S v Bhengu

• Jurisdiction: South Africa
• Judge: Milne JP and Fannin J
• Judgment Date: 30 April 1968
• Citation: 1968 (3) SA 606 (N)
• Hearing Date: 25 March 1968
• Court: Natal Provincial Division

Milne, J.P.:

The appellant appeared on a charge reading as follows:

'Charged with the offence of contravening sec. 1 (a) of Act 52 of 1951 read with sec. 2 and further read with sec. 2 (2) of Proc. 12 of 1945.

Illegal Squatting

In that upon or about 21st December, 1967 and at or near Okuku in the district of Mahlabatini, the said accused did wrongfully and unlawfully A enter upon or into without lawful reason, or remain on or in land, to wit the Okhukhu South African Native Trust land, being land situated within the said district of Mahlabatini, an area proclaimed by the State President by Proc. 102 of 1959 as being an area to which the terms of the Act 52 of 1951 shall apply, without the permission of the owner or lawful occupier of such land, to wit the South African Native Trust.'

B He pleaded not guilty to the charge but was found guilty and was thereupon sentenced to pay a fine of R30 or to undergo 30 days' imprisonment and to a further 90 days' imprisonment which was suspended for 5 years on condition that the appellant

'does not return to the Okhukhu Trust Lands and secondly is not convicted of the same offence during the period of suspension'.

[The learned Judge then analysed the evidence and continued.]

C The effect of the appellant's grounds of appeal is to claim that his conviction was not justified by the evidence and, in any event, that the sentence is excessive.

Mr. Fuller, who appeared for the appellant, urged in the first place that the reference to sec. 2 (2) of Proc. 12 of 1945 should be ignored D inasmuch as the provisions of that Proclamation, as amended by Proc. 175 of 1955, are entirely distince from, and are not to be read with, the provisions of sec. 1 (a) of Act 52 of 1951, and that language of the charge showed that it was a contravention of the latter provisions which was intended to be alleged. This does, indeed, appear to be the case, E not least in the absence of any averment in the charge that the appellant remained in occupation of the land in question without the permission, in writing, of the Chief Bantu Commissioner, who is the person referred to in sec. 2 (2) of the Proclamation, as amended by Proc. 175 of 2nd September, 1955.

It was nect contended on behalf of the appellant, in reliance upon R. v. F Phiri, 1954 (4) SA 708 (T), that sec. 1 (a) (read with sec. 2) of Act 25 of 1951 provides for two distinct offences, viz.,

(1)

entering upon any land or into any building without lawful reason, and

(2)

remaining on or in any land or building without the permission of the owner or the lawful occupier of such land

G and that the evidence failed to establish that the appellant was guilty of either of these offences. Sec. 1 (a) of Act 52 of 1951, as amended by sec. 12 of Act 76 of 1963, provides as follows:

'Save under the authority of any law or in the course of his duty as an employee of the government or of any local authority, no person -

(a)

shall enter upon or into without lawful reason, or remain on or H in any land or building without the permission of the owner or the lawful occupier of such land or building whether such land is enclosed or not;'

With respect, I agree with the suggestion made in Phiri's case that the words 'without lawful reason' govern only the entry on land or into a building and that the words 'without the permission of the owner or the lawful occupier' relate only to the remaining on or in any land or building. Any ambiguity there might be in the English version (the English text was signed by the Governor-General) is clearly

Milne JP

removed by reference to the Afrikaans version. Phiri's case was followed in R v Press...