Chapter 32 Interpretation Lourens du Plessis 32.1 Introduction (a) Aspects of Bill of Rights interpretation in pre-1994 case law (b) Bill of Rights interpretation as depicted in early post-1994 constitutional jurisprudence (c) Rights interpretation and/as constitutional interpretation (d) The scope of constitutional interpretation (e) The mechanics of rights analysis (i) Direct application and interpretation of a specific substantive right (ii) Subsidiarity and indirect application as preferred modes of interpretation 32.2 Interpreters of the Constitution (a) Constitution-makers (b) Courts (c) Legislative and executive organs of state (d) Citizens and other non-state organs protected, empowered and obliged by the Constitution 32.3 Theories of interpretation and their relevance for constitutional interpretation (a) Common-law theories of statutory interpretation (b) Constitutional interpretation and the inadequacy of common-law theories of statutory interpretation (i) Constitutional democracy and the end of the dominance of literalism-cum-intentionalism (ii) The linguistic turn (iii) 'Politics': predicament or prospect? (iv) Purposive interpretation as the increasingly preferred alternative to literalism-cum-intentionalism (c) Theories of, theoretical positions on and leitmotivs in constitutional interpretation (i) Three comparative examples (ii) Theoretical position(s) in relation to interpretive leitmotiv(s) (iii) Transitional constitutionalism (aa) The Constitution as bridge: justificatory constitutionalism (bb) The Constitution as memory and promise: memorial constitutionalism (iv) Transformative constitutionalism (v) Theoretical accounts and assessments of constitutional adjudication (d) Contemporary developments: linguistic-turn thinking and the new textualism (e) The Constitution as text sui generis among law-texts (i) The Constitution as prescriptive, abstractly-normative law-text (aa) Law as text and text(s) as law (bb) Narrative and normative law-texts (cc) Prescriptive and persuasive (normative) law-texts (dd) Abstract and concretized normative law-texts (ee) The Constitution as genre text (ii) The Constitution as supreme law (iii) The Constitution as negotiated and negotiating text 32.4 The enacted Constitution-in-writing (a) The Constitution and the construction of enacted law (b) Multilingualism (c) Interpretive waymarks in the written constitutional text (i) Conspicuous waymarks (aa) The Preamble to the Final Constitution (bb) FC s 1: Founding Provisions (cc) FC s 7: Rights (dd) FC s 8: Application (ee) FC s 36: Limitation of Rights (ff) FC s 39: Interpretation of Bill of Rights (gg) FC Chapter 3: Co-operative Government (hh) FC s 195: Basic Values and Principles governing Public Administration (ii) FC s 239: Definitions (ii) Inconspicuous waymarks 32.5 Methods of constitutional interpretation (a) Method(s) as doing(s) (b) Reading strategies (i) Construing the Final Constitution in a case law context (ii) Reading in conformity with the Final Constitution (iii) Subsidiarity (aa) Jurisdictional subsidiarity (bb) Adjudicative subsidiarity (c) Method(s) as canon(s) and canon(s) as method(s) (of construction): Canon-guided reading strategies (i) Grammatical interpretation (ii) Systematic interpretation (iii) Teleological interpretation (iv) Historical interpretation (v) Comparative interpretation (or transnational contextualization) (aa) International law (bb) Foreign law 32.6 Constitutional interpretation in a constitutional state OS 06-08, ch32-p1 7 Rights (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill. 39 Interpretation of Bill of Rights (1) When interpreting the Bill of Rights, a court, tribunal or forum — (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill. 32.1 Introduction* Treatises on statutory interpretation in South Africa, and in other jurisdictions where Interpretation of Statutes is a legal discipline in its own right, most often start by posing the question 'what is statutory interpretation?'. They then proceed to proffer a working definition of some sort to get further discussion going. 1 These treatises assume that statutory interpretation is a readily describable, interpretive analysis of enacted law, guided by common- and statute-law canons of construction that manifest as rules and presumptions. * The invaluable support of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and the personal support (and patience) of Theunis Roux and Stu Woolman in the completion of this chapter is hereby gratefully acknowledged. SAIFAC fellows such as Michael Bishop, Sebastian Seedorf and David Bilchitz read drafts of this chapter and gave me critical input during seminars. Their engagement — along with Stu Woolman's edits – considerably enhanced the quality of the end product. But, of course, any shortcomings that have remained are my sole responsibility. The hospitality and support of the Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg, Germany during the final phases of the completion of this chapter are hereby also acknowledged. OS 06-08, ch32-p2 A similar introduction to the chapter on 'Interpretation' in this four volume treatise on South African constitutional law would be inadequate and inappropriate. Certain reading strategies in constitutional interpretation do require the use of some of the conventional canons of statutory interpretation. And constitutional interpretation also involves an analysis of the written constitutional text to determine meaning. However, constitutional interpretation is also an enterprise that goes much further than any other form of legal interpretation. It is a practice emanating from, rooted in and part of the shaping of a constitutional democracy. 2 Its most distinctive and consequential feature as an interpretive endeavour is its ability to underwrite 1 See, for example, LC Steyn Die Uitleg van Wette (5th Edition, 1981) 1: [W]at is wetsuitleg? . Dit is om die wils- en gedagte-inhoud van die wetgewer vas te stel . aangewese op die woorde wat die wetgewer gebruik het om daardie wils- en gedagte-inhoud te openbaar. ['What is statutory interpretation? . It is to determine the content of the legislature's will and thinking . relying on the words that the legislature employed to reveal its will and thinking.'] For a similar approach, see P Langan Maxwell on the Interpretation of Statutes (12th Edition, 1976) 1. See also LM du Plessis The Interpretation of Statutes (1986) 1: The subject Interpretation of Statutes is concerned with the pinciples, rules, methods and techniques which jurists employ in order to understand statutes, ie legal precepts deriving from legislative activity, and to apply their provisions to concrete, practical situations. See also C Botha Statutory Interpretation. An Introduction for Students (4th Edition, 2005) 1. 2 For a description of 'constitutional democracy', see T Roux 'Democracy' in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa (2nd Edition, OS, July 2006) Chapter 10, 10-18–10-22. constitutional supremacy, warding off unconstitutional action, halting the abuse of power, or providing redress for the adverse consequences of unconstitutional conduct. Constitutional interpretation, as mediated by the courts and other political actors, can also use supreme constitutional authority either to undo existing law inconsistent with the Final Constitution, or to keep impugned law intact, but then to develop it so that it conforms with the dictates of the Final Constitution. Constitutional interpretation also activates — and gives content to — the values that underlie and pervade a democratic, constitutional state (Rechtsstaat). 3 The first section of this chapter surveys some of the major notions of constitutional interpretation evident in the case law in the decade or so preceding the advent of constitutional democracy in South Africa on 27 April 1994. These shortcomings in the South African courts' pre-1994 jurisprudence on constitutional interpretation gave rise to the inclusion of interpretive directives in two consecutive written constitutional texts and helped to transform judicial attitudes towards constitutional interpretation shortly after the commencement of the Interim Constitution (IC) in 1994. The second main section of the chapter focuses on the authorized interpreters of the Final Constitution. The third main section considers the possible relevance of various theories of interpretation to constitutional interpretation. Conventional theories of statutory interpretation are inadequate — though