RVW ASSIGNMENT 1
NAME: LONDEKA THEMBELIHLE ZONDI
STUDENT NUMBER: U22599763
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i)Introduction
Prior to 1994 and the democratic era, the interpretation of legislation and statutes in South
Africa remained in alignment with parliamentary sovereignty which was essentially the
concept of the supremacy of parliament.1 With the beginning of the democratic era post 1994
and the coming into effect of the Constitution, new interpretation methodology came into
operation and this interpretation methodology is contained in Section 39(2) of the
Constitution which promotes that fundamental rights found in the Bill of Rights are to be
upheld during interpretation of statutes. In this essay, I will provide an advisory opinion on
the new post-1994 approach to interpretation wherein I will discuss how the interpretation
clause has affected the approach adopted by courts when interpreting statutes.
ii)Section 39(2) of the Constitution and The new interpretive approach followed in the
Bato Star case
Section 39(2) of the Constitution of South Africa is the interpretation clause that provides that
during the interpretation of any legislation and the development of the common law or
customary law, all courts, forums or tribunals must advance the spirit, purport and object of
the Bill of Rights.2 Section 39(2) is a binding provision that forces those in charge of
interpretation to promote values enshrined in the Bill of Rights and requires all courts,
tribunals and forums to review the aim of legislation with regards to the Bill of Rights.3 As
stated by the Interpretation clause, the interpretation of statutes begins, not with legislative
text but rather, with the Constitution and those in charge of interpretation have to make
reference to extra-textual factors before taking into account any legislative text, these factors
are hence immediately involved in the process of interpretation.4 This clause and the
interpretive approach enshrined in the abovementioned clause was applied in the Bato Star
case, where the applicant, Bato Star Fishing (Pty) Ltd was not satisfied with the allocation
they received for the 2002-2005 fishing seasons and applied to have this allocation decision
reviewed.5 The new interpretive approach followed in the Bato Star case according to
C Botha Statutory Interpretation An Introduction for Sudents (Juta 2012) 102.
The Constitution of the Republic of South Africa, 1996.
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Botha (n1) 101
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Botha (n1) 101
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Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourisim 2004(4) SA 490 (CC).
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Ngcobo J is one that emphasized the Constitution as the commencement point in the process
of interpretation for any legislation. This new approach also stated that a statute had to be
able to be interpreted using this method and that the interpretation of a statute had to advance
at least one recognizable value found in the Bill of Rights where possible. This new
interpretive approach takes into consideration the context of words used, regardless of
whether the words used are clear and unambiguous.6
iii)The constitutional foundation according to Langa DP and Ngcobo J
In the case of re Hyundai Motor Distributors (Pty) Ltd v Smit 2001, Langa DP sheds some
light on the constitutional foundation found in the new interpretive approach, which is section
39(2), the interpretation clause. According to Langa DP, all legislative bodies must exercise
their power in a way that aligns with the Constitution and its values, this means that in their
law-making duties, they must promote the founding principles of freedom, equality and
human dignity.7 In addition, he explains section 39(2) and the constitutional foundation of it
by stating that the meaning of this section is that the interpretation of all statutes must be
done in alignment with the Bill of Rights. He furthermore, explains that the Constitution is a
living breathing document that incorporates the history involving a transition of a society that
was once based on the unconstitutional principles of racial divide and injustice and the
exclusion of some races from participating in the process of democracy to a society that
includes all in the process of democracy. This is important because it sheds light on the
context through which the Constitution should be interpreted in light of Section 39(
2). Moreover, Langa DP explains that in the process of interpretation of the Constitution, one
must acknowledge and recognise the goal of the Constitution, which is a society based on
basic human rights, democratic values and social justice, these values are enshrined in the
Bill of Rights and Section 39(2) promotes the advancement of such values during the
interpretation of statutes.8 Ngcobo J, as mentioned in the paragraph before this, also touches
on the constitutional foundation found in the new interpretive approach by stating that the
interpretation of any legislation begins with the Constitution according to Section 39(2).9
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Botha (n1) 101
Botha (n1) 101
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Botha (n1) 102
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Botha (n1) 101
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iv)Conclusion
In summary and with reference to the question posed, the era of constitutional supremacy has
brought forth new interpretation methodology that is in alignment with the fundamental
values set out in the Bill of Rights in the form of an interpretation clause stipulated in the
Constitution. This clause protects constitutional values of democracy, equality, human dignity
and freedom, and has impacted the way in which the courts interpret legislation and statutes
in that it makes it a fundamental requirement that the courts uphold the basic principles found
in the Bill of Rights during interpretation and influences the courts to move from
parliamentary sovereignty to constitutional supremacy by applying the principle that the
interpretation of statutes begins with the Constitution as stipulated in Section 39(2) of the
Constitution. 10
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Botha (n1) 101
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References
Case law
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourisim 2004(4) SA 490 (CC)
Textbook
Botha, C Statutory Interpretation An Introduction for Students (Juta 2012)
Legislation
The Constitution of the Republic of South Africa, 1996
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