In its Bath Star Judgment, the Constitutional Court referred to the interpretive approach followed in the Gaga v D¶ones, a notorious case from the asses. In this essay, I argue that the recent comments by the Constitutional Court about the case clearly show that the Gaga judgment Is no longer relevant to the Interpretation of statutes after the democratic transformation. The facts of the Gaga case The Gaga case was a notorious case which occurred in the early sass's. Gaga being the accused in this case, as he was caught selling inwrought gold which is illegal.
It was hen 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 inwrought 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 Gaga was declared as being an undesirable Inhabitant and a warrant for his deportation to India was Issued. Gaga challenged this because he declared that he had not been sentenced to Imprisonment.
The molester had argued this point made by Gaga by stating that even though it is a "suspended sentence of imprisonment", it is still a sentence of imprisonment. Gaga once again argued saying that he was not physically sentenced to imprisonment. The dominant interpretive approach before 1994 as followed by the majority in Gaga. The textual approach which was used in 1950 when the Gaga 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).
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This is an approach hereby 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 meaning of the text. There are many variations of rules of interpretation which occur under the textual approach. The primary rule of the textual approach being, "that if the ordinary or plain meaning of the words in a legislative provision is clear, that meaning must be applied".
While ordinary citizens look at the everyday meaning of legislation, the courts look at the lain meaning of the text of the cases in this approach of interpretation. The golden rule of this method states that only if a specific wording of legislation is ambiguous and has more than one meaning in the dictionary. Also if the ordinary meaning leads to such absurd results, it will be Impossible to use the actual 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 reaching a decision which would be rather Irrational.
In these circumstances where the actual text cannot be used or ciphered from correctly then the court can turn to a number of secondary aids. Information other than the wording of the specific section. These aids are called internal and external aids. Internal 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 also be used when the text isn't 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 would be sentenced to imprisonment and this was exactly what happened to Gaga. No other facts of the case were taken into consideration and nothing was investigated thoroughly or further, therefore I feel 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 doesn't really give an accurate indication of anything because there are very few texts that are actually clear enough whereby the court can actually reach one final interpretation of the legislature.
In this approach the court also has very "little law-making capacity'. In my opinion this approach is no longer valid and should to be used as there is very little to actually work with, it isn't open minded and will not help 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 certain 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 account 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 new remedies the legislature provides, and the true reason for the remedies. This approach provides "a balance between 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 interpreting legislation. However this does not mean that the court gets to take over completely by paving all the legislative power. The interpretation process is not complete until "the object 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 determined, once this is done the second step is to apply this when interpreting. Bath star case. Section 39(2) of the constitution contains a provision dealing with ordinary statutory interpretation. The constitution being the supreme law of South Africa, 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 promote telecast one identifiable value enshrined in the bill of rights". The Bath star case was a case about the allocation of quotas in the fishing industry. The number of fish that's allowed to be caught when deep sea fishing 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 terms 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 "have regard to" these objectives when quotas are being allocated. In this case Bath Star argued that only the textual approach was used because the ordinary meaning of the phrase "have regard to" was construed by the courts to mean "bear in mind" or "do not overlook".
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 kind 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 nobody 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 handling such cases and this can only be done when the purposive teeth 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 proved 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 that's 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 far too many weaknesses in the textual approach as it leads 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 thus the method which should be applied.
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