6

PRESUMPTIONS OF STATUTORY INTERPRETATION

The presumptions are principles of the common law and they are
applicable to all laws. These are assumptions the courts take into account
in interpreting statutory provisions. The presumptions of statutory
interpretation, counting among the legal system’s foundational norms as
it were, verbalise expectations that a legislature will follow (or will at least
be alert to) certain basic tenets and aspirations of the said system. A legal
system is based on and informed with foundational norms that express
the sense of fair play of the community it serves. The norms reflect
communal mores rooted in tradition and they shepherd the application of
more specific, issue-directed ‘black-letter’ legal rules. Other than the
merely formal Kelsenian Grundnorm, they are operative articulations of
values. Among these norms such as nullum crimen sine lege, ex turpi
causa non oritur actio and the rules of natural justice (audi et alteram
partem and nemo iudex in re sua).

The presumptions’ interpretive function has been described as purely

auxiliary and they may be involved in interpretation only if the language
in question is not clear.

We have presumptions of general application and presumptions for use in

doubtful cases.

Presumptions of general application are fundamental legal principles that

should always be kept in mind, even where the language is clear and
unambiguous. They are presumed to apply unless excluded by express
words or necessary implication. When all relevant contextual
considerations have been duly weighed, the interpreter should again test
his conclusions in light of the presumptions of general application.
Examples of presumptions of general application are as follows:-
(a) The presumption of that mens rea (legal intention) is required in
statutory crimes,
(b)The presumption that statutory powers must be exercised
reasonably,
(c) The presumption that administrative tribunals and other such bodies
will act in accordance with the principles of natural justice, and
(d)The principle that no person shall be allowed to gain an advantage
from his own wrong. See the case of R v Chief National
Insurance Commissioner, ex p Connor 1981 QB 758 wherein
section 24 (1) of the Social security Act 1975 provided that
“a woman who has been widowed shall be entitled to a
woman’s allowance.”
Notwithstanding this clear language, the court applied the principle
and held that a woman who killed her husband and was
subsequently convicted of manslaughter (culpable homicide) was
not entitled to a widow’s allowance under Section 24 (1).

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Presumptions for use in doubtful cases apply where the language of a
provision is equivocal. Most presumptions fall into this category. Courts
have described them as announcements to legislature that certain
meanings will not be assumed unless expressed in clear terms. In the
absence of clear terms courts will follow the presumption. Examples of
these presumptions are as follows:-
(a) Presumption against changes in the common law,
(b)Presumption against ousting the jurisdiction of the courts,
(c) Presumption in favour of individual liberty, and
(d)Presumption against retrospective legislation.

SPECIFIC PRESUMPTIONS

6.1. Presumption against alteration of the existing law more

than is necessary
Statutes should be construed as far as possible in conformity
with the common law rather than against it. The presumption
requires clear and unequivocal language to alter the common
law. Legislation must be interpreted in light of the common law,
must as far as possible be reconciled with related precepts of the
common law and must be read to be capable of co-existing with
common law in pari materia. The presumption relates to common
law and existing statutes and customary law.
6.1.1. Common law
This presumption reflects an inherent respect and esteem
for our common law heritage. Common law is seen as the
basis of the current law and statute law is thought to be an
exception to common law.
6.1.2. Legislation
The presumption means that in interpreting subsequent
act, it is assumed that the legislature did not intend to
repeal or modify the earlier Act. Any repeal or amendment
must be effected expressly or by necessary implication.
This presumption enhances legal certainty as it discourages an
undue destabilisation or unsettlement of the law as it stands. It
also manifests esteem for the worth of the common law as the
outcome of historical evolution.

6.2. The presumption that legislation does not contain futile

or nugatory provisions/statute law is not invalid or
purposeless
It is presumed that the legislature does not intend legislation
which is futile (useless) or nugatory. The legislature intended to
make sensible or intelligent provisions. The court has to
determine the purpose of legislation and give effect to it. Since
statutory interpretation is a purpose seeking activity, this
presumption constitutes its very essence. The foundation of this
presumption is the acknowledgement that legislation has a

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 functional purpose and object. Legislation should as far as
possible be kept alive.
In Ex parte The Minister of Justice: In re R v Jacobson and
Levy1 the court held that if the intention of the legislature is
clear, it should not be defeated merely because of vague or
obscure language. The court must as far as possible, attach
meaning to the words which will promote the aim of the
provision.

The presumption may be used to obviate a presumption which

might lead to fraud, to supply a cassus omissus and to supply a
penalty.
See the case of R v Forlee2 wherein Forlee was found guilty of
contravening Act 4 of 1909 by selling opium. On appeal his
Attorney argued that Forlee had not committed an offence since
the Act in question prescribed no punishment. The court relied on
the presumption against futility, finding that a specific offence
had been created by the legislature. The absence of a prescribed
penal clause did not render the Act ineffective, since the court
has discretion to impose a suitable form of punishment as it
deems fit.

