R v Vilbro and Another

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Fagan CJ, Steyn JA, De Villiers JA, Beyers JA, Malan JA
• Judgment Date: 13 May 1957
• Citation: 1957 (3) SA 223 (A)
• Hearing Date: 07 May 1957

H Fagan, C.J.:

The appellants, husband and wife, were convicted by a magistrate of a contravention of sec. 12 (1) of the Group Areas Act, 41 of 1950, read with other sections of the Act and with certain Proclamations. The charge was, in effect, that they, being members of the

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Coloured Group, occupied without a permit premises in Durban which at 'the specified date' had been lawfully occupied by a member of the White Group. The specified date, being the date of a Proclamation defining the City of Durban in the Municipal Area of Durban for the purposes of the A Act, was the 30th March, 1951. Having failed in an appeal to the Natal Provincial Division, the appellants, with the leave of that Division, have now come on appeal to this Court.

The first ground of appeal is that there was no reliable evidence that the premises to which the charge relates are situated in a defined area or a specified area. The Inspector of Land Tenure, one Olivier, gave evidence that the property in question is situated

B 'in the Municipal and Urban Area of Durban. This is in a defined area. It is also a specified area and also in the District of Durban.'

He used these various expressions so as to cover the terms used in the relevant Proclamations. This portion of his evidence was not contradicted, nor was any cross-examination directed to it. His evidence C also covered other ground, mainly in connection with interviews he had with the appellants and information he had gathered when investigating their case. He was cross-examined on these matters. That was on 15th November, 1955. The hearing did not finish on that day, but was adjourned to the 18th. Then, after the Crown case had been closed and the defence evidence had concluded, Mr. Driman, who appeared for the D appellants, asked that the inspector should be recalled, and put further questions to him. On this occasion he made a number of extraordinary statements which one would not expect a normal man to make. He said he was not feeling well, and the court adjourned until the 21st. He was subjected to further cross-examination on the last-mentioned date, and again did not appear to be normal.

E The magistrate, in his reasons for judgment, says of Olivier:

'This witness gave evidence on three separate days, on the second and third of which he made some extraordinary statements and some glaring discrepancies occurred. The prosecutor, in his address at the close of the case, asked the court, because Olivier had been ill, to reject his evidence entirely with the exception of the formalities deposed to on the first day. By the time judgment was given it had been ascertained that this witness was seriously ill in hospital suffering from cerebral F thrombosis. This would have accounted for the behaviour of this witness and the court consequently rejected all his evidence in so far as contentious matters were concerned. There was no attack on his evidence regarding the situation of the property and the provisions to which it is subject under the Act.'

Mr. Hoskings, who informed us that Olivier had since died, asked us to G say that, owing to the unreliability of his evidence, we should also reject his statements as to the situation of the property and the applicability of the Group Areas Proclamations to it. This is the sole basis of the first ground of appeal.

Those statements, however, stand uncontradicted. They were not even queried in cross-examination. When the public prosecutor asked the H magistrate to reject Olivier's evidence, he excepted this portion; yet even then the defence made no attempt to refute it.

The first ground of appeal must therefore fail.

I may add that the whole of Olivier's evidence given on the first day, as recorded, including cross-examination, reads quite rationally. Though I can understand the Crown withdrawing the contentious part even of that day's evidence owing to the muddle Olivier made of the same

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matters in further cross-examination on the later days, when apparently his illness had developed, I can see no such reason for withdrawal or rejection of that portion of his evidence which was neither touched on in cross-examination nor refuted by evidence for the defence.

The second ground of appeal is that there was no reliable evidence that A the premises in question were lawfully occupied by a member of a different Group at the crucial date.

A witness Strydom testified that he is a member of the White Group, and that he occupied the premises from May, 1950, to the end of January, 1955. He was in occupation on the 30th March, 1951.

He was not cross-examined, nor was there any contradictory evidence.

B Mr. Hoskings submitted that Strydom's evidence did not establish that he 'lawfully' occupied the premises on the crucial date. Other evidence indicates that the property belonged at the time to an Asiatic. Mr. Hoskings pointed to this fact as an extra reason why Strydom should specifically have said that his occupation was lawful, which he did not do.

C I agree with what BROOME, J.P., says on this point in the judgment appealed from:

'It is only necessary to say that Strydom was not cross-examined and that the lawfulness of his occupation was never challenged. In fact the whole case in the magistrate's court was fought on the basis that his occupation was lawful. In my opinion unchallenged evidence of a continuous occupation for four and two-thirds years furnished prima facie proof that the occupation was lawful.'

D Mr. Hoskings's further arguments related to the question whether the magistrate's finding on the racial classification of the appellants was correct.

It was common cause that the appellants are not Natives.

The provisions of the Act which are relevant for our present purpose E - that of deciding whether the husband was rightly held to fall in the Coloured and not the White Group - are the following:

'Sec. 2. (1) For the purposes of this Act, there shall be the following groups:

(a)

a white group...