Sitole v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Wessels ACJ, Curlewis JA, Stratford JA and Roos JA
• Judgment Date: 05 October 1932
• Citation: 1933 AD 1
• Court: Appellate Division

Wessels, A.C.J.:

This is an appeal from the Transvaal Provincial Division involving the interpretation of the dairy by-laws of the City Council of Johannesburg. The accused Sitole was charged with contravening Chapter 5, art. 2 (a) of the Public Health by-laws relating to dairies, milkshops, cowsheds and purveyors of milk, as amended by Administrator's Notice No. 356 of 19th August, 1931, in that he being the occupier of premises situated on Stand 784-6, Meyer Street, Sophia Town, within the municipal area of Johannesburg, did wrongfully and unlawfully use the said premises as a cowshed for one cow without first having obtained from the Council a licence to do so.

Wessels, A.C.J.

The matter came before an additional magistrate and was decided by him in favour of the City Council and the accused was fined £1. From this judgment there was an appeal to the Transvaal Provincial Division, and that Court, following a previous decision, viz., Katzeff v Benoni Municipality (1919 TPD 192), held that the accused was rightly convicted.

The facts are briefly as follows: Joseph Sitole has lived in Sophia Town (a native township), for the last 20 years. For three years he has kept a cow for his own use on the premises. He does not sell milk. The cow is kept in a small wired paddock on which there is an open shed, into which the cow can walk. The magistrate found as a fact that this cow was kept in a cowshed, and that the accused had not taken out a licence to keep a cow there. It was argued that there is no evidence that the cow was kept in the shed or that the shed is Sitole's shed, but I think the reasonable inference from the evidence is that the cow was kept by Sitole in the shed into which it walked.

The more important question is whether Sitole was obliged to take out a licence under the Johannesburg Public Health By-laws. The magistrate hold that as Sitole kept a cow in a cowshed within the municipal area of Johannesburg, he was obliged under sec. 2 (a), Ch. 5, to take out a licence whether he kept the cow solely for his own household use or whether he kept her for selling milk. This view was sustained by the Transvaal Provincial Division. The appellant asks us to reverse that judgment and to hold that inasmuch as the cow was not kept for business purposes, sec. 2 (a) does not apply, and that therefore there was no obligation on Sitole's part to take out a licence. It was also contended that the by-law 2 (a) was ultra vires the enabling Transvaal Ordinance 11 of 1926. From the view I take of the case it is unnecessary to consider the second defence. Sec. 2 reads as follows:

"Licences.

"2. No person shall

"(a) use any premises as a dairy or as a milk depôt or as a milk shop or as a cowshed, whether for one cow or more, or

"(b) sell or purvey milk products, unless he shall have first obtained from the Council a licence so to do. Any person who contravenes this bye-law shall, on conviction, be liable to a penalty not exceeding ten pounds and to a further penalty of one pound per

Wessels, A.C.J.

day for every day during which such contravention continues after notice has been served upon him by the Council to discontinue such contravention; provided that no such penalties shall in the aggregate exceed fifty pounds."

Mr. Stratford has contended on behalf of the appellant that, if sec. 2 (a) stood by itself, it may well be interpreted to mean that every person who kept a cow on his premises is obliged to take out a licence, but if that Section is read in conjunction with all the other sections of the dairy by-laws then it should be judicially interpreted to mean that if a person keeps a cow in a cowshed and sells the milk, he is obliged to...