2020 Lectures 21 and 22 Weighing up the arguments PDF

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UNIVERSITY OF THE WESTERN CAPELEGLECTURES 20 AND 21: Weighing up the Arguments In Lectures 12 to 20 we took a closer look at four aspects of the legal context that must be considered when the legal meaning of a statute is to be determined. These could also be understood as reasons or arguments that ...

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UNIVERSITY OF THE WESTERN CAPE LEG221 LECTURES 20 AND 21: Weighing up the Arguments

1. In Lectures 12 to 20 we took a closer look at four aspects of the legal context that must be considered when the legal meaning of a statute is to be determined. These could also be understood as reasons or arguments that are recognised in our law as valid support for a particular interpretation of a statute. 2. As we explained in Lectures 10 and 11, we largely rely on the description of the interpretive process provided in the Endumeni judgment and thus classified all the canons of interpretation (the various maxims, rules and presumptions) into one of the four core argument types or modes of interpretation identified in Endumeni and subsequent case law. Under the Endumeni approach, an interpreted is obliged, in every instance of interpretation, to look at the statute from four distinct angles or perspectives in order to develop as compete an understanding of the statute as possible, and thus to provide the best possible justification for the violence that the state will be authorised to exercise on the basis of the statute. Recall from Lectures 1 to 4 that the ideal of the rule of law (constitutionalism) provides that state power may only be exercised, even in the name of a God or the people or some divine right, if it is democratically authorised by the law. We are not governed by the inspiration of our leaders or the policies of the elected government; we are governed by validly enacted laws. The very reason statutes are enacted is to meet the precondition for the exercise of state power and violence. Statutory interpretation is not a game. The function of the court is to determine whether the exercise of state power and violence is indeed sanctioned by a given statute. The aim of statutory interpretation is to make the statute in question the best possible statute it can be, that is, the best possible justification for the state power and violence that may be brought to bear on an affected subject when a statute is enforced – literally by means of the court sanctioned use of force. 3. Under the Endumeni approach, an interpreter is required to pursue four distinguishable but closely related and often overlapping objectives when interpreting a statute. Clarity: The interpreter must seek to make the application of the statute as clear and predictable as possible to those affected by its provisions. This is important so that those subject to the law can take the law at face value and arrange their affairs in line with what the law requires. The interpreter must promote clarity of the law by sticking as close as reasonably possible, given the other objectives that must also be achieved, to the letter or ordinary meaning of the words and phrases used in formulation of the law. This is the goal of grammatical or linguistic interpretation. For the ordinary person going about his or her business in society this is often the most important consideration. We represented this quest with the blue baseball cap worn by the ordinary person. Consistency and coherence: The interpreter must seek to make the application of the law as internally consistent and coherent as possible. The interpreter must promote consistency and coherence by making sure that the interpretation of the statute makes sense in its setting within

the scheme of the statute and other related statutes. Anomalies and inconsistencies must be avoided to ensure that the aw forms a coherent and seamless web. This is the goal of schematic or structural or systematic interpretation. For academics this systemic coherence is often the overriding consideration. We represented this quest with the academic cap worn during graduation ceremonies. Efficiency: The interpreter must seek to make the application of the law as effective and efficient as possible as a means to achieve the policy objectives of the government. Laws are made to remedy a mischief and must be interpreted as far as is reasonably possible to achieve its policy objectives. This is important in a developmental state where a large part of the law is directed at the developmental challenges facing the population and to address poverty though basic service delivery. Laws that do not serve any rational purpose are arbitrary and irrational. Efficiency is the goal of purposive interpretation. For the administrators of the law working in the field the dominant consideration is whether the law works and achieves its anticipated outcomes. We represented this quest to make the law work as efficiently as possible with the yellow hat of the construction worker. Fairness and justice: The interpreter must seek to make the application of the law as fair and socially just as possible. Traditionally, the unfairness and injustice of a law were regarded as political issues that had to be considered by the legislature. Section 39(2) of the Bill of Rights no mandates interpreters to promote the spirit, purport and objects of the Bill of Rights when the interpret any statute. One of the aims of the interpretive process is to align the existing statute book with the founding values of the Constitution by interpreting or reinterpreting every state as far as it is reasonably possible to do, given the simultaneous pursuit of clarity, consistency and efficiency. Because this duty or aim is explicitly entrenched in the Constitution in several interpretive injunctions, such as section 39(2), 150 and 233, social activists regard the teleological interpretation of statutes as the primary consideration. A law should be just rather than clear. We represented this perspective and goal with the red cap of the social activist or revolutionary. 4. Endumeni and subsequent case law identifies four considerations that must be taken into account during the interpretive process. It does not rely on individual canons or aids to interpretation. However, it would be a mistake to think that the Endumeni “considerations” have replaced the traditional “canons” of interpretations. Rather, the four considerations provide a useful argumentation framework for the reorganisation and revitalisation of the traditional canons. 5. This approach to the Endumeni considerations is influenced by the work of Lourens du Plessis in the early 2000s (Re-Interpretation of statutes (2002)) and the word of MacCormick and Summers in the early 1990s (Interpreting statutes: A comparative perspective (1991)). Du Plessis was the first, and to date only, South African scholar to have attempted a reorganisation of the common law canons into a number of distinct but overlapping modes of interpretation or argument. In doing so he relied on the structure proposed by the German legal historian Carl von Savigny in the middle 1800s. Savigny was interested in the interpretation of the classic codes of Roman law and proposed four methods of interpretation: textual, systematic (or contextual), purposive (or teleological), and historical. Textual (or literal) interpretation is the use of the ordinary meaning of written acts to ascertain the law. Savigny describes the ‘systematic’ (contextual) element as the ‘inner linkage which connects all legal institutes and

