Judgment No CCZ 8/16 23
Const. Application No CCZ 48/15
The established approach espoused in constitutional interpretation is to adopt a
purposive and generous rather than a pedantic or restrictive interpretation.
As was
enunciated in the celebrated decision of the Canadian Supreme Court in R v Big M Drug
Mart Ltd (1985) 1 SCR 295, at 344:
“The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was to be
understood, in other words, in the light of the interest it was meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the right or
freedom in question is to be sought, by reference to the character and larger
objects of the Charter itself, to the language chosen to articulate the specific right
or freedom, to the historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other specific rights and freedoms
with which it is associated within the text of the Charter. The interpretation
should be …….. a generous rather than a legalistic one, aimed at fulfilling the
purpose of the guarantee and securing for individuals the full benefit of the
Charter’s protection.”
In similar vein, it was recognised in State v Zuma 1995 (2) SA 642 (CC), at para.
14, that a Constitution requires:
“a generous interpretation …….. suitable to give to individuals the full measure of
the fundamental rights and freedoms referred to.”
Extrapolating from these authorities, the preferable approach to the construction
of an enactment is to interpret and apply it in a manner that accords with the overall tenor
of the Constitution and is liberal, generous and purposive in its impact on fundamental
rights, insofar as this is possible without doing violence to its scope and objects. The
adoption of the approach that I commend in the construction of Part XX of the Prisons
Act would, to use the words of MAHOMED CJ in Tcoeib’s case (supra), “constitute a
sufficiently concrete and fundamentally realisable expectation of release adequate to
protect the prisoner’s right to dignity”. It would thus attain the constitutional objective of
Select target paragraph3
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