Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council

• Jurisdiction: South Africa
• Judge: Botha JA, Hefer JA, Eksteen JA, Nienaber JA and Kriegler AJA
• Judgment Date: 22 February 1994
• Citation: 1994 (3) SA 170 (A)
• Docket Number: 675/92
• Court: Appellate Division

Hefer JA:

This is an appeal against a conviction in a magistrate's court H where, in a private prosecution at the instance of the present respondent, the appellant was charged with a contravention of the Food By-laws of the City of Durban.

These by-laws were promulgated on 14 December 1950. The enabling legislation at that stage was s 197(1)(f) of the Local Government Ordinance 21 of 1942 (N) which authorised a city council in the province of Natal to make by-laws I

'. . . restricting or prohibiting the introduction into or the sale or other disposal of food within the borough where there has been a failure to observe the requirements of the by-laws, or any food which is diseased, unsound, unwholesome or otherwise unfit for human consumption . . .'

J Ordinance 21 of 1942 was repealed and replaced by the Local Authorities

Hefer JA

A Ordinance 25 of 1974 but, by reason of the provisions of s 336(1)(a) of the latter, the original by-laws, as amended from time to time, are still in force. By-law 18(c) on which the charge in the present case is based, reads as follows:

'18. No person who carries on any business involving the manufacture, B preparation, storage, handling or distribution of food shall in connection with such business -

. . .

(c) cause or permit any article of food or drink which is not clean, wholesome, sound and free from any foreign object, disease, infection or contamination to be kept, stored, sold or exposed for sale or introduced into the city for purposes of sale.' C

In terms of by-law 9 '(any) person committing a breach of any of these By-laws shall be guilty of an offence . . . .'

The appellant is a bottler and distributor of soft drinks. Its business involves the manufacture, preparation, storage and distribution of food. D The discovery of a bee in a bottle of carbonated mineral water which it had sold to a supermarket in Durban led to the prosecution under by-law 18(c) read with by-law 9. At the trial it was formally admitted on appellant's behalf that it had caused or permitted an article of food which was not free from any foreign object to be kept, stored, sold or introduced into the city for purposes of sale. After explaining to the court that the issue was whether mens rea was an ingredient of the offence E charged defence counsel led evidence to show that the bottle in question had passed through appellant's plant without the offending insect being discovered despite elaborate steps to avoid contamination. The evidence did not avail the appellant since the magistrate found that by-law 18(c) F imposes strict liability. His view was subsequently confirmed on appeal to the Natal Provincial Division whose judgment is reported in 1992 (3) SA 562 (1992 (2) SACR 183). The main contention on appellant's behalf in this Court is that the Court a quo erred in doing so.

Whether the absence of mens rea constitutes a defence to a charge under by-law 18(c) depends of course on the nature of the prohibition contained G therein. Arising from the nulla poena sine culpa principle of the common law there is, as James JP indicated in Ismail and Another v Durban Corporation 1971 (2) SA 606 (N) at 607E, 'a strong current of judicial opinion . . . against finding anyone guilty of an unlawful act unless that H act is accompanied by mens rea'. But it is generally accepted by the Courts that the legislature may dispense with the requirement of mens rea and the only question in any given case is therefore whether it has in fact done so. The answer is to be sought in the intention of the legislature. Sometimes its intention is expressed precisely and in clear language; but often it is not. The approach in such cases was described as follows in S v Arenstein 1964 (1) SA 361 (A) at 365C-D: I

'The general rule is that actus non facit reum nisi mens sit rea, and that in construing statutory prohibitions or injunctions, the Legislature is presumed, in the absence of clear and convincing indications to the contrary, not to have intended innocent violations thereof to be punishable. (R v H 1944 AD 121 at 125, 126; R v Wallendorf and Others 1920 AD 383 at 394.) Indications to the contrary may be found in the language J or the context of the prohibition or injunction, the

Hefer JA

A scope and object of the statute, the nature and extent of the penalty, and the ease with which the prohibition or injunction could be evaded if reliance could be placed on the absence of mens rea. (R v H (supra at 126).)'

(See further S v Qumbella 1966 (4) SA 356 (A) at 364D-G; S v Oberholzer 1971 (4) SA 602 (A) at 610H-611A; S v De Blom 1977 (3) SA 513 (A) at 532B-D.) B

The present enquiry may conveniently be commenced with an examination of the context of the prohibition.

