“The only rule for the construction of parliament is that they should be

construed according to the intention of the parliament which passed the Act.
I the words of the statutes are in themselves precise and unambiguous then
no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such case best declare
intention of the lawgiver” Tindal CJ in the Sussex Peerage case (1844) 11 CI
and Fin 85

(a) Identify and explain the rule of interpretation the judge was referring
in this statement (15 marks)
(b) Discuss whether this is the best approach to modern day
interpretation (15 marks)

Interpretation of statutes is concerned with the study of rules that are used by courts to
establish the meaning of statutory provisions. It is a process in which the will and
thought of legislature are ascertained by the words used by the legislature to convey
that will or thought. The Interpretation Act [Chapter 1:01] does not provide the
guidelines for a limited number of legal cases but it does direct courts as to what rules
or principles to apply in a given case or situation thus it is outside the domain of
legislation. Among the rules of interpretation of statutes is the literal rule or cardinal
rule or plain meaning rule, golden rule, mischief rule and the purposive rule.

In the Sussex Peerage case the Judge was referring to the literal rule. In Wessels AJA
in Stellenbosch Farmers’ Winery Ltd v Distillers Corp (SA) Ltd it was said that it
is the duty of the court to read the Section of the Act which requires interpretation
sensibly that is with due regards, on one hand, which permitted grammatical usage
assigns to the words used in the Section in question and on the other hand to the
contextual sense which involves consideration of language of the rest of the statute as
well as the matter of the statute, its apparent scope and purpose and within limits, its
background. Literal rule of interpretation concentrates primarily on literal meaning of
words of the provisions to be interpreted. It is the primary rule of interpretation in that
if the meaning of the words is clear they should be put into effect and indeed equated
with the legislature’s intention. The law is to be read word for word and should not
divert from its ordinary meaning.

In Venter v Rex 1907 TS 910, the leading case in literal rule, it was decided that in
construing the statutes the object is of course to ascertain the intention which the
legislature meant to express from which it is employed by for the most important rule
to guide the courts to arrive at the solution is to take the language of an instrument as
a whole and when the words are clear and unambiguous they are placed upon their
ordinary meaning.

The plain meaning rule attempt to guide courts faced with litigation that turns on the
meaning of a term not defined by the statute, or on that of a word found within a
definition itself. According to literal rule, in the absence of contrary definition within the
statute, words must give their plain, ordinary and literal meaning. If the words are clear
they must be applied, even though the intention of the legislator may have been
different or the result is harsh or undesirable. The literal rule is what the law says
instead of what the law was intended to say. In the case of Whitely v Chappel
(1868) LR 4 QB 147, statute made it an offence 'to impersonate any person entitled
to vote.' The defendant used the vote of a dead man. The statute relating to voting
rights required a person to be living in order to be entitled to vote.
The court applied the literal rule was applied and the defendant was thus acquitted.

Literal rule is not the best approach to modern day statutory interpretation but work
together with golden rule, mischief rule and purposive rule in interpreting statutes. The
literal rule is the oldest rules of construction and it is still used today, primarily because
judges do not legislate. Judiciary’s authority is derived from the people of Zimbabwe,
and is vested in courts as enshrined in Constitution of Zimbabwe Amendment
(No. 20) Act, 2013. Formerly, the dominant approach to interpretation was literal
rule; with its gloss approach should prevail when rules of interpretation are compared.
As there is always danger that a particular interpretation may be the equivalent of
making law, some judges prefer to use the law’s literal wording.

The literal rule, like the golden rule, mischief rule and purposive rule has advantages
and problems associated with it. Advantages of literal rule are that it restricts the role of
a judge, provides no scope for judges to use their own opinions or prejudices, upholds
the separation of powers and recognises Parliament as the supreme law maker. Courts
interpret the law not to make law as required by the principle of legality. Literal rule
observe the supremacy of the law thus it is consistent with the Constitution as provided
in Section 2 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.

