Van Eck, NO, and Van Rensburg, NO, v Etna Stores

• Jurisdiction: South Africa

Van Eck, NO, and Van Rensburg, NO, v Etna Stores
1947 (2) SA 984 (A)

1947 (2) SA p984

Citation	1947 (2) SA 984 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Greenberg JA and Davis AJA
Heard	May 1, 1947; May 2, 1947
Judgment	June 4, 1947

Flynote : Sleutelwoorde

Statute — Construction — Regulation 5 (1) of War Measure 5 of 1944 — Exercise of statutory powers — Conferred for particular purpose — Use for another purpose — Mala fides — Fraus legis — Interdict — Mandament van spolie — When available — Spoliator acting illegally under pretext of statutory authority.

Headnote : Kopnota

The principle that powers given for a particular purpose cannot be used for attaining other objects applies, not only to powers conferred on public

1947 (2) SA p985

bodies, but also to powers conferred on officials or even on private persons or corporations. To pretend to use a power for the purpose for which alone it was given, yet in fact to use it for another is to act in fraudem legis and is an abuse of that power amounting to mala fides.

Regulation 5 (1) of War Measure No. 5 of 1944 empowers the Director of Food Supplies and Distribution: 'To authorise any person to enter any premises . . . where any quantity of any foodstuffs is kept . . . and to seize any article found on such premises . . . which may afford evidence of a contravention of any prohibition or a failure to comply with any requirements imposed by virtue of these regulations.' Where an official acting under the Director's authority entered certain premises and seized certain bags of rice, ostensibly as affording evidence of the owner's failure to deliver the rice in accordance with directions given to him by the Director, but the circumstances made it plain that the purpose of the seizure was to obtain delivery of the rice for the furtherance of the food distribution scheme,

Held, that the seizure was illegal.

Held, further, that a mandament van spolie was the correct remedy. Assuming that spoliation proceedings were proper only when the spoliator was taking the law into his own hands, that was what the appellants had done in this case: the pretext that they were acting under statutory authority could not avail them.

The cases of Sinovich v Hercules Municipal Council (1946 AD 783) and Fernwood Estates v Cape Town Municipal Council (1933 CPD 399) applied; Feinstein v Baleta (1930 AD 319) and Sillo v Naude (1929 AD 21), distinguished.

Case Information

Appeal from an order granted in the Natal Provincial Division (HATHORN, J.P.). The facts appear from the judgment of DAVIS, A.J.A.

A. Milne, K.C. (with him J. J. Friedman), for the appellants: Respondent's failure to comply with appellants' warning rendered it liable to prosecution. See Reg. 10, War Measure 5 of 1944. First appellants' predecessor gave various persons on his staff, including second appellant, a written authority to do the things referred to in Reg. 5 (1) (L), and second appellant had in addition the powers conferred upon him by Reg. 2 (2) as amended by Reg. 2 of War Measure 14 of 1944. In addition, second appellant had received specific instructions to seize the rice and institute legal proceedings. Authority to enter, given by the Regulations, involved the right to use force where necessary in order to effect entry into the warehouse. Authority to enter is a power to enter, and the power of a person authorised under the regulations to enter premises and seize articles as evidence involves his acting, if necessary, against the occupant's or owner's will. Rex v Clark (1931,

1947 (2) SA p986

A.D. 455). And the power to enter against the owner's will involves the absence of a right to oppose entry in any way. Corporation of Yarmouth v Simmons (1879, 10 Ch.D. 518, at p. 527). To require an Order of Court and perhaps contempt proceedings to enable entry to be effected under the power given by the Regulation would be to render the Regulation largely, if not wholly, ineffective. Powers will be construed so as to make them effective rather than ineffective. Johannesburg Consolidated Investment Co., Ltd., v Marshall's Townships Ltd. (1917 AD 662, at p. 670), Ex parte Minister of Justice: In re Rex v Schlohs (1943 AD 80, at p. 84). A power will be construed so as to effect the purpose for which it was conferred. Middelburg Municipality v Gertzen (1914, A.D., at p. 544), Rex v Chapman (1934, C.P.D., at p. 341). The power should be read so as not to defeat the true object which the Legislature had in mind. Johannesburg Municipality v Davies (1925, A.D., at p. 403), Rex v Boon (1913, T.P.D., at p. 14), approved in City of Cape Town v Claremont Union College (1934, A.D., at p. 453), Ruiters v Clarke (1922, E.D.L. 303), Lewis and Another v S.A.R. & H. (1945 NPD 320, at p. 330), South African Medical Council v Maytham (1931 TPD 45), Govindamma's case (1944 NPD 363, at p. 367). The regulations were designed to meet a prolonged state of national scarcity and were intended to be effectively applied. Anderson v Liversidge (1942, A.C. 206, at pp. 251 - 2, 260 - 1); see War Measure Act 32 of 1940, sec. 1. Powers of entry and search operating under peace-time statutes should not be held to include no right to use any force to carry them into effect; cf. Act 42 of 1922, sec. 46; Act 8 of 1912, sec. 129 (1) (a); Act 17 of 1912, sec. 36; Act 38 of 1927, sec. 29 (2); Act 30 of 1928, sec. 139; Act 35 of 1944, secs. 116 and 143; Act 8 of 1914, sec. 9; Act 32 of 1922, sec. 31 as amended by Act 8 of 1940, sec. 16 (a); Act 31 of 1917, secs. 27, 28, 49, 50, 51, 53. By the locking of the warehouse a person who infringed the regulations could avoid the seizure of any article as evidence. The use of some force is required even to open an unlocked door; authority from first appellant corresponds to the warrant referred to in the Criminal Code. The Court will consider the mischief or defect for which the law was provided in order to determine the scope of the remedy intended. Rex v Ristow (1926, E.D.L., at p. 172), Rex v Lewinsohn (1922, T.P.D., at p. 371), Mathiba and Others v Moschke (1920, A.D., at p. 361). Where the object of

