R v Philips Dairy (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Price J and Rumpff J
• Judgment Date: 15 August 1955
• Court: Transvaal Provincial Division
• Hearing Date: 01 August 1955
• Citation: 1955 (4) SA 120 (T)

D Price, J.:

The appellant was charged with the contravention of sec. 34 (1) of the Weights and Measures Act, Act 32 of 1922, as amended, in that it unlawfully caused certain milk short of the quantity required, or represented by the appellant, to be delivered to the Hofmeyr Supply Store, as purchaser. Mr. Nathan for the appellant has advanced two E points for the consideration of the Court. The first point is that according to the evidence the Hofmeyr Supply Store was not a purchaser. A partner in the Hofmeyr Supply Store gave evidence to the effect that he had an arrangement with the appellant, that if ever it was found that a carton contained less than a pint of milk, it would be returned and F not paid for.

On the date when the offence is said to have been committed, 40 cartons of milk of a pint each were delivered, 37 of these contained less than a pint. Two were found to be leaking, and one only was full. The shortage was two pints.

G Mr. Nathan argues that, because of the condition that the Hofmeyr Supply Store could return and need not pay for any cartons found to be not full, the Hofmeyr Supply Store did not become a purchaser of any carton until it had examined and accepted it.

Sec. 34 (1) of Act 32 of 1922 provides that any person who sells or delivers to a purchaser

'anything by weight or measure short of the quantity . . . represented H by the seller, shall be guilty of an offence.'

It is not disputed that it was represented that the 40 cartons contained 5 gallons of milk, not that the milk was two pints short.

I am of the opinion that the Hofmeyr Supply Store was a purchaser in terms of the section. The purchase may have been conditional, but if so, it was a sale subject to the condition that cartons not quite full,

Price J

could be returned. Unless they were returned they had to be paid for. The condition may have been a resolutive condition, but whatever it was, it did not have the result of suspending the coming into effect of the transaction of sale.

A Mr. Nathan's second point is that a limited company cannot be convicted of a contravention of the section under which the appellant (a limited company) was charged, and he cites the case of R v Robertson and Another, 1948 (1) SA 582 (T), where the full Court held that an employer was not criminally responsible for a contravention of the B section by an employee. In that case the accused was a limited liability company, and Robertson was cited in his capacity as assistant manager of the company.

Mr. Nathan argues that we are bound by this decision, and that consequently his client must succeed in his appeal. The Attorney-General C on the other hand argues that the case should not be followed as it is clearly a wrong decision.

The rule is that previous decisions of the same Court are binding, unless the Court is completely satisfied that such previous decision is wrong, and has been arrived at by some...