JAFTA J
“designated judge” appears in the Act, it must be given the defined meaning unless, as
section 1 declares, the context indicates otherwise.
In Canca the principle was
formulated in these terms:
“The principle which emerges is that the statutory definition should prevail unless it
appears that the Legislature intended otherwise and, in deciding whether the
Legislature so intended, the Court has generally asked itself whether the application of
the statutory definition would result in such injustice or incongruity or absurdity as to
lead to the conclusion that the Legislature could never have intended the statutory
definition to apply.”187
[166] Reverting to the language of section 1 of RICA, it is apparent that the section is
concerned with what the phrase “designated judge” means and nothing else. Textually,
the section does not contemplate even remotely, the Minister’s power to designate. It
merely tells us that a designated Judge is a retired Judge designated to perform functions
of such a Judge by the Minister. The essential features of this definition is the act of
designating by the Minister and the position of being retired. Therefore, the process of
assigning the defined meaning to the words “designated judge” wherever they appear
in RICA does not include an assertion that the Minister has the power to designate. This
process is interpretive in nature and does not constitute a conferral of power.
[167] The definition is not concerned with the power to designate. It informs us that
the Minister designates a Judge from a pool of retired Judges. It proceeds from an
assumption that the Minister has the power to designate. The Minister’s power to do so
may be located in RICA itself or in another statute. It does not have to be repeated in
RICA if the Minister already has such powers under another Act. But what cannot be
right to do is to take the assumption that the Minister has the power to designate as if
he actually has the power. This has no textual foundation.
187
Canca v Mount Frere Municipality 1984 (2) SA 830 (TkS) at 832E-F.
84
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