Tuesday, March 5, 2019
Jaga vs. D
In its bath Star Judgment, the Constitutional Court referred to the interpretive show up followed in the violent v Dones, a nonorious oddball from the asses. In this essay, I argue that the recent comments by the Constitutional Court about the pillow instance clearly show that the disturbed judgment Is no lifelong applicable to the Interpretation of statutes after the democratic transformation. The facts of the Gaga character reference The Gaga case was a notorious case which occurred in the early sasss. Gaga world the acc wont in this case, as he was caught selling inwrought atomic number 79 which is illegal.It was hen decided by the jury that he would be convictiond to trine months imprisonment suspended for three years. Section 22 of act upon 22 of 1913 read as follows Any person who has been sentenced to imprisonment for any(prenominal) offence committed by the sale of inwrought precious metallic element and who is deemed by the minister to be an undesirable indwe ller of the union may be removed from the union under a warrant. indeed Gaga was declared as macrocosm an undesirable Inhabitant and a warrant for his deportation to India was Issued. Gaga challenged this beca example he declared that he had not been sentenced to Imprisonment.The molester had argued this point made by Gaga by stating that blush though it is a suspended sentence of imprisonment, it is free a sentence of imprisonment. Gaga once again argued saying that he was not physically sentenced to imprisonment. The dominant interpretive preliminary in front 1994 as followed by the majority in Gaga. The textual matterual approach which was use in 1950 when the Gaga case had interpreted place, is an approach to interpretation which was utilize In majority of the cases before 1994 (which was when South Afri post came a democratic country).This is an approach hereby law of nature Is Interpreted simply bonnie by the way It Is written. It focuses on the grammar apply In the text or In law quite than the existing content of the case-The text base approach refers to the genuine essence of the text. on that point are more variations of formulas of interpretation which occur under the textual approach. The primitive rule of the textual approach being, that if the frequent or plain consequence of the words in a legislative provision is clear, that import essential be applied.While ordinary citizens look at the everyday loadeding of legislation, the accosts look at the lain gist of the text of the cases in this approach of interpretation. The flourishing rule of this method nations that only if a specific wording of legislation is ambiguous and has to a greater extent than one meaning in the dictionary. Also if the ordinary meaning needs to such absurd results, it will be Impossible to use the true words In legislation to Interpret any case at all because by the courts applying the plain meaning of the text It would lead to them reachi ng a decision which would be sort of Irrational.In these circumstances where the tangible text cannot be used or ciphered from correctly then the court can turn to a number of secondmentary acquired immune deficiency syndrome. Information some other(prenominal) than the wording of the specific section. These aids are called internal and external aids. knowledgeable aids include the same legislative text in another official language, the preamble, the long title, the definition clause, legislative purpose statements, interpretation guidelines, headings to chapters and sections, paragraphing and punctuations and schedules. .External aids such as the constitution and the bill of rights can in any case be used when the text isnt clear and sufficient enough to come to a final decision or conclusion. In the case of Gaga the literal meaning of Section 22 of Act 22 of 1913 was applied because it did state that any offender would be considered as being an undesirable inhabitant and w ould be sentenced to imprisonment and this was exactly what happened to Gaga. No other facts of the case were interpreted into affection and nothing was investigated thoroughly or further, therefore I opinion this approach is rather orthodox and is not relevant to be used currently.It was Just simply the literal meaning of the act taken into consideration here. The court insisted on the plain literal meaning and applied it o the Gaga case, it was a decision that was simply to make and so Gaga was issued with a warrant for his deportation to India and sentenced to three months of imprisonment, suspended for three years. This approach is a very narrow approach and I feel it doesnt rightfully give an accurate indication of anything because there are very some texts that are really clear enough whereby the court can actually reach one final interpretation of the legislature.In this approach the court also has very petty(a) law-making capacity. In my opinion this approach is no lon ger valid and should to be used as there is very little to actually work with, it isnt open minded and will not servicing reach the best verdict. The alternative interpretive approach followed by the minority in Gaga This refers to the contextual (purposive) approach or also can be called text-in-context approach. This approach has been used even before 1994 in real cases from time to time.This approach however has been overshadowed by the textual approach. In this approach the context of legislation, including social and political policy directions Is also taken into composition to establish the purpose of legislation. Here the mischief rule is used. This rule makes use of external aids which include the common law, whatever parvenue remedies the legislature provides, and the true apprehension for the remedies. This approach provides a balance amidst grammatical and the overall contextual meaning.This approach takes into consideration the actual scope of the legislation and not Just the plain text or the grammatical meaning like the textual approach does. The court has a creative law making function when translation legislation. However this does not mean that the court gets to take over completely by pavement all the legislative power. The interpretation process is not complete until the aspiration of the scope of the legislation is taken into account. This is yet another reason as to why the new interpretive approach or rather the contextual approach is relevant to be used now rather than the textual approach.In certain cases sometimes the wider context could prove to be more vital than the actual legislative text. In this approach firstly the meaning of the text and the context needs to be inflexible, once this is done the second step is to apply this when interpreting. bathtub star case. Section 39(2) of the constitution contains a provision dealing with ordinary statutory interpretation. The constitution being the haughty law of South Afric a, it is only right that it is referred to when interpreting legislation. Section 39(2) implies that even where the ordinary meaning of the legislation is clear and unambiguous, the interpreter must still try to ascribe the meaning to those words that will best crusade telecast one identifiable value enshrined in the bill of rights. The Bath star case was a case about the allocation of quotas in the search industry. The number of fish thats allowed to be caught when deep sea sportfishing is limited by the quota system. The quota which each fishing trawler is allowed to catch is determined by the minister of environmental affairs and tourism in monetary value of the Marine living resources Act 18 of 1998.The Bath Star fishing company lodged a complaint that the quota which they had been allocated for the year was too small. Len section 2 of the marine living resources act there is a list of objectives given and it states that the minister must ware regard to these objectives whe n quotas are being allocated. In this case Bath Star argued that only the textual approach was used because the ordinary meaning of the phrase become regard to was construed by the courts to mean bear in mind or do not acquit.In the statement made by the court they accepted that this was true. The phrase should have been looked into according to the context that it occurred in. Therefore the contextual meaning had to be looked into and not Just the textual approach because it is no longer relevant that Just the ordinary text or meaning of the words be taken into account, but in the new interpretive approach it is the repose of legislation and the values of the constitution that needs to be examined before any mannequin of decision is reached or before finalizing the verdict.The Bath Star case is a perfect example of why the textual approach is not recommended for use in this day and age where everything has now become more complicated and needs to be thoroughly interpreted so no body feels that they have been cheated in any way. Words and phrases have a way of being misunderstood so therefore facts need to be collected when discussion such cases and this can only be done when the purposive odontiasis is used.By this case it is also made clear that the primary and golden rules of textual interpretation do not apply in our law anymore Conclusion The supremacy of the constitution has overturned the interpretive approach to the contextual method of interpretation. I believe this was done so simply because it is be that it is indeed the most appropriate and accurate approach to use when interpreting legislation.The text and context of the legislation as well as law cases must be balanced and it not Just be the text thats taken into consideration therefore he Judgment used in Gaga case can no longer be used for the interpretation of statutes after the democratic transformation.I believe there are farthest too many weaknesses in the textual approach as it le ads to many misunderstandings which creates further problems and disrupts normality, this is evident in both the Gaga and perspectives and therefore I do not support the textual approach used in the Gaga case as it only takes in the literal meaning of the text into consideration and ignores all other aspects. The contextual approach is olibanum the method which should be applied.