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n South African Law Journal - 'In the beginning was the word' : the role of text in the interpretation of statutes

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Abstract

In five recent decisions the Constitutional Court has interpreted legislation in a manner that is incompatible with the words of the statutes. This article criticises the court's approach in these cases and argues for a return to the carefully calibrated approach to interpretation that the court has always advocated. We describe the court's current interpretive doctrine to set the scene for the charge that the court has been unfaithful to that approach. We then discuss each of the five cases - and . Read together, these cases indicate that, when it suits it, the court is willing to ignore legislative text. This unrestrained interpretive method threatens the rule of law and the separation of powers without necessarily securing more just outcomes. We argue that there are three drivers of this approach: practitioners' and courts' over-use of section 39(2) rather than direct application; an academic legal culture that encourages disregard for the text; and the single-step structure of the interpretive method. We propose a two-stage approach to mitigate these risks: first, identifying the available meanings and explaining how they fit the text; and, secondly, relying on the values of the Constitution to choose a meaning.We do not call for a return to the arid literalism of yesteryear, and support the court's attempt to secure just outcomes, but argue that it can and should do so without sacrificing the text.

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/content/ju_salj/129/4/EJC126880
2012-11-01
2016-12-05
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