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EDITORIAL: SPECIAL EDITION

Legal Interpretation after Endumeni: Clarification, Contestation, Application

W le Roux*

Pioneer in peer-reviewed, open access online law publications Author Wessel le Roux Affiliation University of the Western Cape South Africa Email wleroux@uwc.ac.za Date Submission 24 October 2019 Date published 5 November 2019 Guest Editor W le Roux How to cite this article   Le Roux W "EDITORIAL: SPECIAL EDITION - Legal Interpretation after Endumeni: Clarification, Contestation, Application" PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7510 Copyright DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7510

 

 Abstract

This special edition consists of a selection of contributions delivered during a conference "Towards an integrated approach to the interpretation of legal documents: contracts, wills and statutes", hosted by the University of the Western Cape, on 23 March 2018. The aim of the conference was to take stock of the state of legal interpretation in South Africa five years after the watershed judgment in Joint Natal Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA). The papers in the special edition provide clarifications, contestations and applications of the Edumeni approach to the interpretation of legal documents.

Keywords

Legal interpretation; golden rule; textualism; limited contextualism; unlimited contextualism; integrated approach; holistic approach; iterative approach; purposivism.

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Editorial

On 23 March 2018 the Law Faculty at the University of the Western Cape hosted a conference entitled "Towards an integrated approach to the interpretation of legal documents: contracts, wills and statutes". The aim of the conference was to take stock of the state of legal interpretation in South Africa, five years after the so-called "golden rule" of legal interpretation was abolished in Joint Natal Municipal Pension Fund v Endumeni Municipality.^[1] When the judgment by Wallis JA was delivered it stood out for two reasons from the surrounding case law which from time to time also dealt with interpretive methodology. First, the judgment self-consciously sought to bring an end to ongoing debates about the proper approach to the interpretation of legal documents. It sought to do so by providing a short-hand restatement of the law of statutory and other forms of legal interpretation. Wallis JA arrived at this restatement by explicitly contrasting two approaches to interpretation, the two-stage approach associated with the textualism prescribed by the “golden rule” and the holistic or one-stage approach associated with contextualism.^[2] Wallis JA made clear that the holistic approach^[3]

… is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and frequently reflect an approach to interpretation that is no longer appropriate.

Second, the judgment suggested that the holistic approach should be uniformly applied to the interpretation of all legal documents, from wills to patents, contracts to constitutions.^[4] In short, Endumeni sought to replace the golden rule of legal interpretation with a more modern integrated approach to legal interpretation.

In the less than a decade since the judgment was handed down it has become one of the most cited authorities in South African law.^[5] At the same time, as references to paragraph 18 of the Endumeni judgment continues to multiply, it has become clear that the summary statement of the contextual approach is not always used and understood in the same manner. Uncertainty seems to persist in our case law about what still remains of the golden rule after Endumeni, and whether the modern Endumeni approach can indeed be applied uniformly to all legal documents.

Given these uncertainties, it appeared appropriate to academically revisit the Endumeni approach to legal interpretation and the way in which the judgment was rapidly being assimilated into our case law. A call for papers was drafted which posed the following questions to potential presenters: Has the Endumeni judgment resulted in an integrated approach to legal interpretation that can be applied uniformly to wills, contracts, and statutes? If so, what exactly is the new integrated approach, how does it differ from the older fragmented approach, and why is the old approach no longer appropriate? The call for papers attracted the attention of academics from five South African Universities. The conference was divided into three sessions dealing respectively with the interpretation of wills, contracts and statutes. Justice Malcolm Wallis was invited and generously agreed to present the keynote address.

