NAME: TINASHE TANYANYIWA

REGISTRATION NUMBER: R081119D

PROGRAM: LLBS (1)

LECTURER: MRS DAMISO

COURSE: STATUTORY
INTERPRETATION
DUE: 20 NOVEMBER 2009

QUESTION: In the words of Holmes J, an American judge uttered in 1980, “A word is

not a crystal, transparent and unchanged; it is the skin of a living thought
and may vary greatly in colour and content according to the circumstances
and time which it is used.”Do Zimbabwean courts take cognizance of the
nature of the language of statutes as expressed in the above quote?
Demonstrate your answer by use of case law examples.
In the realm of statutory interpretation it is the wording of a particular provision which takes
centre stage. One fathoms that words are not a bunch of letters which are static rather they are a
representation of ideas and differ in each particular situation. This is the point enunciated by
Holmes J in 1980. A close analysis of the approach of Zimbabwean courts as to the
interpretation of statutes will reveal that to a large extent they take into account the nature of the
language of statutes. In fact it is their starting point. Yet, there are other circumstances where
cognizance of the purpose and spirit of a statute overtakes that of the nature of the language.

In all instances the point of departure of Zimbabwean courts is a comprehensive study of the
literal meaning of the language spelt out in statutes. This is popularly known as the literal
approach to interpretation. According to Cockram1 words must be given their literal meaning. It
is the cardinal rule of interpretation and it advocates the strict adherence to the ordinary meaning
of the words used in a statutory provision regardless of the outcome. In doing this the courts will
be trying to avoid usurping the responsibilities designated to the legislature in pursuit of the
principle of separation of powers.

In S v. Takaendesa2, it was held, inter alia, that the mere fact that to give words in a statute their
clear and unequivocal meaning may, in certain circumstances, cause inconvenience and hardship
and lead to a result which may not have been contemplated by the legislature, is no justification
for a court of law assuming the mantle of the legislature and itself amending the statute. Thus, in
S v. Masiriva3, where the court was called upon to interpret section 46(4) of the Road Traffic
Act4, the court applied the provision in its ordinary and grammatical sense. This is proof of
Zimbabwean courts’ recognition of the nature of language used.

Moreover, Zimbabwean courts also take note of the words in a statutory provision, even where it
deals with technical matters. It does this by giving the words their technical and not ordinary
meaning. If a statute affects a certain trade or practice and the language used is familiar to all
who are conversant in the language of that particular trade or practice then the words in that
statute are given that meaning as it is understood in the trade or practice. This was the rule which
was established by the learned Beadle CJ in the case of Lornho Ltd v. Salisbury Municipality5.
As such, there are instances where Zimbabwean courts will acknowledge special circumstances
and depart from the popular meaning and apply the technical meaning but this is only after a
consideration of the language employed in the particular statute and what the statutes relates to.

Further, the courts also interpret the language of a statute in light of whether particular words are
followed by general words in a statute. This is known as the ejusdem generis rule, where the
meaning of general words is limited to that of particular words. In S v. Chitsa6, where the

1. Cockram G.M The Interpretation of Statutes, pg 36

2. S v. Takaendesa 1972 (1) RLR 162
3. S v. Masiriva 1990 (1) ZLR 373
4. Road Traffic Act [Chapter 13:11]
5. Lornho v. Salisbury Municipality 1970 (4) SA1 (RAD)
6. R v. Chitsa 1966 RLR 92
accused was charged with contravening section 46(2) of the now repealed Law and Order
Maintenance Act7, the question for determination was whether the smashing of window panes by
use of an object such as a club could be placed in the same category as the “throwing or
propelling of an article likely to cause damage at a building” which was provided for in the
relevant provision. Lewis J said,

“…the particular context of the statute in question may require a more restricted interpretation. It
often happens that a word of wide and general meaning receives a restricted interpretation on
application of the ejusdem generis rule.”

This is evidence of how Zimbabwean courts take into cognizance the nature of language used in
statutes.

On the other hand, in recognition that a strict adherence to the literal approach may lead to an
absurdity unforeseen by the legislature Zimbabwean courts also apply the qualifications of the
literal approach, that is, the golden rule and mischief rule. The courts still look at the literal
meaning of the words but where that particular meaning would tilt the scales of Lady Justice the
courts will modify or extend the law to give effect to the intention of the legislature.

