normative question, the party who seeks to justify the limitation carries a burden oflegal persuasion. In regard to the factual question, that party bears an onus properly speaking.

1 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 104; S v Bhulwana; S v Gwadiso1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) at para 18; Coetzee v Government of South Africa; Matiso vCommanding Officer, Port Elizabeth Prison, & others 1995 (4) SA 631 (CC) at paras 45--6 (Sachs J, concurring inthe order).

2 See Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 607B--608B.3 Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 640H--J, 1995 (1) BCLR 75 (E).4 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 102; Qozeleni v Minister of Law

and Order & another 1994 (3) SA 625 (E) at 640H--641C, 1995 (1) BCLR 75 (E); Khala v Minister of Safety andSecurity 1994 (4) SA 218 (W) at 228D--I; cf R v Oakes (1986) 26 DLR (4th) 200 at 225.



35REVISION SERVICE 5, 1999The standard to be met by the party who would justify a limitation is proof on apreponderance of probabilities. Dickson CJC pointed out in the case of R v Oakes1 that thereare degrees of probability within that standard2 and that, in relation to the justification of aninfringement of a fundamental right, a very high degree of probability is required:

‘Where evidence is required in order to prove the constituent elements of a s 1 inquiry, and this willgenerally be the case, it should be cogent and persuasive and make clear to the court theconsequences of imposing or not imposing the limit.’3

THE FINAL CONSTITUTIONAll references to the Constitution, sections, Chapters, and Schedules in this part of thischapter, from § 11.11 up to and including § 11.13, must be taken as references to thefinal Constitution unless another Constitution or statute is specifically referred to.

11.11 THE IMPORTANCE OF THE CERTIFICATION JUDGMENTS

Like the interim Constitution, the final Constitution is shaped by the history of the transitionfrom apartheid government to a constitutional democracy. The interim Constitution was theproduct of negotiation and compromise between parties with competing and conflictinginterests in and conceptions of how South Africa ought to be governed in the future. Part ofthat compromise was embodied in IC Chapter 5, which dealt with the adoption of the finalConstitution.4 In particular, IC s 71(1)(a) required the new constitutional text to comply withthe Constitutional Principles set out in IC Schedule 4. The Constitutional Court was requiredto certify that all the provisions of the text of the Constitution passed by the ConstitutionalAssembly complied with the Constitutional Principles.5

The first text of the Constitution was passed by the Constitutional Assembly on 8 May1996 and considered by the Constitutional Court during July and August.6 In its judgmentthe Constitutional Court found that certain provisions of the Constitution did not comportwith the Constitutional Principles. Certification was therefore withheld. The offendingprovisions were thereafter recast by the Constitutional Assembly, which passed the relevantamendments to the text of the Constitution in October 1996. The Constitutional Court judgedthat, as amended, the text of the Constitution met the strictures of the ConstitutionalPrinciples. It certified the Constitution in December 1996.7

1 (1986) 26 DLR (4th) 200.2 Cf Bater v Bater [1950] 2 All ER 458 (CA) at 459 per Denning LJ.3 (1986) 26 DLR (4th) 200 at 226--7.4 The political history of the interim Constitution and the adoption of the Constitutional Principles are

summarized in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of theRepublic of South Africa, 1996 1996 (4) SA 744 (CC), 1997 (1) BCLR 1 (CC) (‘the first certification judgment’)at paras 5--19; see also above, Klug ‘History’ ch 2.

5 Section 71(2).6 Oral argument was heard early in July and the judgment withholding certification of the final Constitution

delivered on 6 September 1996.7 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution

of the Republic of South Africa, 1996 1997 (2) SA 97 (CC), 1997 (1) BCLR 1 (CC) (‘the second certificationjudgment’).

