5 Maxims Of Interpretation 6z4b6e

5 MAXIMS OF STATUTORY INTERPRETATION

Rules of language are useful guidelines which assist court in interpreting the provisions of statutes in a specific manner. Such maxims may be resorted to when ascertaining the ordinary and grammatical meaning of a provision or in resolving ambiguity. However, they should be approached with a caution. It is useful to keep in mind the often quoted reminder that the rules of interpretation are not rules as binding to the court, but are servants of the courts such that they should not slavishly adhered to even in circumstances where a contrary intention of the legislation is evident. Cross had this to say:“it is hardly correct to speak of maxims as rules of language for they simply refer to the way in which people speak in certain contexts. They are no more than rough guides to the intention of the speaker.”

5.1.

Casus omissus

This is an omission in a statute arising out of error or inadvertence in such a way as to leave out what appears to have been intended by the legislature. It occurs whenever a statutory provision fails to say something that presumably must have been said.

Cross described it as the inexplicable and probably inadvertent failure of the draughtsman to use words entirely apt to cover the instant case.

Hiding behind the theory of separation of powers, the courts are reluctant to fill the gaps, arguing that this is the prerogative of the legislature. The courts have consistently refused to fill the gap. In the following cases it was held:1.

Dadoo LTD v Krugersdorp Municipal Council 1920 AD 530 at 562.

However it is unrealistic to maintain that courts never fill the gaps. See the following:2. Van Heerden v Queen’s Hotel (Pty) Ltd 1973 (2) SA 14 (RAD) Beadle CJ said “courts are extremely loath to read into an Act words which are not there. They will only do so when not to do so will lead to an absurdity so glaring that it could never have been contemplated by the legislature” 3. S v Mpofu 1979 (2) SA 255 (R) the court held that it would supply the missing words in a statute if there was clear evidence that the omission was a direct result of a printing error.

4. Gubbay J commenting on Section 50 (2) of the 1969 Rhodesian Constitution said that it must have been in the compilation of the law-maker that the courts of the land would not be bound by a mere draughtsman’s or printer’s error, which could compel a court to make a manifest injustice either to the individual or the state.

It appears that the approach of the courts is that a cassus omissus must only be filled in two exceptional circumstances, namely:-

1.

To correct an obvious drafting or printing error, and

2.

To avoid glaring absurdity.

The legislature is presumed to have exhaustively enacted everything and therefore it is not for the courts to furnish omissions in the language of the statute. English law has several examples where the courts have filled the casus omissus to avoid the absurdity. In the case of Adler v George 1964 (2) QB 7 the court was faced with Section 3 of the Official Secrets Act 1920 which provided that ”no person shall in the vicinity of any prohibited place obstruct any member of Her Majesty’s forces” The accused was actually on a Norfolk airfield (a prohibited place) when he obstructed a member of Her Majesty’s forces. The question was whether the expression “in the vicinity of” include being “in” the place in question? Lord Parker CJ held that the literal meaning of vicinity is being near in space but he was satisfied that this was the case where no violence is done to the language by reading the words “in the vicinity of” as meaning “in or in the vicinity of.”

It is for the interpreter to construe and to attribute meaning to a statute and not to re-enact it. It is the province of the judge to expound the law, but not to make it. It professes to verbalise democratic values closely associated with trias politica. It is not for the interpreter or adjudicator to depart from or go beyond the clear words of statutory provision he construes. See the following cases 1. Bulawayo Municipality v Bulawayo Waterworks LTD 1915 D 435, Kotze J stated that:- “the intention of the legislature can alone be gathered from what it has actually said, and not from what it may have intended to say but has not said. This is not only the rule of construction adopted by the courts of England, it seem indeed one universi juris” 2. Margo J in Surtee’s Silk Store (Pty) LTD v Community Development Board 1977 (4) SA 269 (W) stated that: - “I am bound by my oath of office to ister the law as parliament has enacted it.”

The interpreter-judge is no legislator and must constantly remind himself of that. They should interpret the legislature’s law and not to substitute it with the judge’s law.

5.2.

