Rex v Detody

• Jurisdiction: South Africa
• Judgment Date: 29 January 1926
• Citation: 1926 AD 198

Rex Respondent v Detody Appellant
1926 AD 198

1926 AD p198

Citation	1926 AD 198
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
Heard	October 9, 1925
Judgment	January 29, 1926

Flynote : Sleutelwoorde

Criminal law — Native — Night passes — Females — Statute — Construction — Ordinance 43 of 1902 (T.), sections 2 and 3.

Headnote : Kopnota

Section 3 of the Transvaal Ordinance 43 of 1902 requires every native to carry a pass at night whilst section 2 defines "native" to mean a person belonging to the aboriginal races of Africa south of the equator.

Held (KOTZÉ, J.A., and WESSELS, J.A., dissenting), that the provisions of the Ordinance were not applicable to women.

The decision of the Transvaal Provincial Division in Rex v Detody, reversed.

Case Information

Appeal from a decision of the Transvaal Provincial Division sitting as a Court of Appeal from a decision of the Magistrate's Court, Pretoria.

The facts appear from the reasons for judgment.

C. A. Beck, for the appellant: Ordinance 43 of 1902 (Transvaal), has fallen into disuse through lapse of time so far as women are concerned. The question whether a South African statute can be abrogated by disuse and contrary usage though doubted in Seaville v Colley (9 C.S.C 39) was left entirely open in Green v Fitzgerald and Others (1914 AD 88).

By Proclamation 14 of 1902 the Roman-Dutch law was made applicable in the Transvaal except in so far as it was modified by statute. No modification was affected by Proclamation 15 of 1902. Sec. 135 of the South Africa Act is merely declaratory continuing the status quo ante as regards pre-Union laws and not clothing them with the special sanctity enjoyed in England where it is abundantly clear that statutes cannot be repealed except by Parliament.

Custom can override statute. See van der Linden's Koopman's Handboek (1.1.7). Though Paul Voet (12.2.1-5) says that disuse during a third of a century is sufficient to abrogate a statute, Gail (bk. 11, Obs. 60) considers ten years sufficient. Jacob Wren (p. 5) states that a statute must be received into use before it becomes valid. Consequently a statute that has never been received into use never obtains the force of law. See also Paul Voet (sec. 2) and Kerstemann's Aanhangsel sub voce "abrogatio."

1926 AD p199

A statute can be repealed by disuse under the law of Scotland. See Craies on Statute Law (pp. 5 and 361).

The definition of "native" in Ordinance 43 of 1902, sec. 2 applying ostensibly to female as well as male was taken over from Law 22 of 1895 (Transvaal) and can be traced back to 1858. Though all the Transvaal laws between 1858 and 1895 defined 99 "native" in wide enough terms to include female as well as male, females were specially excluded from the operation of Pass Law Statutes passed after Law 22 of 1895 up to the passing of Ordinance 43 of 1902, the Legislature thus adopting what it had all along impliedly intended. Consequently it must be assumed that the Legislature had the same intention when it adopted the definition of "native" which appeared in the law of 1895.

C.W de Villiers, K.C. (with him G. G. Brebner), for the Crown: Assuming that in practice native women have not in the past been required to carry passes, there is not sufficient justification for holding that the Legislature intended to exclude them from the operation of the law. The Legislature intended to include children above the age of 14 years and embodied that intention in Proclamation 37 of 1901, sec. 4.

The doctrine requiring laws to be received into use is not applicable now and certainly could not be extended so as to discriminate between portions of the same statute. If it were, the executive would have the power to refuse to apply a portion of any statute. That would defeat the intention of the Legislature.

The doctrine of abrogation by disuse is inapplicable to statutes in force when the South Africa Act was passed by reason of see. 135. Even if it is applicable, it cannot apply to a part of a statute only.

In any case a longer period of desuetude is necessary as appears from Seaville v Colley (supra).

Beck, replied.

Cur adv vult.

Postea (January 29th).

Judgment

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

1926 AD p200

Innes, C.J.

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

1926 AD p201

Innes, C.J.

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

1926 AD p202

Innes, C.J.

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...