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

Interpreting university definition and Constitutional Court held that to treat the Institute otherwise than as a university would put form over substance and give rise to an absurdity and injustice because everything about the Institute demonstrates beyond doubt that it is a university.

“To concretise this approach [to interpretation], the following must never be lost sight of.

  • First, a special meaning ascribed to a word or phrase in a statute ordinarily applies to that statute alone.
  • Second, even in instances where that statute applies, the context might dictate that the special meaning be departed from.
  • Third, where the application of the definition, even where the same statute in which it is located applies, would give rise to an injustice or incongruity or absurdity that is at odds with the purpose of the statute, then the defined meaning would be inappropriate for use and should therefore to be ignored.
  • Fourth, a definition of a word in the one statute does not automatically or compulsorily apply to the same word in another statute.
  • Fifth, a word or phrase is to be given its ordinary meaning unless it is defined in the statute where it is located.
  • Sixth, where one of the meanings that could be given to a word or expression in a statute, without straining the language, “promotes the spirit, purport and objects of the Bill of Rights”, then that is the meaning to be adopted even if it is at odds with any other meaning in other statutes.” [para 18]

Essence

Interpreting university definition and should be given a meaning in conformity with s29(3) and 39(2) of Constitution and declined to confirm finding of constitutional invalidity.

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] – see below
Theron J (concurring): [35] to [54] – click here

Reasons

“The words ‘any university’ in section 26(1)(a) are thus capable of and should be given a meaning that is in conformity with the provisions of section 29(3) of the Constitution. And that gives significance to section 39(2). The High Court order declaring section 26(1)(a) of the Legal Practice Act constitutionally invalid will thus not be confirmed.” [para 28]

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

​MOGOENG CJ (Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, and Victor AJ concurring):

[1] It would be a woeful misrepresentation of the true character of our constitutional democracy to resolve any legal issue of consequence without due deference to the pre-eminent or overarching role of our Constitution.

[2] The interpretive exercise is no exception. For, section 39(2) of the Constitution dictates that

“when interpreting any legislation . . . every court, tribunal, or forum must promote the spirit, purport and objects of the Bill of Rights”.

Meaning, every opportunity courts have to interpret legislation, must be seen and utilised as a platform for the promotion of the Bill of Rights by infusing its central purpose into the very essence of the legislation itself.

[3] And this is what this application is really about— giving an interpretation to a legislative provision primarily concerned about its consistency, not with another legislation but, with the Bill of Rights. This should be done in recognition of the ever abiding guiding or instructive hand of our Constitution.

Background

[4] The Independent Institute of Education (Pty) Limited (Institute) is a duly registered private higher education institution. It has also been accredited to offer and confer a four-year Bachelor of Laws (LLB) degree on its graduates. It is common cause that its LLB programme meets the same requirements and standards set for public universities.

[5] And when the South African Qualification Authority gave accreditation to the Institute’s LLB programme, it pointed out that one of the degree’s stated objectives was to equip prospective graduates for “the professional practice of law and the administration of justice in the modern South African constitutional state” and that “graduates will be able to apply for admission as legal practitioners”.

[6] That notwithstanding, the KwaZulu-Natal Law Society (Law Society) took the position that it would not register articles of clerkship of aspirant attorneys with LLB degrees from the likes of the Institute. Here is why.

[7] Section 26 of the Legal Practice Act provides in relevant parts:

“(1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person has―
(a) satisfied all the requirements for the LLB degree obtained at any university registered in the Republic, after pursuing for that degree―
(i) a course of study of not less than four years; or
(ii) a course of study of not less than five years if the LLB degree is preceded by a bachelor’s degree other than the LLB degree, as determined in the rules of the university in question and approved by the council…”

[8] The Law Society contended that the words “any university registered in the Republic” exclude the Institute. This is said to be so because, although the Legal Practice Act does not define the word “university”, the Higher Education Act does so but in a way that excludes institutions like the Institute. It defines a “university” as―

“a higher education institution providing higher education and with a scope and range of operations, including undergraduate and postgraduate higher education programmes, research and community engagement, which meets the criteria for recognition as a university as presented by the Minister under section 69(d); and
. . .
(a) registered as private university, in terms of this Act.”

