R v Lepile

• Jurisdiction: South Africa
• Citation: 1953 (1) SA 225 (T)

R v Lepile
1953 (1) SA 225 (T)

1953 (1) SA p225

Citation	1953 (1) SA 225 (T)
Court	Transvaal Provincial Division
Judge	Murray J and Neser J
Heard	November 24, 1952
Judgment	December 11, 1952

Flynote : Sleutelwoorde B

C Railway — Reservation of railway premises for exclusive use of particular races — 'Other place' in sec. 36(b) of Act 22 of 1916 includes railway premises — Charge of contravening sec. 36(b) read with secs. 4(6) and 7 bis of Act 22 of 1916 and with Reg. 20 of G.N. 801 of 1937 as amended — Proof that the place was reserved and that D accused knew of it or was in a position to know sufficient — Not necessary to give notice in any Native language — Partial or unequal treatment to a substantial degree — Temporary inconvenience due to rebuilding not amounting to — Criminal procedure — Appeal — From magistrate's court — Notice of appeal — Grounds must be clearly and specifically stated — Rule 63 of Act 32 E of 1944 — Object of.

Headnote : Kopnota

The words 'other place' in section 36 (b) of Act 22 of 1916 include railway premises and consequently include the concourse and the main stairs leading thereto of the Johannesburg railway station.

F The provisions of section 36 (b) of Act 22 of 1916 do not require, on a charge of contravening such section, an allegation that the Administration considered it convenient to inform the public of the reservation in any manner; they merely require an allegation and proof that the place was reserved and that the accused knew or was in a position to know of the reservation. There is no need to give notice in any Native language.

G Where, in an appeal from a conviction on a charge of contravening section 36 (b) of Act 22 of 1916 read with sections 4 (6) and 7 bis of Act 22 of 1916 read with regulation 20 of Government Notice 801 of 1937 as substituted by Government Notice 1911 of 1949, it was contended that the regulation had been applied in a manner which had resulted in partial and unequal treatment to a substantial degree as between Europeans and non-Europeans in that inter alia, there was at the time no H waiting room for the use of non-Europeans, but it appeared that the waiting rooms then provided were merely temporary, the previous waiting rooms having had to be demolished, and that convenient and comfortable waiting rooms would in due course be erected,

Held, that a temporary inconvenience of this kind did not amount to partial and unequal treatment to a substantial degree.

The object of Rule 63 of the Magistrates' Courts Act is to enable the Court and the Crown to be apprised clearly and specifically of the grounds of law which are going to be submitted in an appeal and to enable the Crown to assist the Court in regard to such grounds.

1953 (1) SA p226

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

L. R. Dison, for the appellant, referred to Rex v Nolte, 1928 AD 377 A at p. 382; The Queen v The Justices for the West Riding, 1900 (1) Q.B. 291; Rex v Mopeli and Others, 1947 (1) SA 510; Rex v Sita, 1950 (3) SA 460; Rex v Abdurahman, 1950 (3) SA 136; R v Lusu (C.P.D., 19/11/52).

E. O. K. Harwood, for the Crown, referred to Rex v Amoils, 1948 (2) SA 869 at p. 872; Minister of Posts and Telegraphs v Rasool, 1934 B A.D. at p. 175; Rex v O'Brien, 1927 T.P.D. 274; Rex v Zondo, 1942 T.P.D. at p. 190.

Cur adv vult.

Postea (December 11th). C

Judgment

Neser, J.:

Appellant was charged in the magistrate's court, Johannesburg, as follows:

'Count 1:

D That the accused is guilty of the offence of contravening sec. 36 (b) read with secs. 4 (6) and 7 bis of Act 22 of 1916 read with reg. 20 of Government Notice 801 of 1937 as substituted by Government Notice 1911' of 1949.

In that whereas the Administration deemed it expedient to reserve certain railway premises or portion thereof of the Johannesburg railway station, to wit certain steps leading to the main concourse and the main E concourse for the exclusive use of persons of particular races or different classes of persons, to wit Europeans:

And whereas the Administration did by notice boards reading 'Slegs vir Blankes' and 'Europeans Only' inform all persons affected thereby of the fact of such reservation;

Main Count:

F Now therefore on the 17th day of August, 1952, and at Johannesburg railway station in the district of Johannesburg, the said accused being a native, and knowing or being in a position to know that the aforesaid places, to wit certain steps leading to the main concourse and the main concourse have been reserved by the Administration for the exclusive use of persons of particular races or different classes of persons, to wit G Europeans, did wrongfully and unlawfully enter the aforesaid places in contravention of reg. 20 aforesaid, or without lawful excuse.

Or alternatively:

That the said accused, having entered the aforesaid places did wrongfully and unlawfully remain therein after having been desired by a servant, to wit Constable Petzer to leave the said places.

H Alternatively:

That the accused is guilty of the offence of contravening reg. 20 (a) read with reg. 268 of Government Notice 801 of 1937 as amended and further read with sec. 4 (6) and 7 bis of Act 22 of 1916 as amended.

In that whereas the Administration has, in terms of sec. 7 bis aforesaid, reserved a certain portion of railway premises, to wit certain steps leading to the main concourse and the main concourse for the exclusive use of persons belonging to a particular race or class, to wit Europeans:

Now therefore the said accused, being a native and not being a person

1953 (1) SA p227

Neser J

belonging to the category of persons for whose benefit the reservation has been made, did wrongfully and unlawfully make use of the aforesaid premises or portion thereof so reserved.

Count 2:

Charged with the offence of contravening reg. 17 Chap. 11 of the regulations framed under the provisions of sec. 38 of Act 25 of 1945, A and published in Government Gazette 1032 of 1949 dated 1/5/1949. In that upon or about 17th August and at or near Johannesburg Railway Station in the district of Johannesburg the said accused a native male not exempted from the provisions of the said section, in terms of sub-sections a, b, or c thereof did wrongfully and unlawfully and upon the request of a duly authorised officer of the South African Railway B force, namely Constable Petzer fail to produce a valid and current document authorising him to enter or to be in the said proclaimed area.'

He pleaded not guilty to all the counts.

Petzer, a constable in the S.A.R. & H. police, testified that on 17th C August, 1952, at about 9.45 p.m., while on duty at the main entrance to the Johannesburg station, he saw a number of Natives coming down the main stairs and entering the concourse, that these stairs and the concourse are reserved for Europeans only and that there are notice boards on the staircase with the words 'For Europeans only' and 'Slegs vir blankes'. He asked them if they did not know that they were not D allowed to use those stairs and the concourse, and the only reply was 'Africa, Africa'. He requested them to leave, but they refused and repeated 'Africa, Africa'. On being warned of arrest, they gave the same reply. The appellant was one of the Natives and was arrested by Petzer.

E The cross-examination of Petzer was directed in the main to establishing that provision made for the comfort and convenience of non-Europeans at the Station was not of the same standard as that provided for Europeans.

Du Toit, a head constable of the S.A.R. & H. Police, testified that in F May, 1949, he was present at discussion of officials of the Administration in connection with demarcating portions of the station for the use of Europeans and non-Europeans, respectively, and for notifying the public thereof, and that it was then decided to demarcate the station as was done, and notice was given thereof; notice was given, inter alia, by placing upon notice-boards notices in both official languages.

G Arrangements were made for similar facilities for Europeans and non-Europeans in their respective portions, save that no bar or wine buffet was provided for the latter. Under cross-examination he...