'Has the literal / intentional / textual approach to statutory interpretation been dealt the coup de grace at last?' Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 7 BCLR 687 (CC) : case note

Abstract

South African law of statutory interpretation continues to be characterised by inconsistency and uncertainty. This is particularly the case in respect of the question whether it is permissible, during the process of interpretation, to have regard to the context of legislation, and, if so, at what stage of the process. In the pre-constitutional era, although rumblings of discontent were heard, the courts generally subscribed to the notion that if the words used in the statute concerned were clear, they had to be put into effect. The application of this rule resulted in the context playing a subsidiary role in the process of interpretation. Interestingly, this canon of construction continues to dominate the courts' jurisprudence under the new constitutional dispensation. The question is whether this is justifiable. The theme of this note is that adherence to this rule is contrary to the Constitution and that in the light of the Constitutional Court's decision in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC) this theory of interpretation is probably bound to become a thing of the past. In order fully to understand the impact of the Constitution on statutory interpretation and the importance of this decision, a brief discussion of the courts' approach to statutory interpretation under the previous constitutional system of parliamentary supremacy is necessary.

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