[9] The Minister of Higher Education has not yet set the “criteria for recognition as a university” to be met by a private university or private institution of higher learning desirous of being accordingly registered. In the absence of that criterion, the Institute cannot, so it is argued, be said to have met unknown registration criteria. For this reason, it is not a “university” within the meaning of the Higher Education Act and by extension section 26(1)(a) of the Legal Practice Act.

[10] As a result of this perceived hurdle, the Institute challenged the constitutionality of section 26(1)(a) of the Legal Practice Act on the grounds that it is inconsistent with sections 9, 22 and 29(3) of the Constitution. It did so in the KwaZulu-Natal Division of the High Court, Pietermaritzburg (High Court).

Relying on the definition of “university” in the Higher Education Act, the High Court concluded as follows:

“For these reasons the answer to the question whether “university” can be read to include the [Institute], must be [answered] in the negative. The KZN Law Society can therefore not be faulted for its failure to give a different and wider meaning to the concept of university. The ‘decision’ did not ignore the provisions of the Higher Education Act, it in fact applies them, given that the Act maintains the distinction between various types of higher education institutions.”

It went on to say:

“I find that, having shown that the applicant meets the criteria set out in section 29(3) and those in Chapter 7 of the Higher Education Act, the applicant enjoys the same rights to offer the accredited four-year LLB as public universities, and its exclusion from section 26(1)(a) of the Legal Practice Act, limits this right.”

[11] The High Court went on to hold that section 26(1)(a) of the Legal Practice Act was constitutionally invalid by reason of its inconsistency with sections 9, 22 and 29(3) of the Constitution. This it said because it was satisfied that the word “university” in section 26(1)(a) of the Legal Practice Act clearly excludes private higher education institutions, duly registered and accredited to offer the LLB degree.

[12] The High Court correctly referenced the meaning of the word “university” in the Oxford English Dictionary. There it is defined as “a high-level educational institution in which students study for degrees and academic research is done”. But, even after referring to a collation of interpretive principles in Cool Ideas, that is not the meaning it gave to “university” in section 26(1)(a) as it concluded that the applicant did not fall within that meaning.

[13] Several questions thus arise.

  • Is the Institute not “a high-level educational institution in which students study for degrees and academic research is done”?
  • Would it be absurd to give the word “university” its ordinary grammatical meaning?
  • Would an absurdity not arise when “university” is construed in a way that excludes what is in reality a university?
  • Is there anything about the contextual or purposive interpretation of section 26(1)(a) that supports the meaning of the words “any university” that excludes a private higher education institution?

There is, in my view, no sound reason for not giving the word “university” its ordinary grammatical meaning and for not concluding that its contextual and purposive construction ought to save section 26(1)(a) from constitutional invalidation. To do otherwise would be absurd.

[14] Additionally, there is no principle of interpretation that requires a court without more to interpret one piece of legislation with reference to another. I say without more advisedly, because a special meaning given to a word or expression in one statute may not be assigned to the same word or expression in another statute which does not define that same word either at all or in the same terms.

[15] That said, where a provision of a statute is either sought to be interpreted or tested for constitutional validity, it may at times be appropriate to consider how another statute deals with a similar issue. But even under those circumstances, the latter statute cannot be any more than an interpretive aid. It would thus be impermissible to use as a standard to be adhered to or to attach more weight to a word in a statute that is not being challenged, to determine the constitutionality of an impugned statute.

The Constitution is the standard to be complied with in determining the constitutionality of any legislation. More importantly, where the ascertainment of the meaning or constitutionality of a provision may be enabled by direct guidance from the Bill of Rights as in this case, then that superior interpretive aid or measurement of constitutionality should render unnecessary any reference to whatever legislation might appear to be relevant. Put bluntly, if when considering the constitutionality of a particular legislation it becomes apparent that its provisions are consistent with or promote the Bill of Rights, there would be no need to still ascertain whether its provisions are consistent with those of another related legislation.

