2. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 2 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
“While it is often claimed that the new constitutional order radically changed the
South African approach to statutory interpretation, this is not totally correct. As the
Jaga v Dönges case from the 1950s shows, a purposive approach to statutory
interpretation was from time to time adopted by our courts even under apartheid. In
any case, the question of non-compliance with statutory requirements (the
difference between peremptory and directory provisions) has always been settled
with reference to the purpose, as opposed to the letter, of the statutory requirement
in question (see Commercial Union Assurance v Clarke from 1972)”.
1. Introduction
In the following essay, I argue that it is not totally correct to claim that the purposive
approach to statutory interpretation was first introduced into our law by section
39(2) of the Constitution 1996. After first discussing the implications of section
39(2), I then discuss the Jaga case as an example of a case in which the purposive
approach was adopted under apartheid. I then proceed to discuss the Commercial
Union case in order to illustrate how the purpose of legislation already played a
decisive role under apartheid where courts had to decide whether a statutory
provision was peremptory.
2. Section 39(2) and the purposive approach
Section 39(2) of the Constitution provides that, when interpreting any legislation,
and when developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights.1 S 39(2) is
an authoritative provision, which in effect means that all courts, tribunals or forums
must review the aim and purpose of legislation in light of the Bill of Rights:
unambiguous text and plain meanings are longer considered as being sufficient.
The Constitution is the supreme law of South Africa. The effect of Section 39(2) is
that statutory interpretation must now be conducted within the framework of the
Constitution, and must promote its values, particularly those contained in the Bill
of Rights.
1
Constitution of the Republic of South Africa, 1996
3. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 3 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
Section 39(2) states that when interpreting any legislation and when developing
the common or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.
The provision should be read with Section 39(1), which states that when applying
the Bill of Rights, a court must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom which are the
foundational values of the Constitution.
The effect of Section 39(2) is to force the interpreter to adopt a purposive approach
to interpretation from the outset. Its influence on statutory interpretation was clearly
demonstrated in Bato Star Fishing v Minister of Environmental Affairs and Tourism
20042.
This case concerned the allocation of quotas in the fishing industry. The Supreme
Court of Appeal had interpreted the relevant legislation by focusing on the text. The
Constitutional Court held that it was no longer sufficient to apply the ordinary
meaning of words when interpreting legislation, but that legislation must be
interpreted to promote the values of the Bill of Rights. In this case, the legislation
had to be interpreted to promote the redress of past imbalances, specifically
transformation in the fishing industry.
In this ruling, the Constitutional Court confirmed that the Constitution is the starting
point for interpreting any legislation, and that the interpretation must, where
possible, promote at least one value contained in the Bill of Rights.
3. The Jaga case: an example of the purposive approach under apartheid
In its Bato Star judgment, the Constitutional Court made reference to the
interpretive approach followed in Jaga v Donges, a notorious case from the 1950’s.
During the early 1950s, in the apartheid era, Jaga was caught selling unwrought
gold. He was sentenced to three months imprisonment suspended for three years.
Section 22 of Act 22 of 19133 stated that: “Any person who has been sentenced to
2
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4 SA 490 (CC)
3
Admission of Persons to the Union Regulation Act, 1913
4. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 4 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
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”.4 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 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.
The minister argued that a suspended sentence of imprisonment is still as
sentence of ‘imprisonment’ within the ordinary meaning of the legislation. The
court agreed.
The dominant approach to interpretation at the time was the so-called text-based
approach. Its primary rule is to use the plain meaning of the text to determine the
intention of the legislature. Questions of interpretation should, as far as possible,
be determined by a dictionary.
In Jaga, the majority of court held that ‘sentenced to imprisonment’ was not further
defined or qualified, and so the plain meaning should be determined and applied.
Under this reasoning, ‘imprisonment’ meant that the sentence imposed on the
offender contained a period of imprisonment, whether or not it was suspended. As
such, the deportation was legal.
4. The Commercial Union case: the purposive approach and non-
compliance with legislation under apartheid
While the courts generally adopted a textual approach, they openly embraced a
purposive approach when called upon to decide whether a statutory provision
should be treated as directory or peremptory. Peremptory requires exact
compliance whilst directory requires substantial compliance A case in point is that
of Commercial Union Assurance v Clarke 1972 (3) SA 508 (AD). In this case, an
4
Jaga V Dönges, No And Another; Bhana V Dönges, No And Another 1950 (4) Sa 653 (A)
5. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 5 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
insurance company denied that it was liable to pay compensation to an injured
road user because that road user failed to follow the correct procedure when his
claim was instituted. Section 11 of the Motor Vehicle Insurance Act 29 of 1942
states that a claim for compensation “shall be sent by registered post or by hand
to the registered company”5. It goes on to provide that no claim “shall be
enforceable by legal proceedings if it commenced within sixty days from the date
upon which the claim was sent or delivered to the registered company”6. In this
case, the notice was delivered in time, but was sent by ordinary post. The insurance
company used this technical point to try to escape liability. It argued that the
statutory mail requirement was peremptory. The court rejected the company’s
argument and held that the provision was directory.
