A Comparative Analysis of Common-Law Presumptions of Statutory Interpretation

• Jurisdiction: South Africa
• Date: 27 May 2019
• Author: Marius van Staden
• Citation: (2015) 26 Stell LR 550
• Pages: 550-582
• Published date: 27 May 2019

550

A COMPARATIVE ANALYSIS OF COMMON-

LAW PRESUMPTIONS OF STATUTORY

INTERPRETATION

Marius van Staden

LLB LLM

Lecturer, Department of Public Law, University of Johannesburg

1 Introduction

Theory of statut ory interpret ation in South African a nd American law shares

the same English-law ancestr y.1 A comparison between these jurisdict ions

are valuable because canons of inte rpretation in both of these ju risdictions

function withi n the context of a justiciable constitution and, as such, much ca n

be discerned f rom the utility of these canons and t here scope of application

vis-à-vis a supreme law. In addition, both jurisdict ions have a rich tradition

of teaching canons of inter pretation in their resp ective law schools, and

these canons are reg ularly utilised by both judiciaries t o construct legislative

provisions. Nevertheless, the stat us of these canons, which also include

the presumptions of stat utory interpret ation, has become dubious in both

jurisdictions in r ecent times. In South Afr ica, the usefulness and con stitutional

appropriateness of these pre sumptions have been questioned since the

adoption of a justiciable constitution.2 It has , for example, been argue d (albeit

incorrectly) that presu mptions may be inconsistent with a purposive approach

to statutory i nterpretation (and especially to con stitutional inter pretation),

and that the increa sed use of purposive approaches to the inte rpretation of

statutes will m ake the presumptions “necessa rily less importa nt than in the

days of more literal inter pretation”.3 In the United States of America (“USA”),

the most ardent attack ha s come from the realist movement which tried t o

use canons of statutor y interpretation a s proof of their central thesis that the

law was indet erminate and mostly inuenced by non-legal and idiosyncratic

factors.4 Llewellyn for example attacked these canon s by averring that

“there are two oppo sing canons of construction on al most every point”.5

Instead, the se canons were labelled as “mechanical, af ter-the-fact recitations

1 The common law of Sou th African stat utory interpr etation is English law and n ot (as often erroneously

thought) Roman-D utch law. In De Villiers v Th e Cape Division al Council 1875 Buch 50 64 it was held t hat

“in constr uing stat utes made in t his Colony afte r the cession to t he British Crown , this Cour t should, in my

opinion, be g uided by the decisio ns of the English Cou rts, and not by t he Roman-Dutc h authorities”. Refer

to D Cowen “Prolegome non to a Restatement of the Pr inciples of Statutor y Interpretatio n” in S Cowen

(ed) C owen on Law (2009) 97 121. Originall y published in D Cowen “Proleg omenon to a Restateme nt of

the Princi ples of Statutory I nterpretatio n” (1976) TSAR 131 131-167.

2 S v Mhlungu 1995 3 SA 867 (CC) par a 115.

3 Thomson New spapers v Canada 67 DLR (4th) 161 192; R Cross Statutory Interpretation (198 7) 189-190.

4 Refer to D Meyerson Jurisprudence (2 013) 183.

5 K Llewellyn “Rema rks on the Theory of the Appell ate Division and the Ru les or Canons about How

Statutes A re to Be Constru ed” (1950) 3 Vand L Rev 395 401.

(2015) 26 Stell LR 550

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disguising the reason s for decision”.6 Posner described t hese canons as

“g leaves for decisions rea ched on other grounds”, “just plain wrong” a nd

“[v]acuous and inconsistent”.7 Similarly, Wiechers argued that the way in

which the courts i n South Africa had used the se canons were unpredictable

to a high degree.8 This c riticism has been raised in a time when societie s have

seen a proliferation in the promulgat ion of statutes and where these stat utes

are increasingly complex, ambig uous and dif cult to inter pret.9

In the discussion that follows the respon ses to these attacks wi ll be

considered to demonstr ate the potential utility of the presu mptions of statutory

interpretat ion and the appropriate status thereof in a legal sys tem. Thereafter,

the most commonly cited South Af rican presumptions wi ll be compared

to similar presu mptions (or canons) of statutory interpret ation in the US. It

should be noted that although both ju risdictions contain the p rinciples or

standards i nherent to these presumptions, they are oft en described differently

in the USA: not as presumptions but as canon s of statutory inter pretation.

Irrespect ive of the difference in t erminology, it will be argued that all canons

or presumptions of statut ory interpret ation are manifestations of legal

standards, pr inciples or public values in the USA and South African legal

systems.10 It will be shown that some even perceive thes e standards to be

akin in stat us to constitutional values.

