According to case law on rules of interpretation, the use of the word “shall” in a statute denotes a mandatory intention by the legislature for the provision to be complied with. In the case of Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, this Court held:“It ...
According to case law on rules of interpretation, the use of the word “shall” in a statute denotes a mandatory intention by the legislature for the provision to be complied with. In the case of Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, this Court held:
“It is the generally accepted rule of interpretation, that, the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances, the legislature explicitly provides, that, failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances, no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.”
Given that it is generally accepted that the use of the word “shall” in any enactment is understood as being indicative of the legislature's intention of making the provision peremptory, it becomes necessary to consider some hallowed principles of interpretation for determining the intended effect of non-compliance with a peremptory statute. There are principles that the courts resort to in order to determine whether or not the legislature intended non-compliance with a provision to be fatal.
Thus, in Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, it was stated that:
“Francis Bennion, Statutory Interpretation submits that the courts have to determine the intention of the legislalture using certain principles of interpretation as guidelines. He had this to say at pp21-22:
'Where a duty arises under a statute, the court charged with the task of enforcing the statute needs to decide what consequence Parliament intended should follow from breach of the duty.
This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet, the courts are forced to reach a decision.
It would be draconian to hold, that, in every case, failure to comply with the relevant duty invalidates the thing done. So, the courts answer has been to devise a distinction between mandatory and directory duties. Terms used instead of 'mandatory' include 'absolute' 'obligatory' 'imperative' and 'strict'. In place of 'directory' the term 'permissive' is sometimes used.
Use of the term 'directory' in the sense of permissive has been justly criticised: see Craies, Statute Law, 7ed 1971, p61 n74.) However, it is now firmly rooted.
Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). (As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)).'
Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity. One of those guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence, and, therefore, the provision is directory.'”
Similarly, in the case of Sibanda & Anor v Ncube & Ors; Khumalo & Anor v Mudimba & Ors SC158–20…, PATEL JA…, held that:
“The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211:
'…, in each case, you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case on that aspect, decide whether the enactment is what is called imperative or only directory….,.'
A further aspect that may be relevant is the need to distinguish between those persons who are bound to perform the statutory duty and those who might be affected by its performance or non-performance: see Bennion, op cit, at p21.
In this context, the extent to which the former are in a position to exercise control over the latter may become a crucial consideration. This point was aptly elucidated in Montreal Street Railway Company v Normandin [1917] AC 170, at 174:
'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious inconvenience or injustice to persons who have no control over those entrusted with the duty, and, at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.'”
