This approach assumes as its primary rule of interpretation that, if the meaning of the text is clear (the plain meaning), it should be applied, and, indeed, equated with the legislature's intention. Authority for this can be found in Principal Immigration Officer v Hawabu 1936 AD 26. The court may only deviate from the 'plain meaning' of the words if the text is ambiguous, vague or misleading, or if a strict literal interpretation would result in absurd results245. This is also known as the 'golden rule' of interpretation. Then the
court will turn to the so-called 'secondary aids' to interpretation to find the intention of the legislature. ‘Secondary aids’ were considered to be text contained in the statute in question (such as ,inter alia, the long or short title and the headings or chapters of sections) or other official statutes and translations of the statute in question in other official languages. Simarlarily the courts would only turn to ‘tertiary aids’ if the ‘secondary aids’
245 Innes CJ in Venter v Rex 1907 TS 910:
‘when to give the plain words of the statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature or where it would lead to a result contrary to the intention of the legislature, as shown by the ontext or by such other considerations as the court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.’
112 | P a g e proved insufficient in ascertaining the meaning of the text in question. ‘Tertiary aids’ were considered to be concepts such as the common-law presumptions.246
This approach was widely adopted from English law which followed a predominantly text based approach. C Botha cites the following general reasons for English law following this approach:
‘Misconceptions about the doctrines of the separation of powers (the trias politica doctrine) and sovereignty of Parliament resulted in acceptance of the idea that the court's function should be limited to the interpretation and application of the will of the legislature, as recorded in the text of the particular legislation. In other words, the will of the legislature is to be found in the words of the legislation.
The doctrine of legal positivism influenced the literal approach in England. The positivist idea is based on the validity of the decree (command): that which is decreed by the state is law, and consequently the essence of the law is to be found in the command or decree. The role of the court is limited to the analysis of the law as it is and to find the intention of the legislature, and should not be a speculation about what the law ought to be. A strict distinction is made between 'black-letter law' and morality, because value judgements by the courts would lead to the justiciability of policy issues. England has a common-law tradition, in which the courts have traditionally played a very creative role in regard to common-law principles. Legislation was viewed as the exception to the rule, altering the traditional common law as little as possible.
English legislation was drafted to be as precise and as detailed as possible, for the sake of legal certainty and to cover any number of possible future cases. The well-known maxim that the legislature has prescribed everything it wishes to prescribe is derived from this approach.’247
Botha further submits that Chief Justice De Villiers in De Villiers v Cape Divisional Council 1875Buch 50, decided that legislation that had been adopted after the British had taken over the Cape should be interpreted in accordance with the English rules of statutory interpretation.
246 Statutory Interpretation- an introduction for students 5th edition – Christo Botha 247 Statutory Interpretation- an introduction for students 5th edition – Christo Botha
113 | P a g e The following dictum of Stratford JA in Bhyat v Commissioner for Immigration248 is one of
the classic authorities of the orthodox text-based method of interpretation employed by South African courts:
‘The cardinal rule of construction of a statute is to endeavour to arrive at the intention of the lawgiver from the language employed in the enactment ...in construing a provision of an Act of Parliament the plain meaning of its language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the Legislature could not have intended.’
There are many criticisms of the text based approach. The following submissions are made in this regard. The approach assumes that common law presumptions will only apply if the text is ambiguous. There is an assumption that the text is the primary source of meaning and from where the intention of the legislature can be obtained249 and
therefore the meaning of the text is dependent on how clear the language is to the court interpreting it. This doctrine leaves little room for judicial law making as it assumes the statutes are the final word and the courts are merely machines of interpretation.