S v Lasha (CA & R 40\05) [2006] ZANCHC 76 (1 January 2006)

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[2006] ZANCHC 76
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S v Lasha (CA & R 40\05) [2006] ZANCHC 76 (1 January 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA & R 40\05
Date
heard: 2006\04\24
Date
delivered: 2006\
In
the review matter of
:
THE STATE
versus
JIM
LASHA ACCUSED
Coram
:
Majiedt J
et
Williams
J
et
Molwantwa
AJ
JUDGEMENT
ON SPECIAL REVIEW
MAJIEDT J:
The
accused had pleaded guilty in terms of the provisions contained in
section 112(1)(a)
of the
Criminal Procedure Act, 51 of 1977
, to
an offence in terms of section 154(1)(c)(i) of the Liquor Act, 27 of
1989 (hereinafter referred to as “
the
old Act
”)
read with Act 59 of 2003 (hereinafter referred to as “
the
new Act”
).
He was convicted on the aforementioned plea of guilty and sentenced
to a fine of R100 or 10 days imprisonment. The
status
quo
in terms of section 103(1) of Act 60 of 2000 was maintained (the
magistrate had erroneously referred to section 113(1) on the J15
document).
The
magistrate had sent the matter through to this Court on special
review, since he had doubts whether the provision contained
in
section 154(1)(c)(i) of the old Act still constitutes an offence in
terms of the new Act.
This matter was placed
before me on special review and I had requested the Judge President
of this division to constitute a Full
Bench to hear same in order to
attain final legal clarity in this division with regard to the query
which the magistrate had raised
as to whether section 154(1)(c)(i)
of the old Act still constitutes an offence. It appears from the
magistrate’s memorandum
submitting the matter on special review
that magistrates in this province hold diametrically opposing views
on this particular
question. Ms Birch for the State and Mr Cloete
for the accused had furnished extremely helpful written and oral
argument in this
regard for which we are grateful.
Sections
154(1)(b) to 154(1)(f) of the old Act read as follows:
“
Offences in
general
(1) Any
person who-
(a) ………………….
(b) is
drunk, violent or disorderly on any premises, whether licensed or
not, on which liquor may by virtue of this Act be sold;
(c) is drunk in or on or near-
(i) any
road, street, lane, thoroughfare, square, park or market;
(ii) any
shop, warehouse or public garage; or
(iii) any place of entertainment,
cafe, eating-house or race-course or any other premises or place to
which the public has or is
granted access (irrespective of whether
access is granted against payment or is restricted to any category of
persons or not);
(d) subject to subsection (2),
consumes any liquor in any road, street, lane or thoroughfare, or on
vacant land adjacent thereto,
in an urban area or other area
subdivided into erven or plots with streets bounded by such erven or
plots;
(e) consumes
or possesses any liquor on any private premises without the consent
of the owner or lawful occupier of those premises
first having been
obtained;
(f) introduces, possesses or consumes
any liquor on a sports ground, or any part thereof, to which the
public has or is granted access
(irrespective of whether access is
granted against payment or is restricted to any category of persons
or not), except-
(i) on any licensed premises situated
on the sports ground concerned; or
(ii) in so far as
a declaration under subsection (4) applies thereto ….
is guilty of an offence.
5.1 The
new Act came into operation on 13 August 2004 by virtue of
proclamation R.43 of 16 August 2004 in Government Gazette 26673.
In
terms of the new Act there are no offences stipulated as is the case
in section 154(1) of the old Act.
5.2 The
aforementioned new Act repealed the old Act in its entirety, save for
the regulations (see section 46 and schedule 2 of the
new Act).
Furthermore the new Act also contains a transitional provision
contained in item 2(1) of schedule 1 which reads as follows:
“
2
Transition
from repealed laws to provincial legislation
(1) Despite
section 46, in respect of each province, a provision of a law
mentioned in Schedule 2 that concerns the micro-manufacture,
retail
sale or consumption of liquor or methylated spirits remains in force
within that province until a date determined in accordance
with
subitems (2) and (3) and declared by notice in the Gazette. “
6.1 The
effect of the aforementioned provision is that the provisions of the
old Act insofar as
“……
that
concerns the micro-manufacture, retail sale or consumption of liquor
or methylated spirits ….
”
remain
in force in the Northern Cape Province until the province’s own
provincial liquor legislation is in force. In effect therefore,
the
relevant portion of the old Act has not been repealed, due to the
aforementioned transitional provision. The Northern Cape’s
liquor
legislation has as yet not been enacted at the time of this judgment.
6.2 The
portion of the abovequoted transitional provision which is relevant
in determining whether section 154(1)(c)(i) of the old
Act still
constitutes an offence is that portion of the provision which reads:
“……
that
concerns the …… consumption of liquor or methylated spirits …”
6.3 There
can be no doubt that this particular portion of the transitional
provision covers sections 154(1)(d), (e) and (f). The
question that
arises is whether this portion of the transitional provision also
covers sections 154(1)(b) and (c). Put differently,
the matter which
now requires consideration is whether this portion of the
transitional provision also covers the offence commonly
known as
public
drunkenness
as
contained in the old Act.
