In the recent case of Marshall N.O. and Others v Commissioner for the South African Revenue Service CCT208/17  ZACC 11 (25 April 2018), the Constitutional Court was required to consider the late filing of an application for leave to appeal against a judgement of the Supreme Court of Appeal (“SCA”). In making its determination, the Constitutional Court inter alia, considered the contention by the applicant that the Supreme Court of Appeal should not have relied on a SARS issued Interpretation Note in reaching its decision.
The applicant contended that the courts must independently determine the meaning of legislation and that the consideration of Interpretation Notes as legally relevant to the proper interpretation of legislation would be unconstitutional as it would inter alia give rise to unequal treatment of litigating parties. In addition, the applicant contended that an Interpretation Note is, in reality, inadmissible opinion evidence.
SARS submitted that a court may have regard to an administrative body’s interpretation of legislation only to the extent that this interpretation constitutes evidence that it has been interpreted in a consistent manner for a substantial period of time by those responsible for its administration “in order to tip the balance in the case of marginal statutory interpretation”.
The Constitutional Court considered various aspects relating to the use of “custom” in interpreting legislation and the change over time from legislative supremacy to constitutional democracy and stated as follows:
“Why should a unilateral practice of one part of the executive arm of government play a role in the determination of the reasonable meaning to be given to a statutory provision? It might conceivably be justified where the practice is evidence of an impartial application of a custom recognised by all concerned, but not where the practice is unilaterally established by one of the litigating parties. In those circumstances it is difficult to see what advantage evidence of the unilateral practice will have for the objective and independent interpretation by the courts of the meaning of the legislation, in accordance with constitutionally compliant precepts. It is best avoided”.
On the basis of the above, unless an Interpretation Note evidences a prevailing custom, an Interpretation Note essentially constitutes a one-sided view as to the interpretation of a statutory provision. In such instances, in accordance with the above, any reliance placed by a court on an Interpretation Note may impact on the independence and impartiality of such court in reaching its decision.