The court held that “each case must be dealt with in the light of its own language,
scope and object and the consequences in relation to justice and convenience of
adopting one view rather than the other”7. This means that the court must not look
at the legislative text itself to try to solve the issue, but must instead ask whether
the consequences of requiring strict compliance would be fair and just in the
circumstances or practical in the circumstances, given the purpose of the
legislative provision in the first place. The purpose of the legislation is decisive in
this regard. The court considered the following:
The imperative use of the language in the section.
The purpose of the section, which was to protect claimants by ensuring that
they had definite proof of the date upon which the 60 days period started to
run.
That if a claimant decided not to register the letter, he forfeited this
protection himself and took the risk upon himself.
That the company was not prejudiced in any way by the fact that the letter
was sent by ordinary post and received more than 60 days before legal
proceeding commenced.
In the circumstances, to hold that the company could escape liability because of
a technicality which had not prejudiced them at all would be unfair and unjust. The
5
Motor Vehicle Insurance Act 29 of 1942
6
Motor Vehicle Insurance Act 29 of 1942
7
Commercial Union Assurance v Clarke 1972 (3) SA 508 (AD)
6. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 6 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
court therefore held that the provision was directory only, and that it had
substantially been complied with. The decisive thing to note is that the court
essentially decided the case on what would be fair and practical in the
circumstances, given the overall purpose of the legislation. It thus applied a
purposive approach.
5. Critical evaluation and conclusion.
Judges do not go by the literal meaning of the words or by the grammatical
structure of the sentence. They go by the design or purpose, which lies behind it.
When they come upon a situation, which is to their minds within the spirit but not
the letter of the legislation, they solve the problem by looking at the design and
purpose of the legislature at the effect it was sought to achieve. They then interpret
the legislation so as to produce the desired effect. This means they fill in gaps
without hesitation. They ask simply: what is the sensible way of dealing with this
situation so as to give effect to the presumed purpose of the legislation. They lay
down the law accordingly.8
Section 39(2) effectively means the interpretation of a statute no longer begins with
the text. The interpreter must consider the values of the Bill of Rights before
considering the legislation itself. What counts is whether the interpretation
promotes the spirit, purpose and objective of the Bill of Rights.
One could argue that this has rendered obsolete the debate about a text or
contextual-based approach to interpretation, the debate at the centre of the Jaga
case. The courts did occasionally follow a purposive approach to statutory
interpretation, long before Section 39(2) was introduced. However, since the
introduction of Section 39(2), the courts are now forced to adopt a purposive
approach
However, Jaga remains relevant because it was the first concrete attempt to adopt
a purposive approach to interpretation. It is this approach that is now stipulated by
Section 39(2) whose purpose is to promote the Bill of Rights.
8
http://repository.up.ac.za/bitstream/handle/2263/19623/Cornell_In%282012%29.pdf?sequence=1&isAll
owed=y
7. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 7 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
References:
Constitution of the Republic of South Africa, 1996
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4
SA 490 (CC)
Admission of Persons to the Union Regulation Act, 1913
Jaga V Dönges, No And Another; Bhana V Dönges, No And Another 1950 (4) Sa
653 (A)
Motor Vehicle Insurance Act 29 of 1942
Motor Vehicle Insurance Act 29 of 1942
Commercial Union Assurance v Clarke 1972 (3) SA 508 (AD)
http://repository.up.ac.za/bitstream/handle/2263/19623/Cornell_In%282012%29.p
df?sequence=1&isAllowed=y (Date of use: 05 August 2017)
8. IOS2601 ASSIGNMENT 1 UNIQUE CODE 674971
Page 8 of 8
AGNES CHIKWAVAIRE STUDENT NO. 59364467
ACADEMIC HONESTY DECLARATION
Declaration
1. I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from
the work or works of other people has been referenced according to this
style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME: AGNES CHIKWAVAIRE
SIGNATURE:
STUDENT NUMBER: 59364467
DATE: __07/08/2017_________