1947 (2) SA p987

the interference is for the public benefit the interests of individuals are to yield to the public good. Stellenbosch Divisional Council v Myburgh (5 S.C., at p. 13), approved in Cape Provincial Administration v Honiball (1942 AD 14). See also Transvaal Investment Co., Ltd., v Springs Municipality (1922, A.D., at p. 358). Even, however, if the entry was unlawful it did not affect the validity of the subsequent seizure. The two acts, entry and seizure, are distinct. Appellant and his assistants have duties to perform, and the fact that one duty is performed in an irregular manner does not relieve him of the performance or disentitle him to perform his other duty, namely, the seizure of such articles as he may find on the premises which may afford evidence of a breach of the regulations. Rex v Jackelson and Others (1926 TPD 685, at p. 689); Huber, Jurisprudence of My Time (Gane's trans., vol. 2, p. 352), Halsbury's Laws of England (2nd ed., vol. 14, para. 86); Seymyane's case (77 E.R. 194); Smith's Leading Cases (10th ed., vol. 1, at 104 et seq.); Hooper v Lane (6 H.L.C., at p. 550; 10 E.R., at p. 1410); Percival v Stamp (156 E.R. 71); De Gondouin v Lewis (113 E.R. 45); Hodder v Williams (1895, 2 Q.B. 663, C.A.).

As the respondent's goods were liable to seizure against its will, respondent was not entitled to a mandament van spolie. Nino Bonino v de Lange (1906, T.S. 120, at p. 122). If, by the breaking of the lock of his warehouse, a wrong was committed against Singh, that did not affect the validity of the seizure of respondent's rice. The official who acts under Reg. 5 (1) is not vested with any discretion in the matter of seizing articles; in this respect the present case differs from those cases where the proper exercise of a discretion conferred upon the person purporting to exercise the discretion was in issue, e.g., Fernwood Estates Ltd v Cape Town Municipal Council (1933 CPD 399) and cases therein referred to, Britten and Others v Pope (1916, A.D., at p. 169), Short v Poole Corporation (1926, Ch. 66, C.A.), Gora Mohamed v Durban Town Council (1931 NPD per FEETHAM, J.P., at p. 606), Sharpe v Wakefield (21 Q.B.D. 80), Shidiack's case (1912, A.D., at pp. 651 - 2), S.A.R. & H v Swanepoel (1933, A.D., at p. 378), Halsbury's Laws of England (2nd ed., vol. 26, para. 581 and note 'u'). Even if the official personally believes that the articles could not afford evidence of the commission of an offence, and he is wrong on this point, he is plainly acting within his powers in

1947 (2) SA p988

taking the articles. The power under Reg. 5 (1) is to seize things having certain characteristics, and although the purpose of the Legislature in conferring the power is that the articles seized should be used as evidence, this purpose need not be consciously experienced or even known by the officer exercising the power, and he may even have an altogether different purpose in exercising the power. The purpose of the Legislature in conferring the power is relevant and material when considering what is the nature and extent of the power conferred, but it is irrelevant when considering whether the power has been exercised. No recourse to law can be had against a person who acts within his powers or rights even though he may not be aware of the extent of such powers or rights, or even that he possesses them. Cf. Burns v Nowell (1880, 5 Q.B.D. 444 C.A. at 454); for the converse case see Union Government and Another v Bolstridge (1929 AD 240). An improper exercise of a power conferred on an official may afford ground for his removal from office; ex hypothesi, however, he had the power. All power conferred on public officials or private corporations which justify an interference with private rights must be...