A CORRECT APPROACH TO STATUTORY INTERPRETATION

As we know words have various definitions quite much so when looked at in reference to Statue. So how does one assume or derive the correct definition especially when it is under scrutiny. The Constitutional Court in Independent Institute of Education (Pty) Limited v Kwazulu-Natal Law Society and Others (CCT68/19) [2019] ZACC 47 lays down the guidelines to statutory interpretation quite firmly and puts fourth an answer to this much cumbersome question.

BACKGROUND

The Independent Institute of Education (Pty) Ltd (herein referred to as the “applicant”) launched an application against the Kwa Zulu Natal Law Society (KZN Law Society) for failure to recognise its LLB degree as being compliant with the requirements for entry into the attorneys profession, based on the KZN law Society`s interpretation of the term ‘University’, in terms of section 26 of the Legal Practice Act 28 of 2014 ( LPA). The KZN law Society contended that the words “any University registered in the Republic”, as it appears in section 26 of the LPA, excludes the Institute.

The applicant approached the Kwa-Zulu Natal Division of the High Court, Pietermaritzburg and challenged the constitutionality of section 26(1)(a) of the LPA .The High court held that the above mentioned section of the LPA was constitutionally invalid by virtue of its inconsistency with sections 9,22 and 29(3) of the Constitution.

CONSTITUTIONAL COURT (CC)

The applicant approached the Constitutional Court for the confirmation of the order of the High Court. The CC in its approach to fulfilling the above-mentioned objectives, applied statutory interpretation and guidelines.

The CC grappled with the fact that there was no sound reason for not ascribing the word ‘University’, its ordinary grammatical meaning and criticised the High Court for not doing so. The CC considered the following questions:

“is the institute not a high-level educational institution in which student study for degrees and academic research is done"?
“Would it be absurd to give the word university its ordinary grammatical meaning"?
“Would an absurdity arise when “university is construed in a way that excludes what is in reality a university"?

In addition, the CC stated that there is no principle of interpretation that requires a court to interpret one piece of legislation with reference to another, for the reason that one piece of statue may assign a different definition to the “word or expression” compared to that of the other. However, statues dealing with the “same subject matter”, or which are in “pari materia” should be construed together and harmoniously.

Which therefore gives arise to the question, why did the High Court not interpret the LPA in line with the Higher Education Act to give meaning to the word “University”? Simply put, all legislation must be interpreted through the prism of the Bill of Rights, which requires that all legislative provisions must be read so far as is possible, in conformity with the Constitution. Thus, an interpretation which is constitutionally compliant must be preferred over an interpretation which is not.

The statement above illustrates why the “ordinary grammatical meaning” of the term should thus, be adopted, since the interpretation of section 26(1)(a) of the LPA would give ‘University’ the same meaning as that ascribed to in the Higher Education Act. This will result in exclusion of the applicants students from entry into the legal profession, which will in turn limit various constitutional rights, inclusive of their rights to equal protection and benefit under section 9 (1) of the Constitution.

When constitutional rights are at issue, and where the ordinary grammatical meanings of the words used in the impugned provisions give effect to the constitutional rights and values, the words must bear that meaning rather than the meaning ascribed to those words in another piece of legislation. This is in accordance with section 39(2) of the Constitution:

“When interpreting any legislation, and when developing the common law or

customary law, every court, tribunal or forum must promote the spirit, purport and

objects of the Bill of Rights”

However, this criterion is used to interpret legislation to promote the spirit, purport and objects of the Bill of Rights. The interpretation must not be ‘unduly strained’, meaning that interpretation must be readily ascertainable from the text of the provision. The court found that the ordinary grammatical meaning given complies with this principle and held that:

“the interpretation it endorses is not unduly strained, it shows loyalty to the language

of the legislative provision it gives the word university its ordinary elementary

meaning, it gives effect to the purpose of the LPA, the interpretation neither results

in any clash between the LPA and Higher Education Act, nor does it render any part of

the Higher Education Act Ineffective.”

On application of Section 29 of the Constitution, the CC found that the ordinary meaning of the word “university” is in line with the provisions of Section 29 of the “Constitution” and promotes the very essence of the Bill of Rights and for all purposes an institution recognised under section 29(3) of the Constitution.

The judgement was handed down by the Honourable Mogoeng CJ and concurred by the majority, which held that the words ‘University’ in section 26(1)(a) of the LPA should be given a meaning which conforms with the provisions of section 29(3) of the Constitution, which gives effect to section 39(2) of the Constitution. Therefore, the High Court order declaring section 26(1)(a) of the LPA constitutionally invalid was not confirmed and accordingly set aside. The court further pronounced that the LLB graduates of the applicant are eligible for admission and enrolment as a legal practitioner in terms of the LPA.

With regards to the issue of costs, the applicant sought costs against the third respondent, the Minister of Justice and Correctional Services on the basis that the Minister failed to take measures to amend section 26(1)(a) of the LPA to include “private higher education institutions duly accredited and registered to provide the LLB degree”. The CC however, was satisfied that it was the KZN Law Society and not the Minister who should bear the costs, as it was the KZN Law Society who was of the mistaken view that the LLB degree from a duly registered private “higher educational institution in which student study for degrees” is not a University for purposes of section 26(1)(a), which was the source of the problem and the reason for the applications.

CONCLUSION

This very informative judgment lays down statutory principles that one should consider when taking the approach of giving meanings to ‘words or expressions’ which are not given a ‘special meaning’ in a particular piece of legislation. The judgment also contains a detailed analysis of when specific principles of interpretation will apply and when such principles should be deviated from. This judgment in its entirety reaffirms the stance that all legislation must be interpreted to give effect to the rights contained in the Constitution.

Contributor: Kyle Pillay (Candidate Attorney) (RAF/Litigation) (PMB)

E-mail: kylep@tmj.co.za

Tel: 033 341 9100

Reviewed By: Naazira Cassimjee (Senior Associate) (RAF/Litigation) (PMB)