In R v. Takawira and Ors8 the courts departed from the literal meaning of a statute on the basis
that such an interpretation would make it impossible to implement the law itself and could not
have been intended by the legislature. Quenet JP made reference to Venter v. R9 where it was
established that the court may depart from the ordinary meaning of the words to the extent
necessary to remove the absurdity and to give effect to the intention of the legislature. This is
further evidence of the court acknowledging Holmes J when he said,

“A word… may vary… according to the circumstances and time which it is used ”

Thus, Zimbabwean courts take note of the language used in a statute and also the intention
behind such usage.

There are also scenarios where the courts also disregard the popular meaning of words in an
attempt to police the mischief that the legislature intended to address. In this they would be
applying the mischief rule. The courts would not readily enforce a meaning which would defeat
the purpose of the law. In Commissioner of Taxes v. F10 the courts refused to apply the literal
meaning of a provision in tax legislation which would have allowed one to evade paying their
taxes. The courts work to ensure that the legislature’s intention to suppress the mischief prevails
as opposed to strictly following the meaning and allowing “subtle inventions and evasions for
the continuance of the mischief”. Thus, Zimbabwean courts fore mostly consider the nature of
the language in pursuit of bringing about a just outcome.

7. Law and Order Maintenance Act [Chapter 23]

8. R v. Takawira and Ors 1965 RLR 162
9. Venter v. R 1907 TS 190
10. Commissioner of Taxes v. F 1976 RLR 106
However, there are also circumstances where Zimbabwean courts do not only look at the nature
of language but go on to determine the purpose and spirit behind the legislation and indeed apply
the latter aspects as opposed to what would be suggested by the words contained within a statute.
In looking at the purpose of the legislation it is justified that interpretation cannot be founded
sorely on the literal meaning of the language used. In addition to this, the courts also value the
underlying principles which form the foundation of the legal system, the so-called “spirit” of
legislation. This is defended by the argument that justice in the pending controversy is the
court’s primary object and as such is also the basic legislative intent in all legislation. So, one
finds the purpose and spirit of legislation overtaking the consideration of language in some
circumstances.

In Smyth v. Ushewokunze and Anor11 the court held that in arriving at the proper meaning of a
constitutional provision guaranteeing a right, the court should endeavour to expand the reach of
the right rather than attenuate the meaning and content. What is accrued is a generous and
purposive interpretation with an eye on the spirit as well as the letter of the provision, one takes
full account of changing conditions, social norms and values. The aim must be to move away
from formalism and make human rights a practical reality. Here one finds the court harking back
to the words of Holmes J in 1980 as the language they use to support their resort to the purposive
and teleological approach is reminiscent of the words of Holmes J.

Thus, one acknowledges that Zimbabwean courts do indeed take cognizance of the nature of
language used in statutes in light of the quote from Holmes J. The courts’ starting point is the
words of statutes and they largely tend to apply them in their ordinary meaning. However, they
also take into account the circumstances, content and context in which the words are used in the
pursuit of bringing about a justifiable conclusion. On the other hand, the courts also look into the
purpose and spirit behind the enactment of statutes so as to give effect to the intention of the
legislature, although not keenly as they do not want to take over the role of the legislature.

11. Smyth v. Ushewokunze and Anor 1997 (2) ZLR 544

BIBLIOGRAPHY

Texts

1. Cockram, G.M The Interpretation of Statutes 3rd Edition Juta & Co. Ltd (1987)

2. Du Pleissis L. The Interpretation of Statutes Butterworth’s (1986)

3. Devenish G.E Interpretation of Statutes Juta & Co. Ltd (1992)

4. Sir Rupert Cross (2nd Edition by J. Bell & G. Engle), Statutory Interpretation
Butterworth’s (1987)

5. Manase A.J & Madhuku L. A Handbook to Commercial Law in Zimbabwe University of

Zimbabwe Publications (1996)

6. Zimbabwe Law Reports

7. South African Law Reports

Statutes

1. Road Traffic Act [Chapter 13:11]

2. Law and Order Maintenance A ct [Chapter 23]