This special edition contains three of the papers that were presented at the conference. The three papers are best read in the order in which they appear here. The first contribution is a reworked version of the keynote address delivered by Justice Wallis.^[6] Justice Wallis explains what motivated him to engage with the process of legal interpretation in Endumeni and clarifies two background principles that animate the judgment: Endumeni aims to enhance the efficiency and accountability of legal interpretation by our courts. Endumeni enhances the efficiency of adjudication by providing lawyers and judges with one, reasonably clear standard for the interpretation of all documents; a standard that allows lawyers and courts to go about their business of interpreting documents without getting bogged down in old debates. Endumeni seeks to enhance judicial accountability by demanding that judges articulate all the textual and contextual considerations that influence their decisions about the legal meaning and consequence of legal documents.^[7]

The desire to rid our case law of superficial canon-based rationalisations of legal interpretations therefore lies at the heart of the Endumeni approach. By describing interpretation as a unified process, the judgment shifts the focus from the canons of interpretation to the context of interpretation. The role of the context in legal interpretation is not primarily to clarify the legal meaning of a text but to ensure the best available justification of the meaning ascribed to a legal text. It no longer suffices to claim that context is not needed where the meaning of the text is clear, as textualists did for many years by invoking the golden rule, because clarity of the law must itself be contextually justified against equally pressing demands for consistency, efficiency or practical sensibility and social justice. Endumeni embraces all these foundational values of the legal order as aims of the interpretive process without ranking them in any order of priority. Endumeni further accepts that it is difficult to harmonise these four contextual considerations and that complex compromises between the clarity, consistency, efficiency and human rights impact of legal texts lie at the heart of the interpretive process. By insisting that text and context must be considered together in an iterative fashion from the start, Endumeni forces courts to justify why, for example, the clarity of a text ("the language used in the light of the ordinary rules of grammar and syntax") outweighs the internal consistency of the text ("the context in which the provision appears"), the efficiency of the text ("the apparent purpose to which it is directed and the material known to those responsible for its production"), or the public policy or social justice implications of the text.^[8] While the same four factors constitute the relevant legal context of every act of interpretation, the importance of each of the four factors varies from one act of interpretation to the next. There is no longer any fixed hierarchy or sequence in which the relevant contextual factors must be considered. On this understanding of Endumeni, very little remains of the linear or multi-stage approach under the golden rule.

The iterative response to the contextualisation of legal texts also holds the key to the second aspiration of the Endumeni judgment – to formulate one integrated approach to the interpretation of all legal documents. It seems obvious that an integrated approach to legal interpretation must embrace an iterative approach to contextualisation. The point is powerfully made by Aharon Barak,^[9] one of the leading champions of an integrated purposive approach to legal interpretation. According to Barak, the legal meaning of a legal text is generated by combining the subjective purpose (author's intention) and objective purpose (constitutional telos) of that text. Given this understanding of purpose, Barak does not find it necessary to challenge authorial intent in the way Wallis JA still does in Endumeni. Barak accepts that evidence of such intention is always admissible and relevant where it is available but he does not accept that this evidence is always of equal importance during the interpretation process. The weight carried by the intention of the author, relative to the public telos of a text, is always dependent on the context. Factors such as the nature and age of the text are relevant when this contextual judgment must be made. For example, a clear subjective intention would generally be more decisive in the case of a private law text, such as a will, than in a public law text, such as a statute or constitution. This kind of constant weighing-up depends on a broad understanding of the relevant contextual scene.  

It is therefore particularly interesting that, in the second contribution included in this special edition, Kessler Perumalsamy takes issue with the Endumeni approach precisely because it fails to sufficiently limit the relevant context in which legal texts must be interpreted.^[10] According to Perumalsamy, this is also the reason why Endumeni has not had the stabilising effect on statutory interpretation that Wallis JA might have hoped.^[11] By retelling the story of the long-standing conflict between the text and the context in South African law, Perumalsamy concludes that "Wallis does leave one with a great deal of confusion as to the extent of the permissibility of the context".^[12] He then boldly asserts that in spite of Endumeni, the "old textualist approach is not dead".^[13] This is not just a descriptive claim but also a normative assessment. Perumalsamy seeks to reconfirm if not restore the place of the text in the contextual scene and he openly challenges the claim that “meaning can be determined only with reference to the full context in which words are used".^[14] This, insists Perumalsamy, is not always the case. Sometimes deep forays into the context are not necessary or even helpful:^[15]

[W]e adopted the textualist rule, not because we didn't think that the context is important. We did, but we did not think that it was always important. Sometimes it helps us because the ordinary meaning is absurd, vague or ambiguous, but most of the time it is not. And the context does nothing to help us.

