R v Gorekwang

• Jurisdiction: South Africa
• Judge: Hoexter JA, Beyers JA and de Villiers AJA
• Judgment Date: 22 May 1961
• Hearing Date: 21 March 1961
• Court: Appellate Division

A De Villiers, A.J.A.:

This is an appeal from a decision of the Transvaal Provincial Division upholding a conviction of appellant in the magistrate's court of Potchefstroom on the main charge preferred against him, namely a contravention of sec. 9 (3) of the Natives (Urban Areas) B Consolidation Act, 25 of 1945, as amended, which reads as follows:

'(3) Any native (other than a native exempted under sub-sec. (2)) residing outside a location, native village or native hostel in an area proclaimed under sub-sec. (1) who, after having been served with a written notice, signed by an officer appointed by the urban local authority or by the Minister for the purpose, calling upon him to take up within a reasonable period, which period shall be clearly stated in C the notice and shall be not less than three days from the date of the service of such notice, his residence in a location, native village or native hostel specified in such notice in which accommodation is available for him, resides, after the expiration of the period stated in the notice outside a location, native village or native hostel in any urban area the whole or any portion whereof has been proclaimed under sub-sec. (1), shall be guilty of an offence.'

D In the charge appellant, a native as defined by the aforesaid Act, is alleged to have ignored a written notice signed by a Mr. Riekert duly authorised thereto by the Town Council of Potchefstroom, and served upon him, calling upon him to take up residence within a period of three months in the Ikageng location, or the Potchefstroom Native Hostel or E the Mayeng Reserve or the Railway Reserve, Mafeking, in each of which accommodation was alleged to be available. The charge further alleges that despite the lapse of the aforesaid period he continued to reside at a place called Machaviestat, situate in the urban area of Potchefstroom, but outside a location, native village or native hostel.

F The notice referred to above was to the following effect:

'Take notice in terms of sub-sec. (3) of sec. 9 of the Natives (Urban Areas) Consolidation Act, 25 of 1945 as amended, that you Morris Gorekwang a native, residing at Machaviestat in the District of Potchefstroom, being a place situate outside a location, native village or native hostel, in an area proclaimed under Proc. 349 of 1931, under sub-sec. (1) of sec. 9 of the abovementioned Act (formerly sec. 5 of the Natives (Urban Areas) Act of 1923) and which proclaimed area is situate G within the limits of the urban area of Potchefstroom, and being a person not exempted under sub-sec. (2) of sec. 9 of the abovementioned law, are hereby ordered to take up residence and go and reside on or before the 31st December, 1959, in -

(a)

Ikageng Location, proclaimed under Government Notice, 193 of 5th February, 1954, or

(b)

The Potchefstroom Native Hostel, proclaimed under Government Notice, 154 of 24th October, 1958, or

(c)

H in the

(i)

Mayeng Reserve, Taungs, or

(ii)

the Railway Block, Mafeking,

being described in the Native Trust and Land Act of 1936 as a scheduled native area or released native area.

The failure to comply with this order is an offence.'

The only points which were argued in the Court a quo and which have again been raised in this Court are whether the Crown has discharged the onus of proving firstly, that Mr. Riekert who signed the

de Villiers AJA

written notice served upon appellant, was authorised to do so, and secondly, that accommodation was available as alleged.

The evidence on record in regard to the first point is that of Mr. Riekert, the manager of the non-European affairs department of the Potchefstroom Municipality, and that of Mr. Jackson, the Town Clerk of the said Municipality. The latter stated:

A 'The Council appointed by resolution Mr. Riekert and other alternative officers to issue and serve notices on inhabitants of Machaviestat. Exh. 'J' is a true copy of the resolution.'

Exh. 'J' is to the following effect:

'Certified true extract from the minutes of a special meeting of the Municipal Council of...