R v Oosthuizen
| Jurisdiction | South Africa |
| Judge | Price J, and Roper J |
| Judgment Date | 02 July 1952 |
| Court | Transvaal Provincial Division |
| Hearing Date | 26 May 1952 |
| Citation | 1952 (3) SA 541 (T) |
Price, J.:
The appellant was charged with the contravention of B Government Notice 1871 published in the Gazette of the 4th August 1950, read together with the penal provisions of sec. 133 of Act 8 of 1912.
The charge as above described is the result of an amendment obtained during the hearing of the case.
C The magistrate convicted the accused and sentenced him to pay a fine of £5 or to be imprisoned for 7 days, suspended for 12 months on condition that during such period the appellant be not convicted of a contravention of the same Government Notice.
The present appeal is brought against this conviction. Although the D notice of appeal covers three and a half foolscap pages, Mr. Hiemstra, who appears for the appellant has availed himself of only two of the numerous grounds set out in the notice of appeal. In the view I take of the case it is necessary for me to deal with only one ground of appeal.
Government Notice 1871 consists of by-laws made by the Ohrigstad River E Board under sec. 76 of Act 8 of 1912. It is common cause that the charge made against the appellant was the alleged contravention of reg. 2 (1) of these by-laws. This regulation provides as follows:
'Subject to the provisions of by-law No. 4 all water abstracted from public streams within the river district by means of furrows, pumps, or F any other means, shall be returned each day during the period from sundown to sunrise and on Sundays to its natural course by proper discharge furrows at the places to be determined by the River Board.'
The act which the appellant had committed and which was held to be a contravention of this regulation was that he abstracted water from a G furrow leading from a public stream and that he used this water for irrigation between sundown and sunrise. The regulation was therefore interpreted as prohibiting such acts.
If this is what the regulation means it must derive such meaning by inference, and in order to arrive at such an inference it must be taken to mean that at night and on Sundays water cannot be used, but that H these times are reserved for returning water to the stream.
There seem to me however to be great difficulties in the interpretation of the regulation, and its meaning is far from clear. Mr. Hiemstra's first point is that reg. 2 (1) is ultra vires for one of two reasons. He contends that the regulation is invalid for vagueness, that it does not indicate to those subject to it what
Price J
precisely they must do or refrain from doing in order to comply with its terms, or that it constitutes a total prohibition against the use and consumption of any water at all from the public stream. If given its literal meaning the regulation does indeeed totally prohibit the consumption of water from the public stream.
A It provides, in terms, that all water abstracted from public streams...
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