Jonges V Donges

IS THE JUDGMENT IN JAGA V DÖNGES 1950 (4) SA 653 (A) STILL IMPORTANT FOR THE INTERPRETATION OF STATUTES AFTER THE DEMOCRATIC TRANSFORMATION?

In its Bato Star judgment, the Constitutional Court made reference to the interpretive approach followed in Jaga v Dönges, a notorious case from the 1950s. In this essay, I argue that the recent comments by the Constitutional Court about the case clearly show that the Jaga judgment (is still / is no longer) relevant to the interpretation of statutes after the democratic transformation [choose and defend one option].

During the early 1950s, Jaga was caught selling unwrought gold. He was sentenced to “three months imprisonment suspended for three years”. Section 22 of Act 22 of 1913 read as follows: “Any person who has been sentenced to imprisonment for any offence committed by the sale of unwrought precious metal and who is deemed by the Minister to be an undesirable inhabitant of the Union, may be removed from the Union under a warrant”. The Minister declared Jaga an undesirable inhabitant of the Union and a warrant for his deportation to India was issued. Jaga challenged his deportation on the basis that he had not been sentenced to imprisonment. The Minister argued that a suspended sentence of imprisonment is still a sentence of “imprisonment” within the ordinary meaning of section 22. Jaga argued that “imprisonment” meant actual (as opposed to merely potential) imprisonment. “Sentenced to imprisonment” thus meant to be sentenced to be actually and physically held in prison, which he was not (his sentence was merely suspended and he was allowed to go home). See para 5.2.2 in the study guide.

This section of the essay involved two components. Firstly, you had to briefly set out the dominant interpretative approach before 1994, namely the textual approach (see para 5.2.1 in the textbook and the study guide). Secondly, you had to indicate how the majority of the Court in Jaga applied the approach in its judgment...