Rex v Detody

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 29 January 1926
• Citation: 1926 AD 198
• Hearing Date: 09 October 1925
• Court: Appellate Division

Innes, C.J.:

This is one of two cases in which convictions obtained in a magistrate's court were confirmed by the Transvaal Provincial Division. The appellants were both native women and they were both charged with the same offence under similar

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circumstances. The same points being involved in each enquiry, the appeals were argued together. In dismissing them both, the Provincial Division confined its reasons to a discussion of the charge against Detody as being the one in which the facts were clearest. Her case is the only one before us; but our decision will in effect govern the other matter - Rex v Sinah - as well.

Helena Detody was convicted of contravening sec. 3 of Ordinance 43 of 1902 in that, being a native female, she was found at 11.25 p in in a street within the Pretoria municipal area without a written pass from her employer or some person duly authorised by the Town Council. The Ordinance under which the charge was laid provides (sec. 3) that "Any native found in any street, public place, or thoroughfare within any area to which this Ordinance applies between the hours of 9 p in and 4 a m., without a written pass or certificate from his employer or some person duly authorised by the Town Council shall be liable to a specified penalty. The term 'native' is defined (sec. 2) as including 'every person belonging to any of the aboriginal races or tribes of Africa South of the Equator, and every person, one of whose parents belongs to any such race or tribe as aforesaid.'" The facts are not in issue: it is common cause that the appellant is a native within the statutory definition, that the Ordinance is operative within the Pretoria area, and that she was found during the prohibited hours in a municipal street without a pass. Hers is a test case and her defence is that the Ordinance is not applicable to women. The grounds of appeal are two. First that, if the law was originally applicable to women, it has become obsolete or been modified by disuse in that respect. And second that, rightly interpreted, it never did apply to women; that the intention of the lawgiver was, to impose the obligation to carry night passes within urban areas upon native males alone. As regards the first point the Attorney-General candidly admitted, not only that native women had never been required to carry night passes, but that they had never been required to carry any passes at all. And it was upon these facts that Mr. Beck's first contention was based. Now the Cape Supreme Court decided in Seaville v Colley (9 S.C p. 39); that a statutory provision which formed part of the body of laws originally introduced into South Africa from Holland had become abrogated by disuse and was no longer

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in force at the Cape. And this Court arrived at a similar conclusion with regard to a similar statute in Green v Fitzgerald (1914 AD p. 88); in both cases, however, the question whether the doctrine of abrogation by disuse would be operative in regard to statutes passed by a South African Legislature - especially one which derived its powers from the English Crown - was left open. Mr. Beck invited us not only to answer that question in the affirmative, but to apply the doctrine to a case where the period of disuse had been far shorter than in either of the instances above mentioned, and where such disuse had been not complete but partial. It is unnecessary to re-traverse any of the ground covered by the decisions just quoted, because the matter is concluded by sec 135 of the South Africa Act, which enacts that, subject to the provisions of this Act, all laws in force in the several colonies at the establishment of the Union, shall continue in force in the respective Provinces until repealed or amended by Parliament, or by the Provincial Councils in matters in respect of which the power to make Ordinances is reserved or delegated to them."The word" laws "means statutes. (See Webster v Ellison 1911, A.D pp. 93 and 99). So that the principle of abrogation by disuse can have no application to legislative enactments in force" at the date of Union in any of the Provinces. In making that provision Parliament really adopted, in respect of South African legislation, the English rule that a statute remains in force until duly repealed. It practically closed the question which had been left open by the Courts in the cases above quoted. It was dealing with the then existing statute books of the various Provinces, and there is no indication of any desire to differentiate between one law and another. So that by the words "in force" must, I think, be understood "in existence on the statute book." Moreover the principle of non-obsolescence, having been approved for the body of legislation in existence at the date of Union, mould be applied by the Courts to all future, as well as to all past South Africa n statutes. Ordinance 43 of 1902 cannot therefore be regarded as obsolete.

