SOME REFLECTIONS ON THE PRESUMPTION THAT LEGISLATION APPLIES PROSPECTIVELY, AND ITS SIGNIFICANCE FOR A CONTEMPORARY THEORY OF INTERPRETATION

Abstract

As a consequence of section 39 of the Constitution literal interpretation, which prevailed under the previous legal and constitutional dispensation, has been replaced by a purposive/value-based method and theory of interpretation. A new and creative method of legal reasoning has emerged that facilitates social justice. This involves a deontic element, which incorporates ethical and moral evaluation. A far more holistic approach is now adopted, and legal interpretation is now applied in a manner that is allied to the discipline of hermeneutics as found in literature and philosophy. Interpretation has become holistic in this process. The theory of holism has a South African connection since the term has its genesis in Smuts’s book, Holism and Evolution, first published in 1926. Semantic holism is a doctrine in the philosophy of language to the “effect that a certain part of language can only be understood through its relations to a larger segment of language, possibly the entire language”.
This note is intended to show how the application of the presumption relating to retrospectivity reflects the new approach, which is creative and supersedes the old mechanical approach that had its origin in the sovereignty of parliament that gave rise to literal or textual interpretation. There has been a paradigmatic shift in the process of interpretation of statutes in South Africa, from a methodology that tended to be rule-bound to one that requires that the use of rules or canons must give expression to the cardinal values found in the Constitution and its Bill of Rights. This requires a semantic holism as explained above. This should emerge from a deontic method of legal reasoning, which must complement deductive and inductive reasoning, by taking into account principles of morality and the values found in the Constitution as explained by Devenish. Such interpretation was in exceptional cases used before the advent of the new constitutional dispensation such as that found in the meritorious majority judgment of Innes CJ in Dadoo Ltd v Krugersdorp Municipal Council (1920 AD 530). Such holistic interpretation is now the rule and not merely an exception.