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NAME: Kimberly Pazvakavambwa
The mischief rule in interpretation is a rule that asks what the law was before the Act and what
were the defects that are resolved by the legislation under construction. The mischief rule tells
the interpreter to read a statute in light of the mischief or evil, the problem that prompted the
statute. It is aimed at suppressing the mischief and advance the remedy. Like any other approach
used by the judiciary, it has the disadvantage of possibly leading to uncertainty in the law and
sometimes lead to judicial overreach where judges are seen as creating or modifying laws instead
of just creating them. It is also not as wide ranging as the purposive approach. According to
Christo Botha, it cannot be used alone therefore acknowledging the use of external aids such as
parliamentary debates, international laws and second reading speeches. With reference to cases
such as the Heydons case, Hleka v Johannesburg city council, Smith v Hughes, Royal College of
Nursing v DHSS, this essay will outline how one arrives at the purpose of legislature using this
approach.
To begin with, the mischief rule was first used in the Heydons case in 1584. Heydon's Case
established the mischief rule as a guiding principle for statutory interpretation. It requires a
comprehensive examination of the legal landscape before and after the enactment of a statute to
discern Parliament's true intent and ensure laws effectively address identified defects or
mischiefs in the legal system. It outlined that for true interpretation of statutes, four things must
be considered to ensure the gaps within law are covered. These are:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth. And,
4. The true reason of the remedy
According to Du Plesis (2002), the court looked beyond the literal meaning to the statutes
purpose. They identified the problem the statute aimed to address which was preventing
enclosures harming the community and held that the the statute applied to all enclosures
regardless of technical exemptions.
In another case of Hleka v Johannesburg City Council 1949 (1) SA 824, the court applied the
mischief rule. In this case, the court looked at the purpose of the law in question and interpreted
it in a way that would best address the issue or mischief that the law was designed to resolve.
The applicant, Mrs. Hleka, was a tenant in a Johannesburg municipal housing project and the
municipality evicted her, citing non-payment of rent. Hleka challenged the eviction, arguing the
municipality failed to follow procedures. The court focused on the intention of the legislature in
enacting the law and sought to give effect to that intention in its interpretation by identifying the
"mischief" (problem): arbitrary evictions and lack of protection for vulnerable occupants.
2. Considered legislative intent: balancing landowners' rights with occupants' protection.
3. Analysed the Act's language and context.
4. Held that the municipality must provide alternative accommodation or demonstrate
impossibility before evicting.
The application of the mischief rule in this case demonstrates the court's approach to statutory
interpretation, emphasizing the underlying purpose of the law and seeking to achieve the
legislative intent in its decision-making.
Furthermore, in Smith v Hughes [1960] the court reached the decision using the mischief rule. In
this case the defendants were prostitutes who had been charged under the Street Offences Act
1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from
private premises in windows or on balconies so could be seen by the public. The court applied
the mischief rule holding that the activities of the defendants were within the mischief the Act
was aimed at even though under a literal interpretation they would be in a private place. The
judges' role is to interpret statutes by seeking the true intent of the lawmakers, presumed to be for
the public good (pro bono publico). The aim is to suppress mischief, advance the remedy, and
prevent evasions that perpetuate the mischief. Judges are to add force to the cure according to the
makers' true intent.
Moreover, the case of Royal College of Nursing v DHSS [1981] is another case where this
approach was applied. The Royal College of Nursing brought an action challenging the legality
of the involvement of nurses in carrying out abortions. The Offences against the Person Act 1861
makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that
it would be an absolute defense for a medically registered practitioner such as a doctor, to carry
out abortions provided certain conditions were satisfied. Advances in medical science meant
surgical abortions were largely replaced with hormonal abortions and it was common for these to
be administered by nurses. The court held that it was legal for nurses to carry out such abortions.
The Act was aimed at doing away with back street abortions where no medical care was
available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and
within the contemplate defense in the 1967 Act. Therefore, the mischief rule was effectively used
to remedy the situation.
Last but not least, another case where the mischief rule was applied was in S v Meredith 1978.
The accused, Meredith, was charged with drunken driving under the Alcohol and Drug Traffic
Act 57 of 1973. Meredith argued the blood sample was taken without consent, rendering it
inadmissible. The issue revolved around interpreting Section 2(1)(a) of the Act. The Supreme
Court of Appeal applied the mischief rule in that:
1. Identified the mischief which was drunk driving causing accidents and harm.
2. Considered legislative intent: preventing drunk driving and ensuring public safety.
3. Analyzed the Act's language and context.
4. Held that Section 2(1)(a) impliedly authorized taking blood samples without consent.
The main agenda was balancing individual rights with public safety while bringing out
legislative intent. Hence, the court arrived at this conclusion by using the mischief rule.
In conclusion, the mischief rule aims at providing a remedy while looking at the law that was
present before the Act. It helps the judiciary to truly interpret statutes.
References
Case law
Hleka v Johannesburg Municipal Council 2010 (6) SA 352 (CC)
Royal College of Nursing v DHSS [1981] 2 WLR 279
Smith v Hughes [1960] 1 WLR 830
Heydon’s Case (1584) 3 Co Rep 7a (76 ER 637)
Books
Christo Botha, (1991-2012) Statutory Interpretation An Introduction for Students
Du Plesis 2002 p 96
Articles
Bray, S. L. (2020). The Mischief Rule. Geo. LJ, 109, 967.
Bradley, T. J. (2020). Getting into Mischief: Reflections on Statutory Interpretation and the Mischief
Rule. Geo. LJ Online, 109, 199.
Srihind, P. (2021). Critical Analysis of Mischief Rule of Interpretation. Indian JL & Legal Rsch., 2, 1