'n Taalkundige perspektief op woordeboekgebruik in die hof: die woordeboek as toevlugsoord

Abstract

One of the most important functions of a court of law is to interpret statutes. The interpretation of statutes can be a difficult task, especially when a court has been given the responsibility to address words or phrases which have led to disputes. The interpretation of the disputed word or phrase may even challenge the statute relevant to the issue that the specific court has to deal with. Courts often find their solution for semantic problems in a dictionary. The use of dictionaries by courts is standard practice and an international phenomenon. However, what may seem to be a trustworthy aid can easily be used incorrectly and even abused to confirm premeditated opinions. As has been argued by the likes of Thumma and Kirchmeier, dictionaries may become a fortress, which on the one hand means that presiding officers may hide behind dictionary definitions and on the other hand means that dictionaries may be seen as sacrosanct. The use of dictionaries is closely related to the theories of statutory interpretation, especially textualism and intentionalism. A textualist focuses on the letter of the law. The textualist holds that the true meaning of a legal text, such as an act of parliament, should be derived from the ordinary wording (ipsissima verba). Only when the language of the law leads to absurd or diverse conclusions may a court go beyond that language; this is the so-called golden rule, sanctified by Venter v R. The intentionalist approach sees the focus moving away from the central position of language and concentrating on the intention of the legislator. In doing so, the court moves away from the golden rule and concentrates on what the legislator is trying to achieve. This intention is, nevertheless, still communicated through ordinary language. Both theories, along with the rules set out by the Interpretation Act, instruct courts to interpret statutes according to the ordinary meaning of words. Scholars in the discipline of law do not always agree on what truly constitutes the “ordinary meaning” of words. Most see it as the language of the masses, the non-technical language of Joe Soap. As such, the ordinary meaning of words can be looked up in a dictionary. But how ordinary can words really be? Who determines the ordinariness of words? The concept of the ordinary meaning of words does not agree with the type of language in which the law is formulated. Legal language is technical and often difficult. Scholars like Labuschagne argue that there is no such thing as an ordinary meaning of words and that an “ordinary meaning” should be seen as ordinary within the legal sphere. Furthermore, the meaning of words is affected by the context in which they are used. Considering the theoretical approaches to the interpretation of statutes, which include the notion of an ordinary meaning of words, the use of a dictionary does not seem problematic. However, the problem with dictionary use can be linked to a number of issues. First of all it is a misconception that just because a word seems ordinary, its meaning will be straightforward and unproblematic. Words are notorious for the fact that they are polysemous and ambiguous. Secondly, dictionaries come in different shapes and sizes, which means that they are made for specific target groups to fulfil specific goals and needs. Dictionaries do not contain the same set of words and they do not define the words they have in common in the same way. A third issue is the fact that dictionaries are limited to available space, which means that lexicographers have to decide which words and lexicographical information to include and what to leave out. The fourth concern is context. Some dictionaries may provide examples of how words may be used in different contexts, but they will not be able to predict unique legal contexts. Dictionaries are often a-contextual. Though dictionaries are often compiled by extracting available corpora, dictionaries are also limited when it comes to unique collocations and phrases. Lastly, dictionaries tend to get outdated quickly. Not only is it impossible for any dictionary to be all-encompassing, but it is also not the purpose of any dictionary to be that. To try to determine to what extent dictionaries are used within South African courts we did a survey on the Jutastat database. We surveyed a 150 court cases of 1945–2012 that were decided within the borders of South Africa. All of these cases were heard on appeal. We paid attention to the types of dictionaries that were used by presiding officers, the number of dictionaries they used in one case, the number of times dictionaries were used as well as the words that were looked up. In some cases the presiding officer used as many as 16 dictionaries to look up words, whereas others used as few as one dictionary to define a word. The most popular dictionaries are theOxford Dictionary, the Shorter English Dictionary, the Webster’s Third International Dictionary and the Verklarende Handwoordeboek van die Afrikaanse Taal (HAT). According to our survey South African courts sometimes make use of old and outdated dictionaries, they consult dictionaries meant for school children and, surprisingly, they often make use of American dictionaries instead of local English dictionaries. Keeping with the tradition of interpreting so-called ordinary words, South African courts use defining dictionaries much more often than technical dictionaries. We found it disconcerting that some presiding officers used compact dictionaries as the only aids to confirm the meaning of words. There are also court cases where words are defined without stating the name of the dictionaries consulted. In quite a few court cases the presiding officers made it clear that they found dictionaries confusing, dated and lacking when trying to solve semantic problems. Sometimes the words were unique to South Africa and were not recorded in (especially foreign) dictionaries. What must a court do when dictionaries leaves presiding officers dissatisfied and uncertain? We propose that dictionaries be used according to fixed guidelines which should ideally form part of the Interpretation Act. We furthermore propose that courts look into alternative, linguistic ways to deal with the meaning of words. Two possible alternatives might be the use of available corpora and the study of prototypes. Searching for the meaning and use of a given word in a corpus might provide many results of authentic language use, especially if the researcher uses a corpus representative of common parlance. Alternatively the study of prototypes focuses on the relation between words and concentrates on the concepts lexicalised by those words. The prototype approach is very close to our actual knowledge of words and the way we grade meaning. The courts’ use of dictionaries is not wrong, but presiding officers should be careful not to make a fortress out of a dictionary. Dictionaries should rather be the point of departure than the authority on lexical meaning.