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

• Jurisdiction: South Africa

Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council
1992 (2) SACR 183 (N) [*]

1992 (2) SACR p183

Citation	1992 (2) SACR 183 (N)
Court	Natal Provincial Division
Judge	Howard JP, Galgut J and Squires J
Heard	February 10, 1992
Judgment	March 23, 1992
Counsel	A W Mostert SC for the appellant; D J Shaw QC (with him R J Salmon) for the respondent

Flynote : Sleutelwoorde B

Food and beverage offences — Food — Contamination of — Food By-laws promulgated by Durban City Council in terms of s 197(1)(f) of Ord 21 of 1942 (N) — Appellant, a manufacturer of carbonated soft drinks, convicted of contravening s 18(c) of By-laws in that it supplied bottle of cold C drink containing a bee — Section imposing strict liability — Not sufficient that appellant had taken all reasonable precautions to prevent contamination of its product — Conviction upheld.

Headnote : Kopnota

The appellant had been convicted by a magistrate of contravening s 18(c) of the City of Durban Food By-laws, which were made in terms of s D 197(1)(f) of Ordinance 21 of 1942 (N), in that it had supplied a bottle of cream soda cold drink containing a bee. The appellant contended that mens rea in the form of culpa was an ingredient of the offence and led evidence to prove that it had taken all reasonable precautions to prevent the contamination of its products through the introduction of foreign objects or otherwise. The magistrate held that by-law 18(c) imposed strict liability and that it therefore did not avail the appellant to show that it lacked mens rea. On appeal, E

Held, that if the by-law was not to be construed as imposing strict liability its object of protecting the public health would probably be defeated and it would be extremely difficult to enforce.

Held, further, that the fact that the by-law only applied to a class of persons, viz those engaged in the business of the manufacture, F preparation, storage, handling or distribution of food, was a strong indication that the lawgiver intended to impose strict liability.

Held, accordingly, that the appellant was correctly convicted on the basis that by-law 18(c) imposed strict liability. Appeal dismissed.

Case Information

Appeal from a conviction in a private prosecution in a magistrates G court. The facts appear from the reasons for judgment.

A W Mostert SC for the appellant.

D J Shaw QC (with him R J Salmon) for the respondent.

Cur adv vult.

Postea (23 March 1992). H

Judgment

Howard JP:

The appellant was prosecuted at the instance of the Durban City Council and convicted by a magistrate of contravening s 18(c) read with s 9 of the Food By-laws of the city of Durban published in the Natal Provincial Gazette under Notice 627 of 1950. The sentence was a fine of R1000.

The charge alleged that the appellant, being a person carrying on a I business involving the preparation, handling, storage, sale or distribution of food at premises in Durban, caused or permitted a certain article of food, to wit a litre bottle of carbonated mineral water known as Sparletta Cream Soda, which contained a foreign object in the form of a bee, to be kept, stored, sold or introduced into the city of Durban for the purposes of sale. J

1992 (2) SACR p184

Howard JP

A The appellant admitted all of the facts giving rise to the charge, but contended that mens rea in the form of culpa was an ingredient of the offence and led evidence to prove that it had taken all reasonable precautions to prevent the contamination of its products through the introduction of foreign objects or otherwise. The magistrate considered himself bound by the decision of this Court in Ismail and Another v Durban B Corporation 1971 (2) SA 606 (N) to hold that by-law 18(c) imposes strict liability and that it therefore did not avail the appellant to show that it lacked mens rea. The appellant appeals against the conviction.

The City Council made the Food By-laws in the exercise of powers conferred on it by s 197(1)(f) of Ordinance 21 of 1942 (N). This authorised the Council to make by-laws

C '. . . 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 . . .';

and

D '. . . generally ensuring cleanliness and the observance of sanitary precautions in all matters connected with the manufacture, preparation, production or handling of food for sale.'

Ordinance 21 of 1942 was repealed and replaced by Ordinance 25 of 1974, s 266(1)(h) of which is in practically identical terms.

The by-law under which the appellant was prosecuted reads as follows:

E '18. No person who carries on any business involving the manufacture, 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, F infection or contamination to be kept, stored, sold or exposed for sale or introduced into the city for purposes of sale.'

In terms of by-law 9 read with s 266(7) of Ord 25 of 1974 (N), any person who contravenes any provision of the Food By-laws shall be guilty of an offence and liable: (i) on a first conviction to a fine not exceeding R500 G or imprisonment for a period not exceeding six months or both such fine and imprisonment; and (ii) on a second or subsequent conviction to a fine not exceeding R1 000 or imprisonment not exceeding 12 months or both such fine and...