S v Kola

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Beyers JA, Holmes JA and Trollip AJA
• Judgment Date: 01 September 1966
• Citation: 1966 (4) SA 322 (A)
• Hearing Date: 19 August 1966

G Trollip, A.J.A.:

This appeal turns on the meaning of sec. 1 of Law 2 of 1891 of the Transvaal. The original statute was enacted in the Dutch language, but an English translation appears in the official, consolidated Statute Law of the Transvaal, compiled and edited by Jappe and van Pittius. That translation, in so far as it is relevant, reads as follows:

'Whereas it has appeared that by the use of masks, false beards, or other disguises, fraud has more than once been committed by leading the public to believe that it has to deal with another person than is actually the case, and

Whereas disguises are also made use of by fugitives, who thereby endeavour to escape prosecution:

Be it hereby enacted and provided as follows:

1.

The wearing or use of masks, false beards, or other means whereby disguises are effected, in public roads or other public places is forbidden.

2.

Disguises at theatrical performances or other diversions, the holding of masked balls at places accessible to the public, shall not fall under this law. The masked or disguised persons may not, however, show themselves in the public roads unless in special cases such as processions and the like

Trollip AJA

permission is granted by the landdrost or any other official competent thereto in the district where such occurs.

3.

Any contravention of this law shall be punished by a fine not exceeding £5, or in default of payment by imprisonment not exceeding fourteen days.'

A The accused, a 19 - year - old Coloured male, was convicted by the magistrate of contravening sec. 1 for effecting a disguise by wearing female clothing on 26th May, 1965, in Bezuidenhout Street, a public road, in Johannesburg. When he was arrested he was in the company of two other males, similarly dressed, he had make-up on his face, and he wore B his hair long. The evidence of the district surgeon, adduced by the State, showed that, although his general physical configuration (e.g. his build and hips) and sexual organs were those of a male, the pitch and tone of his voice and the style of the hair on his head were feminine, that possibly he had a sexually inverted mind, which was congenital, and that he was in consequence a psychological misfit or C deviate. The accused himself did not testify. In sentencing him to R10 or 14 days' imprisonment, the maximum laid down, the magistrate said that there was

'no evidence on record that he was committing a crime or planning to commit a crime when he was arrested . . . he is perhaps a tragic case'.

The Court a quo on appeal set aside his conviction and sentence. It held D that, as the meaning of sec. 1 was not clear, the preamble could be invoked, which showed that the only disguises hit at by that section were those effected in order to defraud the public or to facilitate escaping from prosecution, and that the State had not proved that the accused had worn female clothing for either of those purposes. With the E leave of that Court, the Attorney-General of the Transvaal has appealed to this Court. Because the precise meaning of sec. 105 of the Magistrates' Courts Act, 32 of 1944, under which this appeal is brought, is not quite clear, both counsel very properly conceded that the 'matter of law' and 'matter in issue' mentioned in that section is whether or not the proved acts or conduct of the accused constituted a F contravention of sec. 1 as correctly interpreted, and that it should not be confined to the correctness or otherwise of the Court a quo's above...