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[1994] ZASCA 2
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Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of the City of Durban (675/92) [1994] ZASCA 2; 1994 (3) SA 170 (AD); [1994] 2 All SA 222 (A) (22 February 1994)
CASE NO. 675/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
AMALGAMATED BEVERAGE INDUSTRIES
NATAL (PROPRIETARY) LIMITED
Appellant
and
THE CITY COUNCIL OF THE CITY OF
DURBAN
Respondent
CORAM
: BOTHA, HEFER, EKSTEEN, NIENABER, JJA
et KRIEGLER, AJA
HEARD
: 9 SEPTEMBER 1993
DELIVERED
: 22 February 1994.
JUDGMENT
HEFER JA:
This is an appeal against a conviction in a
2
magistrate's court where, in a private prosecution
at
the instance of the present respondent, the appellant
was
charged with a contravention of the Food By-laws
of the City of
Durban.
These by-laws were promulgated on 14 December
1950.
The enabling legislation at that stage was sec
197(1) (f) of Ord 21 of 1942 (N) which authorised a
city council in the province of Natal to make by-laws
"...restricting or prohibiting the introduction into or the sale or other
disposal of food within the borough where there has been
a failure to observe
the requirements of the bylaws, or any food which is diseased, unsound,
unwholesome or otherwise unfit for human
consumption..."
Ord 21 of 1942 was repealed and replaced
by Ord 25 of 1974 but, by reason of the provisions of sec 336(1)(a) of the
latter, the original
by-laws, as amended from time to time, are still in force.
Bylaw 18(c) on which the charge in the present case is based, reads as
follows:
3
"18. No person who carries on any business involving the manufacture,
preparation, storage, handling or distribution of food shall
in connection with
such business -
(c) cause or permit any article of food or drink which is not clean,
wholesome, sound and free from any foreign object, disease, infection
or
contamination to be kept, stored, sold or exposed for sale or introduced into
the city for purposes of sale."
In terms of By-law 9
"(any) person committing a breach of any of these By-laws shall be guilty of
an offence...."
The appellant is a bottler and distributor of
soft
drinks. Its business involves the manufacture,
preparation, storage
and distribution of food. The
discovery of a bee in a bottle of
carbonated mineral
water which it had sold to a supermarket in
Durban
led to the prosecution under by-law 18(c) read with
by-law 9. At the trial it was formally admitted on
appellant's behalf that it had caused or permitted an
4
article of food which was not free from any
foreign object to be kept, stored, sold or introduced into the city for purposes
of sale.
After explaining to the court that the issue was whether
mens
rea
was an ingredient of the offence charged defence counsel led evidence to
show that the bottle in question had passed through appellant's
plant without
the offending insect being discovered despite elaborate steps to avoid
contamination. The evidence did not avail the
appellant since the magistrate
found that by-law 18(c) imposes strict liability. His view was subsequently
confirmed on appeal to
the Natal Provincial Division whose judgment is reported
in 1992(3) SA 562. The main contention on appellant's behalf in this court
is
that the court a
quo
erred in doing so.
Whether the absence of
mens rea
constitutes a defence to a charge
under by-law 18(c) depends of
5
course on the nature of the prohibition
contained
therein. Arising from the
nulla poena sine
culpa
principle of the common law there is, as JAMES JP
indicated in
Ismail and Another v Durban Corporation
1971(2) SA 606 (N) at 607 E, "a strong current of
judicial opinion ....against finding anyone guilty of
an unlawful act unless that act is accompanied by
mens rea
". But it is generally accepted by the
courts that the legislature may dispense with the
requirement of
mens rea
and the only question in any
given case is therefore whether it has in fact done
so. The answer is to be sought in the intention of
the legislature. Sometimes its intention is
expressed precisely and in clear language; but often
it is not. The approach in such cases was described
as follows in
S v Arenstein
1964(1) SA 361 (A) at 365
C-D:
"The general rule is that
actus non facit reum nisi mens sit rea
,
and that in construing
6
statutory prohibitions or injunctions, the Legislature is presumed, in the
absence of clear and convincing indications to the contrary,
not to have
intended innocent violations thereof to be punishable. (
R. v. H
.,
1944
A.D. 121
at pp. 125, 126;
R. v. Wallendorf and Others
,
1920 A.D. 383
at
p. 394). Indications to the contrary may be found in the language or the context
of the prohibition or injunction, the scope and
object of the statute, the
nature and extent of the penalty, and the ease with which the prohibition or
injunction could be evaded
if reliance could be placed on the absence of
mens
rea
. (
R. v. H
.,
supra
, at p. 126.)
"
(See further
S v Qumbella
1966(4) SA 356 (A) at
364 D-G;
S v Oberholzer
1971(4) SA 602 (A) at 610H-611A;
S v de
Blom
1977(3) SA 513 (A) at 532 B-D.)
