Hanged by a comma, groping in the dark and holy cows – fingerprinting the judicial aids used in the interpretation of fiscal statutes

Abstract

This article describes and analyses, from a practical point of view, the
process followed when interpreting a statute under the ‘purposive’
approach, an approach that has been given constitutional recognition
in South Africa. The research fingerprinted and identified the various
aids, both internal and external, that the judiciary may use to seek the
‘purpose’ underlying the statute, taking into account the constraints
of the Constitution. The discussion and conclusion indicate that
many of these aids, even aids that were previously prohibited under
the ‘strict and literal’ approach to the interpretation of statutes, may
now be used by the judiciary to avoid any ‘groping in the dark’ when
attempting to find the ‘purpose’ underlying a statute.
Many of the interpretational presumptions analysed in this article
originate from centuries ago and are based on equity and fairness.
They have all been given an elevated status by either being
incorporated directly into the provisions of the Constitution of the
Republic of South Africa Act (Act No. 108 of 1996) (as a fundamental
right in the Bill of Rights) or indirectly as part of the constitutional
recognition of the common law.

Key words: Constitution, interpretation of statutes, interpretational aids and presumptions, purposive approach, strict and literal approach, taxpayers’rights