Ejusdem generis

Literally this means of the same kind. This maxim is used to interpret the meaning of general words which follow upon particular words. Where a list of items which form the genus or class is followed by a general expression, the general expression must be interpreted as restricted only to the things of that particular class. The addition of the word “other” to the list does not mean that he intended to stray its boundaries. A genus may be referred as common quality or common denominator. A genus is a reasonably identifiable category of items or values and must have at least two .

In the phrase “any place of entertainment, café, eating house, race course or other premises or place to which the public are granted or have access” the italicised words of general expression were held to exclude a courtroom and a police station.

Illustration:1. The Sunday Observance Act 1677 provided that “no tradesman, artificer, workman, labourer or other person whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings upon the Lord’s Day.” The expression “other person whatsoever” was restricted to persons following callings of similar kind to those specified. A Barber was held not covered. 2. Sacks v City Council of Johannesburg 1931 TPD 443 in this case the traffic by-law provided that “no person shall sit or lie down on any street nor shall any person stand, congregate, loiter or walk or otherwise act in such a manner as to obstruct free traffic.” The obstruction was caused by a crowd gathered to listen to the accused who was speaking during industrial dispute from a car in a public street. The accused himself had not obstructed anything. The words “otherwise act in such a manner as to obstruct traffic” were restricted to the same character and it was held that they refer to obstruction by direct physical act. 3. S v Makandigona 1981 (4) SA 439 (ZAD) in this case the Prevention of Corruption Act provided for “any receipt, or other document.” The court held that no genus was created by “receipt” and “.” The contention that the genus was one of documents relating to money was dismissed because receipt could be acknowledgement of something else other than money. Accordingly it was

held that the rule applied to the issuing of a certificate of competence by a driving examiner to a woman indicating that she had ed when in fact she had not. It is inappropriate to resort to the rule where that statute uses the word “include.” Illustration 1. S v Van der Merwe 1977 (2) SA 774 (T) in this case the statute defined fuel as “includes diesel oil, gas, petrol or any other substance capable of being used as oil.” The accused was charged with using methanol (a combustible liquid) the court aquo applied the rule and limited this definition to oil-based products. As methanol is not oil-based product, he acquitted the accused. On appeal it was held that the expression “any substance” clearly referred to any other fuel that could be used to operate a car engine. The presumption here is that the draftsmen’s mind was directed only to the class indicated by specific words and that he did not by his addition of the word ‘other’ to the list intended to stray beyond its boundaries but merely to bring them within the ambit of the enacting words that is, those species which complete the genus but have been omitted from preceding list either inadvertently or in the interest of brevity.

A variation of the Ejusdem generis principle is the rule of rank whereby if the particular words refer to items in a particular rank, items of a lower rank are deemed to be excluded.

Some authors see ejusdem generis as an instance of a more inclusive adage of noscitur a sociis.

5.3.

Noscitur a sociis

A thing is known by its associates irrespective of whether the words constitute a genus. Birds of a feather flock together. Words derive their meaning from words that surround them. Ejusdem generis is an application of this wider rule. Stamp J in Bourne v Norwich Crematorium Ltd 1967 (1) WLR 691 explained that “English words derive colour from those which surround them. Sentences are not merely collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases and then put back into the sentence with the meaning which you have assigned to them as separate words.” Illustration:1. In the case of Abrahams v Cavey 1968 (1) QB 479 the Accused was charged with contravening section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 which penalised “riotous, violent or indecent behaviour” in churches and churchyards. The Accused had shouted during a Methodist Church service held in connection with the Labour Party Conference that “Oh you hypocrites, how can you use the

word of God to justify your policies?” it was held that the word “indecent” did not have its usual sexual connotation, but because of the surrounding words, it must be taken to refer to the indecency, impropriety, of causing a disturbance within a sacred place.

5.4.

The rule of rank

This is a particular application of the maxim ‘noscitur a sociis.’ It is applied where a string of items of a certain level is followed by general words. Then it is presumed that the general words are not intended to include items of a higher rank. A statute which treats things or persons of an inferior rank cannot by any general words be extended to those of a superior. Illustration:1.

