Commentary on: Randgold and Exploration Company Ltd and Another v Goldfields Operations Ltd and Others

Commentary by: Deone Roos

All SA 491 (GJ) The applicants sought the court’s approval to permit testimony to be given abroad and to be relayed to the court through the use of video-link technology. The court was requested to invoke the assistance of and the tools of compulsion available to foreign judicial authorities and compel witnesses to testify abroad and to provide documents to the applicants. The court dismissed the application and held that the South African Foreign Courts Evidence Act 80 of 1962 to require a foreign court to assist to obtain evidence from a witness who is outside SA. 

Moosa, F ‘Democratic principles underpinning tax administration in SA’ (2019) 10.4 BTCLQ 1. 

The article discuss the operation of the rule of law in the tax arena. Vagueness in tax legislation runs counter to the rule of law. The language of fiscal statute must be clear to enable the taxpayers to know their rights, their duties and the powers of SARS. It also discusses the application of the principle of legality. 

Independent Institute of Education (Pty) Limited v Kwazulu-Natal Law Society and others 2020 (4) BCLR 495 (CC) 

A part of this judgment dealt with statutory interpretation and whether a court may consider other legislation when interpreting a specific legislative provision. The extract below is useful. In summary, statutes dealing with the subject matter should be consistent. However, when it comes to cases where constitutional rights are implicated, the ordinary meaning of words used in the impugned provision that gives effect to constitutional rights and values must be used rather than the meaning ascribed to those words in another piece of legislation. 

[37]        The question thus arises regarding the extent to which a court should consider other legislation when interpreting a specific legislative provision. In particular, what is the relationship between our statutory canons and a contextual approach to interpretation, which requires consideration of other legislation, and the constitutional injunction to interpret legislation so as to promote the spirit, purport and objects of the Bill of Rights?

[38]        It is a well-established canon of statutory construction that “every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature”.  Statutes dealing with the same subject matter, or which are in pari materia, should be construed together and harmoniously. This imperative has the effect of harmonising conflicts and differences between statutes. The canon derives its force from the presumption that the Legislature is consistent with itself.  In other words, that the Legislature knows and has in mind the existing law when it passes new legislation, and frames new legislation with reference to the existing law. Statutes relating to the same subject matter should be read together because they should be seen as part of a single harmonious legal system.

[39]        This canon of statutory interpretation was expressly recognised and affirmed by this Court in Shaik.  In that case it was held that the words “any person” in section 28(6) of the National Prosecuting Authority Act,  despite their wide ordinary meaning, should be construed restrictively to avoid a clash with a provision in another statute.…

[50]        Where constitutional rights are implicated, as in this case, the desirability of consistency with other legislation is trumped by the necessity of consistency, in so far as reasonably possible, with the Constitution as the supreme law. Where the ordinary, elementary meanings of the words used in the impugned provision give effect to constitutional rights and values, the words must bear that meaning rather than the meaning ascribed to those words in another piece of legislation. This is in accordance with the injunction in section 39(2) of the Constitution.

[51]        The only limitation imposed on the imperative to interpret legislation so as to promote the spirit, purport and objects of the Bill of Rights is that the legislative provision must be “reasonably capable” of bearing the meaning ascribed to it by the court.  In other words, the interpretation must not be “unduly strained”.

[52]        This limitation serves a foundational value of our constitutional democracy, namely, the rule of law.  The rule of law requires that the law be clear and ascertainable.  The need for statutory interpretation to result in reasonable certainty was expressly recognised by this Court in Abahlali Basemjondolo. 

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