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

• Jurisdiction: South Africa

Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council [*]
1994 (3) SA 170 (A)

1994 (3) SA p170

Citation	1994 (3) SA 170 (A)
Case No	675/92
Court	Appellate Division
Judge	Botha JA, Hefer JA, Eksteen JA, Nienaber JA and Kriegler AJA
Heard	September 9, 1993; September 22, 1993
Judgment	February 22, 1994

Flynote : Sleutelwoorde

H Food and drugs — Food — Contamination of — Food By-laws promulgated by Durban City Council in terms of s 197(1)(f) of Local Government Ordinance 21 of 1942 (N) — Appellant, a manufacturer of carbonated soft drinks, I convicted of contravening s 18(c) of By-laws in that it supplied a bottle of soft drink containing a bee — Section requiring mens rea in the form of culpa — Appellant negligent in permitting bottles to pass checking officials at a speed at which contamination could not be detected. J

1994 (3) SA p171

A Criminal law — Persons, liability of — Mens rea — Statutory offences — When an element of offence — Scope and subject of legislation important factors but true significance to be judged in conjunction with other determinants such as the ease with which liability could be evaded if mens rea were required.

Headnote : Kopnota

B The appellant, a bottler and distributor of soft drinks, was convicted in a magistrate's court of contravening by-law 18(c) of the City of Durban Food By-Laws, which had been promulgated in terms of s 197(1)(f) of the Local Government Ordinance 21 of 1942 (N). The conviction was based on an admission at the appellant's trial that it had sold a bottle of carbonated mineral water which contained a bee to a supermarket in Durban. The magistrate found that by-law 18(c) imposed strict liability, a view which C was subsequently confirmed on appeal to a Provincial Division. The appellant contended in a further appeal that the Court a quo had erred in finding that by-law 18(c) imposed strict liability and that mens rea was not an element of the offence. By-law 18(c) provided: 'No person who carries on any business involving the manufacture, preparation, storage, handling or distribution of food shall in connection with such business . . . cause or permit any article of food or drink which is not clean, wholesome, sound and free from any foreign object, disease, infection or D contamination to be kept, stored, sold or exposed for sale or introduced into the city for purposes of sale.'

Held (per Hefer JA, Eksteen JA and Kriegler AJA concurring; Botha JA and Nienaber JA dissenting), that whether the absence of mens rea constituted a defence to the charge depended on the nature of the prohibition. (At 173G.)

Held, further, that there was no indication of an intention to dispense with mens rea: the use of the words 'cause or permit' were more consistent E with the presence than with the absence of mens rea. (At 174G/H and 176B/C-C.)

Held, further, that the scope and object of the legislation in question had to be viewed in its proper perspective and, although the fact that the prohibition in question regulated an activity involving potential danger to the public was an important consideration, it should not be overrated: its true significance had to be judged in conjunction with other determinants like the ease with which liability could be evaded if mens F rea were required. (At 178H and 179D-E.)

Held, further, that the prohibition in the present case would not be easily evaded if mens rea in the form of culpa were required. (At 179E.)

Held, further, that there were insufficient clear and convincing indications that the legislature intended to dispense with mens rea. (At 179G.)

Held, further, that it appeared from the evidence that the filled and capped bottles of mineral water passed inspectors at the rate of six every second: any reasonable person ought to have foreseen that, at that speed, G foreign objects might pass unnoticed and even though such contamination was rare the appellant's officials ought to have been aware of it. (At 179J-180B.)

Held, accordingly, that the appellant had been negligent. Appeal dismissed.

The decision in Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council 1992 (3) SA 562 (N) (1992 (2) SACR 183) confirmed on appeal but for different reasons. H

Case Information

Appeal from a decision in the Natal Provincial Division (Howard JP, Galgut J and Squires J), reported at 1992 (3) SA 562 (N) (1992 (2) SACR 183). The facts appear from the judgment of Hefer JA.