INTERPRETATION


The certification judgments, especially the first, are important in the interpretation of thoseprovisions which they consider. This is because the approval of certain provisions of the finaltext was dependent on the particular interpretation of those provisions adopted by the court.Inevitably, certain clauses of the draft Constitution were capable of more than one reasonableinterpretation. The court adopted the principle that, where one of the possible meanings ofa clause complied with the Constitutional Principles but another did not, the interpretationto be adopted was that which would facilitate certification.1

36 The court made the significance of this approach clear:‘Such an approach has one important consequence. Certification based on a particular interpretationcarries with it the implication that if the alternative construction were correct the certification bythe court in terms of IC s 71 might have been withheld. In the result, a future court should approachthe meaning of the relevant provision of the NT on the basis that the meaning assigned to it by theConstitutional Court in the certification process is its correct interpretation and should not bedeparted from save in the most compelling circumstances.2 If it were otherwise, an anomalous andunintended consequence would follow. A court of competent jurisdiction might in the future givea meaning to the relevant part of the NT which would have made that part of the NT not certifiablein terms of IC s 71 at the time of the certification process, but there would have been no furtheropportunity in the interim to refuse a certification of the NT on that ground. This kind of anomalymust be avoided ---- and will be ---- if the courts accept the approach which we have suggested inthis paragraph.’3

In approaching the interpretation of any provision of the Constitution courts are thereforebound to follow the interpretation which the Constitutional Court placed on that provisionin the certification judgments in order to facilitate certification.4 The logic of the passagequoted above ought to apply to the entire text of the Constitution and not only to thoseprovisions which were discussed in the certification judgments. Given that the present textof the Constitution was ultimately certified, every provision of that text must be taken tocomply with the Constitutional Principles. It follows that where there is more than onereasonable interpretation of a provision which was not specifically considered in thecertification judgments, it is impermissible to attribute to the provision a meaning whichwould have failed to comply with the Constitutional Principles and would thereby haverendered the entire text uncertifiable.5 This, of course, is an application of the principleunderlying the presumption of constitutionality applied in statutory interpretation, anddiscussed above, § 11.3(b).

1 The first certification judgment at para 42.2 One can imagine a situation in which a court is faced with two different interpretations of a particular clause,

either of which would have facilitated certification, but one of which was not considered by the Constitutional Courtin its judgment (our footnote).

3 The first certification judgment at para 43.4 This principle was referred to and applied by the Constitutional Court in Premier, Western Cape v President of

the Republic of South Africa & others 1999 (3) SA 657 (CC), 1999 (4) BCLR 382 (CC) at paras 17--19 in evaluating(and rejecting) the applicant’s contention that its interpretation of the Constitution in relation to the executive powersof the provinces and their legitimate autonomy was the only interpretation consistent with the certificationjudgments.

5 This principle appears to have been accepted by the Constitutional Court in MEC for Development Planningand Local Government in Gauteng v Democratic Party & others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC).See paras 54, 55 and 59 in particular.



11.12 INTERPRETING THE CONSTITUTION AS A WHOLE

(a) The Preamble

37The Constitution begins with a Preamble which gives expression to the fundamental valuesand purposes of the Constitution as a whole. The Preamble locates the Constitution in itshistorical context. It is clear from the Preamble that we are dealing now with a text which isfoundational to a new society, no longer with a document which bridges the transition fromthe old to the new. Like the Preamble to the interim Constitution, the Preamble to theConstitution is bound to figure prominently in judicial interpretations of the Constitution.1

There is no Afterword to the Constitution.The founding provisions of the Constitution are set out in Chapter 1, and the basic values

and commitments which underpin the polity are expressed in s 1. This explicit acknowledge-ment of the principles which found the South African constitutional democracy is importantto constitutional interpretation because it provides an unequivocal statement of the funda-mental values which are to inform that exercise.

(b) The signed text

The English text of the Constitution was signed by the President.2 As discussed above,§ 11.2(b), now that there are eleven official languages it is not clear that, in cases of doubt,it is the text signed by the President which prevails. Section 240 specifically provides,however, that if there is inconsistency between different texts of the Constitution, the Englishtext prevails.

