Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Botha JA, Holmes JA and Wessels JA
• Judgment Date: 20 September 1965
• Hearing Date: 08 September 1965
• Court: Appellate Division

Botha, J.A.:

The respondent company was convicted by a magistrate of a B contravention of sec. 57 read with secs. 17 (1), 19 and 26 of the Townships Ordinance, 20 of 1947 (O), and ordered to pay a fine of R10 which order was, however, suspended for a period of 6 months on certain conditions. On appeal the Provincial Division of the Orange Free State set aside the conviction and sentence on a point of law, but granted leave to the Attorney-General to appeal to this Court against the C judgment of that Division. That judgment is reported in the South African Law Reports at 1965 (3) SA 210 (O).

The charge against the respondent was, in substance, that, being the owner of erf 7467 in Extension 11 of the township of Welkom, it had wrongfully and unlawfully permitted the said erf, with the buildings D thereon, to be used for the conduct of a business not authorised by and under the conditions of title imposed in respect of that erf in terms of the Townships Ordinance, 20 of 1947.

The conditions, subject to which the establishment of Extension 11 of the township of Welkom was approved by the Administrator under sec. 17 E of the Townships Ordinance, 20 of 1947, incorporated conditions applicable only in relation to certain erven classified as special industrial erven, of which erf 7467 is one. Those conditions, which are the only conditions relevant to this appeal, are set out in the judgment of the Provincial Division, and it is not necessary to repeat them all here. By virtue of the provisions of sec. 19 of the Townships Ordinance, those conditions are included in the conditions of title registered F against the special industrial erven, including erf 7467.

In terms of the general conditions, the use of the erven in Extension 11 of the Township is restricted to such purposes as may be assigned to them in the conditions subject to which the extension was approved. One G of the conditions relating to the special industrial erven (hereinafter referred to as condition D (a) in turn provides that the said erven and the buildings to be erected thereon

'shall be used solely or mainly for such special industrial purposes and for purposes incidental thereto as may be approved in writing by the Council',

the Council being the Municipal Council of Welkom. In terms of this H condition, the Council granted authority for erf 7467 to be used for the following special industrial purposes:

'The manufacture, processing and packing of foodstuffs in general, for example -

(a)

manufacture and packing of biltong;

(b)

manufacture and packing of potato chips;

(c)

processing and packing of assorted meats;

(d)

processing and packing of confectionery.'

The charge against the respondent alleged that it permitted the erf in question to be used for the conduct of the retail business of a drive-in café and restaurant which, so it was alleged, was not a business

Botha JA

authorised by the Council under condition D (a) of the conditions of title registered against erf 7467.

Several legal contentions were advanced on behalf of the respondent, A both in the magistrate's court and in the Provincial Division. The main contentions so advanced may be summarised as follows:

1.

That it had not been proved that the business carried on on the erf in question was not a business authorised by the conditions of title as read with the authority granted by the Council under condition D (a);

2.

That condition D (a) was void for vagueness; and

3.

That condition D (a), in so far as it purports to delegate powers B to the Council to authorise the special industrial purposes for which the erf in question may be used, is ultra vires, and that therefore the authority granted by the Council pursuant thereto was invalid.

C The magistrate decided all the contentions advanced adversely to the respondent, but on appeal the Provincial Division decided the last-mentioned contention in favour of the respondent, and accordingly set aside the conviction. It is against this judgment that the Attorney-General now appeals in terms of sec. 105 of the Magistrates' Courts Act, 32 of 1944. The Provincial Division found it unnecessary to D express its views on the other contentions advanced before it on behalf of the respondent.

In this Court, counsel for the respondent argued, in limine, that in view of the fact that the Provincial Division based its decision solely on the last-mentioned contention, and did not therefore come to a decision on the other points raised on behalf of the respondent, the E point of law on which the Provincial Division set aside the conviction, and which is now before this Court for decision, is of academic interest only and not decisive of respondent's guilt, unless the Court finds that the other contentions raised on behalf of the respondent, both in the magistrate's court and in the Provincial Division, are without merit. We F were accordingly invited to consider the other contentions raised on behalf of the respondent, and to find that the respondent would, in any event, be entitled to its acquittal on one or more of these contentions. If this Court does so find, so the argument continued, this Court will not be able to reinstate the conviction and sentence of the magistrate's court, as it is required to do in terms of sec. 105 (1) (a) of Act 32 of G 1944, if it decides the point of law in issue in this appeal in favour of the Attorney-General. That being so, and as this Court does not decide academic questions of law, counsel asked us to strike the appeal off the roll with costs, as was done in the case of Attorney-General H (Transvaal) v Raphaely, 1958 (1) SA 309 (AD).

It is of course clear, as was stated in this Court in Attorney-General (Transvaal) v Flats Milling Co. (Pty.), Ltd. and Others, 1958 (3) SA 360 (AD) at p. 370, that

'in dealing with appeals to it by the Attorney-General under sec. 105, this Court has consistently declined to decide academic questions of law which have no bearing upon the conviction or acquittal of the accused'.

Thus in Rex v Burwood, 1941 AD 217, which was an appeal to this Court by the Attorney-General pursuant to the provisions of sec. 100

Botha JA

ter of Act 32 of 1917 (which were identical with those of the present sec. 105 of Act 32 of 1944), TINDALL, J.A., said at p. 226:

'The provision requiring the Appellate Division, if it decides the matter in issue in favour of the Attorney-General, to reinstate the conviction by the magistrate (either in its original or a modified A form), shows that sec. 100 ter does not give a right of appeal on academic questions of law but on questions of law on the correct decision of which the conviction or acquittal of the accused depends.'

I cannot, however, agree with counsel for the respondent that the point in issue in this appeal is an

'academic question of law which has no bearing upon the conviction or acquittal of the accused'.

B It was on that very point that the conviction and sentence of the magistrate were set aside by the Provincial Division, and if this Court were to dismiss the Attorney-General's appeal...