NAME: TIISETSO VICTOR MOFOKENG

STUDENT NO: 15085295

MYLIFE EMAIL: 15085295@MYLIFE.UNISA.AC.ZA

INTREPATATION OF STATUSES ASSIGNMENT 1

A.) FACTS OF THE JAGA CASE

• During the early years of the nineties, to be specific 1950, Jaga was
caught selling unwrought gold and he was eventually sentenced to three
months imprisonment suspended for three years. Section 22 of act 22 of
1913 says: “Any person who has been imprisoned 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 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 still 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

B.) The interpretive approach followed by majority in Jaga was the orthodox text-
based approach. The primary rule of the orthodox(literal) text based approach
is that if the plain or ordinary meaning of words in the legal text is
unambiguous, then this clear meaning is the intention of the legislator. An
ordinary citizen may rely on the everyday meaning of legislation, therefore the
courts may not proceed beyond the plain meaning of the text. A dictionary
must firstly be used to settle interpretative questions. The golden rule of
interpretation is that if the plain meaning of words are ambiguous, vague or
misleading or if the strict literal interpretation would result in absurdity, then
the court may deviate to such absurdity. The majority of the court decided to
adopt a textual approach which was common in 1950. The court held that the
words sentenced to imprisonment were not further defined by the legislation.
The plain meaning must be determined and applied.
C.) The interpretive approach followed by the minority in the Jaga case was the
purposive(contextual).This approach dates back 16th century English law and
has resulted in a number of minority judgements even before 1994 and was
applied by the courts from time to time. It consists of the law-text in contrast of
surrounding circumstances as well as social and political considerations. The
most important rule of this approach is the mischief rule. In construction of
statuses, Elma Driedger defines the mischief rule as follows: “ A statute is to
be constructed to suppress the mischief and advance the remedy, thus giving
the courts latitude in achieving their objectives of the legislation. External aids
to interpretation must be applied from the beginning of the process. These
aids and circumstances are indicative of there wherein the legislation enacted
by indicating what the main mischief was that the legislation intended to
address. The court will then turn to secondary aids to interpret the intention of
the legislator. Secondary aids are the long title statute, headings of chapters
and sections and the text in the other official language.
In Jaga V Donges, Schreiner JA had identified the following guidelines for the
intrepatation of statuses
-From the beginning the interpreter may take a wider context of provision into
consideration with the legislative text in question
-The relevant contextual factors must be taken into account, irrespective of how
unambiguous or ambiguous the grammatical meaning of the text is
-There are times when the wider context could be more important than the text
itself
-When the meaning of the text and context is determined, it must be applied even
if the interpreter thinks that the legislature is intended for something different
D) Section 39(2) of the constitution provides: “ When interpreting any legislation
and when developing the common law or customary law, every court must
promote the spirit, purport and objects of the Bill of rights
Section 39(2) is an authoritative provision, which in effect means that all courts
must review the aim and purpose of legislation in light of the bill of rights:
unambiguous text and plain meanings are no longer considered as being
sufficient. It forces the interpreter to promote the values and objects of Bill of
rights before reading a particular legislative text.
Facts of the Bato Star case: The case concerned the allocation of quotas in the
fishing industry. The amount of fish that may be caught by a deep-sea fishing
trawler is limited by a quota system. The quota which each trawler is allowed to
catch is determined by the Minister of Environmental Affairs and Tourism in
teems of the Marine Living resources act of 1998. Section 2 of the act is headed “
objectives and principles” and list the objectives of the act including to achieve
sustainable development to further diversity and to restructure the fishing
industry in order to achieve equity. The Section states that the minister must have
regard to these objectives when he allocates quotas. Section 18(5) deals
specifically with the allocation of fishing quotas. It again states that the minister
must make allocations that will achieve the objective contemplated in Section 2.
The Bato Star fishing company was allocated a year. However it complained that
it’s quota was too small and approached the court to have the allocation of
quotas set aside. The case turned on the question whether the minister did have
regard to the objective of achieving equity in the fishing industry when quotas
were allocated. How should the phrase “have regard to be interpreted and
understood in this case? The Supreme Court of appeal answered the question by
asking what the ordinary meaning of the words have regard to was. To answer
the question the court looked at the way in which the phrase has been applied by
our courts for many years. These cases made it clear that to have regard to
meant no more than to take into consideration or to take into account or not to
overlook. This meant that when granting quotas in terms of Section 18(5), the
minister had to take principle of the equity mentioned in section 2 into
consideration , but did not have to make it his special concern. It was clear from
the fact that the minister did take the need to transform the fishing industry into
account when quotas were allocated. The quotas were therefore validly
allocated. Bato appealed to the court . It claimed that the Supreme Court of
appeal had interpreted the phase “have regard” incorrectly. Bato Star argued that
the phrase “have regard” not only meant that equity should be taken into
account, but that should be promoted as the overriding concern. This alternative
meaning is suggested by the context in which the phrase operates. The
constitutional court agrees in his judgements Ngcobo J expressed concern about
the textual method of interpretation followed in the Supreme Court of Appeal. He
agreed that the ordinary meaning of the phrase “have regard” but insisted that it
is no longer the ordinary meaning of the words that must be applied but the
purpose of legislation and the values of the constitution
Reference
IOS study guide
IOS Exam practice book
Statutory Interpretation: An introduction for students