Thus, if the
Attorney General Canada 1930 AC 124.
Constitution is a living tree, according to Lord Sankey, it cannot
be "cut down" by "a narrow and technical construction" but should be
given "a large and generous interpretation".
See also British
Coal Corporation v The King 1935 AC 500.
THE GENEROUS APPROACH TO CONSTITUTIONAL INTERPRETATION.
30.
In this regard, it is submitted that only a generous interpretation,
will give full effect to the freedoms and liberties that are
contained in the Bill of Rights.
See for instance G. Que v
Blaikie 1979 (2) SCR 1016 in which it was held that the Court
must call for:,
"A generous interpretation, avoiding what has been called
the austerity of tabulated legalism"
PURPOSIVE APPROACH TO THE CONSTITUTIONAL INTERPRETATION
31.
It is submitted that this Honourable Court must adopt, a broad
and generous approach to the interpretation of the Bill of Rights
that is purposive.
Purposive interpretation,
is aimed at
interrogating and teasing out the core values that underpin the
listed fundamental rights in an open and democratic society
based on human dignity equality and freedom.
Using this
approach, we have to identify the purpose of a right in the Bill, in
spirit and in substance. This purposive approach is one that has
found home in a number of decisions including State v
Mhlungu & Others 1995 (3) SA 391 (CC); State v Twala 2000
(1) SA 879 (CC); Ex Parte Attorney GeneraL Namibia: In re
Page 9 of46
Applicant's Heads of Argument in the matter between:
Love ness Mudzuru & Another v Minister of Justice Legal & Parliamentary Affairs & 2 Others
Case Number CCZ 79/2014
Prepared by Tendai Biti Law