(c) Definitions and interpretation

(i) The presumption of constitutionality

A number of general provisions of the Constitution deals with questions of interpretation.The Constitution has no provision similar in its terms to IC s 232(3).3 As discussed above,IC s 232(3) explicitly conferred upon statutes a presumption of constitutional validity. Therecan be little doubt that the presumption of constitutionality, as a principle of statutoryinterpretation, applies even in the absence of an explicit provision to that effect in theConstitution.4 Indeed, IC s 232(3) and its counterpart, IC s 35(2), in the interim Bill of Rights,gave expression to an existing principle of statutory interpretation.5 In Roman-Dutch law aprinciple akin to the presumption of constitutionality is expressed in the maxim ‘in ambiguavoce legis ea potius accipienda est significatio, quae vitio caret’ ---- where a statute isambiguous, the meaning which avoids invalidity of the provision in question is to bepreferred. In our submission the presumption of constitutionality goes somewhat further ----

1 See, for example, Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC), 1997 (2) BCLR 153 (CC)at para 20; see above, § 11(2)(a).

2 On the question of the significance of the signed text in the present dispensation, see above, § 11.2(b).3 IC s 232(3) is considered above, § 11.2(c).4 See De Lange v Smuts NO & others 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC) at para 85.5 See the discussion above, § 11.3(b).

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the requirement that laws be interpreted to accord, if reasonably possible, with theConstitution does not necessarily depend on those laws being ambiguous.

(ii) International law

38The first three sections of the General Provisions chapter deal with international law andillustrate the enhanced importance of international law in South African legal practice.1

Section 232 provides that courts interpreting legislation must always prefer any reason-able interpretation which is consistent with international law over an interpretation which isinconsistent with international law. This imports the norms and values of international lawinto the very centre of the interpretation of South African laws. It invokes a principle whichis essentially similar to the presumption of constitutionality in statutory interpretation.2 Theinvocation of the presumption of consistency with international law further illustrates theenhanced importance of international law in South African law in general, and not simply inour human rights law.3 One consequence of the presumption of constitutionality is thatmeanings which were attributed to statutory provisions before the Constitution came intoeffect may no longer be authoritative.4 The same consequence follows from the requirementthat statutes be interpreted so as to comport, if possible, with international law.5

There is an important difference between interpreting a statute in the light of theConstitution and interpreting it in the light of international law. If a statute cannot reasonablybe interpreted so as comport with the requirements of the Constitution, it must be declaredinvalid to the extent of its invalidity.6 If a meaning consistent with international law cannotreasonably be attributed to a statute, the statute may nevertheless remain valid and binding.

In Azanian People’s Organisation (AZAPO) v President of the Republic of South AfricaAZAPO and the relatives of certain victims of apartheid atrocities sought to set aside s 20(7)of the Promotion of National Unity and Reconciliation Act7 (‘the TRC Act’) on theground that it was inconsistent with IC s 22, which enshrined the right of every personto have justiciable disputes settled by a court of law or, where appropriate, another inde-pendent or impartial forum.8 In advancing their argument the applicants contended thatinternational law required the state to prosecute those responsible for gross violations ofhuman rights, and that international law was breached by s 20(7) of the TRC Act, which

1 See also s 39(1)(b). Compare IC s 35(1) discussed above, § 11.3(a); see also below, ch 13.2 The presumption of constitutionality is discussed above, §§ 11.2(c) and 11.3(b) and (c).3 Section 39(1)(b) requires any court, tribunal or forum interpreting the Bill of Rights to consider international

law. IC s 35(1) requires judges interpreting the interim Bill of Rights to have regard, where applicable, to the relevantpublic international law. See the discussion of IC s 35(1) above, § 11.3(a).

4 See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) per Ackermann J at paras 59--64; cfHolomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 603G--H, 1996 (6) BCLR 836 (W); see also the discussionof this point above, § 11.3(b) and (c) and the cases there cited.

5 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 26 the court referred to the principle that the lawmakers of the Constitutionshould not lightly be presumed to authorize any law which might constitute a breach of the obligations of the statein terms of international law. Section 232 of the Constitution explicitly includes within the Constitution itself thepresumption that the legislature would not authorize legislation which is inconsistent with international law.

