R v Zulu
Jurisdiction | South Africa |
Citation | 1959 (1) SA 263 (A) |
R v Zulu
1959 (1) SA 263 (A)
1959 (1) SA p263
Citation |
1959 (1) SA 263 (A) |
Court |
Appèlafdeling |
Judge |
Schreiner Wn HR, Hoexter RA, Malan RA, Van Blerk RA en Hall Wn RA |
Heard |
November 7, 1958 |
Judgment |
November 24, 1958 |
Flynote : Sleutelwoorde
Naturel — Grond — Art. 1 (a) van die Wet op Voorkoming van Onregmatige Plakkery, 52 van 1951 — Betekenis van — Artikel van toepassing op 'n plakker wat sedert sy geboorte sy woonplek op die grond gehad het.
Headnote : Kopnota
Die duidelike betekenis van artikel 1 (a) van die Wet op Voorkoming van Onregmatige Plakkery, 52 van 1951, is dat dit 'n oortreding is om sonder wettige rede grond van 'n ander te betree of binne te gaan, en dat dit ook 'n oortreding is om sonder verlof van die eienaar van die grond daarop te vertoef. Die artikel is gevolglik van toepassing op 'n plakker wat sonder die vereiste verlof vertoef op grond waar hy sedert sy geboorte sy woonplek gehad het.
Flynote : Sleutelwoorde
Native — Land — Sec. 1 (a) of Prevention of Illegal Squatting Act, 52 of 1951 — Meaning of — Section applies to a squatter who had had his home on the land since birth.
Headnote : Kopnota
The clear meaning of section 1 (a) of the Prevention of Illegal Squatting Act, 52 of 1951, is that it is an offence to enter upon or into the land of another without lawful reason, and that it is also an offence to remain on the land without the permission of the owner. The section accordingly applies to a squatter who remains without the required permission on land on which he has had his home since his birth.
Case Information
Appèl teen 'n beslissing in die Natalse Provinsiale Afdeling (MILNE, R., en HENOCHSBERG, R.) wat 'n appèl teen 'n skuldigbevinding in 'n landdroshof van die hand gewys het. Die feite blyk uit die uitspraak van VAN BLERK, R.A. D
L. Lawrence, for the appellant: Sec. 1 (a) read with sec. 2 of Act 52 of 1951 provides for only one offence and the offence is committed by persons to whom the Act applies who, after the commencement of the Act enter upon the land in question without lawful reason, or, who, having made an unlawful entry do not obtain permission from an owner to remain E thereon; see Tsose v Minister of Justice and Others, 1951 (3) SA 10 (A); R v Moyage and Others, 1958 (3) SA 400; War Measure 76 of 1944. R v Phiri, 1954 (4) SA 708; Lolwana v Port Elizabeth Divisional Council, 1956 (1) SA 379; R v Press, 1956 (3) SA 89; which decided that two separate offences are envisaged in sec. 1 (a) read with sec. 2 F of Act 52 of 1951, were wrongly decided. They are in conflict with the decision in Tsose's case, supra. There must be an unlawful entry and the words 'remain on' must be preceded by an unlawful entry. To hold otherwise would be inconsistent with the intention of the Legislature and would lead to glaring absurdities; alternatively the grammatical meaning of 'remain' presupposes an entry; see Shenker v The Master, G 1936 AD at p. 142; Venter v R., 1907 T.S. 910. The Act was not intended to have retrospective effect and only applied to persons making an unlawful entry and thereafter remaining on without permission after the Act was promulgated and applied to the particular area. In the present case, appellant made no entry after the Promulgation
1959 (1) SA p264
in question and in fact made no entry at all; see Mahomed v Insolvent Estate du Toit, 1957 (3) SA 555; Curtis v Johannesburg Municipality, 1906 T.S. at pp. 312 - 3; R v Mvagalie, 1924 T.P.D. at p. 265. The Act must be read with the heading thereof which limits its application A to 'illegal squatters'; see Turffontein Estates Ltd v Mining Commissioner, Johannesburg, 1917 AD at p. 431; R v Mpanza, 1946 AD 763. The Act should be limited to trespassers in the narrower sense of an invasion of, or entering property or land without the leave of the owner, presumably for unlawful purposes, and who are not residents of B the property or land; see Tsose's case, supra at p. 21. Trespassers in a wide sense are dealt with by various legislative enactments in the Provinces and this legislation was not repealed by Act 51 of 1952. This legislation does not make it