S v Takaendesa

• Jurisdiction: South Africa
• Judge: Beadle CJ, Macdonald JP and Lewis JA
• Judgment Date: 29 May 1972
• Citation: 1972 (4) SA 72 (RA)
• Hearing Date: 27 April 1972
• Court: Appellate Division

Beadle, C.J.:

The appellant, a tribesman of the Weya Tribal Trust Land, was convicted of failing to comply with a written order of a lands inspector, in contravention of sec. 77A of the Natural Resources Act, Chap. 264, as inserted by Act 87 of 1964, and was sentenced to a fine of $70 or, in default of payment, four months' imprisonment with hard labour. The appellant now appeals against both conviction and sentence.

Beadle CJ

The evidence for the State showed that a lands inspector of the Ministry of Lands duly served an order, purporting to be made under sec. 77A of the Natural Resources Act, upon the appellant requesting him to perform certain conservation work to his lands and that the appellant had failed A to comply with this order. The appellant's defence at the trial was that he had, in fact, done the work. The magistrate, on the evidence, very properly rejected this defence and as a result found the appellant guilty.

An exact copy of the order made under sec. 77A of the Act which was served on the appellant was produced as an exhibit. This copy shows that B the order had been drafted in accordance with sec. 77A of the Act and in the appropriate part of the order appear the words:

'The Chief of Weya TTL was consulted by me as required in terms of sec. 77A (2) of the Natural Resources Act, Chap. 264.'

Sec. 77A of the Act reads, inter alia:

'(1) If an inspector considers that such a course is immediately necessary for the conservation of, or the prevention of injury to, C natural resources on any land, he may give an order in writing to the user or occupier of such land to undertake or adopt such measures as he may deem necessary for the conservation of natural resources on such land and the prevention of injury to natural resources on other land by the acts or omissions of such user or occupier.

(2) No order shall be made under sub-sec. (1) -

(a)

in respect of land which -

(i)

is not in Tribal Trust Land; and

(ii)

is in the area of a local authority or conservation committee;

D except after consultation with the chairman of such local authority or conservation committee, as the case may be; or

(b)

in respect of land in Tribal Trust Land, except after consultation with the chief appointed in terms of the African Affairs Act, Chap. 92, in whose area of jurisdiction the land is situated.'

E Sub-sec. (9) of this section provides that the person served with an order may make representations to the Natural Resources Board within a period of 30 days of the serving of the order. Sub-sec. (10) provides that the Board shall review such representations within a period of 60 days of the serving of the order. From these provisions it would appear that although the words 'immediately necessary' are used at the F commencement of sub-sec. (1), it was within the contemplation of the Legislature that a delay of as long as 60 days might occur before a commencement of implementing the order is actually made.

As the order produced stated that the Chief of the Weya Tribal Trust Land had been consulted before the order was made, the trial court was G entitled to assume that these formalities had been complied with and that the Chief of the Weya Tribal Trust Land had, in fact, been consulted, as is required by sec. 77A (2) (b) of the Act.

Subsequent to the noting of the appeal it emerged that the statement in the order that the Chief of Weya Tribal Trust Land had been consulted in terms of sec. 77A (2) of the Act was, in fact, not true. At the time the H order was issued there was no chief or acting chief in the Weya Tribal Trust Land. It appears that the chief died in 1970 and many religious formalities have to be gone through before a new chief may be appointed, if tribal sensitivities and susceptibilities are not to be grievously upset. These formalities can last as long as two years and it is not expected that a new chief for the Weya Tribal Trust Land will be appointed under the African Affairs Act until late this year.

Beadle CJ

Sec. 2 of the African Affairs Act, Chap. 92, defines the word 'chief' thus:

''chief' means an African appointed by the President to exercise control over a tribe as chief, acting chief or deputy of a chief'.

A The provisions of sec. 77A of the Natural Resources Act could, therefore, be complied with if in the interim period between the death of one chief and the appointment of another, an acting chief was appointed. It appears, however, that much the same difficulties lie in the way of appointing an acting chief as in appointing a chief, as the B tribesmen would bitterly resent anyone acting as a chief during a period when the religious and spiritual ceremonies and other formalities governing the appointment of a chief are still in progress. In accordance with African customary law a tribal elder, one Mukuwapasi, is regarded as head of the tribe until the appointment of a chief. In terms of tribal custom, such a customary law temporary head of the tribe may C never be appointed as a chief or an acting chief. A customary interim tribal head such as Mukuwapasi clearly has no statutory authority as a chief. While he may under African customary law perhaps perform some of the functions of a chief, he is under no statutory obligation, as is a chief, to perform the many and varied statutory duties itemised in sec. D 18 of the African Affairs Act. Nor could he be prosecuted under sec. 19 of that Act for failing to perform those duties, as a duly appointed chief could be prosecuted. He occupies, therefore, a very different position from a duly appointed chief.

It appears that in the instant case, during this interim period before a E new chief is appointed, Mukuwapasi has been consulted in connection with orders made under sec. 77A of the Natural Resources Act and it seems that there have been a considerable number of such orders. Mukuwapasi was, apparently, consulted before the order against the appellant was made.

I naturally assume that, when the prosecutor presented his case in the F magistrate's court, he was unaware of what the real position in regard to consultation was and believed that the statement in the order that the Chief of Weya Tribal Trust Land had been consulted was, in fact, true. If the prosecutor had been aware of the true facts and concealed them from the court, he would have been guilty of a gross dereliction of G duty and one that could only be strongly condemned. As it was, the magistrate never knew the true facts when he tried the case, though in a later reply to the...