R v Velshi

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA and Fagan JA
• Judgment Date: 19 March 1953
• Citation: 1953 (2) SA 553 (A)
• Hearing Date: 03 March 1953
• Court: Appellate Division

F Fagan, J.A.:

The appellant was convicted by DE VILLIERS, J., in the Transvaal Provincial Division on a charge of contravening sec. 15 (1) read with secs. 14 and 27 of the regulations framed under the provisions of sec. 123 (3) of Act 30 of 1928, as amended by Act 46 of 1935, and G published under Government Notice 2031 of 1943 in Government Gazette 3264, dated 5th November, 1943, in that 'upon or about the 17th June, 1952, and at or near Pretoria' he

'did wrongfully and unlawfully purchase or possess yeast, to wit 274 pounds of compressed yeast which the holder of a general dealer's licence is prohibited from selling, the said accused not having purchased the yeast under a permit issued in terms of sec. 17 of H Government Notice 2031 of 1943, nor having lawfully produced or imported it'.

Sec. 27 of the regulations referred to merely provides the penalty, and the decision in this case turns on the construction of sec. 15 read with sec. 14. I quote these two sections, omitting from sec. 14 a proviso not relevant to the present issue:

'14. 'The holder of a general dealer's licence shall not sell to any person in the Union for delivery in the Union -

(a)

any liquid or semi-liquid yeast;

Fagan JA

(b)

any dehydrated or dry yeast containing more than five per cent by weight of active yeast cells;

(c)

any compressed yeast (or any yeast which is neither liquid nor semiliquid nor dry) except in packets each containing not more than half an ounce of yeast (including any substance other than active yeast cells) and each wrapped separately by the manufacturer of the yeast in a containing material to which a label, bearing in easily legible printed roman characters the A name and address of the manufacturer, has been attached by the manufacturer in such a manner that the packet cannot be opened without breaking the label;

(d)

any quantity of dry yeast which he is not prohibited from selling under para. (b), unless the yeast is sold in a container in which it was packed by the manufacturer of the yeast, and to which has been attached, by the said manufacturer, in a manner B described in para. (c) such a label as is mentioned in that paragraph.

15 (1) No person shall after the first day of January, 1944, purchase or possess any yeast which the holder of a general dealer's licence is prohibited from selling, unless the said person purchased the yeast under a permit issued in terms of sec. 17, or unless he lawfully produced or imported it.

(2)

Any person who has purchased, or has been in possession of any yeast which the holder of a general dealer's licence is C prohibited from selling, shall be deemed to have purchased or to have possessed that yeast in contravention of sub-sec. (1), unless the contrary is proved.'

I may add that sec. 2 of the regulations prohibits the manufacture for sale of yeast of any description except under licence; sec. 13 prohibits the sale of yeast by anyone who has not imported or manufactured it or D who is not the holder of a general dealer's licence; sec. 16 prohibits a licensed manufacturer or an importer from selling any yeast which the holder of a general dealer's licence is prohibited from selling unless the purchaser delivers to him

'a permit issued under sec. 17 which authorises the purchaser to E purchase from the seller the quantity and particular class of yeast sold, and unless the yeast is delivered in a container or wrapper to which is attached in a manner described in para. (c) of sec. 14 such a label as is mentioned in that paragraph';

while sec. 17 makes provision for the issue of a permit for the purchase F of yeast from a manufacturer or importer by any person who satisfies the Commissioner

'that he needs for any lawful purpose any yeast which the holder of a general dealer's licence is prohibited from selling',

and contains further provisions for controlling such transactions and G ensuring that they are limited to purchases of 'a quantity or quantities specified in the permit, of yeast of a class or classes likewise specified'.

The Crown called a detective constable and a police sergeant, who testified that they had gone to the appellant's flat in Pretoria on the 17th June, 1952, and had there found 274 pounds of compressed yeast in H one pound pats, still wrapped in the original containers of the manufacturer bearing the latter's name and address, which was at Industria, Johannesburg. They had also found there a machine for dividing the one pound pats into half-ounce packets, and aluminium paper, some of which appeared to have been used for wrappers for the smaller packets. The defence, on the facts,

Fagan JA

was that the yeast and the machine had been put in the appellant's flat by some other person without his knowledge, and that he had bought the aluminium paper for a friend who wanted to use it in an advertising picture. The trial Judge rejected the defence story and accepted the A Crown evidence. The question whether the Crown evidence inferentially established a case of illegal purchase was apparently not raised, and might indeed have been difficult to raise on the wording of the indictment, which, in its mention of date and place, was limited to the occasion when the yeast was found in the appellant's possession. In any B event the learned Judge based the conviction merely on the fact of the appellant's possession, without a permit, of this yeast 'in a form in which a general dealer may not sell it', and the matter comes before us as a question of law which has been reserved under sec. 372 of the C Criminal Code in the following words: Whether the possession of...