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1988
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[1988] ZASCA 60
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S v PL breytenbach Transport Contractors (Pty) Ltd and Another (189/87) [1988] ZASCA 60 (26 May 1988)
P L BREYTENBACH TRANSPORT CONTRACTORS
(PTY) LTD.
FIRST APPELLANT
RAMSAMMY NAIDOO
SECOND
APPELLANT
and
THE STATE
RESPONDENT
Judgment by H H NESTADT
CASE NO. 189/87 CCC
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between
P L BREYTENBACH
TRANSPORT CONTRACTORS
(PTY) LTD
FIRST APPELLANT
RAMSAMMY NAIDOO
SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HOEXTER, NESTADT, VIVIER JJA et NICHOLAS, BOSHOFF AJJA
DATE HEARD
: 17 MAY 1988
DATE DELIVERED
: 26 MAY 1988
JUDGMENT NESTADT, JA
:
First appellant carries on business
as/
2. as a long-distance hauler. Second appellant is a director of the
company. They, together with a third accused, an employee of first
appellant,
were convicted in a magistrate's court of unauthorised road transportation in
contravention of sec 31(1)(a) of the Road
Transportation Act, 74 of 1977. The
third accused was the driver of the vehicles used in the unlawful
transportation. They were a
motor traction vehicle (a so-called mechanical
horse) and a trailer. For the purposes of this judgment it may be assumed that
they
were owned by first appellant. Following upon sentence (in each case a fine
was im-posed) the vehicles were, in terms of sec 36(1)
of the
Act/
3.
Act, declared to be forfeited to the State.
Sec 36 provides:
"36. (1) The court convicting any person of an offence under this Act
involving the undertaking of unauthorized road transpor-tation
or of an offence
under section 31(1)(e) may, and shall on a third and each subsequent conviction
of such an offence, declare the
motor vehicle used in such transporration and
any goods conveyed thereon without authority, or the convicted person's rights
in such
motor vehicle or goods, to be forfeited to the State: Provided that such
declaration shall not affect any rights which any person
other than the
convicted person may have to the motor vehicle or goods in question, if it is
proved that such other person did not
know that the said motor vehicle was being
or would be used in unauthorized road trans-portation or that he could not
prevent such
use, or that such other person did not know that the transportation
of the said goods constituted or would constitute unauthorized
road
transportation or that he could not
prevent/
4.
prevent the undertaking of such transporta-
tion.
(2) Section 35(4) of the Criminal Procedure Act,
1977 (Act No. 51 of 1977), shall
mutatis
mutandis
apply with reference to any for-
feiture under subsection (1) of this section."
Sec 35(4) of Act 51 of 1977 gives effect to the proviso
to sub-sec (1) by
enabling,
inter alia,
what I shall call
the innocent owner of the
vehicle in question to apply
for the setting aside of the declaration of
forfeiture
and for an order that the vehicle be returned to him
or that
compensation for it be paid by the State.
The magistrate considered himself obliged
to make the forfeiture order.
This was because
second appellant had three previous convictions
for
unauthorised road transportation. First appellant's
contention/
5. contention that because it had no such previous
convictions, the court had a discretion (which it was said should be exercised
against forfeiture), was rejected. An appeal to the Transvaal Provincial
Division (against the forfeiture order only) was dismissed.
It was held that the
magistrare's in-terpretation of sec 36(1) was correct. Appellants, still feeling
aggrieved, now appeal further
to this Court (with its leave). Actually, only
first appellant is interested in its outcome.
The matter can be briefly dealt with. Before us, Mr
Penzhorn
, on
behalf of appellants, abandoned the contention that on a proper inter-pretation
of sec 36(1), forfeiture would only have
been/
6. been compulsory if first appellant had three or more previous
convictions (of the kind stipulated). It was accepted that, by reason
of second
appellant's previous convictions, the forfeiture order made by the trial court
was not only competent but compulsory. Nothing
more need, therefore, be said
about this aspect of the matter.
This ought to have been the end of the
appeal. However, counsel sought to advance an entirely different argument in
support of the
con-tention that the forfeiture order should be set aside. It
rested, not as before, on the substantive part of sec 36(1), but on
the proviso.
In short, it was that the forfeiture order which had been
made/
7. made, did not affect first appellant's rights (of ownership) in
the vehicles. This was because first appellant was allegedly ignorant
of second
appellant's previous convictions.
For the following reasons this new approach
cannot avail first appellant and is, indeed, without merit.
(i) The point was not taken in its petition in terms of sec 316(6) of Act 51
of 1977. Accordingly, leave to appeal on this ground
was never granted. (ii) The
forum for dealing with the issue whether first appellant falls within any of the
terms
of/
8. of the proviso and is thus entitled to the release of the
vehicles, cannot be this Court. It is the trial court. Evidence should,
in
support of an application under sec 35(4) of Act 51 of 1977, have been placed
before it to establish the particular part of the
proviso relied on. There was
no such evidence or, indeed, application. This is not surprising. The proviso
was not in issue. All
that was in issue was the magistrate's duty, as distinct
from his having a discretion, to grant a for-feiture order. (iii) Above
all, the
ground on which first appellant seeks to invoke the proviso, i e that it did
not/
9.
not know of second appellant's previous con-
victions, is simply not
covered by its terms.
Recognising this, Mr
Penzhorn
submitted
that
the following should be read into the proviso
(at the end thereof).
"or that he did not know that such use would constitute the undertaking of
unauthorised road transportation, or an offence under Section
31(1)(e), for a
third or subsequent time by the person so convicted."
It was said that the omission to cater for an
owner being able to rely on
the proviso on
this ground as well, was a lacuna in the
section which,
unless rectified by "construing"
it/
10. it in the manner suggested, would lead to a glaring absurdity
which the Legislature could never have intended. I do not agree.
In the
situation postulated, it may be (I so assume in favour of first appellant) that
hardship or inequity might result (though
even this is doubtful because the
owner, not being able to obtain the release of the vehicle on any of the other
grounds stipu-lated
in the proviso, is,ex
hypothesi
,blame-worthy). But
this is a far cry from the result being one which, as was argued, falls within
the principle of
Venter vs R
1907 TS
910/
11.
910. It must be accepted that the Legisla-ture,in enacting sec 36(1), had
good reason to exclude an owner's ignorance of his co-accused's
previous
convictions as a ground for escaping from the consequences of a for-feiture
order. To accede to the argument would be to
now include it under the guise of
construction when, in truth, it amounts to an amendment of the section. That we
cannot do.
The appeal is dismissed.
NESTADT, JA HOEXTER, JA ) VIVIER, JA ) CONCUR NICHOLAS, AJA ) BOSHOFF, AJA
)