The decision gave rise to widespread criticism, because of the

rule nullum crimen sine lege (if there is no penalty, there is no
crime) was not adhered to. Nullum rule forms the basis of the
criminal justice system and should have outranked the
presumption against futile results. Devenish GE 3 was of the
opinion that this was a case where the court should have applied
the cassus omissus rule.

6.3. Constitutionality
This presumption arises in almost every constitutional democracy
where the constitution is the supreme law. An Act of parliament
is presumed to be constitutional until the contrary is shown. See
the case of Zimbabwe Township Developers (Pvt) Ltd v
Louis Shoes (Pvt) Ltd 1983 (2) ZLR 376 where Georges CJ
said
“constitutionality is a phrase which appears to me to be
pregnant with the possibilities of misunderstanding. Clearly, a
litigant who asserts that an Act of Parliament or a Regulation
is unconstitutional must show that it is. In such a case, the
judicial body charged with deciding that issue must interpret
the constitution to determine its meaning and thereafter
interpret the challenged piece of legislation to arrive at the
conclusion as to whether it falls within that meaning or it does
not. The challenged piece of legislation may, however, be

1
1931 AD 466
2
1917 TPD 52
3
Devenish GE (1992) Interpretation of Statutes, Juta

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 capable of more than one meaning. If that is the position then
if one possible interpretation falls within the meaning of the
constitution and others do not, then the judicial body will
presume that the law-makers intended to act constitutionally
and uphold the piece of legislation so interpreted. ------
because the person alleging unconstitutionality must establish
it, a burden may rest on that person to establish factually that
an act does not fall within the ambit of constitutionality.”
See also the following cases:-
1. CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC)
2. Associated Newspapers of Zimbabwe (Private) Limited
v The Minister of State Information and Publicity SC
20/03

6.4. The Presumption against retrospectivity or retroactivity

There is a presumption against enactments having retrospective
effect. Even where retrospectivity is expressly provided for the
provision will be strictly construed to keep retrospectivity to
plainly applicable circumstances. However, the presumption does
not apply to procedural matters or in respect of beneficial
enactments. In the case of Mahomed N O v Union
Government4 it was said
“the principle that (in the absence of express provision to the
contrary) no statute is presumed to operate retrospectively is
one recognised by civil law as well as by the law of England.
The law-giver is presumed to legislate for the future…”
In the case of Bater & Anor v Muchengeti 1995 (1) ZLR 80
(SC) Gibbay Cj said: -
“… a fundamental rule…. that there is a strong presumption
that retrospective operation is not to be given to an
enactment so as to remove or in any way impair existing
rights or obligations unless such a construction appears
clearly from the language used or arises by necessary
implication. The supposition is that the law maker intends to
deal only with the future events and circumstances.”
Generally stated the rule is that statutes regulate future conduct
and are construed as operating only on cases or facts which
came into existence after they were passed. The presumption
can be framed positively, namely that a statute applies
prospectively. The most common explanation for the existence of
the presumption is that a retrospective interference with vested
rights or creation of new obligations or an imposition of new
duties by the legislature is not lightly assumed. The crux of the
matter is not retrospectivity or prospectivity of legislation as
such, but the fair treatment befalling those subject to the
legislation should the legislation be held to apply in either
manner.

4
1911 AD 8

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 This presumption and that against the interference with existing
rights have often been merged into one.
6.4.1. The presumption as applied in criminal law
A person cannot be convicted of an act that he committed
if at the time it was not an offence. Further, where a
statute increases penalty then the increased penalty will
not be retrospective.
6.4.2. Where an enactment deals with procedure or evidence
New procedural rules apply to all existing cases, even
those that arose before the new rule came into effect. This
is because procedural rules do not generally take away
rights.

6.5. Principles of natural justice

Devenish5 presents this presumption as follows: -
“it has been clearly established in our law that when a statute
authorizes judicial or quasi judicial powers which may
influence individual or property rights, there is a presumption
that, in the absence of an express provision or a clear
intention to the contrary, the powers so given are to be
exercised in accordance with the principles of natural justice”
The main principles of natural justice are:-
6.5.1. Audi et alteram partem rule
This means a person must be given the right to be heard
before an adverse decision is taken.

6.5.2. Nemo iudex principle

This means a person must not be a judge in his cause.
See the case of Health Professionals Council v McGown6
wherein the Practice Control Committee of the Health
Professionals Council acting in terms of Section 39D (2) of the
Medical, Dental and Allied Professions Act, imposed certain
restrictive medical practice conditions upon McGown, a medical
practitioner. The Committee did not afford him an opportunity to
make representations before the decision was made to impose
the restrictive conditions. The relevant section did not expressly
provide for a right to make representations before the decision
was made to impose the restrictive conditions. The presumption
in favour of the principles of natural justice was invoked and it
was held that the medical practitioner should have been given an
opportunity to be heard before the decision was made. And also
Zimbabwe Teachers Association & Ors v Minister of
Education7 in this case the Government summarily dismissed all

5
supra
6
1994 (2) ZLR 329 (S)
7
1990 (2) ZLR 48 (HC)

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 striking teachers who had not heeded its call for their return to
work by a set date. The teachers challenged their dismissal on
the basis that the dismissal was unlawful for failure to comply
with the audi et alteram partem rule. The court held that the
dismissal was unlawful.

