S v O'Brien

• Jurisdiction: South Africa
• Citation: 1970 (3) SA 405 (C)

S v O'Brien
1970 (3) SA 405 (C)

1970 (3) SA p405

Citation	1970 (3) SA 405 (C)
Court	Cape Provincial Division
Judge	van Winsen J and Steyn J
Heard	April 27, 1970
Judgment	May 27, 1970

Flynote : Sleutelwoorde A

Native — Accommodation of Bantu in an urban area in contravention of sec. 9 (5) of Act 25 of 1945 — 'Accommodation' — What constitutes — Person 'in charge or control' of premises — Who B is — When person not in control can be convicted of aiding commission of offence — Appeal — Remittal for State to lead formal evidence — When Court will exercise its discretion in State's favour.

Headnote : Kopnota

The Legislature, when using the word 'accommodate' in section 9 (5) of Act 25 of 1945, did not intend to confine the prohibition therein contained to the housing or lodging of Bantu on unlicensed premises only if this was done for a substantial period of time; to afford Bantu C accommodation on premises for one night would constitute accommodating them thereat within the meaning of the sub-section.

Unless the person alleged to be guilty of a contravention of the sub-section is proved to have had the authority to allow or disallow the accommodation of such Bantu he cannot, however, be said to be 'in charge or control' of the premises, though his conduct may be such as to make him guilty of aiding in the commission of the statutory offence. The D fact that he may have erroneously thought that no licence was necessary cannot free him from liability, since inability to correctly interpret the law, even if bona fide, does not exclude mens rea.

Proof that the premises in question fell within a prescribed area does not necessarily constitute proof that they fell within an 'urban area', but, where such defect was apparent in the State's evidence, the Court, on appeal from a conviction, in the exercise of its discretion remitted the case to the magistrate's court to allow the State to lead the E necessary formal evidence to remedy the defect.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

E. L. King, for the appellant.

J. N. Wepener, for the State. F

Cur. adv. vult.

Postea (May 27th).

Judgment

G Van Winsen, J.:

The appellant, a Roman Catholic Priest, and member of St. Nicholas' Priory, Stellenbosch, was convicted by the Magistrate of Stellenbosch of unlawfully accommodating five Bantu at premises known as the 'Ecumenical Centre', 81 Bird Street, in the urban area and district H of Stellenbosch. Appellant was fined R40 or 20 days imprisonment, and he appeals against both conviction and sentence.

It is not disputed that at about 2.30 a.m. on 5th December of last year a Mr. Venter, an inspector in the employ of the Bantu Affairs Department of the Stellenbesch Municipality, found five Bantu men sleeping in two of the rooms at the Ecumenical Centre, and that no licence had been issued to anyone authorising them to be accommodated there. It appears that the men concerned were delegates to a Nusas conference being held in Stellenbosch, and that appellant had

1970 (3) SA p406

van Winsen J

arranged for the Nusas delegates to occupy the premises for the duration of the conference. He was fully aware that amongst the delegates there would be Bantu. The basis upon which the State sought to hold appellant A liable for the fact that the Bantu men were accommodated at the Fcumenical Centre was, to use the words of sec. 9 (5) of Act 25 of 1945, under which appellant was charged, that the latter was 'in charge or control' of such premises. Inspector Venter stated that appellant was in control of the Centre, and in addition said that appellant had admitted this to be so. The magistrate held that on all the evidence it had been B established that appellant, at any rate for the week while the Nusas conference was being held in Stellenbosch, was 'in charge or control'.

The magistrate's finding in this regard was attacked by Mr. King, who appeared for the appellant. He contended that the facts upon which the C magistrate relied did not warrant the conclusion that appellant was the person in charge or control of the premises in question. In his reasons for judgment the magistrate details the following findings of fact relevant to this ground of appeal, namely:

(a)

all financial transactions between the Bantu Administration Department relative to Bantu living and employed at St. Nicholas' Priory and the Ecumenical Centre were conducted D through the medium of appellant with the Stellenbosch Municipal Bantu Affairs Department;

(b)

appellant arranged for the Ecumenical Centre to be occupied by Nusas for its conference and was aware that Bantu would be on the premises; and

(c)

E appellant was the person summoned to the Ecumenical Centre when the inspector raided the premises, and that he went to the police station to find out what had occurred as a result of the raid.

Mr. King argued that these findings did not go far enough to justify the F conclusion drawn by the magistrate that appellant was 'in charge or control' of the premises. The responsibility of admitting Bantu to the Centre was that of the committee, whose instructions appellant was merely carrying out. The latter's position was not very different from that of a caretaker of a building who was obliged to exclude or admit to the building such persons as his employer might direct.

G One of the objects of sec. 9 (5) of Act 25 of 1945, as amended, is to prevent the accommodation, without authority of a licence, of unexempted Bantu on certain premises. The section penalises certain persons who allow this to take place, amongst others, persons in charge or control of the premises in question. It seems to me, therefore, that unless the H person alleged to be guilty of a contravention of sec. 9 (5) is proved to have had the authority...