Gregory v Fearn (1953) IWLR 974

The string of “tradesman, artificer, workman, labourer and other person whatsoever” was held not to include persons above artisan class. 2.

Casher v Holmes (1831) 2B & Ad 592

The string of “copper, brass and tin and all other metals” was not taken to include precious metals such as gold and silver.

5.5.

Expressio unius est exclusio alterius

The express mention of one or more things is to exclude the others of the same class that are not mentioned. Illustrations:1. Lead Smelting Co v Richardson 1762 (3) Burr 1341. In this English case the Poor Relief Act 1601 imposed a poor rate on the occupiers of “lands, houses, tithes and coal mines.” It was held that the express mention of coal mines meant that land did not includes mines. Therefore mines other than coal mines were excluded. 2. Intro Properties (UK) Ltd v Sauvel1984 (2) ALL ER 495, the Diplomatic Privileges Act 1964 protected physical premises of mission in relation to foreign mission (diplomatic offices and residences) . the definition thereof was:“the building or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”

The court had to decide whether a private dwelling occupied by a financial counsellor at the French Embassy in London was protected in of the Act. The Court held that the specific mention of the residence of the Head of Mission excluded the residence of the other of the mission.

Its application will be excluded if its leads to defeat the legislative intention. Illustration:1. R v Barrington 1969 (4) SA 179 (RAD), the statute specifically penalized persons who unlawfully “offer to sell gold” and was silent on those who “offer to buy gold.” The Court held that to apply the maxim to exclude the later would defeat the intention of the legislature.

5.6.

Contemporanea expositio

Contemporanea expositio est optima et fortissimo in lege means contemporaneous exposition is the best and most powerful in law, which is the meaning of the provision as understood at the time it was originally enacted or shortly thereafter by those to whom it was enacted. This refers to the way the text was interpreted by the courts, legal writers and others at the time following its enactment or the statutory instruments issued by the government contemporaneously with the Act. This shows how the Act was understood by those responsible for its enactment.

This is different from subsecuta observatio (the usage of the word over a long period of time) wherein the courts rarely disturb an interpretation that has long and publicly been acted upon. It is a custom or continuous practice which emerges after an act has commenced and it derives its authority from long duration. It bears more interpretive weight than the former, however the courts do not maintain the distinction and they hardly mention subsecuta observatio.

5.7.

Reddendo singular singulis

Arranging or applying each to each. Where a complex sentence has more than one subject and more than one object, it is the right construction to render each to each by reading the provision distributively and applying each object to its appropriate subject. Same applies to verbs and their subjects. Illustrations:1. “Men and women may become of fraternities and societies.” This can be interpreted as being gender-specific, thus men may become of fraternities and women of societies.

2. “Anyone who shall draw or load a sword or gun” can be interpreted as anyone who draws a sword or load a gun.

5.8.

Cessante ratione legis, cessat ipsa lex

If the reason for the law ceases or falls away, the law itself also falls away. Willies CJ in Davis v Powell stated that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law.”

A provision ceases to have effect in situations where the reason for its existence falls away. However the maxim has little application in Zimbabwe because our courts can neither modify nor repeal a statute on the basis of changed circumstances. Legislation in Zimbabwe cannot be abolished by custom or altered circumstances. The maxim can be employed to give effect to the intention of the legislature in circumstances that justify making some provisions of a statute inoperative. In the case of S v Mujee 1981 (3) SA 800 (Z) the accused was convicted in the court aquo for failure to make payments under a contribution order made in of the then Maintenance Act Chapter 35. Payments were made to be paid to a certified institution. However, it became apparent that the minor child had been discharged from the institution but the order had not been withdrawn. The High Court set aside the conviction after having applied the maxim. Gubbay J (as he then was) held this to say “it seems to me that, if ever there was a case in which this maxim applies, it is the present. The ratio for the contribution order was to compel the accused------ to contribute towards the costs incurred by the institution in maintaining his child. The ratio fell away completely with the removal of the child. It could not have been the intention of the law-maker to treat as valid a maintenance or contribution order when the entire object for which the order was made has ceased to exist.”