Both
counsel who appeared before us were
ad
idem
that
the matter should properly be approached by applying the principles
of the interpretation of statutes. GE Devenish,
Interpretation
of Statutes
,
1992
at 53 correctly enunciates the starting point in interpreting a
statute as follows:
“
The
process of inte
rpretation
must of necessity always start with the ordinary grammatical meaning
of words (the literal rule or the literal theory).
The mechanism of
interpretation makes use of the term “
the
intention of the legislature
”
(subjective theory) in order to ascertain the purpose of the
legislation (purposive theory). Words should, however, be
interpreted
to be compatible with a continuous timeframe (objective
theory).”
The point of departure is
therefore to ascertain the ordinary literal grammatical meaning of
the words contained in a statute.
See in
this regard:
Venter
v R
1907 TS 910
at 913
where Innes J summarised it as follows:
“
In
construing the statute the object is of course to ascertain the
intention which the legislature meant to express from the language
it
employed. By far the most important rule to guide courts in arriving
at th
at
intention is to take the language of the instrument ……. as a
whole, and, when the words are clear and unambiguous, to place
upon
them their grammatical construction, and to give the ordinary
effect.”
When
regard is had to the dictionary meanings of the words “
concern”
and “
consume/consumption
”
then the following appears:
a) In
the
Concise
Oxford English Dictionary
,
10
th
Ed revised,
“concern”
is defined as “relate to: be about; affect or involve; be relevant
to”.
“Consume
”
is defined as “eat, drink or ingest, use up.
b) In
Merriam/Webster
Inc.
Webster’s
Third New International Dictionary
,
“
concern
”
is defined as “a connecting relation, something that relates or
belongs to one; to relate or refer to; be about; to bear
on”.
“Consume
”
is defined as “to take completely; to eat or drink without
measure; to use up”.
c) The
Collins
Concise Dictionary
(Harper
Collins Publishers) defines “
concern
”
as follows: “to relate to; affect; regard or interest”.
“
Consume
”
is defined as “to eat or drink; to use up; expend”.
d) The
Readers
Digest Association of SA (Pty) Ltd: Readers Digest Afrikaans/Engelse
Woordeboek
defines “
concern
”
as “betref, aangaan, geld, raak, traak, met betrekking tot,
omtrent.” “
Consume
”
is defined as “verteer, verbruik, opgebruik, verslind, verorber,
opeet, konsumeer, vernietig, verkwis, vermors, uitteer”.
e)
Labuschagne
and Eksteen: Verklarende Afrikaanse Woordeboek, 8
th
Revised Ed
defines “
betref”
as “aangaan, raak” and “
verbruik
”
as “deur gebruik verteer, konsumeer, opgebruik.”
f) The
Verklarende
Handwoordeboek van die Afrikaanse Taal (Odendaal & Gouws)
,
4
th
Ed
defines
“
betref
”
as: “aangaan, betrekking hê op” and “
verbruik
”
as “deur gebruik verteer, gedaan maak, opgebruik.”
In
applying the abovementioned definitions, the general, ordinary
literal grammatical meaning of the word “
consume/consumption”
is
therefore “eat, drink, use up, eat or drink without measure, take
completely, verbruik, opgebruik, konsumeer/konsumpsie, gedaan
maak.”
The question that consequently arises is whether in terms of this
general, ordinary literal meaning of the word “
consume/
consumption
”
would include the words “
drunk”
or
“
dronk
”.
It is important to note that the old Act did not include a
definition of “
drunk
”
or “
dronk
”
(the old Act was published in both Afrikaans and English, whereas
the new Act is published only in English).
The
literal dictionary meaning of the word “
drunk
”
and “
dronk
”
appears to be the following:
a) In
the
Concise
Oxford English Dictionary
,
10
th
Ed revised, “
drunk
”
is defined as “affected by alcohol to the extent of losing control
of ones faculties or behaviour; influence of alcohol”.
b) According
to the
Readers
Digest Association of SA (Pty) Ltd: Readers Digest Afrikaans/Engelse
Woordeboek
“
dronk
”
means “drunk” while “
drunk”
means
“intoxicated, beskonke, besope, drunk”.
c) In
Merriam/Webster
Inc.
Webster’s
Third New International Dictionary
“
drunk
”
is defined as “being in a condition caused by alcoholic drink in
which control of the faculties is impaired and inhibitions
are broken
and in later stages of which one tends toward or reaches
insensibility; relating to, caused by, or attended by intoxication;

drunken, intoxicated, inebriated, tipsy, tight”.
d) In
the
Collins
Concise Dictionary
(Harper
Collins Publishers) “
drunk
”
is defined as “intoxicated with alcohol to the extent of losing
control over normal functions”.
e) The
Verklarende
Handwoordeboek van die Afrikaanse Taal (HAT) (Odendaal & Gouws)
,
4
th
Ed
defines
“
dronk
”
as “onder die invloed van sterk drank, bedwelm deur alkoholiese
drank; besope, beskonke”.
In
the course of her argument Ms Birch for the State conceded that the
normal grammatical meaning of the word
consume/consumption
does not, on the face of it, include the general ordinary meaning of
the word “
drunk/dronk”
.