[16] More tellingly, the Higher Education Act opens its definition section in these terms:

“In this Act, unless the context otherwise indicates – “university” means any university established, deemed to be established or declared as a university under this Act.”

[17] It follows that the special meaning given to “university” in that Act is confined to instances where the Higher Education Act itself applies. But, even then, the definition applies subject to context. Room is left for the word “university” to be given a meaning that is at variance with that specially defined one even where the Higher Education Act applies. And this is in line with our jurisprudence.

In Liesching I we said:

“‘Appeal’ is defined in section 1 of the Superior Courts Act. Where a word is defined in a statute, the meaning ascribed to it by the Legislature must prevail over its ordinary meaning. The definition makes plain that the word ‘appeal’ would only bear the meaning ascribed to it by the Legislature if the context so requires. If, however, there are compelling reasons, based on the context, to disregard the ascribed meaning then the ordinary meaning of the word must be used. If a defined word or phrase is used more than once in the same statute it must be given the same meaning unless the statutory definition would result in such injustice or incongruity or absurdity as to lead to the conclusion that the Legislature could never have intended the statutory definition to apply.”

[18] To concretise this approach, the following must never be lost sight of.

  • First, a special meaning ascribed to a word or phrase in a statute ordinarily applies to that statute alone.
  • Second, even in instances where that statute applies, the context might dictate that the special meaning be departed from.
  • Third, where the application of the definition, even where the same statute in which it is located applies, would give rise to an injustice or incongruity or absurdity that is at odds with the purpose of the statute, then the defined meaning would be inappropriate for use and should therefore to be ignored.
  • Fourth, a definition of a word in the one statute does not automatically or compulsorily apply to the same word in another statute.
  • Fifth, a word or phrase is to be given its ordinary meaning unless it is defined in the statute where it is located.
  • Sixth, where one of the meanings that could be given to a word or expression in a statute, without straining the language, “promotes the spirit, purport and objects of the Bill of Rights”, then that is the meaning to be adopted even if it is at odds with any other meaning in other statutes.

[19] The Higher Education Act does not itself have a fixed general meaning of “university” that necessarily applies to the Act in its entirety. Parliament knows all pieces of legislation it has passed. Had it wanted to ascribe to “university” in the Legal Practice Act the same meaning it gave to it in the Higher Education Act, it would have been all too easy for it to do so. But, it chose not to. This despite the fact that it knew that words carry their ordinary meaning unless a special meaning is ascribed to them. Absent a defined special meaning in the Legal Practice Act, “university” must thus be given its ordinary meaning.

[20] Section 26(1)(b) of the Legal Practice Act requires that a graduate seeking to practice law in South Africa with a law degree from another country, holds a degree of the quality or standard that “is equivalent to the LLB degree and recognised by the South African Qualifications Authority”. The Institute offers such a recognised degree. How then can a foreign equivalent of the LLB degree awarded by our public universities be acceptable in terms of the Legal Practice Act but a domestic equivalent by a private higher education institution is not acceptable just because the institution is not referred to as a “university or public university”? Surely the mere absence of the section 69(d) registration criteria may not disqualify what is in reality a “university” from being treated as such.

[21] The Legal Practice Act exists to facilitate entry into the legal profession by all who have acquired a four-year LLB degree of a standard acceptable to the South African Qualifications Authority. It bears repetition that in accrediting the Institute’s LLB degree the Authority said that the degree would equip the graduates “for the professional practice of law” and enable them “to apply for admission as legal practitioners”.

[22] Section 26(1)(a) was declared constitutionally invalid, not because it defined “university” in a way that excludes the Institute and that is thus inconsistent with the Constitution. But because it did not include certain words contained in the definition of “university” in the Higher Education Act. That approach gives rise to the injustice and absurdity alluded to in Liesching I. This is so because there is nothing in or about the Legal Practice Act that compels that the definition of “university” in the Higher Education Act must apply to it. And the ordinary meaning of “university” accords with the provisions of section 29 of the Constitution and promotes the very essence of the Bill of Rights.

