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

1Introduction

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

the same English-law ancestry.1 A comparison between these jurisdictions

are valuable because canons of interpretation in both of these jurisdictions

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

be discerned from the utility of these canons and there scope of application

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

of teaching canons of interpretation in their respective law schools, and

these canons are regularly utilised by both judiciaries to construct legislative

provisions. Nevertheless, the status of these canons, which also include

the presumptions of statutory interpretation, has become dubious in both

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

appropriateness of these presumptions 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 interpretation (and especially to constitutional interpretation),

and that the increased use of purposive approaches to the interpretation of

statutes will make the presumptions “necessarily less important than in the

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

the most ardent attack has come from the realist movement which tried to

use canons of statutory interpretation as 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 canons by averring that

“there are two opposing canons of construction on almost every point”.5

Instead, these canons were labelled as “mechanical, after-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 Mhlungu1995 3 SA 867 (CC) par a 115.

3 Thomson New spapers v Canada67 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 Appellate 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 reasons for decision”.6 Posner described these 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 in South Africa had used these 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 promulgation of statutes and where these statutes

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

In the discussion that follows the responses to these attacks will 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 African presumptions will be compared

to similar presumptions (or canons) of statutory interpretation in the US. It

should be noted that although both jurisdictions contain the principles or

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

in the USA: not as presumptions but as canons of statutory interpretation.

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

or presumptions of statutory interpretation are manifestations of legal

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

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

akin in stat us to constitutional values.

2The utility of presumptions of statutory interpretation

In the USA it has been argued that, despite realist criticism, canons of

statutory interpretation are valuable because they represent “generalizations

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

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

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

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

or canons of statutory interpretation can perhaps best be described by the

Dworkinian account of the law, recalling that Ronald Dworkin drew a

distinction between rules and principles. Dworkin’s starting point was that

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

principles which exist within 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 carry 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.

10Sunstein (1989) Harv L Re v 413.

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

12R Pound Jurisprudence (1959) 50 6.

13R Dworkin Taking Rights Seriously (1977 ) 23.

PRESUMPTIONS OF STATUTORY INTERPRETATION 551

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consideration other competing principles) when applied to the circumstances

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

law is always determinate, and he avers that although rules cannot always

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

therefore go beyond established and explicit rules (including rules contained

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

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

more important than express rules. Canons and presumptions of statutory

interpretation are manifestations of these principles as they represent the

“political and moral concerns and traditions of the community”.16 These

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

seen as extremely important as they are capable, at least in the Dworkinian

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

criticism from Critical Legal Studies (“CLS”) theorists is that 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

contradictory principles with competing principles. 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 interpretation 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 therefore 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

1422-28.

15This 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.

16Dworki 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.”

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

18J 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 .

19R Dworkin Law’s Empire (1986) 268.

20Sunstein (1989) Harv L Rev 411.

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