R v Skade
| Jurisdiction | South Africa |
| Judge | De Villiers JP and Jennett J |
| Judgment Date | 17 May 1957 |
| Citation | 1957 (3) SA 315 (E) |
| Hearing Date | 17 May 1957 |
| Court | Eastern Districts Local Division |
F De Villiers, J.P.:
The appellant was charged before the magistrate of Middledrift with contravening sec. 2 (9) of the Native Administration Act, 38 of 1927, in that he unlawfully disobeyed a lawful order of Mtobile Qomfo a duly appointed headman.
G He was found guilty and sentenced to pay a fine of £5 or serve 30 days' imprisonment with compulsory labour. His appeal to the Court on Friday the 17th instant was allowed, the reasons to be given later. These are the reasons. The evidence discloses that on the 14th of February, 1956, a meeting was held of residents of the Ngqolowa Location at which it was resolved to apply for the area to be declared a betterment area. This H was done on the 9th of November, 1956, in Government Notice 2073.
At a later Nkundhla (A meeting of the men of the Location, we understand) it was decided that the men would supply the labour in connection with the erection of certain fencing required, and that five men would be assigned to this work each week.
De Villiers JP
On Monday, the 28th of January, 1957, it was the appellant's turn to form one of the team of five for that week, and on the 25th of January the headman warned him to turn up for service on the 28th of January.
A It is common cause that the appellant refused to assist with the work, told the headman so, and did not turn up on the Monday.
In evidence the headman stated:
'By refusing to go and work on the fence he disobeyed a lawful order of mine, and obstructed me in the smooth carrying out of the location affairs, and refused to carry out the order which I had to give as headman.'
B The sole question in the appeal was whether this statement by the headman is correct in law.
The ipse dixit of the headman cannot, of course, supplant the function of the court.
The term 'lawful order' as used in sec. 2 (9) of the Act, in my view, means an order which the person ordered is in law obliged to obey.
C The evidence indicated that the appellant was opposed to the declaration of the area as a betterment area. He would therefore also have been opposed to the resolution that the men of the tribe were to supply their labour for the erection of the fence. He was not a party to D any agreement in this regard, so that he certainly was under no contractual obligation to assist with the fencing.
No evidence was led from which it could be inferred that the resolution of the 'Nkundhla' had the force of law, or that any order issued by the...
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S v Matlapeng
...to have issued the order. The order must be proved to have been lawful based on authority validly conferred by law (see R v Skade, 1957 (3) SA 315 (E) B at p. 317). In the nett result I have come to the conclusion that the appeal must succeed on the ground that the State has failed to prove......
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S v Matlapeng
...to have issued the order. The order must be proved to have been lawful based on authority validly conferred by law (see R v Skade, 1957 (3) SA 315 (E) B at p. 317). In the nett result I have come to the conclusion that the appeal must succeed on the ground that the State has failed to prove......
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S v Mseyisi
...only other issue is whether the order of the headman was a lawful order. This. needless to say, as was pointed out in R. v. Skade, 1957 (3) S.A. 315 (E), is crucial. Similarly the legality of an order by a chief was con-sidered in S. v. Moshesh, 1962 (2) S.A. 264 (E). But neither counsel wa......
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S v Mpayipele
...one. It was accepted by both counsel that the onus was on the State to prove the lawfulness of the order. See, for example, R v Skade, 1957 (3) SA 315 (E); R v Ngwabeni, 1952 (4) SA 53 G Mr. van Rensburg argued that there was no statutory or other authority by which a magistrate was lawfull......
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S v Matlapeng
...to have issued the order. The order must be proved to have been lawful based on authority validly conferred by law (see R v Skade, 1957 (3) SA 315 (E) B at p. 317). In the nett result I have come to the conclusion that the appeal must succeed on the ground that the State has failed to prove......
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S v Matlapeng
...to have issued the order. The order must be proved to have been lawful based on authority validly conferred by law (see R v Skade, 1957 (3) SA 315 (E) B at p. 317). In the nett result I have come to the conclusion that the appeal must succeed on the ground that the State has failed to prove......
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S v Mseyisi
...only other issue is whether the order of the headman was a lawful order. This. needless to say, as was pointed out in R. v. Skade, 1957 (3) S.A. 315 (E), is crucial. Similarly the legality of an order by a chief was con-sidered in S. v. Moshesh, 1962 (2) S.A. 264 (E). But neither counsel wa......
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S v Mpayipele
...one. It was accepted by both counsel that the onus was on the State to prove the lawfulness of the order. See, for example, R v Skade, 1957 (3) SA 315 (E); R v Ngwabeni, 1952 (4) SA 53 G Mr. van Rensburg argued that there was no statutory or other authority by which a magistrate was lawfull......