The present enquiry may conveniently be commenced with an examination of
the context of the prohibition.
The Food By-laws contain under separate headings a full range of measures
aimed at ensuring the supply of clean, wholesome food to
the city. Under the
heading "General " provision is made
inter alia
for the appointment of
officers with far-reaching powers
7
of inspection and examination whose main function
it is to administer the by-laws and enforce their compliance. A section styled
"Structure
of premises" lists all the requirements for premises where business
is conducted involving the preparation, storage, handling, sale
or distribution
of food. Allied to this is a section styled "Manufacturing equipment, furniture,
fittings and fixtures" which regulates
the equipment used in such a business.
Then there is a section under the heading "Food Protection, Storage and
Distribution". This
includes by-law 17, dealing with matters such as the
maintenance of cleanliness and the cleaning of utensils, and by-law 18. 18(a)
relates to the protection against dirt, 18(b) to so-called "unsound substances",
(c) to the "introduction etc of unsound food", (d)
to packings and wrappings,
and (e) to so-called "compatible use". In each of these there is a
8
separate prohibition. Finally there are provisions
relating to "Personal Hygiene Facilities" and "Housing Facilities" for
employees.
The general scheme of the by-laws is thus (1) to prescribe certain
conditions and (2) to prohibit certain acts in connection with
the manufacture,
preparation, storage, handling, sale and distribution of food. By-law 18 - like
several others - is specifically
directed at persons who carry on this type of
business. In terms of 18(c) they may not cause or permit what may conveniently
be referred
to (in order to avoid the draftsman's cumbersome litany) as the
distribution of contaminated food.
I turn to the wording of the
by-law. This calls for a number of observations. The main one is that there is
no indication of an intention
to dispense with
mens rea
. Equally
important is the description of the
actus reus
: what members of the
affected
9
class are prohibited from doing is to
cause or
permit
the distribution of
contaminated
food. This is what the
English text says in unequivocal terms. In the Afrikaans text "cause or permit"
is translated by the single
word "laat" ("laat hou, opberg, verkoop" etc). The
use of the same word in by-law 18(a) led the court in
Ismail
's case
(
supra
) at 609E to doubt whether "cause or permit" were intended to
convey separate concepts; but it appears that, whereas "laat" is used
in 18(a),
(b), (c) and (d), "cause or permit" is translated literally in (e) by
"veroorsaak of toelaat". Taking into account the
consistent use of the same
English expression and that there is no reason to suspect that it was not
intended to convey precisely
the same in (a), (b), (c), (d) and (e, the logical
conclusion is that "laat" and "veroorsaak of toelaat" are used synonymously.
There
is thus no need for combining the concepts. The use of the word
10
"laat" tends to confirm, however, that
"cause"
("veroorsaak" in (e) ) is used, not in the general
sense of
bringing about in one way or another that
adulterated food is kept,
stored, sold etc, but that
it is specifically authorised or directed
to be kept,
stored or sold. (cf
Brigish v Johannesburg
City
Council
1939 TPD 339
at 341 - 342;
Rex v
McFarlane
1914 EDL 101
at 102-103.) This is in any event the
usual
connotation of the word when it is juxtaposed
with "permit" in the
expression "cause or permit".
As Lord Wright said in
McLeod (or
Houston) v Buchanan
[1940] 2 All E R 179
(HL) at 187
"To 'cause' . . . involves some express or positive mandate from the person
'causing' to the other person, or some authority from
the former to the latter,
arising in the circumstances of the case. To 'permit' is a looser and vaguer
term. It may denote an express
permission, general or particular, as
distinguished from a mandate."
(See also
Shave v
Rosner
[1954] 2 All E R 280
(QBD)
11
at 281-2.)
It appears from the judgment in
Lovelace
v
Director of Public Prosecutions
[1954] 3
All E R 481
(QBD) at 483 that
"[it] has been held repeatedly that, although the prohibition of doing an
act is absolute so that scienter or mens rea is not necessary,
different
considerations apply where a person is charged with 'causing' or 'permitting'
the act to be done, because one cannot 'cause'
or 'permit' an act to be done
unless one has knowledge of the facts."
South African
courts have consistently followed the
same course except only, as far as I am aware, in
Ismail
's case. As early as 1896 the Cape court
decided in
Queen v Otto
13 SC 251
at 253 that a
statute penalising the permission of drunkenness on
licensed premises implied knowledge of the
drunkenness on the part of the accused.
