R v Mtshilselwe and Others

• Jurisdiction: South Africa
• Judge: De Villiers JP and Jennett J
• Judgment Date: 27 May 1957
• Citation: 1957 (3) SA 313 (E)
• Hearing Date: 21 May 1957
• Court: Eastern Districts Local Division

Jennett, J.:

The appellants were convicted of malicious injury to G property and sentenced, each of them, to a fine of £25 or three months' imprisonment with compulsory labour, £15 or two months' imprisonment with compulsory labour being suspended on certain conditions.

They are all inhabitants of Emtabazo location in the district of Whittlesea. The Native Affairs Department decided to erect a boundary H fence between that location and the lower Lahlangubo location and the line of the fence was fixed by an official of the Department. When this official pointed out the boundary line to the headmen of the two locations concerned on the 12th November, 1956, the headman of the appellant's location objected to it. It is clear that he and the inhabitants of his location considered that the line pointed out encroached

Jennett J

on their location. The headman asked that the matter be left for the time being to enable the members of the location to obtain the services of a surveyor.

Fencing on the boundary line pointed out was commenced on the 15th A November and on the following day the headman of Emtabazo location interviewed the assistant native commissioner. The native commissioner was away. The headman was informed that if the fence was shown to be on an incorrect boundary line it would be moved to the correct one. Before he had time to convene a meeting of his people and inform them of what B had transpired the appellants committed the acts which led to their conviction.

It is quite clear that the inhabitants of Emtabazo location were convinced that the fence being erected was on the wrong boundary line and encroached on their location. Their headman, who has held office since 1932, says he had always considered the line they desire C recognised to be the correct line and he produced to the official who fixed the boundary line, a compilation plan, which, he claims, supports his view. It is significant that fencing was commenced on the line between Lower and Upper Lahlangubo locations, that the fencing was stopped before completion and that the fencing of the boundary in question in this case was then commenced at the special request of the D inhabitants of the Lower Lahlangubo location. This hastened the erection of the fence in dispute by about two months.

On the 19th November, 1956, the appellants approached the fencing party. That party had already knocked into the ground twenty iron standards and ten creosoted poles...