INTERPRETING A CODE OF CONDUCT

Labour disputes can turn on the interpretation of a code of conduct. Interpretation entails the process of construing the text of a code to come up with the true meaning of an instrument. Our courts have designated various principles that we can utilise in the process of interpreting a code of conduct. We submit that to a greater extent; these principles have similarities with the rules of statutory interpretation.

Ordinary grammatical words in the code

Words in a code of conduct provide the primary guidance and a starting point in the process of ascertaining the correct/true meaning of a code and its provisions.

The words should be given their ordinary grammatical meaning unless if this can result in some anomaly.[1] This is the same principle that courts have used to interpret legislation in several circumstances.[2]  This principle was appropriately explained in Venter v Rex[3] wherein the court noted that :

“it appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.” (own emphasis)

The sample principle, it is submitted, is available in the interpretation of a code of conduct. In Circle Tracking v Mahachi the courts buttressed this rule and mentioned that:

“The term corruption in the context of the Code must be given its ordinary grammatical meaning and not be construed within the criminal context.” (own emphasis)

In coming up with the ordinary grammatical meaning of words in a code the dictionary meaning of the words may be unavoidable as will be explained below. Once the grammatical meaning of the text has been taken into consideration other elements of the process may come in. These, depending with the circumstances, include the context of the words as well as the intention of the drafters of the code.

Dictionary meaning of words

Construing words in a code of conduct may at times boil down to the dictionary meaning of a word. This is not a new approach as courts have utilised dictionaries to come up with the correct meaning of words in a legislation. In Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd[4] it was pointed out that:

            “Dictionary definitions of a particular word are very often of     fundamental importance in the judicial interpretation of that word in a          statute or in a contract or in a will.”

A good example of where a dictionary was used to construe meaning in a code is encapsulated in the matter between Circle Tracking v Mahachi.[5] An employee was accused of carrying unauthorised passengers in a company vehicle. The employer charged him for corruption and subsequently dismissed him. The employee disputed that the act of carrying unauthorised passengers cannot be construed as corruption. The court then turned to the dictionary and mentioned:

            “The issue is whether the conviction on an allegation of corruption is proper. The word corruption is defined in the Concise Oxford Dictionary    as:

“decomposition; moral deterioration; use of corrupt practices (bribery, etc); perversion (of language, text, etc.) from its original state; deformation”.

Dictionary meaning of words thus represents a cannon that can be used to interpret a code. This is not the end, however. The context within which the words are found may also crucial in certain situations. This will be discussed next.

Context of the words in a code

It is also submitted that for the true meaning of words in a code of conduct to be construed, the context within which they are used should also be taken into consideration. Context represents such aspects as ambit and purpose of the code of conduct, among others. The importance of context is that brings out the true intention of the drafters of the code.

Illustrating the importance of context in words found in a statute is the Circle Tracking[6]  case discussed above. The court in this matter argued that:

            “The term corruption in the context of the Code must be given its      ordinary grammatical meaning and not be construed within the criminal       context. Indeed, some decisions of this Court have stressed that a Code of Conduct should be interpreted in such a way as to give effect to the   intention and spirit of the Code of Conduct.”

As mentioned, the context of the code of conduct helps in establishing the intention of the drafters of a code.

The intention of the drafters of the Code

It is submitted that all the cannons discussed so far are meant to bring out the intention of the drafters of the code of conduct. By reverting to the ordinary grammatical meaning of words in a code of conduct, one will be avoiding the mistake of interpreting these words strictly from a legal perspective.

It is accepted most codes are usually drafted by persons who are not as skilled in drafting legal documents as lawyers.[7] In a courtroom, such codes will not avoid being in the hands of lawyers. Mindful of the irony, courts have accepted that code of conduct should not be interpreted in such a manner as to give all words in it their legal meanings.[8]

Avoiding Technicalities

The process of interpreting a code of conduct should be balanced to avoid technicalities. The whole process should be guided by the general rule of resolving labour disputes which are premised on the need to avoid resolving labour disputes based on technicalities.[9]

The court in Passmore Malimanjani v Central Africa Building Society (CABS) took a robust approach and concluded that:

“Details of conduct that would constitute such offences must be viewed in the light of being examples. They could not possibly have been meant to be exhaustive. Viewing them as exhaustive would result in the ridiculous situation where someone who commits an offence that in the ordinary sense would constitute the conduct in question, e.g. dishonesty, would walk free simply because the specific offence was not listed as an offence. That could not have been the intention of the drafters of the Code, who, in general, are not schooled in the law.”

Indeed, the intention of the drafters of a code should always be taken into consideration and this would require that a code be interpreted careful manner lest we fall in the undesired trap of resolving labour disputes based on technicalities.

Conclusion

From the foregoing discussion, it can be summarised that the process of interpreting a code of conduct is equivalent to the process of interpreting a statute. One needs to be careful that codes of conduct are usually drafted by laypersons who are not lawyers. The intention of such drafters has to be construed to give content to the true meaning of a code. The process of construing a code involves taking into consideration the ordinary grammatical meaning of the words against the context as well as giving effect to the intention of the drafters.

Further Reading


[1]           Circle Tracking v Mahachi (SC 4/07).

[2]           Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[3]           Venter v Rex (1907 1907 TS 910).

[4]           Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W).

[5]           Circle Tracking v Mahachi (SC 4/07).

[6]           Circle Tracking v Mahachi (SC 4/07).

[7]           See Passmore Malimanjani v Central Africa Building Society (Cabs) (SC 47/07).

[8]           See Circle Tracking v Mahachi (SC 4/07).

[9]           See Dzvairo v Kango Products (SC 35/2017).

900 Views

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!