Presumptions of interpretation
By Sarah N Vranckx
Faculty of Law, Unam
27 July 2023
Lesson objectives
• Identify and explain the various presumptions
of statutory interpretation.
• Apply the principles embodied in the
presumptions of interpretation in reviewing
and drafting legislation.
• Analyse the essence of the presumptions of
statutory interpretation.
Presumptions of interpretation
• Presumptions are common law legal principles
employed by courts to assist in the process of
construing the law.
• Are firmly incorporated in our jurisprudence.
• They are either conclusive or rebuttable.
• They are of general application.
Presumptions of interpretation
• Presumptions are used by the courts to
promote equity, equality, legality, legal
certainty, public interest, reasonableness.
?
• Give an example of presumptions of
interpretation incorporated in our
Constitution?
Examples of presumptions of interpretation
• 1. Statute law is not unjust, inequitable &
unreasonable:
• Reasonableness emphasizes the need for
rational, considered & justifiable decision-
making
• Reflects the law of natural law justice.
• The legislature do not intend that which is
harsh, unjust or unreasonable.
?
• What constitutional provision reflects this
presumptions?
Constitutional provision
• Art 18 –Administrative of justice
Example of presumptions of interpretation
• 2. Statute law applies to general and not
particular instances:
•
Give Constitutional provisions which
entrenched this presumption?
Constitutional provisions
• Art 12: Fair trail
• Art 16: property
• Art 19: culture education
• Art 20: education
• Art 22: limitation of FuR
Presumptions of interpretation
• 3. Statute law does not interfere with or oust
the jurisdiction of the courts
• Provide provisions of the Constitution which
entrenched this presumption in our
jurisprudence?
Constitution provisions
• Art 12 fair trail
• Art 78(2): the courts shall be independent and
subject only to the Constitution
Some presumptions
• 4. Statute law promotes public interest
• Public interest is the interest of all and facilitates
recourse to constitutional values in interpretation.
• Public interest is achieved through a purposive
and teleological approach to interpretation.
• Disregard individual and ethnic interests.
• Presumption have came up in situations involving:
state security, public safety, professional fitness,
sentencing…etc. Give C provisions
Constitutional provisions
• Art 16(2) Property
• Art 25 limitation of fur
• Art 26 state of emergency
Presumptions of interpretation
• 5. Statute law does not violate
international law
• This presumption ensures that the state
honor its obligations under international law
in the application of municipal law.
• Is this presumption entrenched into our law?
Constitutional provision
• Art 143 Existing international agreements
• Art 144 International law
Presumptions of interpretation
• Statutes do not bind the state.
• True or false?
• Identify an Act of Parliament which confirm
or rebut the above presumption.
Extract from Act of Parliament
• Atomic Energy and Radiation Protection Act 5
of 2005
• Section 46: This Act binds the State.
Presumptions of interpretation
• Statute law does not alter the existing law more
than necessary
• This presumption enhances legal certainty
• Harmornise common and statutory law i.e statute is
seen as an extension and supplement common law
• Courts must develop the common law in light of
constitutional values.
• Any constitutional provision supporting this
presumption?
Constitutional provision
• Art 66(2) customary and common law may be
repealed or modified by Act of Parliament.
• An example of an area of customary law which
has been changed by statute is stock theft. In
1990, Parliament passed a statute on stock
theft.
Presumptions of interpretation
• A statute does not apply with
retrospective effect.
• What is your view about this presumption?
Presumptions of interpretation
• Legislation that affords rights and privileges
can be retrospective. Example
• If a person committed a crime 2 years ago,
which was held to be a punishable offence,
Parliament passed an Act that the act now is
no longer a crime with a retrospective effect.
It would be applicable to that person and he
would be released. This is an example of a
retrospective operation on substantive law.
Presumptions of interpretation
If constitutional constraints are respected
if existing rights are not affected
Presumptions of interpretation
• Retroactive provisions: if a law, decision, etc.
is retroactive, it has effect from a date in the
past before it was approved.
• Give two examples?
Presumptions of interpretation of statutes
• Recognition of Certain Marriages Act 18 of
1991 (Swapo Family Act, 1977)
• Proposed pay raises
Presumptions of interpretation
• Statute law is not invalid or purposeless
• Statute law has no extra-territorial effect
• The same words and phrases in a statute bear
the same meaning.
• Thank you
