Die Staat v Le Grange

• Jurisdiction: South Africa
• Judgment Date: 11 May 1962
• Citation: 1962 (3) SA 498 (A)

Die Staat v Le Grange
1962 (3) SA 498 (A)

1962 (3) SA p498

Citation	1962 (3) SA 498 (A)
Court	Appèlafdeling
Judge	Steyn HR, Van Blerk AR, Ogilvie Thompson AR, Botha AR en Van Winsen AR
Heard	March 23, 1962
Judgment	May 11, 1962

Flynote : Sleutelwoorde C

Strafreg — Verkeersoortredings — Persoon in besit van 'n D Staats-motorvoertuig vir amptelike doeleindes — Kan nie motorvoertuig sonder verlof vir eie private doeleindes op openbare pad gebruik nie — Ord 18 van 1957 (T), art. 138 (2) — Provinsiale Raad — Ord. 18 van 1957, art. 138 (2) — Uitleg van — Bepalings insake die beheer van bestuurders van voertuie op openbare E paaie — Nie ultra vires nie.

Headnote : Kopnota

'n Persoon wat wettige toesig oor 'n voertuig het kan nie, volgens artikel 138 (2) van Ordonnansie 18 van 1957 (T), toestemming aan homself verleen nie om die voertuig buite die perke van die eienaar se verlof te bestuur.

'n Speurder-konstabel van die SA Polisie wie uitsluitlik vir amptelike F doeleindes in besit van 'n Staats-motorvoertuig gestel is oortree artikel 138 (2) van Ordonnansie 18 van 1957 (T) as hy sulke voertuig vir sy eie private doeleindes op 'n openbare pad gebruik.

Die bepalings in artikel 138 (2) van Ordonnansie 18 van 1957 insake die beheer van bestuurders van voertuie op openbare paaie is nie ultra vires nie.

Die beslissing in die Transvaal Provinsiale Afdeling in Die Staat v le Grange, 1962 (1) SA 564, omvergewerp. G

Flynote : Sleutelwoorde

Criminal law — Traffic offences — Person in charge of a State motor vehicle for official purposes — Cannot use motor vehicle on public road for his own private purposes without permission — Ord. 18 of 1957 (T), sec. 138 (2) — Provincial Council — Ord. 18 of 1957 (T), sec. 138 (2) — Construction of — Provisions in respect of the control of drivers of vehicles on public roads — Not ultra vires.

Headnote : Kopnota

H A person who has the lawful custody of a vehicle cannot, in terms of section 138 (2) of Ordinance 18 of 1957 (T), grant permission to himself to use the vehicle beyond the limits of the owner's consent.

A detective constable of the SA Police, who has been put in possession of a State motor vehicle exclusively for official use, contravenes section 138 (2) of Ordinance 18 of 1957 (T) if he uses such vehicle on a public road for his own private purposes.

The provisions in section 138 (2) of Ordinance 18 of 1957 concerning the control of drivers of vehicles on public roads is not ultra vires.

The decision in the Transvaal Provincial Division in The State v Le Grange, 1962 (1) SA 564, reversed.

1962 (3) SA p499

Case Information

Appèl teen 'n beslissing in die Transvaal Provinsiale Afdeling (DE WET, R.P., en LUDORF, R.). Die feite blyk uit die uitspraak van STEYN, H.R.

G. H. Beale, namens die Staat: Assuming that respondent was the 'person A in lawful charge' of the vehicle whenever he used it for official duties and was as such in a position to 'give himself permission' to use it, he could only do so provided such use fell within the terms of the owner's consent. In other words, an intentional deviation from these terms, if it involved the driving of the vehicle, would constitute a contravention of the section. In following R v Kuyler, 1960 (3) SA B 834, in preference to R v Leguabe, 1949 (4) SA 872, the Court a quo, as did the Court in Kuyler's case, misinterpreted the effect of the judgment in Leguabe's case, discerning in it certain anomalies which did not exist. In Kuyler's case and in R v Roux, 1946 E.D.L. at p. 251, it was apparently considered that to follow Leguabe's case would oblige the C Court to apply the principle de minimis non curat lex. But this is not the effect of Leguabe's case. The reference in this case at p. 872 to a 'substantial departure' (from the mandate) clearly relates to the inferential value of such a (substantial) departure in so far as it indicates a guilty mind and not to whether or not a 'substantial' or a 'negligible' deviation constitutes the offence, or the 'character of the D act'; cf. R v Oliver and Others, 1921 T.P.D. 120. Leguabe's case does not oblige a Court to hold that 'every dereliction of duty' on the part of a driver involving a breach of the terms of the owner's consent would constitute a contravention, as suggested in R v Kuyler, supra at p. 840, in a passage relying on R v Bezuidenhout, 1939 S.R. 90. The E meagre facts emerging from the judgment in Bezuidenhout's case are sufficient to manifest a clear distinction between that case, on the one hand, and Kuyler's case, Leguabe's case and the instant case on the other. As to Moodley v R., 1956 (1) P.H. O.8, the judgment does not reveal the specific terms of the prohibition embodied in the mandate and consequently that case affords no substantial guide. As to the finding F of the Court a quo that the Legislature intended to penalise 'unauthorised borrowing' as distinct from 'unauthorised user', this finding is not justified. For the purposes of this enquiry, the question whether either of these two classes of conduct constitutes theft, is irrelevant, the real test in a consideration of theft being whether or not it is established that the accused intended to terminate the G complainant's rights in and to the property concerned; see R v Mtshali, 1960 (4) SA at p. 252. There being nothing in sec. 138 (2) of Ord. 17 of 1931 (T) which invites consideration of this aspect, the Court is confined to a consideration of whether the legislation intended to limit the offence to a 'taking' rather than an unauthorised 'user'. As an unauthorised user can in certain circumstances be more H reprehensible than an unauthorised borrowing, the legislature must have intended to penalise both classes of conduct; cf. R v Sibiya, 1955 (4) SA at pp. 260, 262, 263 which strongly criticises the judgment in R v Mtaung, 1948 (4) SA 120, for its finding that unauthorised taking is theft, whereas unauthorised user is not. These passages indicate that assuming it had been decided that there had been the requisite deprivation of ownership, no distinction would have been drawn between the two classes of conduct.

1962 (3) SA p500

Consequently there is nothing in Sibiya's case, supra, or in R v Oliver and Others, supra, which supports the judgment of the Court a quo in this regard. Furthermore, the section under consideration is clearly A distinguishable from sec. 1 (1) of Act 50 of 1956 which has been held specifically to penalise an unauthorised 'removal' (i.e. an unauthorised borrowing) as distinct from a mere unauthorised user. This distinction is clearly illustrated in R v Mohale, 1959 (2) SA at p. 217. See also R v Maarman, 1949 (2) P.H. H.217 and R v Dunyua, 1961 (3) SA 644. Had the legislature intended this section to be similar to sec. 1 B (1) of Act 50 of 1956, it would have worded it differently. Alternatively there would be no necessity for the inclusion of the section in the Ordinance as the mischief intended to be hit is covered by the provision in the 1956 Act. The aforegoing submissions have been made on the assumption that respondent's conduct was an unauthorised C user (in the sense that there was an intentional diviation from the terms of the owner's consent).

R. L. Selvan...