R v Cumming

• Jurisdiction: South Africa
• Judge: van der Riet J and Wynne J
• Judgment Date: 23 August 1956
• Citation: 1956 (4) SA 143 (E)
• Hearing Date: 02 March 1956
• Court: Eastern Districts Local Division

Wynne, J.:

This matter comes before this Court by way of review. The accused, Herbert Ford Cumming, was convicted in the magistrate's court, Komga, on thirty-one counts of contravening sec. 10 (1), read with secs. F 1 and 34 of the Group Areas Act, 41 of 1950 as amended. The substantive charges on each account alleges that -

' . . . During the years 1954 and 1955, and at or near the farm Dallas in the District of Komga, being a controlled area in terms of Procs. 71 of 1951 and 256 of 1952, the accused did wrongfully and unlawfully and without the authority of a permit, allow the persons mentioned in the Schedule hereunder, they being disqualified persons by reason of the fact that they are members of the native group and not of the same group as the accused, the G accused being a member of the white group and the owner of the farm Dallas, to occupy certain land or premises on the farm Dallas . . .'

On counts 1 (Dumele Mevane), 12 (Zwelake Mevane), 16 (Gqityiwa Mangele) and 23 (Hase Hloeni), the accused was fined £60 or 3 months' imprisonment with compulsory labour. On all the remaining counts, which H involved dependants of the natives specified in the aforesaid four major counts, a fine of £40 or 2 months' imprisonment with compulsory labour was imposed, but the operation of these sentences was suspended for three years on certain conditions.

At the request of the Court Mr. Addleson furnished both written and oral submissions on behalf of the accused. This Court is greatly indebted to Mr. Addleson for his clear and cogent presentation of his

Wynne J

carefully prepared argument. After consideration of all the submissions made on behalf of the accused and by counsel for the Crown and by the presiding judicial officer, this Court has come to the conclusion that the conviction of the accused must be sustained in respect of the majority of the counts preferred against him.

A Although the particulars relating to the alleged unlawful occupation differ in detail in the various counts in relation to each individual case, certain material facts, which this Court has come to the conclusion are decisive, are not in dispute between the Crown and the defence. All the disqualified persons concerned are native kraalheads B and their dependants, who were tenants of the former owner of the farm, certain Hartley. In some cases these tenants were registered by Hartley in conformity with the provisions of the Private Locations Act, 32 of 1909 (C). In other cases they were not so registered. As tenants these kraalheads would appear to have paid an annual rental to Hartley, in return wherefor they were granted the right to plough certain lands, C the right to graze stock and the right to build huts for the residence of themselves and their dependants.

During 1953 the accused Cumming purchased the farm 'Dallas' from Hartley, and in accordance with the deed of sale (ex. 'R') took possession thereof as from the 1st November, 1953. In terms of clauses D (g) and (h) of this deed of sale, the accused bound himself to honour all leases existing between Hartley and his native tenants in occupation as at the date of the sale, and to pay to the seller a pro rata share of the rents due. Putting the defence case at its highest, these said native tenants in fact continued in occupation of their lands on the E farm after the accused became its owner under the same conditions as prevailed under the former owner Hartley, and duly paid annual rentals to the accused - this notwithstanding that they were not licensed by the accused as his tenants in conformity with the requirements of the Private Locations Act of 1909 (C). In accordance with the principles applied by DE WET, J., in R v Esakjee and Another, 1954 (1) SA 155 (T) F , this latter factor (viz. the illegality of the natives' contracts for occupation in relation to the Private Locations Act of 1909 (C)) is irrelevant to the issue now before the Court (viz. the legality of the occupation of the natives in relation to the Group Areas Act as applied to the controlled area of Komga).

On the basis of our common law, and the recognition of the maxim 'huur G gaat voor koop', the accused as owner and lawful successor in title to Hartley was prima facie legally bound to acknowledge the validity of the leases of the natives in occupation of lands on the farm at the date when transfer thereof was registered in his name - de Wet v Union Government, 1934 AD 59, per STRATFORD, A.C.J., at p. 63: Boshoff v. H Theron, 1940 T.P.D. 299: and, as the seller was to receive a pro rata share of the rents due, this clearly indicates the leases taken over to be for the duration of a year, as rents were paid annually. In accordance with the authorities fully surveyed by OGILVIE THOMPSON, J., in Shalala and Another v Gelb, 1950 (1) SA 851 (C), the accused would similarly be bound to recognise the validity of any renewal period provided for in the original contracts of lease entered into by these natives.

Wynne J

The clear and instructive analysis of similar contracts made by DOVEWILSON, J.P., in Tshabalala v van der Merwe, 1926 NPD 75 at pp. 76 - 77, shows that there are two possible categories into which the tenancies of the natives of the farm 'Dallas' may be held to fall. Either each tenant originally had a lease for a fixed period...