Terblanche v S (A540/05) [2006] ZAWCHC 24; 2007 (1) SACR 545 (C) (13 June 2006)

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[2006] ZAWCHC 24
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Terblanche v S (A540/05) [2006] ZAWCHC 24; 2007 (1) SACR 545 (C) (13 June 2006)

REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: A 540/05
In the appeal of:
JACQUES TERBLANCHE
Appellant
and
THE STATE
Respondent
JUDGMENT
DELIVERED 13 JUNE 2006
LE
ROUX AJ
1. The Appellant in this matter was convicted by the Magistrate,
Paarl, on a charge of contravening Section 1(1) of the General Law
Amendment Act, Act No 50 of 1956. His conviction occurred on 29
April 2004 and on the same day he was sentenced with a fine of
R3 000 00
or 12 months’ imprisonment together with a
further 18 months’ imprisonment suspended for a period of 5 years
on certain conditions.
He appeals against both his conviction and
sentence.
2. The circumstances which form the background to the charge
preferred against him arose as a result of a collision which occurred
on the R44 Road between Paarl and Klapmuts on the late afternoon of 1
June 2003. The Appellant conducts a breakdown and towing away
service in that region. It is common cause that the vehicle that the
Appellant is alleged to have removed in contravention of the
said
section left the road, presumably as a result of one or more tyres
that burst, rolled a number of times and came to standstill
a
distance away from the road surface. Dead and injured passengers
were removed and thereafter the Appellant recovered the damaged
vehicle and towed it away. The State alleged that, in doing so, he
committed the offence of contravening Section 1(1) of Act 50
of 1956
which reads as follows:
“Any person who, without a bona fide claim of right and without
the consent of the owner or the person having the control thereof,
removes any property from the control of the owner or such person
with intent to use it for his own purposes without the consent
of the
owner or any person competent to give such consent, whether or not he
intends throughout to return the property to the owner
or person from
whose control he removes it, shall, unless it is proved that such
person, at the time of the removal, had reasonable
grounds for
believing that the owner or such person would have consented to such
use if he had known about it, be guilty of an offence
and the court
convicting him may impose upon him any penalty which may lawfully be
imposed for theft.”
3. The State called four witnesses while the Appellant also testified
and called four further witnesses. It is convenient to deal
with the
evidence that was adduced before turning to the law. Before the
first witness was called the Appellant briefly indicated
that his
defence would be that the driver of the vehicle furnished the
required consent to tow the vehicle away and that he would
also call
four witnesses who would testify that he had the necessary consent.
4. The first State witness was Mr M Snyders. He testified that he
was the driver of the vehicle in question and explained how it
left
the road, overturned, rolled a number of times and eventually came to
a standstill. In an injured sate, he managed to get out
of the
vehicle and saw injured people scattered all around. He felt pain in
the area of his left shoulder and neck as well as his
left leg. He
managed to take his cellphone from the cabin of the vehicle, sat down
and phoned a friend whom he requested to notify
certain people about
the accident. A person then approached him, requested and took down
certain personal particulars and enquired
how he felt. While he was
furnishing the particulars his cellphone rang again. It was the
owner of the vehicle he had driven and
he informed her about the
collision. She took the necessary particulars and said she was on
her way. When his cellphone then rang
again the person who was
taking down his particulars answered it while pretending that he was
a police official. When asked by the
Public Prosecutor whether that
person was the Appellant before the court he responded in the
negative. He proceeded to testify that
after the person had taken
down his particulars he requested him to sign the document in which
the particulars were entered and he
refused. No mention was made of
the towing away of the vehicle at any stage.
5. In cross-examination by the Appellant he repeated that his own
injuries were present in the area of his left shoulder and left
leg.
That evidence was not disputed. He was asked whether he was
left-handed or right-handed and replied he wrote with his right
hand.
The Appellant then put it to the witness that it was indeed him, the
Appellant, who was the person who took down his particulars
and
although hesitant, the witness indicated that he was not in a
position to deny it. He insisted, however, that the person pretended
to be a policeman whilst speaking on his cellphone. This he did in
the face of the Appellant’s proposition to him in cross-examination
that there were four policemen who were standing close by them and
who would testify about the conversation between Snyders and the
Appellant. When asked about the ownership of the vehicle, he
testified that it belonged to Ms van der Westhuizen, an acquaintance
of him. He denied the suggestion in cross-examination that attempts
were made to contact the owner of the vehicle telephonically
to
obtain consent for its removal. Snyders also denied the suggestion,
in the course of the cross-examination, that he, Snyders,
requested
the Appellant to phone the owners in view of the fact that Snyders’
injured arm prevented him from doing so.