The Food By-laws contain under separate headings a full range of measures aimed at ensuring the supply of clean, wholesome food to the city. Under C the heading 'General', provision is made inter alia for the appointment of officers with far-reaching powers of inspection and examination whose main function it is to administer the by-laws and enforce their compliance. A section styled 'Structure of premises' lists all the requirements for premises where business is conducted involving the preparation, storage, D handling, sale or distribution of food. Allied to this is a section styled 'Manufacturing equipment, furniture, fittings and fixtures' which regulates the equipment used in such a business. Then there is a section under the heading 'Food Protection, Storage and Distribution'. This includes by-law 17, dealing with matters such as the maintenance of cleanliness and the cleaning of utensils, and by-law 18. By-law 18(a) E relates to the protection against dirt, 18(b) to so-called 'unsound substances', (c) to the 'introduction etc of unsound food', (d) to packings and wrappings, and (e) to so-called 'compatible use'. In each of these there is a separate prohibition. Finally there are provisions relating to 'Personal Hygiene Facilities' and 'Housing Facilities' for employees. The general scheme of the by-laws is thus (1) to prescribe F certain conditions and (2) to prohibit certain acts in connection with the manufacture, preparation, storage, handling, sale and distribution of food. By-law 18 - like several others - is specifically directed at persons who carry on this type of business. In terms of 18(c) they may not cause or permit what may conveniently be referred to (in order to avoid the draftsman's cumbersome litany) as the distribution of contaminated food.

G I turn to the wording of the by-law. This calls for a number of observations. The main one is that there is no indication of an intention to dispense with mens rea. Equally important is the description of the actus reus: what members of the affected class are prohibited from doing is to cause or permit the distribution of contaminated food. This is what H the English text says in unequivocal terms. In the Afrikaans text 'cause or permit' is translated by the single word 'laat' ('laat hou, opberg, verkoop' etc). The use of the same word in by-law 18(a) led the Court in Ismail's case supra at 609E to doubt whether 'cause or permit' were intended to convey separate concepts; but it appears that, whereas 'laat' I is used in 18(a), (b), (c) and (d), 'cause or permit' is translated literally in (e) by 'veroorsaak of toelaat'. Taking into account the consistent use of the same English expression and that there is no reason to suspect that it was not intended to convey precisely the same in (a), (b), (c), (d) and (e), the logical conclusion is that 'laat' and 'veroorsaak of toelaat' are used synonymously. There is thus no need for combining the concepts. The use of the word 'laat' tends to confirm, J however, that 'cause' ('veroorsaak' in (e)) is used,

Hefer JA

A not in the general sense of bringing about in one way or another that adulterated food is kept, stored, sold etc, but that it is specifically authorised or directed to be kept, stored or sold. (Compare Brigish v Johannesburg City Council 1939 TPD 339 at 341-2; R v McFarlane 1914 EDL 101 at 102-3.) This is in any event the usual connotation of the word when it is juxtaposed with 'permit' in the expression 'cause or permit'. As B Lord Wright said in McLeod (or Houston) v Buchanan [1940] 2 All ER 179 (HL) at 187:

'To "cause" . . . involves some express or positive mandate from the person "causing" to the other person, or some authority from the former to the latter, arising in the circumstances of the case. To "permit" is a C looser and vaguer term. It may denote an express permission, general or particular, as distinguished from a mandate.'

(See also Shave v Rosner [1954] 2 All ER 280 (QB) at 281-2.)

It appears from the judgment in Lovelace v Director of Public Prosecutions [1954] 3 All ER 481 (QB) at 483F that

D '(it) has been held repeatedly that, although the prohibition of doing an act is absolute so that scienter or mens rea is not necessary, different considerations apply where a person is charged with "causing" or "permitting" the act to be done, because one cannot "cause" or "permit" an act to be done unless one has knowledge of the facts.'

E South African Courts have consistently followed the same course except only, as far as I am aware, in Ismail's case. As early as 1896 the Cape Court decided in R v Otto 13 SC 251 at 253 that a statute penalising the permission of drunkenness on the licensed premises implied knowledge of the drunkenness on the part of the accused. Otto's case was followed in R v Schmitz 1912 CPD 507 at 510-11 and R v Warncke 1931 SWA 43 at 47-8. The F decisions in R v Webb 1911 TPD 280 at 282, R v Moonsamy and Another 1942 NPD 135, R v Mlumbi 1945 EDL 163, R v Govinder 1956 (4) SA 133 (N) and R v Joao 1959 (1) SA 563 (O) are all based on the principle that a person can only be said to permit an act if he...