Jaga vs Donge

DISCUSSION OF JAGA V DONGES 1950 (4) SA 653 (A)

TABLE OF CONTENTS Page No.

Introduction 2

The facts of the Jaga case 2

The dominant interpretive approach before 1994 as followed by the majority

in Jaga 2

The alternative interpretive approach followed by the minority in Jaga 3

Section 39(2) of the Constitution and the new interpretive approach followed

in the Bato Star case 3

Conclusion 5

Bibliography 5

INTRODUCTION

In its Bato Star judgment, the Constitutional Court made reference to the interpretive approach followed in Jaga v Donges, 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 relevant to the interpretation of the statutes after the democratic transformation.

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 sentenced to be actually and physically held in prison, which he was not (his sentence was merely suspended and...