2 The utility of presumptions of s tatutory interpretation

In the USA it has been argued t hat, despite realist criticism, ca nons of

statutory i nterpretation are valua ble because they represent “generalizat ions

of experience”11 which were developed “by reason a nd tend to a better

administ ration of justice”.12 This point does not necessarily challenge the

realist view of law, and any successful objection to such cr iticism will have

to rest on an opposing view of the nat ure of law. The utility of presumptions

or canons of statutor y interpretation can p erhaps best be described by the

Dworkinian accou nt of the law, recalling that Ronald Dworkin drew a

distinction bet ween rules and principles. Dworki n’s start ing point was that

there is more to law than explicit ru les of law and that there are also “moral”

principles which exist withi n the law. Whilst rules either apply or do not

apply, principles can be relevant to a given case without being decisive.13

Principles will always car ry some weight but not conclusive weight, and

judges will have to decide how much weight a principle will car ry (taking into

6 CR Sunstein “ Interpreti ng Statutes in t he Regulatory St ate” (1989) 45 Harv L Rev 405 451.

7 Writing as an a cademic: RA Posner “St atutory Inter pretation - in the Cla ssroom and in the Cou rtroom”

(1983) 50 U Chi L Rev 800 806; writi ng as a judge: Continental Cas. Co. v Pittsburgh Corning Corp. 917

F.2d 297 (7th Cir. 1990) 300.

8 M Wiechers “Die Bro nne van die Admin istratiefreg ” (1966) 29 THRHR 103 113.

9 M van Staden “T he Role of the Judiciar y in Balancing Fl exibility and Se curity” (2013) 2 De Jure 470 471;

JR Macey & GP Mil ler “The Canons of St atutory Const ruction and Jud icial Preference s” (1992) 45 Vand

L Rev 647 666.

10 Sunstein (1989) Harv L Re v 413.

11 F Frankf urter “Some Ref lections on the R eading of Statute s” (1974) 47 Colum L Rev 527 544.

12 R Pound Jurisprudence (1959) 50 6.

13 R Dworkin Taking Rights Seriously (1977 ) 23.

PRESUMPTIONS OF STATUTORY INTERPRETATION 551

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consideration other competi ng principles) when applied to the circumstanc es

of a given case.14 This distinction is ce ntral to Dworkin’s thesis that the

law is always determinate, a nd he avers that although rules can not always

provide clear answers, principles ca n always supply the answer. Judges can

therefore go beyond established and explicit rules (in cluding rules contained

in statutes) and still come t o a decision according to the law.15 According

to such a Dworkinian view, it may therefore be arg ued that principles are

more important t han express rules. Canon s and presumptions of statutor y

interpretat ion are manifestations of these pr inciples as they represent the

“political and moral concer ns and traditions of the com munity”.16 These

principles may also be descr ibed as “public values”.17 As such, they should be

seen as extremely impor tant as they are capable, at least in t he Dworkinian

view, of supplying answers whilst rules ca nnot always do so. The key point of

criticism from Critica l Legal Studies (“CLS”) theorists is th at principles in a

legal system are so conicting that it is possible to use principles to justify any

possible outcome.18 Dworkin’s response has been that these theor ists confuse

contradictor y principles with competing pr inciples. Dworkin acknowledges

that there might be compet ing principles in law, which in his opinion is hardly

surprisi ng in a complex world, but he argues that both principles may general ly

be accommodated by g iving relative weight to competi ng principles.19

The implication for such a view on the inter pretation of statutes is best

explained by Cas Sunstein:

“Statutes do not have pre-interpretive meanings, and the process of interpretation requires courts

to draw on background principles. These principles are usually not ‘in’ any authoritative enactment

but instead are drawn from the particular context and, more generally, from the legal culture.

Disagreements about meaning often turn not on statutory terms ‘themselves,’ but instead on the

appropriate interpretive principles.”20

According to the author, such principles the refore have four distinct

functions (with a single pri nciple often serving many f unctions at once). Firstly,

principles “orient judicial readers t o the text in order to help them to ascertain

14 22-28.

15 This version d iffers from H art’s account of law i n that Hart de nies that thes e principles a re legal principle s

but instead ave rs that they are moral or pol itical principles. In ha rd cases, Hart claim s, judges have no

choice but to decide a ccording to these pr inciples but in such ca ses they do not apply the law but i nstead

create law. Dworki n and Hart therefore dis agree as to whether or not th ese principles should car ry the

label of “law”. As both aut hors agree that thes e principles are to be appl ied, this distinc tion should not,

for our purp oses, have any bearin g on the utility of the pre sumptions of statut ory interpret ation and the

values or prin ciples that they encompa ss. It serves no purpo se to debate whether or not t hese principles

are of a legal natu re or of a purely moral or political n ature. Instead, it sh ould suffice to say that t hey

are regula rly applied to resolve legal di sputes on both accou nts. Refer to HLA Hart T he Concept of Law

(1961) 18-25 and 79; HLA Ha rt “Positivism an d the Separation of L aw and Morals” (1958) 71 Harv L Rev

593 593-629.

16 Dworki n Taking Rights Seriou sly 67. L du Plessis Re-interpretation of Statutes (2002) 149:

“[The presu mptions] carry the weig ht of ‘principles’ as Dworki n understands t he concept. Principle s

are legal stan dards that, un like rules, do no t operate in an all- or-nothing fashio n.”

17 E Elhauge Sta tutory Default R ules: How to Interpret Un clear Legislatio n (2008) 3.

18 J Waldron “Did Dwork in Ever Answer the Crits?” i n S Hershowitz (ed) Exploring Law’s Empire: The

Jurispru dence of Ronald Dwor kin (200 6) 164 .

19 R Dworkin Law’s Empire (1986) 268.

20 Sunstein (1989) Harv L Rev 4 11.

552 STELL LR 2015 3

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