v
Corporal Punishment by Organs of State 1991 (3) SA 76
(NmSC).
32.
The grandmaster of the purposive approach, to Constitutional
interpretation, is the Canadian Supreme Court of R v Big M
Drug Mart Ltd 1984 18 DLR (4t11) wherein it was stated as
follows:~
"The meaning of a right of 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 purposes of
the right or freedom in question is to be sought, by references
to the character and larger objects of the Charter [of Rights
and Freedom] 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 freedom 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."
33.
The purposive interpretation or generous interpretation also
finds authority in Lord Wilberforce famous judgment in
Minister of Home Affairs (Bermuda) v Fisher 1979 (3) ALLER
121. After referring to the influence of certain international
conventions on the Constitutions of former colonies of the
British Commonwealth, Lord Fisher called for
Page 10 of 46
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 Tcndai Biti Law