6 See FC s 172(1)(a). 7 Act 34 of 1995.8 1996 (4) SA 562 (CC), 1996 (8) BCLR 1015 (CC) at paras 25--32.



authorized amnesty for such offences.1 The Constitutional Court found s 20(7) of the TRCAct to be authorized by the interim Constitution and therefore valid. It rejected the argumentbased on international law on three grounds. First, it held that whether or not internationallaw imposes a different duty from that imposed by the interim Constitution was irrelevant tothe issue before the court, namely whether s 20(7) of the TRC Act was inconsistent with theinterim Constitution. For the purposes of this inquiry, international law was relevant only ininterpreting the interim Constitution itself. This is because of the presumption that the makersof the Constitution should not lightly be presumed to have authorized legislation in conflictwith South Africa’s obligations in terms of international law. Secondly, it doubted theapplicability to the South African conflict of the international-law instruments invoked bythe applicants. Thirdly, in the light of the context in which the TRC Act was promulgated thecourt did not consider that there was any breach of the obligations owed in terms of theinstruments of public international law relied on by the applicants.39 The court’s analysis and application of the public international law in question hasbeen incisively criticized.2 Hopefully, decisions dealing with international law under theConstitution will be more rigorous in their analysis and application of international law.

(iii) Definitions

Section 239 deals with the definition of certain terms used in the Constitution. The definitionof the term ‘organ of state’ is noteworthy, as it is wider in its ambit than the definition of thatterm in the interim Constitution.3

(iv) Interpretation of existing legislation

The Constitution creates a single national state with new national, provincial and localstructures, institutions and boundaries. Legislation which existed prior to the Constitutioncoming into force will frequently make reference to pre-constitutional structures, institutionsand boundaries. Section 3 of Schedule 6, which deals with transitional arrangements,therefore sets out the manner in which those pre-constitutional references are to be construed.

(d) Drafting history

The relevance and admissibility of the drafting history of the Constitution is equivalent tothat of the interim Constitution, discussed above, § 11.2(d). The particular significance ofthe role and function of the Constitutional Principles, and the certification judgments, isconsidered above, § 11.1.

One noteworthy feature of the Constitution is that it is drafted in what purports to be ‘plainEnglish’. For example, the word ‘must’ is used where a statute would usually say ‘shall’.

1 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC) at para 25.2 See John Dugard ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered

Question?’ (1997) 13 SAJHR 258; see also Claudia Braude & Derek Spitz ‘Memory and the Spectre of InternationalJustice: A Comment on AZAPO’ (1997) 13 SAJHR 269; cf below, ch 13.

3 See above, § 11.2(c). Depending on how broad an interpretation is given to FC s 8(2), the wider definition ofthe term ‘organ of state’ could have important consequences for the question of who is bound by the Bill of Rights.See the discussion of s 8 above, ch 10.

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The attempt to avoid conventional legal terminology and syntax is particularly apparent inthe Bill of Rights. For instance, the usual phrase ‘every person’ has been replaced with theword ‘everyone’, and ‘no person’ is replaced with ‘no one’. In certain instances, plain Englishprecludes ordinary English grammar. Section 24(a), for example, states that ‘Everyone hasthe right to an environment that is not harmful to their health and well-being’.40 Whether these sorts of changes to terminology usually used in legislative drafting achievesthe desired aims of simplicity and intelligibility is questionable. It is patently desirable forall laws, especially the Constitution, to be drafted in a language and style which is as simpleand clear as possible. This is the mark of a well-drafted as opposed to a badly drafted law.Nevertheless, the value, or even the wisdom, of some of the devices used in the pursuit ofplain English is doubtful. There is nothing complicated or unclear about the words ‘everyperson’, or the word ‘shall’. A non-lawyer can understand such words, and they have a veryprecise meaning for lawyers and judicial officers, who are those most frequently and directlyinvolved in constitutional interpretation. When commonly used, well-understood words arereplaced by words less commonly used in law-making, confusion could result. As mentionedabove, the word ‘everyone’ is used each time that the words ‘every person’ were used in theformulation of the equivalent right in the interim Constitution. This is simply a matter ofstyle and drafting, and it is clear both from the drafting history and from the text itself thatno particular significance may properly be attributed to this change in respect of any oneright. In the context of the right to life, however, the word ‘person’ conveyed a particularsense, and carried with it an authoritative legal construction of personhood which is notsimilarly implicit in the word ‘everyone’.1 It is inevitable that those who argue that the rightto life in s 11 extends to a foetus will attempt to persuade the courts that the presentformulation of s 11 favours their argument. Regardless of the substantive answer to thequestion of whether a foetus is a bearer of constitutional rights, we submit that the historicalbackground to the change in the formulation of the right to life makes it clear that theformulation used was not intended to influence the answer to that question.