Otto
's case
was followed in
R v Schmitz
1912 CPD 507
at 510-511
and
Warncke v Rex
1931 S W A 43 at 47-48. The
12
decisions in
R v Webb
1911 TPD 280
at 282,
Moonsamy and Another v Rex
1942 N P D 135
,
R v Mlumbi
1945 E D L
163
,
R v Govinder
1956(4) S A 133 (N) and
R v Joao
1959(1) S A 563
(0) are all based on the principle that a person can only be said to permit an
act if he has knowledge of its commission
(cf also
Cape Town Council v
Benning
1917 AD 315
at 319). As indicated in
S v Kritzinger en 'n
Ander
1973(1) S A 596 (C) at 598 E permission implies knowledge of the
relevant act coupled with consent or acquiescence. In
Davidson v Rex
1910
T P D 1236
at 1240, it was held that a person must be taken to permit an act if
he has power to prevent it and does not do so, but, even in
such a case,
knowledge is logically still required for a man cannot truly be said to have the
power to prevent something of which
he has no knowledge. The correct formulation
of this principle appears in INNES ACJ's judgment in
Alexander v Johns
1912 AD 431
13
at 445 where it is said that
" (a) man who has undertaken not to suffer or allow a particular condition
of things violates his undertaking, if, knowing of its
existence and being able
to prevent it, he does not do so."
The courts were dealing, in most of the
South
African cases, with the word "permit". There
is
scant authority in this country on the word "cause"
appearing
either alone or in the expression "cause or
permit". English cases
are by no means harmonious as
to whether the word also carries an implication of
knowledge of the facts. According to the judgment
in
Ross Hillman Ltd v Bond
[1974] 2 All E R 287
(QBD)
at 297-298, cases in which the enquiry related to
"cause" alone are to be distinguished from others in
which the word appeared with "permit" as part of the
expression "cause or permit"; in the latter event
the two words both imply knowledge. This, it appears
to me, is a valid albeit inconclusive distinction.
14
The remaining part of the by-law answers
the
question: what is it that may not be caused
or
permitted? Members of the class may not cause
or
permit the distribution of
contaminated
food.
Because one cannot logically be said to cause
or
permit the distribution of such food
without
knowledge of the contamination the wording is more
consistent with the presence than with the absence of
mens rea
. It resembles the wording of the statute
which concerned the court in
S v Mathebula
1972(1)
S A 495(37) and which led my brother BOTHA (acting in
a different capacity) to say at 497 G that
"... the use of the word ' permitted' in this section is more consistent
with an intention on the part of the Legislature that
mens rea
was to be
an element of the offence [of unlawful motor carrier transportation by a person
permitting the conveyance] than otherwise."
This was
said on the authority of
South African
15
Criminal Law and Procedure
(formerly
Gardiner and
Lansdown) by Milton & Fuller Vol III at 34 and the
cases cited there. The relevant passage reads as
follows:
"The word 'permit' (or 'permitting') is fairly generally accepted as
importing
mens rea
in that it requires a particular state of mind. This
state of mind involves essentially some degree of knowledge of the wrongful
act."
I must accordingly express my respectful
disagreement
with the remarks at 564 I-J of the report of
the
court a
quo
's judgment in the present case to the
effect that the words "cause or permit" provide no
clue to and have indeed no bearing on the question
whether
mens rea
in the form of knowledge of the
contamination of the food is an ingredient of the
offence.
The court a
quo
's view that strict liability
was intended, is based on the scope and object of the
legislation, the fact that it only applies to persons
16
engaged in the specified business, and the ease
with which liability may be evaded if
mens rea
were required. I shall
deal with each of these in turn but before doing so it is well to be reminded of
the extent of the appellant's
submissions. Fairly summarized they amount to no
more than that
mens rea
is required in the form of knowledge, or the
culpable lack thereof, of the contamination of an article of food which a member
of the
affected class has caused or permitted to be distributed. That
culpa
may constitute an element of a statutory offence is trite (
R v
H
1944 A D 121
at 130) . Whether it is sufficient (or whether
dolus
is required) depends of course entirely on the measure of foresight or care that
the statute in question requires (
S v Melk
1988(4) S A 561 (A) at 576
D-G) . Having regard to the considerations mentioned in
Arenstein
's case
at 366 F-I and in several later judgments of this court
17
referred to in
Melk
's case,there can be no
doubt
about the correctness of appellant's submission
that
negligence would suffice if it were to be found
that
by-law 18(c) does not exclude
mens rea
. (Cf
Moonsamy
and Another v Rex
(
supra
) at 139;
R
v Govinde
r
(
supra
) at 137 G.)
I mention this in view of the remark at 564 G of
the
court a
quo
's judgment that
"[it] is difficult to see how a by-law prohibiting the introduction or sale
of contaminated food could be satisfactorily enforced
without imposing strict
liability. In many instances the contamination would not be apparent upon visual
examination, and if
mens rea
was a requisite the prohibition could easily
be evaded by a denial of knowledge that the food was diseased, unsound,
unwholesome
or otherwise unfit for human
consumption."