Literal rule is faced with challenges as it might result in different meanings from what
was intended by the legislature. An emphasis was made in the case of Jaga v Donges
1950 (4) SA 653. In that although words should be given their ordinary meaning, the
interpreter should study the legislation as a whole from the outset as well as the wider
context and purpose should be brought into account. However proponents of the plain
meaning rule claim that it prevents courts from taking sides in legislative or political
issues. They also point out ordinary people and lawyers do not have extensive access to
secondary sources. In probative law the rule is also favored because the testator is
typically not around to indicate what interpretation of a will is appropriate. Therefore, it
is argued, extrinsic evidence should not be allowed to vary the words used by the
testator or their meaning. It can assist to provide for consistency in interpretation.

Literal rule is the oldest of the rules of construction and some opponents claim that the
rule rests on the erroneous assumption that words have fixed meaning. In fact, words
are imprecise as an alternative discretion confining theory. Courts shift to other rules to
clear the vagueness. Literal rule has disagreements as to what amounts to the ordinary
or natural meaning, creates loopholes in the law, leads to injustice, creates awkward
precedents which require parliamentary to correct. Literal rule fail to recognize the
complexities and limitations of English language. It also undermines public confidence
in the law. In the case of Venter v Rex supra, the court deviate from using the plain
meaning because it was misleading. The golden rule or secondary rule was used to
clear the vagueness and the ambiguity leading to absurdity. This means that the rules
of interpretation do not work in isolation. Professor Larry Solum explained that some
laws statutes would be understood by competent speakers of the natural language in
which the text was written who are within the intended readership of the text and who
understand that the text is a legal text of a certain type for example criminal statutes
and some sections of the tax code. Some legislatures use technical terms to a specific
trend of profession for instance the waist of a ship and that of a human being.
DuPlessis 1986 states that such terms require specialized meaning.

In the case of London and North Eastern Railway v Berriman (1946) A 278, a rail
worker was killed whilst oiling the track. A statute provides that compensation was
payable on the death on those relaying or repairing the track. Under the literal rule
oiling did not come into either of these categories. This result although very harsh could
not be said to be absurd so that the golden rule could be applied. Unfortunately the
widow was entitled to nothing. This rule leads to injustice therefore it should not be
applied where there is absurdity.

In R v Harris (1836) 7 C and P 446, the defendant bit off his victim’s nose. The Statute
made it an offence to stab, cut, or wound. The court held that under the literal rule the
act of biting did not come within the meaning of stab, cut or wound as these words
implied an instrument had to be used therefore the defendant’s conviction was
quashed. If mischief rule or purposive rule was applied the loopholes created leading to
injustice were going to be prevented.

In conclusion, literal is a fundamental rule of statutory construction requiring the

Books

Botha C, Statutory Interpretation (An introduction for students) 5 th Edition (2015), Juta
Cape Town

Botha C, Statutory Interpretation (An introduction for students) 5 th Edition (1998), Juta
Cape Town

Cokram GM, The Interpretation of Statutes 3rd Edition (1975) Juta Cape Town

Constitution of Zimbabwe Amendment (No. 20) Act, 2013

Cowen DV, The Interpretation of Statutes and the concept of the intention of the
Legislature (1980) THRHR

Du Plessis LM, The Interpretation of Statutes (1986), Butterworths London

Kaflitya AB, Intrpretation of Statutes (2010) Universal Law Publishing New Dehli

Interpretation of Statutes Chapter 1:01

Madhuku L, An Intoduction to Zimbabwean Law (2010), Waiver Press, Avondale Harare

Case Laws

Wessels AJA in Stellenbosch Farmers’ Winery Ltd v Distillers Corp (SA) Ltd Venter v Rex
1907 TS 910

Whitely v Chappel (1868) LR 4 QB 147

London and North Eastern Railway v Berriman (1946) A 278

R v Harris (1836) 7 C and P 446