Case Summary: Jaga vs. Donges (1950)
Introduction In its Bato Star judgment, the Constitutional Court referred to the interpretive approach followed in the 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.
The facts of the Jaga case
The Jaga case was a notorious case which occurred in the early 1950’s. Jaga being the accused in this case, as he was caught selling unwrought gold which is illegal. It was then decided by the jury that he would be 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”.
Therefore Jaga was declared as being an undesirable inhabitant and a warrant for his deportation to India was issued. Jaga challenged this because he declared that he had not been sentenced to imprisonment. The minister had argued this point made by Jaga by stating that even though it is a “suspended sentence of imprisonment”, it is still a sentence of imprisonment. Jaga once again argued saying that he was not physically sentenced to imprisonment.
The dominant interpretive approach before 1994 as followed by the majority in Jaga.
The textual approach which was used in 1950 when the Jaga case had taken place, is an approach to interpretation which was used in majority of the cases before 1994 (which was when South African came a democratic country). This is an approach whereby legislation is interpreted simply just by the way it is written. It focuses on the grammar used in the text or in legislation rather than the actual content of the case.The text base approach refers to the literal
The facts of the Jaga case
The Jaga case was a notorious case which occurred in the early 1950’s. Jaga being the accused in this case, as he was caught selling unwrought gold which is illegal. It was then decided by the jury that he would be 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”.
Therefore Jaga was declared as being an undesirable inhabitant and a warrant for his deportation to India was issued. Jaga challenged this because he declared that he had not been sentenced to imprisonment. The minister had argued this point made by Jaga by stating that even though it is a “suspended sentence of imprisonment”, it is still a sentence of imprisonment. Jaga once again argued saying that he was not physically sentenced to imprisonment.
The dominant interpretive approach before 1994 as followed by the majority in Jaga.
The textual approach which was used in 1950 when the Jaga case had taken place, is an approach to interpretation which was used in majority of the cases before 1994 (which was when South African came a democratic country). This is an approach whereby legislation is interpreted simply just by the way it is written. It focuses on the grammar used in the text or in legislation rather than the actual content of the case.The text base approach refers to the literal