(e) Implied provisions

Whether ---- and, if so, under what circumstances ---- it would be permissible to imply intothe constitutional text unexpressed provisions is a complex matter which will be consideredover time. Where ordinary statutes are concerned it is well known that before one can readinto a statute by implication that implication must be necessary ‘in the sense that without iteffect cannot be given to the statute as it stands.’2 In other words, an implication must benecessary ‘to realise the ostensible legislative intention or to make the Act workable’.3

At this stage we seek to do no more than alert the reader to certain themes which arebeginning to emerge on the question of implied provisions in a constitutional context. Thefirst pertains to efforts to imply powers which are not expressed in the constitutional text. Inthis regard, the Constitutional Court has said, not surprisingly, that a power cannot be implied

1 See the discussion of this question below, chs 15 and 16.2 Rennie NO v Gordon & another NNO 1988 (1) SA 1 (A) at 22E.3 Palvie v Motale Bus Service (Pty) Ltd 1993 (4) SA 742 (A) at 749C.



if it contradicts an express provision of the Constitution.1 The second theme concerns thecircumstances under which terms may be implied into the text more generally. Thus, forexample, in considering whether IC s 22, which guarantees the right of access to courts, hadthe effect of constitutionalizing civil procedure by implication, the Constitutional Courtconcluded that the interim Constitution as a whole, and the section in particular, wereworkable and achieved the ostensible legislative intention without the need to imply aconstitutional right to fairness in civil litigation.2 In Executive Council, Western CapeLegislature v President of the Republic of South Africa,3 by contrast, the Constitutional Courtheld that it was a necessary implication of the interim Constitution that Parliament shouldhave the power to delegate subordinate legislative powers to the executive. This, ChaskalsonP said, ‘was necessary to give effect to the primary legislative power of Parliament’.

11.13 THE BILL OF RIGHTS

41Section 39 of the Constitution deals with the interpretation of the Bill of Rights.Section 39(1) provides:

‘When interpreting the Bill of Rights, a court, tribunal or forum ----(a) must promote the values that underlie an open and democratic society based on human dignity,

equality and freedom;(b) must consider international law; and(c) may consider foreign law.’

Section 39(1) is similar in essence to IC s 35(1), discussed above, § 11.3(a). WhereasIC s 35(1) referred only to courts of law, s 39(1) refers to ‘a court, tribunal or forum’. Thisaccords with the broader reach of the Bill of Rights and the fact that the interpretation of theBill of Rights is not the exclusive domain of courts of law but forms an important componentof the interpretation, application and development of the law at every level.

Section 39(2) provides:‘When interpreting any legislation, and when developing the common law or customary law, everycourt, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’

This provision is similar in essence to IC s 35(3), discussed above, § 11.3(c), save that,like s 39(1), it applies to ‘every court, tribunal or forum’.4

There is, however, an important difference. IC s 35(3) required a court, when interpretingany law, and applying and developing the common law and customary law, to have ‘dueregard’ to the spirit, purport and objects of the Chapter on fundamental rights. Section 39(2)provides that a court, tribunal or forum interpreting legislation and developing the commonlaw or customary law ‘must promote’ the spirit, purport and objects of the Bill of Rights.To ‘promote’ in this context means to further or advance. It means more than simply taking

1 Premier, Western Cape v President of the Republic of South Africa & others 1999 (3) SA 657 (CC), 1999 (4)BCLR 382 (CC) at para 12.

2 Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at para 105.3 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 62.4 It should be noted that in Davis v Tip NO 1996 (1) SA 1152 (W), 1996 (6) BCLR 807 (W) Nugent J held that

IC Chapter 3 applied to the proceedings of a disciplinary tribunal.

