University of Botswana Law Journal - PULP

134 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
Act. In part three, the mechanism for attainment of its statutory objectives is
examined and the scope of the application of the Act is dealt with in the next
part. The impact and the amendment of the Act are briefly discussed in the
subsequent parts five and six. The challenge for the enforcement of the Act is
considered in part seven and conclusion is in part eight.
2. THE OBJECTIVES OF THE PPA
We cannot overemphasize the importance of objectives to a statutory provision
since objective its self is the harbinger that occasion its enactment. It is the
purpose which sets the mission which a particular statue intends to achieve and
does not only prescribe the yardstick for its assessment but also provide a
mechanism for its interpretation. 6
The Canadian courts captured the importance of objectives in
interpreting a statute in the Driedger principle: “… the words of an Act are to
be read in their entire context, in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.” See Ruth Sullivan, Sullivan and Driedger on the
Construction of Statutes 4th ed. (Vancouver: Butteworths, 2002) at 1.
As a result, statute ought not to be drafted without having a particular
purpose in mind, just as a house should not be built without having a
particular plan as pattern for engineers to follow. 7 There is a presumption that
every enacted statute has a purpose and that purpose must be discovered either
in the preamble to the statue or in the entire statue. Therefore in this section
we will consider the purpose of the PPA by looking in to its objectives in the
Act.
Section 3[1] of the PPA establishes a regulatory body known as the
6 There are many rules of interpretation from the literal rule to golden rule and the mischief rule etc. The
common thread however is that most of the rules consider the objects of the Act in interpreting a statute.
Even where there has been uncertainty, ambiguity or absurdity in the words used in such way that it is
difficult for the judge to fathom the meaning of the statute and its objects, the courts under the common
law will still consider what is the purpose of the Act and not what ought to be the intention of the
Parliament or the Judge. In Duport Steels Ltd v SIRS 1980 House of Lord Scarman said:
‘In the field of statute law the judge must be obedient to the will of Parliament ... Parliament makes ... the
law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what
justice requires ... Unpalatable statute law may not be disregarded or rejected, merely because it is
unpalatable.’
‘If Parliament says one thing but means another, it is not, under the historic principles of the common
law, for the courts to correct it ... We are to be governed not by Parliament’s intentions but by
Parliament’s enactments’
But even if the court intends to use the purposive approach as advocated by Lord Denning the relevant
point here is still the purpose of the parliament. In Magor and St Mellons v Newport Borough Council
Lord Denning said:
‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to
find out the intention of Parliament and carry it out’.
7 But see Professor Steven L. Schooner Desiderata: Objectives for a System of Government Contract Law
11 Public Procurement Law Review 103 [2002] He asked a question and answered it himself: ‘What does
your government hope to achieve through its government procurement law? It is possible to draft and
enact a new law without answering the question, and experience demonstrates that this is often the case’.