6. The next State witness was Mr Jack. He testified that at about
19h30 on that particular evening he was phoned and requested by
Ms
van der Westhuizen to go to the R44 Road and to fetch her vehicle
which had been damaged in a collision. He went there together
with
three of his friends, one of whom was Mr Hendricks and in whose
vehicle they were travelling. They never got so far as the
accident
scene because on their way they drove past a tow truck with Ms van
der Westhuizen’s vehicle being towed behind it. Having
turned
around and having followed the tow truck they managed to attract the
driver’s attention after which he stopped at the side
of the road.
When Jack asked him who had given him permission to tow the damaged
vehicle away, he did not respond. Jack also asked
him for written
proof of consent by anybody which he was unable to give. The driver
then contacted the Appellant who arrived some
time later. He was
accompanied by three policemen in a separate vehicle. They requested
the Appellant to release the damaged vehicle
while the Appellant
insisted on payment of some R2 000 00 before he would do
so. Jack testified that he only had about
R500 00 to R700 00
with him and offered to pay that in the event of them releasing the
damaged vehicle. That was refused.
According to Jack the Appellant
was aggressive and after there was somewhat of an altercation between
the Appellant and his driver
the Appellant got into the cabin of the
tow truck and drove away towards the Klapmuts police station. The
police officials who attended
the scene at the roadside left to
another accident scene and were not further involved.
7. Mr Jack and his friends then followed the Appellant’s tow truck
with Ms van der Westhuizen’s damaged vehicle behind it to
the
Klapmuts police station. At the police station an argument
apparently ensued during which they could not persuade the Appellant
to release the damaged vehicle and at some stage a police official,
Inspector van der Westhuizen, advised the Appellant to take the
vehicle away to his own premises. In cross-examination Mr Jack
testified that Mr John van der Westhuizen, the husband of Ms van
der
Westhuizen referred to above, was the owner of the damaged vehicle.
It was put to Mr Jack that the reason why the Appellant
was not
prepared to hand the damaged vehicle over to him was because he was
not the owner thereof. His reply to this proposition
was unclear and
could not be recorded. The Appellant elaborated by suggesting to Mr
Jack that the SAPS had tested the registration
number of the vehicle
and ascertained that it belonged to a Van der Westhuizen – he would
only have been prepared to release the
vehicle to him, Jack, once Van
der Westhuizen had given the necessary consent. This Mr Jack
confirmed.
8. The third State witness was Ms van der Westhuizen. She testified
that she and her husband were the owners of the vehicle in question.

She confirmed that she phoned Snyders after 18h00 on the day in
question. She spoke to him personally and he informed her that
there
was an accident. He only managed to tell her that it happened on the
Klapmuts Road before the phone disconnected. She immediately
went to
another friend, Mr Matthews, because she did not have transport. Mr
Matthews then phoned the number of Snyders again and
spoke to a
person who had answered the phone. He told the person not to make
any arrangements for the removal of the vehicle until
they had
arrived on the scene. The person, however, told Mr Matthews that
they need not come to the scene and that they should rather
go
straight to the hospital. The person said he was a police official.
On their way to the hospital they phoned Mr Jack and asked
him to
attend the scene and to wait for their arrival after they had been to
the hospital.
9. Sometime later Mr Jack phoned again and told her to come to the
Klapmuts Police Station because the vehicle had already been towed
away and the person in charge of the tow truck refused to hand it
over to them whereafter they had gone to the police station. She
then went to the police station and on their way they drove past a
tow truck with her damaged vehicle being towed behind it. She
nevertheless proceeded to the police station, claimed that she was
the owner of the vehicle, showed the registration papers in support
of her claim but they were not interested. The next morning she went
back to the police station and there they told her to communicate
with the Appellant about the matter. Despite numerous further
efforts and visits she had not been able to get her vehicle. She
never gave any permission to anybody to tow her vehicle away.
10. In cross-examination she confirmed that she had phoned Mr Snyders
and that he informed her about the accident. She also told
the court
that the Appellant consistently refused to release her vehicle and at
the same time remained unable to show any document
to proof that
Snyders had signed for the tow away. It was suggested by the
Appellant that an oral consent was sufficient and she
denied that she
had given an oral consent. He suggested that the reason why she took
so long before she was on her way to the police
office was because he
and Snyders had been unable to get hold of her earlier. He put it to
her that when Snyders got into the ambulance
he was desperate. It
was at that stage that Snyders stated that he was unable to get hold
of anybody and that he, the Appellant,
could tow the damaged vehicle
to his yard – Snyders said he would inform the relevant people
about it at a later stage. The Appellant
suggested to her that
Snyders had made a proper arrangement with him for the vehicle to be
towed away and that it was only because
of the costs involved that
she refused to pay and denied that consent was given.
