THERE IS a mushrooming kerfuffle over the grade 12 minimum academic qualification required by the Constitution for one to stand as a councillor, member of parliament, council chairperson, mayor and President. Many people in our politics don’t seem to have it.
In the 2016 elections there was a more loose or liberal interpretation of this constitutional requirement. It was easy to meet this requirement. Last week’s Constitutional Court interpretation made it very difficult for many people to meet this requirement. The literary interpretation of this constitutional provision given by the Constitutional Court doesn’t seem acceptable to many people. It seems to have produced an absurd result.
The absurd result principle in statutory interpretation provides an exception to the rule that a statute should be interpreted according to its plain meaning. In an age of increasing debate about the proper approach to statutory interpretation, and of increasing emphasis on literal approaches, the absurd result principle poses intriguing challenges to literalism and to theories of interpretation generally. The absurd result principle is extraordinarily powerful. It authorises a judge to ignore a statute’s plain words in order to avoid the outcome those words would require in a particular situation. This is a radical thing; judges are not supposed to rewrite laws.
Ordinarily, such actions would be condemned as a usurpation of the legislative role, an unconstitutional violation of the separation of powers. Even when a genuine question exists about the actual meaning of the statute’s words, it is generally considered to be illegitimate for a judge to make the choice between possible meanings on the basis that the real-life result of one meaning strikes the judge as somehow objectionable. The absurd result principle apparently gives just that power and authority to a judge. Yet this principle enjoys almost universal endorsement, even by those who are the most critical of judicial discretion and most insistent that the words of the statute are the only legitimate basis of interpretation.
The law can only work for people when laws are fair. This grade 12 requirement, as interpreted by the Constitutional Court, has let people down. The grade 12 requirement is perceived as outright unjust by the majority of the people. This is an outright case of utilising improper means for the pursuit of an apparently legitimate goal. It has generated requirements that do not reflect the values of the underlying population. Today individuals are facing legal prohibitions that conflict with their sense of justice or fairness.
Unjust laws like these can be opposed through protest. Social opposition to unjust laws may trigger social norms that can have countervailing effects on legal intervention.
The inadequacies they were trying to address with the grade 12 requirement could have been dealt with differently. If there’s a deficiency of language – English language – the solution is not to bar those not proficient in English but to allow them to use languages they are fluent in. Other things they don’t understand – economics, law, security – can be taught to them as they perform their duties as councillors, council chairpersons, mayors, parliamentarians or presidents.
This constitutional provision only goes to show the class nature, the elite domination of our society. This is why this year we need to usher in a government of the humble, by the humble for the humble – a socialist government. Only under a socialist government can we truly have justice, equity and peace.