Perumalsamy wishes to see the all-things-considered judgment of activist judges replaced with the pragmatism of the reasonable reader as new reference point for the law of statutory interpretation. Reconstructing the law of statutory interpretation around the perspective of the reasonable reader means that an Endumeni-like restatement of the interpretive process should clearly identify which aspects of the context are always inadmissible (evidence of the negotiating or legislative history of a text, for example) and under which limited circumstances courts may consult those aspects of the context that are admissible as interpretive aids.

In the final contribution included below,^[16] Brighton Mupangavanhu does not take issue with the unlimited contextual approach of Endumeni but rather seeks to bolster the importance of the transformative aspirations of the Constitution^[17] or transformative constitutionalism within that context. Mupangavanhu argues that a normative framework is needed to evaluate interpretations of the Companies Act 71 of 2008 and finds that normative framework in the purposive approach formulated by Wallis JA in Endumeni.^[18] Mupangavanhu points out that the iterative approach championed by Wallis JA overlaps with the statutory mandate to interpret and apply the Companies Act in a manner that gives effect to the purposes of the Act. There is thus no need to enter the debate between Wallis JA and Perumalsamy about the admissibility of background material and the drafting history of a statute to identify its policy objectives and purposes. The legislature reveals at once that one of the basic purposes of the Companies Act is to promote compliance with the Bill of Rights. Having established that the spirit of the Bill of Rights forms part of the relevant interpretive context, Mupangavanhu asks at which stage a consideration of this aspect of the context is necessary or helpful? Mupangavanhu concludes that the constitutional purpose or telos of the Companies Act must be considered from the start in every case where the Act falls to be interpreted and not merely when the constitutionality of a statutory provision is at stake. He then proceeds to explore some of the further implications of a teleological or unlimited contextual approach to the interpretation of the Act.

The three contributions included below thus differ significantly in the way each understands what belongs to the context and when the various aspects of the context may be considered. On the one hand, a case is made for unlimited contextualism, first by justice Wallis in the name of judicial accountability and then by Mupangavanhu in the name of the social transformation of the corporate environment. On the other hand, a case is made by Perumalsamy for limited contextualism, sometimes also known as new textualism or new purposivism,^[19] on the basis of classic rule of law and separation of powers arguments. The clarifications, contestations and applications of Endumeni presented below therefore do not strengthen the hegemony of the contextual approach as an integrated approach to all legal documents in South Africa. The contributions achieve something far more important. They successfully redefine and clarify the basic terms of the ongoing and hopefully re-animated debate about the nature of legal interpretation in South Africa after Edumeni.

Bibliography

Literature

Barak Purposive Interpretation

Barak A Purposive Interpretation in Law (Princeton University Press Princeton 2005)

Eskridge 2013 Colum L Rev

Eskridge WN "The New Textualism and Normative Canons" 2013 Colum L Rev 531-592

Gardbaum New Commonwealth Approach

Gardbaum S The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press Cambridge 2013)

Manning 2010 CLR

Manning JF "Second-Generation Textualism" 2010 CLR 1287-1318

Molot 2006 Colum L Rev

Molot J "The Rise and Fall of Textualism" 2006 Colum L Rev 1-69

Mupangavanhu 2019 PELJ

Mupangavanhu BM "Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the Companies Act 71 of 2008" 2019 PELJ 1-23

Perumalsamy 2019 PELJ

Perumalsamy K "The Life and Times of Textualism in South Africa" 2019 PELJ 1-28

Wallis 2019 PELJ

Wallis M "Interpretation Before and After Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA)" 2019 PELJ 1-29

Case law

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 4 SA 490 (CC)

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 2 SA 494 (SCA)

Coopers & Lybrand v Bryant [1995] ZASCA 64; 1995 3 SA 761 (A)

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA)

Legislation

Companies Act 71 of 2008

Constitution of the Republic of South Africa, 1996

List of Abbreviations

CLR	California Law Review
Colum L Rev	Columbia Law Review
PELJ	Potchefstroom Electronic Law Journal

 

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