INTERPRETATION


into proper account. Hence s 39(2) places an even stronger obligation on judicial bodiesto advance the values of the Bill of Rights in the course of adjudication.1 It is important tostress that both IC s 35(3) and FC s 39(2) confer a jurisdiction on judicial bodies which isnot merely permissive or optional but which must be exercised.2

42 Section 39(3) provides:‘The Bill of Rights does not deny the existence of any other rights or freedoms that are recognisedor conferred by common law, customary or legislation, to the extent that they are consistent withthe Bill.’

This section is equivalent to the provision to the same effect contained in IC s 33(3). Itmakes it clear that the Bill of Rights, a statement of fundamental constitutional rights, is notexhaustive of the rights to which those protected by the Bill of Rights are entitled. These mayinclude a range of common-law, customary-law and legislative rights and entitlements.

There is no equivalent in s 39 to IC s 35(2), discussed above, § 11.3(b). As we submittedabove with reference to the fact that the Constitution contains no equivalent provision toIC s 232(3), the presumption of consistency with the Bill of Rights exists independently ofits expression in IC s 35(2). The presumption therefore applies to the interpretation of lawsunder the Bill of Rights.3

11.14 TWO-STAGE ANALYSIS UNDER THE FINAL CONSTITUTION

The two-stage approach to constitutional analysis under the interim Constitution remains theproper approach to constitutional analysis under the Constitution. The reader is thereforereferred to the discussion of two-stage analysis in § 11.10 above.

(a) Stage One ---- the content of the right

The reader is referred to § 11.10(a) above.Where questions concerning the content of fundamental rights are concerned, it is

important to emphasize a distinction between the ways in which different fundamental rightsmay be exercised or enjoyed. On the one hand, there are rights which may be exercised quiteindependently of any conduct by the state, and which may be enjoyed precisely because thestate is required to refrain from acting. On the other hand, there are rights, for example, theright to vote, which are positive rights in the sense that their exercise and enjoyment requires

1 See S v Letaoane 1997 (11) BCLR 1581 (W). For application of the injunction contained in FC s 39(2) seeS v S 1999 (1) SACR 608 (W) at 612g--j, where Nugent J, with whom Schwartzman J concurred, interpreted s 304(4)of the Criminal Procedure Act in light of the constitutional right to a fair trial (which includes the right ofappeal or review by a higher court) entrenched in FC s 35(3). The court held that the section, which provides forreview of matters which are not subject to review in the ordinary course, was quite capable of an interpretationwhich rendered subject to review a decision by a magistrate to put into operation a suspended sentence.

2 The question of the scope of IC s 35(3) and its impact upon pre-constitutional precedent has been consideredin the context of the impact of freedom of expression on the common-law rules of defamation. See below, § 20.8(b).

3 See, for example, Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326(LAC) at paras 25--8 (the need to interpret legislation in a manner consistent with the Constitution led the LabourAppeal Court to give to the word ‘despite’ in s 158(1)(g) of the Labour Relations Act 66 of 1995 the meaning ‘subjectto’ even though the latter meaning was not the most obvious meaning).



the government to take positive steps.1 Two recent decisions of the Constitutional Court haveimportant implications for the inquiry into the content of the right where that right itselfimposes obligations on Parliament to legislate in order to secure its exercise.43 Shortly before the national elections scheduled for June 1999 were to be held, two politicalparties launched separate applications challenging various provisions of the Electoral Act 73of 1998.2 Those provisions limited the category of identity document that could validly beused for the purposes of registration and voting in the elections. Significant numbers ofotherwise eligible voters were not in possession of the required documents and were requiredto obtain them within a short period of time if they wanted to vote in the elections. Many ofthese potential voters did, however, hold other identity documents which were legally validfor all other purposes. The constitutional complaint was that the statutory restriction of thecategory of identity documents which could be used for registration and voting infringedthe fundamental right to vote protected by s 19(3) of the Constitution. In determining thischallenge the Constitutional Court was required to consider the content of the right to voteprotected by s 19(3) of the Constitution. A great deal turned on the manner in which thecontent of the right was defined. If regulation of the right to vote by means, for example, oflimiting the category of identity document that could validly be used, constituted a limitationon or infringement of the right to vote, then the state would have been required to justify thatlimitation in terms of s 36(1), the limitation clause. If, by contrast, the content of the rightitself included measures to regulate its exercise, then those measures did not themselves limitthe right and limitations analysis would not apply. How the content of the right to vote wascharacterized turned out to be decisive in these election cases.