11. The last State witness was Mr Richard Hendricks. He accompanied
Mr Jack to the scene of the accident and confirmed that they
never
attended there due to the fact that they encountered the tow away
vehicle with the damaged vehicle behind it earlier. He corroborated
Mr Jack’s version save in respect of the response of the driver of
the tow away vehicle. According to Hendricks the driver responded
by
stating that the driver of the damaged vehicle, i.e. Snyders, had
given him permission to tow the vehicle away. During
cross-examination
it was suggested to Hendricks that the reason why
they went from there to the police station was that Jack could not
prove his ownership
of the vehicle. Hendricks responded by saying
there was no particular decision to go to the police station. What
happened, according
to him, was that the Appellant drove away without
any decision and they simply followed him.
12. The Appellant then testified and described how he arrived at the
scene of the accident and that Snyders was pointed out to him
as the
driver of the vehicle involved. He went to Snyders where he sat next
to the damaged vehicle. His observation was that Snyders
had only
sustained minor injuries (
“lig beseer”
) and that he did
not suspect or observe anything that indicated to him that there were
serious injuries present. He was able to
communicate with Snyders
and Snyders was not traumatised. Snyders confirmed that he was the
driver of the vehicle but informed him
that he was not the owner. He
indicated that the owner was a woman from Kraaifontein. When he
asked him whether arrangements had
already been made to tow the
vehicle away he replied in the negative and added that he did not
even know where his cellphone was.
The Appellant then found the
cellphone in the damaged vehicle. The reason why they were looking
for the cellphone was that, according
to Snyders, there were two
numbers on the cellphone which they could dial in an attempt to find
the people who could give the necessary
consent for the tow away of
the vehicle. Having found the cellphone he, the Appellant, then
dialled the number on the instruction
of Snyders. Snyders could not
dial himself because he right arm was injured. They could not get an
answer at any one of the numbers.
When eventually it became clear
that Snyders was going to be taken to hospital they had a
conversation about what would happen to
the damaged vehicle.
13. The conversation culminated in an agreement in terms whereof
Snyders gave the Appellant oral consent to tow the damaged vehicle
to
their premises for safe-keeping. Due to the injuries to the arm of
Snyders, he could not sign the usual consent form. Accordingly,
he
only entered Snyders’ particulars and asked him again whether he
could not sign. Snyders complained that his arm was too sore.
As
they were putting Snyders into the ambulance his cellphone rang.
Appellant answered the phone and spoke to a lady who requested
to
speak to Snyders. She mentioned that she had noticed that he had
been looking for her. He briefly told her what had happened
after
which she requested him to tell Snyders that she would be going to
the hospital which he did. He then told three policemen
who stayed
behind that Snyders had given him oral consent to tow the vehicle to
the Appellant’s premises. When one of the policemen
enquired about
whether Snyders had signed anything, he told them that Snyders could
not sign due to his injuries. After a number
of hours they managed
to negotiate the damaged vehicle to the road and then towed it away.
According to the Appellant the rest was
history. Two vehicles with
people forced his driver to stop, threatened him with death and
eventually they managed to escape to
the charge office. He had
consent to tow the damaged vehicle away.
14. In cross-examination he stuck to his version that Snyders had
injuries to his right arm and leg. He could not explain why he
did
not dispute Snyders’ evidence that it was his left shoulder that
was injured. He said he had planned to produce a hospital
card to
prove Snyders’ injuries but had not been able to do so yet. He
insisted that Snyders did give him oral consent to tow
the vehicle
away.
15. The Appellant then called his secretary, Ms DS Croy as a witness.
She stated that the driver of the tow away vehicle called
for help
over the radio on the afternoon in question. In response she
accompanied the owner of the business (which in context, is
the
Appellant) and when they arrived at the scene they encountered a
commotion. She confirmed a series of leading questions to the
effect
that the persons on the scene who insisted that the damaged vehicle
be removed could not furnish proof of ownership of the
vehicle.
