Judgment No. CCZ 6/2015 6
Const Application No. 02/14
subsection that the authorities cited above interpreted as outlawing a direct approach to the
Supreme Court. In addition to this, reference to the same subsection, in the old s 24 (1) also
failed to find its way into the new Constitution.
The sum total of all this, it appears to me, could be interpreted as evincing an
intention, by the Legislature, to remove completely any “bar” that an applicant in terms of
s 24 (1) might have confronted, arising from the fact that the constitutional issue in point
arose during proceedings in a lower court. It could, further be interpreted as creating the
impression that the options for redress that were open to an applicant envisaged in the old
sections 24 (2) (now s 175 (4)), and 24 (3) have been widened.
The critical questions that then arise, against this background, are:
1.
Has the absence of restrictive provisions in both s 85 and s 175 (4)
(particularly the former), opened the door very widely, and given unfettered,
direct access to the constitutional court, to any person who claims an existing,
current or impending violation of their constitutionally guaranteed
fundamental rights?, and
2. Was this the intention of the Legistature?
These questions in my view can only be answered on a proper consideration of
relevant rules governing the interpretation of statutes generally and of the constitution in
particular. In this respect, it is pertinent to note that a constitution is itself a statute of
Parliament. Therefore, any rules of interpretation that are regarded as having particular
relevance in relation to constitutional interpretation, can only be additional to the general
rules governing the interpretation of statutes.
The starting point in relation the interpretation of statutes generally would be what is
termed ‘the golden rule’ of statutory interpretation. This rule is authoritatively stated thus in
the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A) at 767;