The second ground of appeal is concerned with the meaning of the Ordinance. The language is general. Its provisions upon the face of them apply to every person belonging, or having a parent who belonged, to one of the aboriginal races described. No sex

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distinction is drawn. Now, unless a contrary intention appears, words importing the masculine gender are taken to include females. (Act 5 of 1910, sec. 7). But where the Court is satisfied that the Legislature did not intend that females should be so included then the statutory rule would not apply. It is all a question of intention. The meaning of the word "persons" was considered in Law Society v Wookey (1912, A.D., p. 623). The Cape Charter of Justice authorised the Court to admit and enrol as attorneys such "persons" duly instructed in the practice of the law as should be approved in terms of the rules. It was held that "persons" did not include women. Having regard to the legal procedure of Holland, under which women could not be enrolled as attorneys, and to the fact that in practice they never had been so enrolled., this Division came to the conclusion that no amendment of the old rule was contemplated. The Legislature, it was held, intended by the word "persons" to denote male persons only. The term was ambiguous, and should not be construed in its widest sense. Here we have to do with the same ambiguous word. It certainly cannot bear its most extensive and literal interpretation; for in that case it would include young children, whom it could never have been the intention of the Legislature to affect. So that clearly it must be cut down; the only question is how far. The enquiry will he simplified by an application of some of the tests which were summarised by Lord HALSBURY as follows: "Among the things which have passed into canons of construction recorded in Heydon's case, we are to see what was the law before the Act was passed, and what was the mischief or defect for which the law had not provided, what remedy Parliament appointed, and the reason of the remedy." (Eastern Photographic Co. v Comptroller of Patents (1898, A.C., p. 573) ). It will be proper also to pay some regard to the manner in which the Ordinance in question and the law,; which preceded it upon the subject of native passes have been administered by successive Governments and succeeding sets of officials. Custom, of course, cannot prevail over the plain and unambiguous meaning of a statute, but where language is open to two constructions, then the fact that it has been uniformly read in one sense by those entrusted with the administration of the measure cannot be ignored. The Civil Law attached great importance to prior custom as a factor in the interpretation of statutes - Si de

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interpretatione quaeratur, in primis inspiciendum est quo jure civitas retro in ejusmodi casibus usa fuisset; optima enim est legum interpres consuetudo. (Dig: 1.3.37.) But the tendency of modern decisions is greatly to restrict the weight to be attached to contemporaneous exposition. (See remarks of Lord Watson in Trustees of Clyde Navigation v Laird. 8 A.C., p. 673.) Yet some weight it must retain. As was said by COLERIDGE, J. (Reg. v Archbishop of Canterbury, 11 Q.B., at p. 581) "No usage can control the unambiguous language of the law. . .; but when the question is upon the meaning of the language, what has been done under it may he enquired into, as of more or less cogency, according to circumstances, in determining that question." The weight to be attached to custom as an element in the construction of statutes was discussed by this Court in Rex v Lloyd, where it was remarked by JUTA, J.A., that when the language was capable of two constructions, then the fact that it had been construed by all concerned in a certain way ever since it came into operation, was an element to be considered And MASON, A.J.A., said in the same case that "Where a statute may fairly be interpreted in either of two ways, custom may well be invoked to tip the balance. (1920, A.D., p. 477 and p. 486.) Now the definition of "native" in Ordinance 43 of 1902 was taken from a pass law of prior date. And the statute book of the Transvaal contains many enactments upon the subject. I propose to examine some of the earlier Legislation to which we were referred by Mr. Beck in his careful argument, to take account of certain circumstances which are matters of well-known history and of common knowledge, to note the mischief which the pass laws were intended to remedy, and in the light of that enquiry to ascertain the meaning of the Legislature as expressed in the Ordinance before us.

The instructions to Field Cornets promulgated in September 1858 dealt with many subjects, and among them with passes for natives. Passes were to be obligatory (sec. 37) in the case of every coloured person (ieder kleurling) who was subject to a native chief and who travelled beyond his location. The pass was to be signed by the local Field...