Even peremptory provisions in a statute may yield to two rules of interpretation:
- Laws must be interpreted to promote the spirit, purport and objects of the Bill of Rights.
- Due regard must be had to the purpose of the statute and more particularly whether adopting a strict or literal interpretation is consistent with what the law seeks to achieve.
An estate agent which was entitled to a fidelity fund certificate had erroneously been issued an invalid certificate by its regulatory board because of an error. Section 34A of the Estate Agency Affairs Act 1976 required a valid certificate for an estate agent to earn commission on a transaction. Its right to earn commission was disputed.
Section 22 of the Constitution entitles anyone to freely engage in a trade, occupation or profession. Therefore Section 34A must be interpreted to promote, rather than impede, the exercise of that right. Secondly the purpose of the law is to protect the public from unauthorised persons handling money regarding property transactions to the detriment of the public. The public was fully protected because the estate agent was entitled to a valid certificate and was subsequently issued with a retrospective certificate.
The interpretation of contracts and statutes has, as we have often observed, entered a new and more pragmatic stage where the Constitution, and the purpose and context of the law are all-important.
The case is Signature Real Estate (Pty) Ltd v Charles Edwards Properties and others.