[23] It is section 26(1)(a) itself that must be construed with reference to relevant constitutional provisions to determine what it means and whether it is constitutional— not a definitional section of the Higher Education Act. More importantly, that interpretive exercise, properly done in obedience to the dictates of section 39(2) of the Constitution, must be sensitive to the obligation courts have to promote the fundamentals of the Bill of Rights. And the Bill of Rights provides for private institutions of learning in section 29.

The relevant part of section 29 says:

“(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that―
(a) do not discriminate on the basis of race;
(b) are registered with the State; and
(c) maintain standards that are not inferior to standards at comparable public educational institutions.”

[24] The Institute is “an independent educational institution” envisaged by section 29(3) of the Constitution. There is no suggestion that it seeks to discriminate on any constitutionally-objectionable basis. It is registered with the State and the accreditation of its LLB programme confirms that it is of a standard that is not inferior to that of a public university. It too offers a four-year LLB degree. The establishment of a constitutionally-compliant institution, like the Institute, promotes the spirit, purport and objects of section 29 of the Constitution. It increases the pool wherefrom higher education of an appropriate standard could be made accessible to many. We must guard against our judgment mistakenly undermining or frustrating the essence of the Bill of Rights.

[25] All these considerations point to no other conclusion but that a registered independent higher institution of learning, like the Institute, whose character and programmes meet the constitutional and statutory requirements of an equivalent public institution, is a “university”. To conclude otherwise would amount to putting form over substance. And it would give rise to an absurdity and injustice because everything about the Institute demonstrates beyond doubt that it is a “university” properly so called.

Conclusion

[26] The Law Society sought to interpret a word in one piece of legislation through the prism of a special meaning ascribed to it in another. This is impermissible in law barring, for example, instances where the need to do so flows effortlessly from context or from the provisions of the statutes being used as a guideline, or where for example the impugned provision cross-references a meaning of the same word or expression in another legislation. But even then, without disregarding the very provisions of legislation sought to be relied on or inadvertently side-lining the section 39(2) injunction.

[27] No attempt was made to grapple with the possibility of giving “university” in section 26(1)(a) its ordinary grammatical meaning, to properly reflect on its contextual and purposive meaning or to interpret this word consistently with section 29(3) of the Constitution. The sad reality is that the determinative issue in the High Court was the definition of “university” in the Higher Education Act which was not challenged or sought to be interpreted. This is what brought us where we are.

[28] The words “any university” in section 26(1)(a) are thus capable of and should be given a meaning that is in conformity with the provisions of section 29(3) of the Constitution. And that gives significance to section 39(2). The High Court order declaring section 26(1)(a) of the Legal Practice Act constitutionally invalid will thus not be confirmed.

Costs

[29] The Institute has asked for costs against the Minister of Justice and Correctional Services. The basis is that he failed to take measures admittedly necessary to have section 26(1)(a) amended to include “private higher education institutions duly accredited and registered to provide the LLB degree”.

[30] The Minister does not oppose this application and has expressed an intention to initiate the process that would culminate in Parliament hopefully passing an amendment that addresses the Institute’s concerns. But a proper interpretation has shown that section 26(1)(a) does not preclude the Institute’s LLB graduates from being admitted as legal practitioners. Meaning, the Minister has not failed to do anything that he was supposed to do.

[31] The Law Society took the view that an accredited LLB degree from a duly registered “private higher educational institution in which students study for degrees” is not a university for the purpose of section 26(1)(a).

The Law Society’s mistake is therefore the source of the problem. And it has effectively been unsuccessful. Costs ought ordinarily to follow the result.

[32] Mindful of this possible outcome, we invited the parties, including the Law Society, to file submissions explaining why the Law Society should not be ordered to pay costs of the application in this Court and in the High Court, including costs of two counsel. The Institute is not opposed to that order whereas the Law Society is.

[33] We are satisfied that it is the Law Society, not the Minister, who should bear costs in this Court and in the High Court. Accordingly, the Law Society or its successor, the KwaZulu-Natal Provincial Legal Council, will be ordered to pay costs of the Institute, including costs occasioned by the employment of two counsel.

Order

[34] The following order is made:

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.