She submitted, however, that it had been the clear intention of the
legislature through the insertion of the transitional provision
that
the words “
consume/consumption”
would also include the word “
drunk/dronk
”.
In this regard she referred to
Juta
Interpretation of Statutes 3
rd
Ed by GM Cockram at 48
and
Terblanche
v SA Eagle Insurance Company Ltd 1983(2) SA 501 (N) at 504 F.
She submitted further that the legislature’s intention was that
until provincial legislation is in place, the transitional

provision, namely
“
that
concerns
the micro-manufacture, retail sale or consumption of liquor or
methylated spirits”
would
remain in force in its place. Ms Birch submitted further that it
could never have been the intention of the legislature that
sections
154(1)(d) – (f) would continue to exist while sections 154(1)(b)
and (c) would fall away until provincial legislation
is in place.
In motivation of this submission she pointed out that the extent of
the offences contained in sections 154(1)(b)
and (c) are far more
serious in nature and its consequences far wider than the offences
contained in sections 154(1)(d) – (f).
An extensive
interpretation should therefore be attached to the word
“
consumption/consume
”
as it appears in the transitional provision, so contended Ms Birch.
I
have grave difficulties with the aforementioned submissions of Ms
Birch. I agree with Mr Cloete, who appeared for the accused,
that
the intention of the legislature does not appear very clearly from
the wording employed in the transitional provision. He
referred in
this regard to
Jaga
v Dönges NO and another; Bhana v Dönges NO and another 1950(4)
SA 653 (A) at 664 E-H
,
whereat Schreiner JA stated as follows:
“
Seldo
m
indeed is language so clear that the differences of meaning is wholly
excluded, but some language is much clearer than other language;
the
clearer the language the more it dominates over context, and
vice
versa
,
the less clear it is, the greater the part that is likely to be
played by context. Ultimately when the meaning of the language
in
context is ascertained, it must be applied regardless of the
consequences and even despite the interpreter’s firm belief, much
supportable by factors within the limits of interpretation, that the
legislator had some other intention.”
It is
further correct as Mr Cloete contended, that if the wording of the
statute is clear and unambiguous, then the legislature’s
actual
intention whatever it may be, may not take precedence over the actual
wording of the statute.
When
one examines the relevant provisions of the old Act closer, it is
quite apparent that sections 154(1)(d), (e) and (f) relate
to the
consumption of liquor and therefore would apply to “
consumption
of liquor or methylated spirits
”
as contained in the new Act. Consequently the offences stipulated
in the aforementioned sections of the old Act had continued
to exist
in terms of the new Act, since the transitional provision is a
provision of an Act which relates to the
consumption
of liquor. On the other hand though, sections 154(1)(b) and (c) of
the old Act refer to offences concerning a person who is drunk
in
public. To my mind there is a clear distinction between the
offences in sections 154(1)(b) and (c) of the old Act on the one
hand which relate to offences where a person is “drunk (dronk)”,
while on the other hand, the offences referred to in sections
154(1)(d) – (f) are offences where a person “consumes (verbruik)
liquor”. This clear distinction is of considerable importance
in
determining whether the offence mentioned in section 154(1)(c)(i) of
the old Act still constitutes an offence in terms of the
new Act.
In
applying the golden rule of interpretation it seems to me that the
ordinary grammatical meaning of the words “consume” or
“consumption” does not include the ordinary grammatical meaning
of the word “drunk (dronk)”. This is particularly so,
given the
fact that there is a clear distinction between the consumption of
liquor and of being drunk as set out in paragraph 13
above. In the
premises, I am of the view that sections 154(1)(b) and (c) of the
old Act are not provisions which relate to the
consumption of liquor
as described in the transitional provision of the new Act. In the
premises, I am of the view that the transitional
provision of the
new Act does not include the offence of public drunkenness as it is
commonly known and that therefore the accused
has been wrongly
convicted.
I am
quite aware of the far-reaching implications of this judgement.
There are very many instances in this province where accused
persons
are arrested and charged with public drunkenness or more correctly,
contravening section 154(1)(c)(i) of the old Act.
It was pointed
out by Ms Birch that public drunkenness usually leads to far more
serious offences such as murder, rape, robbery,
serious assault and
the like. While I am mindful of these grave consequences, it seems
to me that the legislature can quite easily
remedy this. So, for
example, the provincial liquor legislation (which as I have said,
has still not been enacted as yet) can
quite easily make provision
for the continuation of this offence as it was contained in the now
repealed Act.
16.1 In
the premises the conviction and sentence of the accused are set
aside.
16.2 This judgement is
to be circulated to all magistrates and regional court magistrates in
the Northern Cape province.
16.3 A
copy of this judgment is to be forwarded to the office of the
Director of Public Prosecutions in this province as well as to
the
office of the MEC for Economic Affairs in this province.
______________
SA MAJIEDT
JUDGE
I concur:
________________
CC WILLIAMS
JUDGE
I
concur:
________________
BC
MOLWANTWA
ACTING
JUDGE
For the State: Adv TT Birch
For
the Accused: Adv PJ Cloete (Legal Aid)