S v Mapheele

• Jurisdiction: South Africa
• Judge: Botha JA, Williamson JA and Wessels JA
• Judgment Date: 28 March 1963
• Citation: 1963 (2) SA 651 (A)
• Hearing Date: 18 March 1963
• Court: Appellate Division

Botha, J.A.:

The appellant, an adult native female, was convicted by a G magistrate of a contravention of sec. 10 (4) read with sec. 10 (1) of Act 25 of 1945, as amended, in that she had, on the 12th July, 1962, wrongfully and unlawfully remained within the urban area of the Paarl Municipality for longer than 72 hours. She was cautioned and discharged. An appeal against her conviction to the Cape Provincial Division failed, but that Division gave her leave to appeal to this Court.

H The relevant provisions of sec. 10 (1) of Act 25 of 1945 are as follows:

'10 (1) No native shall remain for more than seventy-two hours in an urban area . . . unless -

(a)

he has, since birth, resided continuously in such area; or

(b)

he has worked continuously in such area for one employer for a period of not less than ten years or has lawfully resided continuously in such area for a period of not less than fifteen years, and has thereafter continued to reside in such area and is not employed outside such area and has not

Botha JA

during either period or thereafter been sentenced to a fine exceeding fifty pounds or to imprisonment for a period exceeding six months; or

(c)

such native is the wife, unmarried daughter or son under the age at which he would become liable for payment of general tax under the Native Taxation and Development Act, 41 of 1925, of any A native mentioned in paras. (a) or (b) of this sub-section and ordinarily resides with that native.'

It is common cause that appellant is the lawfully married wife of Jack Mapheele, who has been continuously employed by one employer in the Paarl urban area for more than ten years, and who has not been sentenced B to a fine exceeding R100 or to imprisonment for a period exceeding six months. Appellant's husband is therefore such a native as is referred to in sec. 10 (1) (b), and the only question which arises for consideration in this appeal is whether the appellant, who admittedly has remained in the urban area for more than 72 hours, has shown on a balance of probabilities (R v Kula and Others, 1954 (1) SA 157 (AD) C ) that she 'ordinarily resides' with her husband within the meaning of that expression in sec. 10 (1) (c), and that she is therefore exempted from the prohibition contained in sec. 10 (1).

It appears from the evidence that appellant and her husband were married at Herschel on the 29th January, 1957. Her husband was then lawfully D resident in the single quarters in the Mbekweni Location in the Paarl urban area. He had apparently been living there for some time, and on the 12th July, 1962, he still had permission to reside there. Appellant first came to the Paarl area in 1959. She originally lived...