Cole v Government of the Union of SA

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes J and Solomon J
• Judgment Date: 24 October 1910
• Citation: 1910 AD 263
• Court: Appellate Division

Lord De Villiers, C.J.:

On February 9, 1909, the plaintiff, a farmer, residing on the farm Riverside, in East Griqualand, brought 54 oxen to the drift at Ingwangana River, which forms part of the boundary line between the Cape of Good Hope and Natal. He had sold the oxen to a resident in Natal, and obtained from the Cape authorities the requisite certificate permitting him to remove the oxen by way of, the roadway to the drift. This certificate was necessary because the roadway passed through an area on the Cape side of the river within which it was not permissible, owing to the prevalence of East Coast fever, for horned cattle to enter without the authority of the Government. Having arrived at the drift, the plaintiff, in full view of a sergeant and several men of the Cape Mounted Rifles, who were guarding the river, and without any remonstrance from them, had the oxen driven into the river towards the Natal side. There is a conflict of evidence as to whether they all crossed the middle of the stream, but the Court below found that they did, and this Court must accept that finding. The current proved too strong for most of the cattle, with the result that, notwithstanding the utmost exertions of the plaintiff and his servants to prevent any of the cattle returning, nine of them did so return to the Cape bank. By order of the sergeant in command these oxen were shot down as they reached the Cape bank of the river.

Lord De Villiers, C.J.

No compensation was tendered to the plaintiff, who thereupon brought an action against the then Cape Government for £69 15s., being the value of the oxen destroyed. The defendant by his plea admitted the destruction of, the oxen, but justified it on the grounds that the introduction and entry of the cattle were unlawful, and constituted a contravention of Proclamation No. 55 of 1908, and that they were lawfully destroyed under the provisions of Proclamation No. 164 of 1908. The Kokstad Circuit Court, in which the action was tried, gave judgment for the defendant, and against that judgment the present appeal has been brought, the Union Government being substituted for the Cape Government as respondents.

Several grounds of appeal have been urged by the plaintiff's counsel, but I shall deal only with the one which appears to me to be substantial. The ground is that, even if the Oxen had passed the middle of the river before returning to the Cape side, the plaintiff had not been guilty of any contravention of either Proclamation, and that consequently the destruction of his cattle was illegal. Strangely enough, that ground was not relied upon by his counsel in his arguments in the Court below, for, according to the Judge's reasons, "it was not contended on behalf of the plaintiff that the oxen could not have been destroyed if they had crossed the middle line of the river." There seems to have been no admission, however, in the pleadings or in the arguments of counsel that the oxen could have been so destroyed, and in the absence of such admission I see no reason for preventing the contention from being now raised. The failure to raise it in argument in the Court below could not have induced the defendant to refrain from proving all the facts necessary to establish a contravention of Proclamation No. 55 of 1908, for, upon the pleadings, these facts had to be proved before counsel was heard in argument. That Proclamation declares that "whereas, the disease known as East African fever exists among cattle in the colony of Natal, it shall not be lawful to introduce, or cause or allow, any cattle, animal produce, or grass hay to be introduced from Natal into the Cape Colony, and

Lord De Villiers, C.J.

that any person who shall introduce, or cause or allow, such cattle, animal produce, or grass hay to be introduced, or permit such cattle to stray into this colony from Natal, shall be deemed to be guilty of contravening the provisions of this Proclamation, and shall be liable to the penalties provided for such contravention; and that all such cattle, animal produce, or grass hay as may enter this Colony from Natal, in contravention of this Proclamation, shall be liable to be destroyed." The penalty for any animal so introduced is the payment of a fine not exceeding £100, or in default of payment, imprisonment for six months, with or without hard labour. The question then arises - could the plaintiff have been convicted of a contravention of the Proclamation by reason of the facts found by the Court below? He could not have been so convicted unless he were proved to have introduced the oxen, or permitted them to stray into the Colony, and the question is, did he so introduce them, or permit them to stray? So far from introducing them into the Colony from Natal, he was exporting them from the Cape Colony to Natal, and so far from permitting them to stray into the Colony, he used every effort he was capable of to prevent them from returning to the Cape, after they had crossed the midstream. It was urged by the Attorney-General that the words, "as may enter," show that the mere entry of the cattle into the Colony rendered them liable to be destroyed, but these words must be read with the words which follow: "In contravention of this Proclamation." Only cattle, animal produce, or grass hay, which enter in contravention of the Proclamation, can be destroyed, but it is not the cattle, animal produce, or grass hay which can contravene this Proclamation, but the persons who permit it to enter. In the prosecution of such person, the Crown would have id show that he has contravened the Proclamation, and that it can only do by proving that he has done some act amounting in law to introducing the oxen, or causing or allowing them to be introduced, or permitting them to stray, into the Colony. No such act has been proved in the present case. It has been suggested by the Attorney- General that if the point now taken had been taken: in the

Lord De Villiers, C.J.

Court below the Government might, perhaps, have been able to prove that the river was of such a nature that a person driving cattle into it during a flood ought to have known that they would be liable to be forced back to the Cape side. That was one of the reasons urged by the Attorney-General why the point should not now be allowed to be taken, but upon the state of the pleadings the Government had to prove every fact requisite to establish its defence. After it had been clearly proved that the destruction of the oxen took place while the plaintiff was attempting to export them, and keep them out of the Colony, it was for the defendant to produce evidence of such special facts as would tend to prove that the plaintiff was really introducing them and permitting them to stray into the Colony. The defendant has failed to produce such evidence, and therefore he would wholly have failed in securing a conviction if the plaintiff had been prosecuted for a contravention of the Proclamation.

It is said, further, that, whether or not the plaintiff had been guilty of a contravention of the Proclamation, his cattle were lawfully destroyed thereunder. Under Proclamation No. 55 of 1908, however, the cattle would only have been liable to be destroyed in case of a contravention of its provisions by some person, and the destruction could only take place after such person had been convicted of the contravention. It was apparently with the object of enabling the responsible Minister to order the immediate destruction of cattle illegally introduced into the Colony, without a previous trial of the offender, that Proclamation No. 164 of 1908 was issued. That proclamation declares that any animal which may be landed or otherwise introduced into the Transkeian Territories contrary to the prohibition contained in any proclamation issued in terms of the 4th...