In the New National Party case Yacoob J, writing for the majority, held that the right tovote ‘without proper arrangements for its effective exercise does nothing for a democracy;it is both empty and useless’.3 Consequently, the content of the right to vote, protectedby s 19(3), had to be understood in relation to the right to free and fair elections entrenchedin s 19(2). As Yacoob J said:

‘The right to vote is, of course, indispensable to, and empty without, the right to free and fairelections; the latter gives content and meaning to the former. The right to free and fair electionsunderlines the importance of the exercise of the right to vote and the requirement that every electionshould be fair has implications for the way in which the right to vote can be given more substantivecontent and legitimately exercised. Two of these implications are material for this case: each citizen

1 The distinction between negative rights ---- the enjoyment of which depends upon government inaction ---- andpositive rights ---- the enjoyment of which imposes on the state a positive duty to legislate ---- is drawn clearly inO’Regan J’s minority judgment in New National Party of South Africa v Government of the Republic of South Africa& others 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 118. The distinction is also clearly at work inYacoob J’s judgment on behalf of the majority in the same case.

2 New National Party of South Africa v Government of the Republic of South Africa & others 1999 (3) SA 191(CC), 1999 (5) BCLR 489 (CC); Democratic Party v Minister of Home Affairs & another 1999 (3) SA 254 (CC),1999 (6) BCLR 607 (CC).

3 New National Party at para 11.

INTERPRETATION


entitled to do so must not vote more than once in any election; any person not entitled to vote mustnot be permitted to do so. The extent to which these deviations occur will have an impact on thefairness of the election. This means that the regulation of the exercise of the right to vote is necessaryso that these deviations can be eliminated or restricted in order to ensure the proper implementationof the right to vote.’1

44The court therefore made use of the right to free and fair elections in order to give contentto the right to vote. As a result, it concluded that the right to vote included within it the takingof measures necessary to give effect to the right by regulating its exercise and giving itsubstantive content. Having thus defined the content of the right, the court then analysed thestatutory provisions under challenge. It did so not on the basis that the impugned provisionslimited the right to vote and therefore required justification under the limitation clause, butrather that they constituted measures necessary to regulate the exercise of the right to voteand formed part of the right itself. The content of the right therefore included both the rightto vote and the measures necessary to exercise that right.

In the Democratic Party case Goldstone J, writing for the majority, reiterated theconstitutional framework adopted in the New National Party case, namely that the impugnedprovisions of the Electoral Act do not constitute limitations on the rights relied on and thatlimitations analysis was accordingly unnecessary.2

Even though the right to vote included measures regulating its exercise, this could notmean that any measures at all would be permissible. It remained, then, to determine and applythe appropriate standard of review to the measures in question. In the New National Partycase Yacoob J concluded that what was required of the statutory measures was that they mustbe rationally related to the achievement of a legitimate governmental purpose.3 This, wesubmit, amounts to a low level of constitutional scrutiny of the measures, and a deferentialapproach to legislative choice. Only arbitrary or irrational measures regulating the exerciseof the right to vote would fail to satisfy this standard.