According to her the driver of the tow truck refused to drive further
because he feared for his life, upon which the Appellant
got into the
driver’s seat and drove the truck further. During
cross-examination she answered that nobody at the scene attempted
to
ascertain the veracity of Mr Jack’s version that he was requested
by the owner to obtain the damaged vehicle. The major part
of her
evidence referred to the general practice pertaining to the various
ways in which consent to tow a damaged vehicle away could
be obtained
without it necessarily being applicable to the matter before the
court. To that extent it was irrelevant.
16. The Appellant’s next witness was Sergeant Volmink of the
Klapmuts police station. Also his evidence consisted to a large
extent
of responding to questions of general import pertaining to
practices prevailing at accident scenes. That part of his evidence
is
clearly irrelevant. As far as the matter before the court was
concerned, he testified that he saw the Appellant at the scene of
the
accident. In response to the leading question of the Appellant he
confirmed that the Appellant did approach them at a stage
and told
them that he had obtained consent from the driver of the damaged
vehicle to tow it away.
17. The next witness was Inspector CJ Paulse of the South African
Police Services. He confirmed that he had earlier in a written
statement stated that Sergeant Volmink informed him that the
Appellant had made an arrangement with the driver of the damaged
vehicle
to tow it away. He also confirmed that he saw the Appellant
speaking to the driver of the damaged vehicle at the scene of the
accident.
He also asked the injured driver personally whether he had
given such consent to the Appellant and the injured driver confirmed
the same. In cross-examination he did not deviate from that version.
He stated that the driver was seriously injured in his view
as he
was lying in a crumpled position on the ground while groaning from
pain. He was not in a position to give any written consent.
The
Appellant was standing next to the injured driver.
18. The next witness was Inspector van der Westhuizen of the South
African Police. He confirmed that he also attended the accident
scene and then returned to the Klapmuts police station. Later the
Appellant arrived there with the tow truck and the damaged vehicle
together with other male persons. They were having an argument and
because the other male persons were under the influence of
intoxicating
liquor and unruly he told them to come back the next
day. He thereupon told the Appellant to take the damaged vehicle to
his premises
because they had no space at the police station. He
never asked them for documentary proof of ownership but did not
believe that
they had any papers with them.
19. After his last witness had been called the Appellant informed the
court that he had obtained the medical report which contained
the
information in relation to Mr Snyders’ injuries but that he did not
wish to tender it in evidence.
20. In his judgment in the court
a quo
the learned Magistrate
analysed the evidence and concluded that the State had proved that
the Appellant had not been given the necessary
consent to remove the
damaged vehicle. The learned Magistrate then proceeded to deal with
certain legal authorities and principles
pertaining to the section
under which the Appellant had been charged and concluded that all the
requisites for a conviction under
the section had been satisfied.
Accordingly, he found the Appellant guilty as charged.
21. In the course of his judgment the learned Magistrate referred to
the police witnesses and remarked that their evidence reflected
an
unsatisfactory situation. He questioned the role of the police and
their relationship with the Appellant or his business. I
must say
that the remarks are consistent with my own impression of the
evidence. There are certain indications on record of what
I regard
as an unhealthy state of affairs as far as the relationship between
the Appellant and the police officials are concerned.
In view,
however, of the decision that I have arrived at in this matter it is
not necessary to explore that matter further. I shall,
for the
purposes of this judgment, assume that the Magistrate was correct in
his finding that no consent as contemplated in Section
1(1) of Act 50
of 1956 had been obtained. On that assumption the question still
remains whether the State has proved the Appellant’s
guilt beyond
reasonable doubt.
22. On an analysis of Section 1(1) of Act 50 of 1956 it seems to me
that before a conviction can follow it is necessary for the State
to
prove at least the following:
22.1 That the Appellant had no
bona fide
claim of right;
22.2 That in addition the Appellant had not obtained the consent of
the owner or person in control of the damaged vehicle;
22.3 That without such
bona fide
claim and consent he removed
the damaged vehicle from the control of the owner or person having
control;
22.4 That it was removed with the intent to use it for the
Appellant’s own purposes;
22.5 That when doing so he had no reasonable grounds for believing
that the owner or person exercising control would have consented
to
such use.