6.6. The presumption against interpreting a statute so as to

oust or restrict the jurisdiction of superior courts
There is a presumption against the legislature interfering with
the jurisdiction of courts which is related to the presumption
against changing existing law. This presumption rests on the
theory that the law-giver no more intends to affect the state in its
judicial than in its executive organ. According to Lourens du
Plessis8 the object of this presumption is to vouch for the
horizontal division of powers (or trias politica) and in particular,
for the independence of the judiciary, and to ensure access for
individuals to the courts and to adjudicative procedures. Under
the doctrine of separation of powers the judiciary stands on an
equal footing with the executive and the legislative pillars of the
state. Note that it applies only to superior courts. All other courts
are creatures of statute. See the case of Archipelago (Pvt) Ltd
and Sarah Investments (Pvt) Ltd v Liquor Licencing Board
1986 (1) ZLR 146 (HC) where Ebrahim J said
“the jurisdiction of the High Court to review the decision of
any inferior court is enshrined in the High Court Act and the
presumption against this jurisdiction being ousted in any case
or against its exercise being delayed pending the pursuit of
internal remedies is particularly strong”
Our constitution provides for the independence of the judiciary in
no uncertain terms.
The presumption has also manifested itself with regard to
specific issues, for instance the following:-
(a) Statutory provision for extra-judicial remedies and procedures
has not as a rule, excluded or barred recourse to a court of
law though it has mostly been required that he alternative
remedy must be exhausted and the alternative procedures
fully explored before approaching a court.
(b)The courts have, generally speaking been critical of statutory
provisions laying down mandatory sentences and such
provisions have usually been interpreted to keep, as far as
possible, the courts’ penal discretion intact.

6.7. The presumption that a statute will not be interpreted so

as to violate a rule of international law or international
obligations
There is a presumption that the legislature intended an
enactment to conform to international law. This presumption
requires the courts to seek an interpretation of statute that will
8
Lourens du Dlessis, (2002) Re-Interpretation of Statutes, LexisNexis, South Africa.

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 not make domestic law conflict with international law. According
to Lourens du Plessis9 reliance on this presumption is meant to
ensure, first that the state’s international obligations are
honoured in application of municipal law and second, that
international standards for protection of fundamental rights and
freedoms are upheld by the state.

It is important to note that international law is divided into rules

of customary international law and treaties. The rules of
customary international in terms of common law automatically
form part of Zimbabwean municipal law. The courts will take
judicial notice of a rule of customary international law. On the
other hand treaties such as United Nations charter do not form
part of Zimbabwean municipal law unless they are incorporated
by legislative process.

See the case of Catholic Commission for Justice and Peace

in Zimbabwe v Attorney General & Ors 1993 (1) ZLR 242
(SC)

6.8. Presumption that the state is not bound by a

statute/Government bodies are not bound by their own
legislation
Generally the state legislates for its subjects and not to bind
itself. This is a judge made rule of construction based on the
assumption that parliament if it wished the state to be bound by
a statute would have said so. The rule is of English origin and is
closely linked to the exercise of the royal prerogative (authority).
It applies to the state in its executive arm and any other body
from which an enactment emanates.

The rule is morally unacceptable as what it is saying is that the

state is above the law. However, in Zimbabwe the constitution is
the supreme law and binds all legislative, executive and judicial
organs of the state at all levels of government. However, it is
possible that there may be laws where in public interest the state
should not be bound for instance where a driver of a fire engine
may disregard a red traffic light while fire-fighting.

The purpose is to ensure that the state is not hampered in its

government functions. If this proposition is true then state organs
should always be bound by their legislation, unless a particular
government organ can prove that it would be hampered in the
execution of its duties and functions if it were bound by its own
legislation.

6.9. Statute law has no extra-territorial effect

9
supra

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 The presumption that statutes do not obtain extra-territorially or
do not have extra-territorial application or do not strike acts
committed beyond the limits of jurisdiction of the legislature
roots in respect for the territorial integrity of other states.

6.10. The presumption that the legislature does not intend

that which is harsh, unjust, unreasonable or to cause
injustice
The cornerstone of this presumption is the natural law thesis that
law should be just.10 Bennion11 asserts that it is a principle of
legal policy that law should be just and that court decisions
should further the ends of justice. In view of the doctrine of
separation of powers, the presumption is clearly rebuttable
because where a statute is unequivocal in its import, the court
must give effect to the meaning, no matter how unjust it may be.
The presumption could be excluded by the legislature.

10
Madhuku L (2010) Introduction to Zimbabwean Law, Weaver Press & Friedrich-Ebert-Stiftung, Harare
11
Bennion FAR, (2002) Statutory Interpretation, 4th Ed, LexisNexis, London

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