Independent Institute of Education (Pty) Ltd v Kwazulu-Natal Law Society

Interpreting university definition and Constitutional Court in concurring judgment cautioned against giving an interpretation which ‘cannot be readily inferred from the text of the provision’.” [para 52] 

“While the meaning given to ‘university’ in the first judgment differs from the definition thereof in the Higher Education Act, the interpretation it endorses is not unduly strained.

  • First, the interpretation shows fealty to the language of the legislative provision¬ it gives the word ‘university’ its ordinary, elementary meaning.
  • Second, the interpretation gives effect to the stated purpose of the Legal Practice Act, which is to ‘remove any unnecessary or artificial barriers for entry into the legal profession’.
  • Third, the interpretation neither results in any clash (as opposed to mere difference) between the Legal Practice Act and the Higher Education Act, nor does it render any part of the Higher Education Act ineffective.” [para 53]

Essence

Interpreting university definition and concurrence addresses narrow principle that legislative provisions be interpreted consistently with other legislation.

Decision

(CCT68/19) [2019] ZACC 47 (11 December 2019)

Order

1. The order by the KwaZulu-Natal Division of the High Court, Pietermaritzburg that section 26(1)(a) of the Legal Practice Act 28 of 2014 is constitutionally invalid, is not confirmed.
2. It is declared that a Bachelor of Laws graduate of the Independent Institute of Education (Pty) Limited is eligible for admission and enrolment as a legal practitioner in terms of the Legal Practice Act 28 of 2014.
3. The KwaZulu-Natal Law Society must pay the costs of the Independent Institute of Education (Pty) Limited in this Court and in the High Court, including costs of two counsel.

Judges

Coram: Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, and Victor AJ

Judgments: Mogoeng CJ (majority): [1] to [34] – click here
Theron J (concurring): [35] to [54] – see below

Reasons

“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.” [para 50]

Court summary

Application for confirmation of an order of constitutional invalidity by the High Court — Section 26(1)(a) Legal Practice Act 28 of 2014 — Meaning of the term “university” — Principles of statutory interpretation—Section 39(2) of the Constitution.

 

Quotations from judgment

Note: Footnotes omitted and emphasis added

​THERON J (Froneman J concurring):

Introduction

[35] I have had the pleasure of reading the comprehensive judgment by the Chief Justice, Mogoeng CJ (first judgment). I agree with the proposed order and general reasoning in the first judgment. I write this concurrence only to address the narrow principle that courts should interpret legislative provisions with reference to, and consistently with, other legislation.

Approach to statutory interpretation

[36] The High Court gave “university” in section 26(1)(a) of the Legal Practice Act the meaning ascribed to “university” in the Higher Education Act. The first judgment finds that the High Court erred in this regard. The first judgment gives “university” its ordinary, grammatical meaning ¬ “a high-level educational institution in which students study for degrees and academic research is done”.

[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 sprit, 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.

[40] More recently, this Court in Ruta interpreted provisions of the Immigration Act together and in harmony with those of the Refugees Act. In a unanimous judgment, this Court noted that

“[w]ell-established interpretive doctrine enjoins us to read the statutes alongside each other, so as to make sense of their provisions together.”

[41] This canon is consistent with a contextual approach to statutory interpretation. It is now trite that courts must properly contextualise statutory provisions when ascribing meaning to the words used therein. While maintaining that words should generally be given their ordinary grammatical meaning, this Court has long recognised that a contextual and purposive approach must be applied to statutory interpretation. Courts must have due regard to the context in which the words appear, even where “the words to be construed are clear and unambiguous”.

[42] This Court has taken a broad approach to contextualising legislative provisions ¬ having regard to both the internal and external context in statutory interpretation. A contextual approach requires that legislative provisions are interpreted in light of the text of the legislation as a whole (internal context). This Court has also recognised that context includes, amongst others, the mischief which the legislation aims to address, the social and historical background of the legislation, and, most pertinently for the purposes of this case, other legislation (external context). That a contextual approach mandates consideration of other legislation is clearly demonstrated in Shaik. In Shaik, this Court considered context to be “all-important” in the interpretative exercise. The context to which the Court had regard included the “well-established rules of criminal procedure and evidence” and, in particular, the provisions of the Criminal Procedure Act.