23. If, as I have done above, it is assumed that on the evidence the
Appellant had not obtained the necessary consent, it is unlikely
that
he could have had a
bona fide
claim or could have reasonably
believed that grounds existed that the owner or person exercising
control would have consented to the
removal. The aspect that gives
me difficulty, however, is the requirement that for a conviction to
follow it must be proved that
the Appellant removed the damaged
vehicle
“with intent to use it for his own purposes”
. On
a
prima facie
reading of the evidence the vehicle could not
have been used for its ordinary purposes at all because it was
damaged and had to be
towed away. The Appellant could therefore not
have intended to use the vehicle in the sense of driving it or moving
from one location
to another. The learned Magistrate, in his
judgment, did not regard this difficulty as insurmountable and
concluded that the necessary
use manifested itself in the following
way:
“Die aspek …. wat dan nou onder gebruik verstaan word in
hierdie spesifieke geval kom ek na toe terug. Voertuig duidelik is
nie
in staat om maar net weggery te word nie deur die persoon wat
wettig in beheer daarvan was nie. Sekere dienste moes gelewer geword
het. Dit is nie ‘n noodgeval gewees nie want daar is mense op pad
om die voertuig te herwin of hulle in staat daartoe sou gewees
het
kan die hof nie bepaal nie. Die gebruik wat die hof hieraan gee of
toeken
is die skepping van ‘n skuld of die generering van
‘n bedrag wat verskuldig word
, nie soseer ‘n retensie
of ‘n sekuriteit vir ‘n skuld nie, maar om self ‘n skuld te
bewerkstellig deur die voertuig in te
sleep sonder toestemming en dan
die mense aan te spreek, die werklike eienaar aan te spreek vir ‘n
bedrag …”
24. This is clearly a wider interpretation of the word “use” than
one would ordinarily have been inclined to attach to it. The
conclusive legal question is whether the legislature intended such a
wide meaning or not when the section was enacted.
25. The history of the section is by now well-known and it is not
necessary to elaborate upon it.
See eg.:
R v Sibiya
1955 (4) SA 247
(AD)
S v Rheeder
[2000] 4 All SA 300
(SCA) at 303,
para 7
26. Despite criticism it must now also be accepted as established law
that the section is aimed at the unlawful removal of the article
and
that consequently it does not include the situation where the article
is in the lawful possession of a person who uses that article
for an
unauthorised purpose.
S v Motiwane
1974 (4) SA 683
(NC)
S v Schwartz
1980 (4) SA 588
(T)
S v Rheeder
, supra, at 303, para 8
27. The crucial enquiry is therefore whether the Appellant intended
to use the article for his own purposes at the time of the removal
thereof and it is in that context that the meaning of the word “use”
must be established. In this regard there exists, in my
view, a
clear distinction between “control” of an article and the “use”
of that article. I agree with the following observation
of
Snyman,
Strafreg, 4
th
Edition
where the learned author states the following at p 519:
“Wat onder ‘beheer’ en ‘gebruik’ verstaan moet word, is
feitlike vrae wat met inagneming van verkeersmaatstawwe beantwoord
moet word. Die blote hou van ‘n saak in besit is nog nie dieselfde
as gebruik daarvan nie.”
28. In my view the history of the section and in particular the need
to address the consequences flowing from the judgment of
S v
Sibiya
, i.e. to penalise the temporary removal and use of an
article, not accompanied by the intention to permanently deprive the
owner
thereof, must play a role in ascertaining the intention of the
legislature.
29. In
R v Mtshali
1960 (4) SA 252
(N)
the
accused took a woman’s grammaphone and wireless because he thought
she had stolen his money. Towards the end of the judgment
(in the
case of
Mitshali
Holmes, J. (as he then was) made the
following obiter remark:
“The Crown did not ask for a conviction under Act 50 of 1956.
It seems that that Act only applies to a user as distinct from a
retention. It may be that the Act should be extended by amendment to
cases of retention, otherwise a higher purchase owner may be
able to
spoliate with criminal impunity from a defaulting purchaser, with a
view to holding the merx pending payment of arrears.”
30. This obiter remark lead
Milton, SA Criminal Law &
Procedure, 2
nd
Edition
,
to state the following at p 7, para J4 – 10, footnote 3:
“Holmes, J. expressed the view (obiter) in R v Mtshali
1960 (4)
SA 252
(N) at 256 (X had taken a wireless by means of security for a
debt which he had said Y owed him and had no intention of playing the
wireless) that ‘use’ does not include ‘retained by way of
security’. This is to give a rather special meaning to the word
‘use’, for retention is surely a form of use. The learned Judge
employs the word ‘use’, in the sense of putting an article
to the
purpose for which it was designed or to some use other than a purely
passive one. Though it seems doubtful whether the word
can be so
restricted, such restriction can perhaps be supported on the ground
that it was such restricted ‘use’ which Sibiya’s
case held to
be non-penal and which Mtaung’s case regarded as theft. In other
words, it can be argued that the statute was passed
to penalize the
active user.”
