Theories Of Constitutional Interpretation

1 Introduction

In this essay we are going to firstly start by defining as to what is constitutional interpretation and then critically discuss the approach to constitutional interpretation. Furthermore give a discussion of how does constitutional interpretation differ from ordinary statutory interpretation and the analysis as to what extent this approach was followed in the case of Stransham-Ford and the Nkandla case.

Constitutional interpretation can be defined as the theory or the method of thoughts that describes a general approach which the judiciary uses to interpret the law, constitutional documentation and the legislation. Constitutional interpretation is precisely known/defined as the commanding interpretation of the supreme constitution

It is more than a simple symbolic window-dressing but it is more of a transformative documentation and a commitment to positive action. Section 7(2) of the constitution puts an obligation on the state to engage in positive action thus the state must respect, protect, promote and fulfil the rights entailed within the Bill of Rights. The constitution plays a role of being a shield against abuse and a positive tool for the transformation of the society in relation to the fundamental rights and values.

2.1 Critical discussion of the approach to constitutional interpretation

The constitutional interpretation

The interpretation of the constitution must be in accordance with section 39 (2) of the 1996 constitution. It is believed that all legislations must be interpreted by the courts in line with the fundamental rights entrenched in the constitution (Bill of Rights). The constitutional interpretation is known as the authoritative interpretative of the supreme law (constitution) by the judiciary throughout the judicial appraisal and/or evaluation of the constitutionality of the legislation and the government action.

Before any interpretation can take place, the following questions must be taken into consideration;

• What has to be done with the fundamental values

The literal approach was common in the legal systems influenced by the English law.

Criticism against the literal approach

The vital role played by the common law presumptions throughout the interpretation progression is reduced to the mere last recourse to be applied only if the text is vague or unclear. Furthermore, words in the literal approach/or meaning are perceived as primary index to the legislative intention. In R v Hildick, it was stated that only one kind of interpretation with one definite purpose, and that is, to determine the true intention of the legislature as expressed in the Act.

Adding to the above statement, this means that the other internal and external assistances to interpretation which are applied to the establishment of contextual meaning are not taken into account. It should only be remembered that the text serves only as the medium through which the meaning is communicated.

2.2 How does constitutional interpretation differ from ordinary statutory interpretation

The statutory