interpret a written instrument.
I am well aware of the
fallacy of supposing that general language must have a
single 'objective meaning'.
influence
of one's
preconception.
Nor is it easy to avoid the
personal
intellectual
and
moral
But it cannot be too strongly stressed that
the Constitution does not mean whatever we might wish it
to mean.
We must heed Lord Wilberforce's reminder that
even a Constitution is a legal instrument, the language of
which must be respected.
If the language used by the
lawgiver is ignored in favour of a general resort to 'values'
the result is not interpretation but divination . .. .I would say
that a Constitution 'embodying fundamental principles
should as far as its language permits be given a broad
. "
constructwn.
VALUE BASED INTERPRETATION
35.
Of course it 1s conceded that the purpos1ve approach to
interpretation, ultimately requires a value judgment to be made
about those purpose that are key and more important which have
to be protected by those of Constitution and those which are
not. Thus the remarks of Mahomed CJ in Ex Parte Attorney
General, Namibia: In RE Corporal Punishment by Organs of
State 1991 (3) SA 76 (NmSC), 91 D- Fare critical:~
"It is ... a value judgment which requires objectively
to be articulated and identified, regard being had to
the contemporary norms, aspirations, expectations and
sensitivities of the Namibian people as expressed in its
national institutions and its Constitution, and further
having regard to the emerging consensus of values in a
Page 12 of 46
Applicant's Heads of Argument in the matter between:
Loveness Mudzuru & Another v Minister of Justice Legal & Parliamentary Affairs & 2 Others
Case Number CCZ 79/2014
Prepared by Tendai Biti Law