Denosa obo du Toit v Western Cape Department of Health (CA17/2014) [2016] ZALAC 15 ; (2016) ILJ 1819 ; [2016] JOL 36183 (12 May 2016) per Davis JA [Musi and Sutherland JJA concurring]
Davis JA was uncertain as to whether or how certain recent statements of the Supreme Court of Appeal have significantly changed the approach to the interpretation of a legal text and referred to the golden rule of interpretation:
‘the correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard: To the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract’.
See also: Interpretation principles, approach and exceptions
Excerpts without footnotes but with links
[13] Much reliance was placed by the parties upon the decision in Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni) (with regard to the proper approach to the interpretation of the OSD document and, in particular, that the language of the document falls to be construed in the light of its context and the apparent purpose to which is directed as well as the material known to those responsible for its production. In his judgment, Wallis JA after examining precedent with regard to the interpretation of legislation or documents said at para19:
“All this is consistent with the ‘emerging trend in statutory construction’. (Jaga v Dönges NO and Another, Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662G-663A). It clearly adopts as the proper approach to the interpretation of documents the second of the two possible approaches mentioned by Schreiner JA in Jaga v Dönges NO and Another, namely that from the outset one considers the context and the language together, with neither predominating over the other. This 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.”
See also DexGroup v Trust Co Group International (Pty) Ltd and Others 2013 (6) SA 520 (SCA) at para 16.
I remain uncertain as to whether or how these dicta have significantly changed the approach to the interpretation of a legal text. In Coopers & Lybrand and Others v Bryant, Joubert JA referred expressly to the golden rule of interpretation and stated that:
‘the correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard: To the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract’.
[14] The difference in this approach from that articulated in Endumeni, supra is not easy to determine. Of course, context is not a secondary consideration but is part of the very process required to resolve any linguistic difficulty. The words employed and the purpose of the speaker are inextricably linked. This follows inherently from the very concept of the language. In the same manner, the content of an ordinary conversation cannot, in general, be divined from the meaning of the sentences employed or even with the conversationalist’s goals in saying what they did, so the content of a legal text cannot, in general, simply be determined by the ordinary or technical meanings of the sentences in the text or indeed with the policy goals motivating the drafting thereof.
As Scott Soames has noted:
‘the content of a legal text is determined in essentially the same way that the contents of other texts or linguistic performances are, save for complications resulting from the fact that the agent of a legislative speech act is often not a single language user but a group, the purpose of the speech is not usually to contribute to the cooperative exchange of information but to generate behaviour modifying stipulations, and the resulting stipulating contents are required to fit smoothly into a complex set of existing stipulations generated by other actors at other times.’
See Scott Soames “Toward a Theory of Legal Interpretation” in Analytic Philosophy in America: and other historical and contemporary essays (2014) 299 at 301;
see also Stephen Neale “Interpreting Legal Texts: What is, and What is not, Special about the Law” in Scott Soames (ed) Philosophical Essays: Volume 1 (2009) at 403.