[43] Consequently, the provisions of the Higher Education Act form part of the context which should be considered by this Court in interpreting section 26(1)(a) of the Legal Practice Act. Section 26(1)(a) of the Legal Practice Act requires that the LLB must have been conferred by a university registered in the Republic. The Higher Education Act is the legislation in terms of which higher education institutions are registered in South Africa. In addition, the Preamble of the Higher Education Act recognises that it is part of the purpose of the Act to “establish a single co-ordinated higher education system”. It is therefore relevant to the interpretation of section 26(1)(a) of the Legal Practice Act that “university” is ascribed a particular meaning in the Higher Education Act. In these circumstances, it is undesirable to have a different and conflicting meaning ascribed to “university” from that in the Higher Education Act.

[44] I agree with the first judgment that the definition of a word in one statute does not automatically apply to the same word in another statute. However, the Higher Education Act is the primary legislation governing higher education institutions in South Africa, including universities. It is the legislation in terms of which universities are registered in South Africa. In these circumstances, it is relevant to the interpretative exercise in respect of section 26(1)(a) of the Legal Practice Act that “university” bears a particular meaning in the Higher Education Act.

[45] However, and importantly, legislation must be interpreted through the “prism of the Bill of Rights”. In Hyundai, this Court held that section 39(2) requires that all legislative provisions must be read “so far as is possible, in conformity with the Constitution”. Thus, an interpretation which is constitutionally compliant must be preferred over an interpretation which is not.

[46] Although the Higher Education Act does recognise both public and private universities, the meaning ascribed to “university” in the Act is narrower than the ordinary grammatical meaning of the term. An interpretation of section 26(1)(a) of the Legal Practice Act which gives “university” the same meaning as that ascribed to the term in the Higher Education Act would exclude the applicant’s students from entry into the legal profession. This is because the applicant is not a “university” as defined in the Higher Education Act.

[47] It was accepted by all the parties before us that an interpretation of section 26(1)(a) of the Legal Practice Act which excludes the students of the applicant from entry into the legal profession limits various constitutional rights, including the right of the applicant’s students to equal protection and benefit of the law under section 9(1) of the Constitution.

[48] There is no rational basis for differentiating between law graduates of public universities and those of the applicant. The applicant is a higher education institution registered in terms of the Higher Education Act. It has been accredited by the Council on Higher Education and registered by the South African Qualifications Authority to provide the LLB degree. There is no relevant difference for the purposes of entry into the profession between the LLB degree provided by the applicant and one provided by a public university. This was confirmed by the Council on Higher Education, which stated that the LLB degree offered by the applicant is “on par” with that offered by public universities.

[49] The Minister of Justice and Correctional Services accepted that there is a legislative omission in section 26(1)(a) of the Legal Practice Act to the extent that it excludes private higher education institutions which are registered in terms of the Higher Education Act, and which have been accredited and registered to provide the LLB degree. This is also the position held by the Minister of Higher Education and Training. Neither of these Ministers have sought to advance any rational basis for excluding the students of the applicant from entry into the legal profession.

[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. This Court, while recognising the importance of giving a legislative provision a constitutionally compliant interpretation, cautioned against giving an interpretation which “cannot be readily inferred from the text of the provision”.

[53] While the meaning given to “university” in the first judgment differs from the definition thereof in the Higher Education Act, the interpretation it endorses is not unduly strained.

  • First, the interpretation shows fealty to the language of the legislative provision¬ it gives the word “university” its ordinary, elementary meaning.
  • Second, the interpretation gives effect to the stated purpose of the Legal Practice Act, which is to “remove any unnecessary or artificial barriers for entry into the legal profession”.
  • Third, the interpretation neither results in any clash (as opposed to mere difference) between the Legal Practice Act and the Higher Education Act, nor does it render any part of the Higher Education Act ineffective.

Conclusion

[54] For these reasons, I support the conclusion reached in the first judgment regarding the meaning of “university” in section 26(1)(a) of the Legal Practice Act.