Ios Assignement 1

1) Introduction

In its Bato Star judgment, the Constitutional Court referred 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 no longer relevant to the interpretation of statutes after the democratic transformation.

(2) The facts of the Jaga case

“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 physically held in prison, which he was not (his sentence was merely suspended and he was allowed to go home).1 (Interpretation of statutes: Only study guide for IOS2601 (2010) 37-38).

(3) The dominant interpretive approach before 1994 as followed by the majority in Jaga

The majority of the court adopted a textual method of interpretation and concluded that a suspended sentence is a sentence of imprisonment and Jaga could be deported. Textual interpretation indicates that if the ordinary or plain meaning of the words in a legislative provision is clear then that meaning should be applied. The courts cannot proceed beyond the plain meaning of the...