Claymore Court (Pty) Ltd and Another v Durban City Council

• Jurisdiction: South Africa
• Judge: Kriek J and Combrink AJ
• Judgment Date: 25 October 1984
• Hearing Date: 25 October 1984
• Court: Natal Provincial Division

Kriek J:

In this appeal G the appellants were summoned to appear before a magistrate on a charge that they had contravened certain provisions of the Building By-laws of the City of Durban. They were convicted and sentenced, and they appeal against their conviction.

The notice of appeal mentions a number of grounds, but Mr Van Niekerk, who appeared for the appellants, indicated at the H commencement of his argument that he only intended pursuing the one ground which I shall mention shortly, and he conceded that the other grounds of appeal were without merit. The one ground of appeal which Mr Van Niekerk did argue was that the magistrate failed to apply the provisions of s 10 of Act 51 of 1977.

I The summons to which I have referred is in the usual form for a summons issued out of the magistrate's court in the case of a criminal prosecution at the instance of the State. At the commencement, for example, it reads:

"You are hereby required and directed in the name and on behalf of the State on receipt hereof to summon the undermentioned J person(s) (hereinafter called the accused), that he appear personally before the abovementioned court on the date stated above as the date of trial at 10 o'clock to answer and abide the

Kriek J

judgment of the court upon the charge(s) of the Public A Prosecutor (prosecuting in the name and on behalf of the State) that the said accused is/are guilty of the offence(s) as set out hereunder."

The annexure to the charge sheet, which contains the actual indictment, also bears the heading:

"The State versus Claymore Court (Pty) Ltd".

At the commencement of the hearing before the magistrate B certain documents were handed in. The first is a letter signed by the Attorney-General for Natal on 15 December 1981. I quote the second paragraph of this letter.

"In terms of s 8 (2) of Act 51 of 1977 I hereby withdraw my right of prosecution (including the right to prosecute or C defend appeals) in favour of the City of Durban in respect of any contravention of by-laws or regulations made in terms of any law repealed by Ord 25 of 1974 or Ord 21 of 1942, committed within the City of Durban, and insofar as any of the said by-laws or regulations are administered by the City of Durban."

The other documents handed in related to the approval of certain specified persons to conduct prosecutions on behalf of D the City Council of Durban. When these documents were handed in it became apparent that this was not a prosecution at the instance of the State, but one instituted by the City Council of Durban under the provisions of s 8 of Act 51 of 1977. Subsection (1) of that section reads:

"Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may E institute and conduct a prosecution in respect of such offence in any...