But the court’s definition of the content of the right did not, we submit, compel it to adoptthe deferential standard of mere rationality. Nevertheless, the majority concluded that it wasfundamental to the doctrine of separation of powers and to the proper role of the courts in ademocracy that courts do not review Acts of Parliament on the grounds that they areunreasonable.4 It was with the adoption by the majority of mere rationality review that it andO’Regan J parted company in the election cases. Although the learned judge agreed that itwas a misunderstanding of the right to vote to consider all measures regulating elections tobe a limitation of that right, she disagreed with the deferential standard adopted by themajority. In a strong dissent O’Regan J acknowledged that questions of reasonableness andjustifi- ability are generally reserved for consideration once it has been demonstrated that afundamental right had been infringed. But certain rights, the learned judge reasoned,including the right to free and fair elections, contained certain ‘broad equitable defining

1 New National Party at para 12.2 Democratic Party at para 9.3 New National Party at para 19 read with paras 24 and 25.4 New National Party at para 24.



characteristics’ making an inquiry into reasonableness (and not merely a standard ofrationality review) relevant even at the threshold stage of considering the content of the right.1

The proper approach, O’Regan J said, ‘is to require legislative regulation of the right to voteto be reasonable’.2 Relevant considerations include the nature of the regulation, its purposeand its likely effect on the right to vote. These considerations were to be considered ‘in thelight of the centrality of free and fair elections and the right to vote in the democratic orderwhich our Constitution establishes’.3 The question was whether the measure introduced torestrict the range of identity documents was reasonable in the circumstances in whichParliament chose to adopt it.4 The learned judge, applying the standard of reasonableness tothe question, concluded:

‘The effect of it is that it is not necessary to undertake a full and separate limitations analysis. As Ihave found, the government purposes suggested, while legitimate, do not weigh heavily in the scalesof justification. Against that, one has the fact that a large number of voters who had lawful and validforms of identification have been compelled to obtain other forms of identification in a short periodof time in order to be able to register and vote. Failure to obtain the prescribed forms of identificationwill result in disenfranchisement. In my view, this result betrays a disregard for the importance ofthe right to vote in free and fair elections in a country where such a right is only in its infancy. Theprovisions cannot, in my view, be considered reasonable or justifiable in the circumstances.’5

45 As we have pointed out above, all members of the court in the election cases agreed thatthe content of the right to vote included measures designed to regulate its exercise. Suchmeasures were not limitations on the right but necessary to give it substance. This, we submit,was because, unlike certain other fundamental rights, the right to vote was secured not byrequiring the state to refrain from acting but by imposing on the state a positive duty tolegislate. In this context the majority emphasized its concern with the proper role of courtsin a democracy and adopted a deferential approach to the measures in question. An inquiryinto reasonableness, it held, would only be appropriate if the legislation under consideration,although rational, nevertheless infringed a fundamental right. Where legislation wasarbitrary, by contrast, review would be competent because arbitrariness is inconsistent withthe rule of law.6 By contrast the minority judgment adopted a standard of review forreasonableness. We submit that this standard of reasonableness evinces a deep concern thatany other, more deferential, approach would be insufficiently protective of the right to voteupon which democratic government is based and from which it draws its fundamental claimsto legitimacy. For the minority, the constitutionality of the measures in question could notbe determined at the high level of generality or abstraction implied by invoking the principleof the rule of law.

1 New National Party at para 123.2 New National Party at para 127.3 New National Party at para 128.4 New National Party at para 128.5 New National Party at para 160.6 New National Party at para 24.

INTERPRETATION


The majority decision seeks to protect democratic governance by limiting the extent ofjudicial intervention into the domain of legislative choices except where fundamental rightsare infringed. The minority judgment seeks to advance the same protective end by applyingmore rigorous scrutiny to measures that restrict the exercise of the right to vote. It does so,we submit, precisely because of a concern that what is at stake in the election cases issomething even more fundamental than protecting the free exercise of legislative choice inthis area.

(b) Stage Two ---- limitation of rights

46The reader is referred to § 11.10(b) above.The approach to the limitation of rights expounded under the interim Constitution in

S v Makwanyane & another1 required a weighing up of competing values and an assessmentbased on proportionality. That approach has not been altered, in any material respect, bys 36(1) of the Constitution, except that s 36(1)(e) expressly requires that less restrictive meansto achieve the legislative purpose in question must be taken into account.2

(c) Onus and standard of proof at each stage

The reader is referred to § 11.10(c) above.

1 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), 1995 (2) SACR 1 (CC) at para 104.2 De Lange v Smuts NO & others 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC) at paras 87--8; National

Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC),1998 (2) SACR 556 (CC) at paras 33--5.



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