A W Mostert SC for the appellant referred to the following authorities: I Ismail and Another v Durban Corporation 1971 (2) SA 606 (N); Durban Corporation v Ismail and Another 1973 (2) SA 359 (N); S v Arenstein 1964 (1) SA 361 (A) at 365; S v Qumbella 1966 (4) SA 356 (A) at 364D-H; S v Henwood 1971 (4) SA 383 (R); S v Oberholzer 1971 (4) SA 602 (A) at 610H-611A; S v Dumas 1970 (1) SA 70 (N); Lim Chim Aik v R [1963] 1 All ER J 223 at 228; Snyman Strafreg 2nd ed at 270, 271; Snyman 'Strenge

1994 (3) SA p172

A Aanspreeklikheid in die Strafreg' (1993) THRHR 132 at 135; R v Webb 1911 TPD 280 at 282-3; R v Joao 1959 (1) SA 563 (O) at 566D-E; R v Davidson 1910 TPD 1236 at 1240; S v Mathebula 1972 (1) SA 495 (T) at 497G; S v Kritzinger en 'n Ander 1973 (1) SA 596 (C) at 599; Milton and Cowling South African Criminal Law and Procedure vol 3 at 34; Smith and Hogan Criminal Law 6th ed at 124-7; S v De Blom 1977 (3) SA 513 (A). B

D J Shaw QC (with him R J Salmon) for the respondent referred to the following authorities: S v Arenstein 1964 (1) SA 361 (A) at 363; R v Bekker 1941 EDL 118 at 119; R v W 1953 (3) SA 52 (SWA) at 57C-E; R v V 1957 (3) SA 633 (O) at 634B-H; Ismail and Another v Durban Corporation C 1971 (2) SA 606 (N) at 608E, 610A-H; S v Williamson 1972 (2) SA 140 (N) at 145H-146A; S v GD Haulage (Pvt) Ltd 1977 (2) SA 255 (RA) at 359F-G; Durban Corporation v Ismail and Another 1973 (2) SA 359 (N) at 361; Lim Chim Aik v R [1963] 1 All ER 223 at 228F; Sweet v Parsley [1969] 1 All ER 347 at 350F-G, 362B-D; Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong D [1984] 2 All ER 503 (PC) at 507-8; Customs and Excise Commissioners v Air Canada [1991] 1 All ER 570 (CA) at 584a; R v Rosen 1949 (2) SA 422 (C) at 427; R v Canestra 1951 (2) SA 317 (A) at 323C; R v Van der Linde 1953 (1) SA 588 (GW) at 590C; R v MacDonald 1954 (1) SA 43 (SR) at 43H-44A; R v Shuttleworth 1963 (3) SA 305 (O) at 308F; R v P Hall & Co (Pvt) Ltd 1966 (3) SA 669 (RA) E at 670G; R v City Butchery (Pvt) Ltd 1967 (3) SA 5 (R) at 7A-H; S v Du Toit 1981 (2) SA 33 (C) at 37E-F; R v Kaplan 1948 (3) SA 1103 (SR) at 1105; Snyman Strafreg 2nd ed at 270; Sherras v De Rutzen [1895] 1 QB 918 at 921-2; Alphacell Ltd v Woodward [1972] 2 All ER 475 (HL) at 484a-e, 486a-487d and 490b-491a; Sopp v Long [1970] 1 QB 518; Bellerby v Carle [1983] 1 All ER 1031 at 1036b; The Midland Railway Co v Freeman F (1883-4) 12 QB 639; Korten v West Sussex County Council 72 LJ KB 514 at 520; Laird v Dobell [1906] 1 KB 131 at 133; Mcleod v Buchanan [1940] 2 All ER 179 (HL) at 187; Lyons v May [1948] 2 All ER 1062; R v Davidson 1910 TPD 1236 at 1240; R v Joao 1959 (1) SA 563 (O).

Cur adv vult. G

Postea (22 February 1994).

Judgment

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

1994 (3) SA p173

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...