THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Abstract

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.