31. This approach seems more or less in line with the following
extract from De Wet and Swanepoel, Strafreg, Fourth Edition, at p
341:
“Wat gebruik is, is ‘n vraag wat volgens verkeersopvattings
met verwysing na die soort saak waaroor dit gaan, beantwoord moet
word. Mens gebruik ‘n boek deur dit te lees, ‘n skildery deur
dit te besigtig of te laat besigtig, ‘n kledingstuk deur dit
te
dra, ‘n fiets deur daarop te ry, ‘n motorkar deur daarmee te ry.
Blote detensie van die ding is darem nog nie gebruik nie.”
32. In
R v Seeiso
1958 (2) SA 231
(GW)
the court
had to interpret the word “control” in Section 1(1) of Act 50 of
1956 and it was in that context that Diemont, J. stated
the following
at 233G – H:
“In my view the word ‘control’ as used by the Lawgiver in
this sub-section does not mean possession nor does it refer to the
bare physical detention of the article. The person who has the
detention may or may not be in control of the article depending on
the circumstances under which he acquired the article. Such factors
as the management of the article and the regulation of its use
must
be taken into account. In order to determine these matters we must
look to the nature of the article and the use to which it
is intended
to be put.”
33. Although, as stated, these words were used in the context of
“control” I do not think it would be inapposite to take the
nature of the article and the use to which it is intended to be put
into account when interpreting the word “use” in the same
section. Grammatically the word “use” may have a passive meaning
such as to retain something or it may have an active meaning
requiring active use for the purpose it was manufactured. Should
only the active interpretation prevail it would follow that the
actions of a person who removes an article with the intention to
deprive the owner temporarily of the use thereof and to merely retain
the article as security would not be penalisable. At the same time
it must be questioned whether the removal of an article coupled
with
only an intention to retain the same as security could be equated
with an intent to “use” (as opposed to an intent to “retain
for
security”, “to hold”, “hold in safe-keeping” etc.).
Assuming, as I have done above, that the Appellant in the present
matter, without the consent of the owner or person in control,
removed the damaged vehicle it could at best have been accompanied
with the intention of financial gain arising from the temporary
custody thereof. The vehicle was damaged and could therefore not
be
used for the purpose it was designed or manufactured for. I am in
serious doubt as to whether this kind of use was contemplated
by the
Lawgiver when enacting this section.
34. Being in doubt I must therefore resort to the ordinary canons of
construction when dealing with enactments of the nature in question.

In accordance with that approach and bearing in mind that the word
“use” is used as a verb in this section I am more inclined
to
associate the meaning thereof with an intended active rather than a
passive use in the sense of merely keeping the article pending
compensation or payment. Accepting that this is not conclusive I
must also bear in mind that under the common law there are various
presumptions favouring a restrictive approach when interpreting
provisions which give rise to criminal sanctions. This approach
entails the acceptance of only the strictest meaning of words
employed by the legislature. It is expressed in the adage
“in
poenis strictissima verborum significatio accipienda est”
.
See
Steyn, Uitleg van Wette
, 5
th
Edition, p 111
To this can be added the common law presumption that in the case of
doubt the most favourable interpretation of the subject should
prevail.
Steyn
, supra, p 115
35. In addition, it is now a constitutional imperative that statutory
provisions should be interpreted in accordance with the object,
spirit and purport of the Constitution which entails,
inter alia
,
upholding the fundamental rights set out in the Bill of Rights such
as the liberty and freedom of citizens.
36. Applying all these considerations to the interpretation of the
word “use” in Section 1(1) of Act 50 of 1956 I have come to
the
conclusion that the more restrictive meaning should be accorded to
the word “use” and that it should not be interpreted on
the basis
of including the mere retention of an article which cannot be used
for the purpose for which it was designed and/or manufactured.
Had
this been a case where the vehicle in question was not damaged and
removed for purposes of temporarily driving it in the interest
or for
the benefit of the Appellant, it would have been a different matter.
However, in view of the particular circumstances of
this case where a
damaged vehicle was removed for the purpose of keeping it in custody
and in the hope that payment for that service
would occur, I am
unable to find that such conduct constitutes a criminal offence under
Section 1(1) of Act 50 of 1956.
I would therefore uphold the appeal.
………………………..
A J LE ROUX, AJ
I agree. It is so ordered.
……………………….
N J YEKISO, J