an offence to remain on and after the expiry of a contract with the owner to reside at a particular place; see Law 13 of 1874 (N); Ord. 21 of 1902 (O.F.S.); Ord. 26 of 1904 (T); R. v. C Thetlesane, 1928 OPD 186; Msweli and Another v R., 1946 NPD 636. There exists special legislation relating to Natives residing on farms as squatters and residing on farms without the leave of the owner who refuse to leave when their rights to be there have ceased, and there are special provisions for summary ejectment and criminal sanction D relating thereto; see sec. 7 of Act 21 of 1895 (T.); Ord. 2 of 1855 (N.); Law 41 of 1884 (N.); sec. 5 (12) of Act 24 of 1932 and Chap. 4 of Act 18 of 1936, in relation to certain areas. There are special considerations relating to the ejectment of squatters which do not apply to all trespassers; see R v Magadulela and Others, 1939 T.P.D. 239. The Court will have regard to the objects of the Act and the mischief E aimed at, and taking these into consideration, the Act must limit the scope thereof to a particular class of trespasser and not resident squatters; see R v Detody, 1926 AD 198; War Measure 76 of 1944. The charge sheet does not disclose an offence in that there is no allegation therein of an entry; see R v Herschel, 1920 AD 575; R v Preller, 1952 (4) SA 452; R v Moyage and Others, 1958 (3) SA 400.
C. M. S. Brink, for the Crown: The words of sec. 1 (a) and 2 of Act 52 of 1951 are clear and unambiguous and, taken in their ordinary and natural meaning, they provide for two separate offences, viz. (i) entering upon or into any land or building without lawful reason, and (ii) remaining on or in any land or building without the permission of G the owner or lawful occupier, despite the fact that the original entry was lawful; see R v Phiri, 1954 (4) SA at p. 709; R v Press, 1956 (3) SA at p. 90; Lolwana v Port Elizabeth Divisional Council, 1956 (1) SA at p. 381. The literal construction of secs. 1 (a) and 2 does not lead to absurdities which are so glaring that it could never have been contemplated by the Legislature; see Minister of Labour v P.E. Municipality, 1952 (2) SA at pp. 534, 535; Barkett v SA National H Trust & Ass. Co. Ltd., 1951 (2) SA at pp. 362, 366; Savage v C.I.R., 1951 (4) SA at pp. 408, 410; R v Sisulu and Others, 1953 (3) SA at p. 290. As the words to be construed are unambiguous, the rules of construction referred to by appellant, do not fall to be applied as aids to interpretation; see Ex parte Minister of Justice: In re Masow and Another, 1940 AD at p. 90; Dedlow v Minister of Defence and Provost Marshal, 1915 T.P.D. at p. 554; R v Magano and Madumo, 1924 F
1959 (1) SA p265
T.P.D. at p. 129. In any event, even if those rules can be applied, the long and short titles of Act 52 of 1951 are not of any assistance in the interpretation of this particular statute as the word 'squatting' has not such a well-defined meaning as to render one particular construction of the section to be construed, more acceptable than another. As to the A meaning of the word 'squatter', see Crous v Crous, 1937 (1) P.H. A. 18; Hoggan v Esquimalt & Nanaimo Rly., Co., 1894 A.C. 434; Act 27 of 1889 sec. 1 (c). Further, the state of the law before Act 52 of 1951 was passed differs to such an extent in the four Provinces of the Union of South Africa that it is difficult to construe the section in question in such a way that it would not involve repetition of existing legislation B in one or other of the Provinces and it was the intention of the Legislature therefore to regulate afresh the whole subject to which the statute relates and to repeal all Acts which are repugnant to the provisions of Act 52 of 1951; see New Modderfontein G.M. Co v Transvaal Provincial Administration, 1919 AD at p. 397. With regard to legislation existing before 1952, there is legislation in all four of C the Provinces which makes it an offence to trespass wilfully on property and to refuse to leave when requested to do so, but in the Orange Free State it is also an offence to enter on to any private property without lawful reason and without the knowledge or consent of the owner or occupier of the...
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