legal rules so as to form one unitary whole’. Savigny defined the law’s purpose as ‘the effect that the law is intended to achieve’. Savigny defines historical interpretation as the reliance on the circumstances prevailing at the time a given law came into effect. Du Plessis adopted the same four methods and added comparative interpretation. MacCormick and Summers undertook a comparison of the interpretive arguments that are recognised in several countries and concluded that all interpretive canons can be classified into a smaller set of interpretive arguments. Relying on these universal argument types, they formulated what they called “statutory interpretation as justification”. Our own classification of the canons into four basic argument types was inspired by these earlier attempts to do so, updated in light of the four considerations identified in Endumeni and subsequent case law: the language of the statute, the structure of the statute and the setting of the provision in question, the purpose of the statute (political policy objectives), and the telos of the statute (foundational constitutional and common law values promoted by the statute). Our classification differs from those suggested by Savigny, MacCormick and Summers, and Du Plessis. For example, we incorporate historical argument under the purpose of the statute and treat it as one way of identifying the policy objectives behind the statute. 6. Each of these four perspectives or argument types is constitutionally valid and important. Each has its own strengths and weaknesses. The basic argument types can be attacked on the basis of their validity or force. 7. In Lectures 12 to 20 we focussed primarily on the validity of each argument type. We relied on the traditional canons of interpretation as the essential preconditions for a valid grammatical, schematic, purposive or teleological argument. An argument type can be attached based on its validity. When confronted by an argument about the meaning of a statute, the first response is to check and if necessary challenge the validity of the argument. An argument relying on the ordinary meaning of a word or phrase would be invalid if it does not comply with the canons of sound grammatical argumentation (eg, every word must be considered; different words must bear different meanings and surplusage must be avoided). An argument relying on the purpose of a statute would be invalid if it falsely identifies the purpose because it does not comply with the cannons of sound purposive argumentation (eg, ignoring the long title of the statute or the mischief that existed in society at the time the statute was adopted). 8. An argument type can be attacked based on its force or weight or importance. An interpretive argument may be valid but weak when compared to one or more of the other argument types. The case for a particular interpretation of a statute might overstate the strength of one or more of the basic argument types upon which it relies. This line of critique only becomes relevant where the four considerations or argument types do not all reinforce each other. 9. In this regard it is useful to distinguish between three ways in which the four basic argument types can be combined into a final argument. The single argument form relies on only one argument type for support. The cumulative argument form relies on and combines all four basic arguments in support of its interpretation. The conflict resolution form relies on one or more of the basic argument types and includes a further argument why those arguments must be accepted over and against the conflicting argument types. 10. Both the single and cumulative argument form are not often encountered in case law (but are the dominant argument form in day to day legal practice where the legal interpretation of a statute is not in dispute). An example of a cumulative interpretive argument can be found in

the judgment in Fishhoek Primary School v GW. In this case the court relied on a grammatical, systematic, purposive and teleological argument to support the interpretation of the word “parent” in the context of liability for school fees, to mean both biological parents, including the father without custody of the child. 11. Most cases we discussed during the semester involved conflict resolution argument types. In these cases, different interpretations of the statute were supported by different interpretive arguments (eg, the grammatical interpretation differed from the schematic interpretation). In these cases, the court had to reconcile the conflicts between the arguments and ultimately favour some arguments over the others. What have we learned from the case law about the way in which our courts deal with conflicting interpretative arguments or conflicting interpretations of the same statutory provision? 12. Our case law reveals two approaches to this crucial aspect of statutory interpretation. The difference boils down to the question whether it is possible to make meaningful generalisations about the weight of various interpretive arguments; and whether those generalisations can be captured or hard wired into the system in the form of a set of weighting rules or principles. Our case law and academic scholarship reveals two schools of thought: foundationalism and pragmatism (sometimes also confusingly called postmodernism). 14. Foundationalism. Foundationalists claim that some arguments are generally (theoretically) more important or foundational than others. They insist that a ranking or hierarchy of arguments is theoretically possible and that this hierarchy can be hardwired into our law of statutory interpretation by means of a set of additional canons. Recall that in Lectures 3 and 4 we said that the canons of interpretation can be divided into canons that prescribe what can be considered during the interpretation of a statute (what argument types can be presented in support of an interpretation) and canons that prescribe when these canons or argument types may be used or what weight each of the canons or argument types carries. Foundationalists insists that an interpreter may only consider less weighty consideration or argument if a weightier consideration or argument had failed to provide an answer to the interpretive question. Foundationalists all share the idea that some arguments and considerations are always more foundational or important than others. However, foundationalists differ among themselves about which argument is most important or foundational. Literalists ascribe this status to the ordinary grammatical meaning of the language of a provision and justifies this radically truncated view of the context on the basis of the importance of legal clarity and certainty in society. Textualists privilege the fair reading of the language of a provision in light of the statute as a whole (what we called schematic interpretation) as the foundation and present their own theoretical arguments in support of this foundation. The same applies to purposivists, intentionalists and those who always favour teleological arguments over any competing argument. 15. MacCormick and Summers suggested that all legal systems need such weighing rules and arguments but that this area of the law of statutory interpretation is universally poorly developed. 16. The most important weighting rule or canon in our law for most of the 20th century has been the golden rule. The golden rule establishes the ordinary meaning of the language of a statute (literalism) as the foundational or most important interpretive consideration or argument. Court must always adopt the literal interpretation over any contrary argument or

