In a recent Supreme Court of Appeal judgment, the following is said regarding the interpretation of the Marine Living Resources Act of 1988:

“The appellants contend that the word angling is foreign as it is not mentioned in the Marine Act. Whilst this is correct, the definition of ‘this Act’ in section 1 of the Marine Act ‘includes any regulation or notice made or issued under this Act’. This therefore means that, although angling is defined in the regulations and not in the Marine Act, its definition is deemed to be included in the Marine Act.”

If that were correct (which it is not – “Don’t use regulations to interpret an Act” April 12 2016) we would not need parliament to do much. Ministers and officials issuing regulations and notices can do what parliament is required to do whenever they like.

It is an interesting coincidence that on 28 June 2024 the Supreme Court of the United States overturned a 40-year old precedent and found that government agencies have no power to interpret ambiguities in the law. They cannot definitively fill the gaps that congress leaves in statutes. The court found that government agencies have “no special competence” in resolving statutory ambiguities and that the “courts do”.

In relation to financial sector laws, the financial authorities can issue guidance notices and interpretation rulings but, as our Constitution requires, the final say is left to the courts if the interpretation rulings are challenged.

We can only hope that the Supreme Court of Appeal statement of the law will not be followed and will soon be disclaimed by the court.[Gannet Works (Pty) Ltd v Middleton Sue NO [2024] ZASCA 112 (16 July 2024)]