consideration. Only in a small number of exceptional instances may a court ascribe greater weight to another argument type (schematic, purposive or teleological). Most notably when the literal argument gives rise to a manifest absurdity. The golden rule justified this priority of interpretive arguments on the basis that the aim of interpretation is to give effect to the intention of the legislature and that the safest way for a court to do so is to stick to the ordinary meaning of the words chosen and enacted by the legislature. Under the golden rule a hierarchy of interpretive arguments developed in our law, which academics, such as Cilliers, started formalising in the mid-1960. In terms of this hierarchy grammatical arguments always outweighs or trumps all other arguments. Schematic, purposive and teleological arguments (at the time this meant reference to the common law presumptions) could only be considered if the grammatical argument was disqualified or not available, that is, where the language was vague or ambiguous or the literal meaning was absurd. Then the court could consider, in this order, the internal aids (schematic arguments), the external aids or purposive arguments (but only some carefully selected external aids, Hansard, for example, was not admissible) and finally, as a last resort, the public values of the legal system (the common law presumptions). Under the golden rule the interpretive process became a linear and algorithmic process. The process was divided into several clearly stages or levels. During the first stage the question was whether the language of the statute was clear. If yes, then the next question became whether the clear language was absurd. If no, that was the end of the argument. If yes, then the court could consider the rest of the statute and the list of other interpretive arguments in the prescribed order or sequence. The court could also consider the rest of the statute and the list of other interpretive arguments in the prescribed order or sequence if the language of the statute was unclear (vague or ambiguous). 17. This foundational approach based on either the literal meaning of statutory language or the intention of the legislature made its way into the democratic era. The story of the golden rule approach and its role during and after apartheid from the 1960s to 1994 has been told many times. A few points of this history will suffice here. (i) It is clear that the priority order celebrated by Cilliers in the 1960 served the interests of the apartheid state more than it did the interests of those involved in the struggle against apartheid. It relegated any appeal to the common law presumptions, especially the liberal value of personal freedom, to the bottom of the hierarchy of interpretive arguments. A literal interpretation of a statute always trumped a value-inspired or promoting interpretation of a statute. Security legislation of the 1960s was interpreted literally. Of course, Davis and Le Roux (Precedent & Possibility: The (ab)use of Law in South Africa (2009)) points out how lawyers used literal interpretations of apartheid statutes to undermine the policy objectives of the statutes and so turned literalism into a weapon in the struggle against apartheid. We saw examples of the same strategy in Dadoo v Krugersdorp Municipality (the literal interpretation of the law was less discriminatory than the purposive interpretation) and Bhyat v Commissioner of Immigration (the literal interpretation was less discriminatory than the schematic interpretation). In response, some courts turned in the 1960s from a literal to a purposive interpretation of security legislation (most notoriously in Rossouw v Sachs 1964 (2) SA551 (A) where the court ruled that Albie Sachs was not entitled to reading material while in detention, as this would have defeated the purpose of the detention, even though the statute did not expressly or literally exclude this common law right of a detainee). In reaction a group of academics urged the court to neither privilege literal nor purposive interpretations but

interpretations of apartheid legislation that promoted the common law values as far as possible (Dugard, Dyzenhaus, Mureinik, Du Plessis and Devenish). These academics argued our courts to treat the common law presumptions as a common law bill of rights and exercise what is now formally mandated under section 39(2) of the Bill of Rights – to promote the liberal spirit of the common law when interpreting apartheid legislation. This group of academics found some support among some judges (especially on the Natal bench) and played a key role in the drafting of the interim Constitution and the findings made by the Truth and Reconciliation Commission (TRC)about the way statutory interpretation contributed to apartheid. The outcome of this history is section 39(2) of the Bill of Rights. While the order of priority that developed upon the foundation of literalism under the golden rule placed the values of the common law at the bottom of the pile, the purpose of section 39(2) was to reverse that status and to mandate courts to promote the constitutional values of the democratic constitutional order in every instance, and not only when the language is unclear or the clear language is absurd. The implications of section 39(2), viewed from a foundationalist perspective, are contested. Our courts warned from the start that section 39(2) could not mean that teleological interpr...