Not so, however, if the prohibition could
be
contravened negligently. In that event the accused
would not
escape conviction if he ought to have been
aware of the contamination or should have foreseen
18
the possibility of its occurrence and failed to
take
reasonable precautions to prevent it. A high
degree
of circumspection could be expected in view of
the
object of the legislation and, taking into
account
the extensive powers vesting in the
inspectorate
provided for, there is no reason for taking
a
pessimistic view of the ease of evading conviction.
With this in mind a further point made at 565 A-
B
of the judgment may now be examined. The relevant
passage reads as follows:
" What is significant is that the by-law is not of general application. Only
persons who carry on the businesses specified are subject
to the prohibition and
liable to punishment for contraventions. This is a strong indication that the
lawgiver intended to impose
strict liability. (See
Ismail
's case
supra
, at 610.) If
mens rea
were required the prohibition could
not be enforced in any case where the person carrying on the business was
ignorant that the food
or drink in question was contaminated, even though his
servants who actually prepared, handled or sold it had such knowledge. ...
In
cases where the person carrying on the business employed others to manufacture,
prepare, store, handle or distribute the food
it would be even
19
more difficult to enforce the prohibition. Indeed, if the by-law is not to
be construed as imposing strict liability its object of
protecting the public
health would probably be defeated."
Again, there would
be no reason for undue pessimism if the prohibition could be contravened
negligently. A member of the affected
class who ought to have foreseen the
possibility of the distribution of contaminated food by a servant would not
escape liability
and the object of protecting the public health (a matter still
to be discussed) need not be defeated. But there is a more fundamental
objection
to the court's reasoning.
The distinction between provisions of
general application, on the one hand, and those only affecting members of a
specified class,
on the other, derives from decisions of the courts in England
and was applied in several South African cases including
Ex parte Minister of
Justice: In re Rex v Nanabhai
20
1939 AD 427
,
Rex v Ebrahim and Heskiah
1921 T P D 305
and
Rex v Melzer and Another
1946 T P D 597.
Some of
the remarks in the judgments in these cases seem
to
suggest that the underlying reason for drawing such
a
distinction is merely the utter unreasonableness of
a
prohibition of universal application compared with
one
applying only to persons who are voluntarily
involved in an activity from which they reap
financial benefit. In
Rex v Wunderlich
1912 T P D
1118 and
Rex v Dywili and Another
1944 T P D 461
it
was applied for a different reason: the offences in
these cases could only be committed by members of the
affected class (eg the holders of liquor licences)
and not by their servants; which led DE VILLIERS JP
to remark in
Wunderlich
at 1124 that
"... it would render the law inoperative if the barman could do with
impunity what the licensee could not do, and for which the licensee
is not
liable."
21
This appears to be in line with the court a quo's
reasoning in the present case: by-law 18(c) is directed at persons carrying on
the
specified businesses whilst their servants or employees are not precluded
from distributing contaminated food even though
they
may be aware of the
contamination. But there is the material difference that
Wunderlich
was
convicted on the basis of
vicarious
liability. Compared with strict
liability vicarious liability is the lesser of two evils; it is not, as the
court a
quo
said at 565 G, "a concomitant of strict liability" although
the two terms are sometimes used indiscriminately. I am aware of the
remark in
Mathebula
' s case
supra
at 500 G to the effect that, where
mens
rea
is found to be an element of a statutory offence "there would seem to be
little room" for implying an intention to impose vicarious
liability. But such a
possibility cannot be
22
discounted since the two concepts can plainly be
incorporated in the same offence (vide
R v Combrink
1939 T P D 213
at
215-216 and the cases cited there). Where it is clear that either strict or
vicarious liability must be implied in order not to
defeat the object of the
legislation, careful consideration should accordingly be given to both before an
interpretative election
can be made. In case of doubt the lesser evil would
probably be preferred and there would be every reason to do so where the nature
of the regulated activity is such that the employment of managers, servants and
the like can be anticipated. I mentioned earlier
that there is a section of the
Food By-laws dealing specifically with housing for employees. This, coupled with
the inherent nature
of the food manufacturing and distribution industry and the
nature of the
actus reus
, plainly reveals the legislature's
contemplation
23
that members of the affected class would not
always be personally involved. My
prima facie
view is that members of the
class would indeed be vicariously liable for the acts and omissions of their
employees and would not
necessarily be able to escape liability under by-law
18(c) in the case postulated by the court a
quo
. But this is not the
issue before us and I refrain from expressing a definite opinion thereon.
Suffice it to say that the possibility
of vicarious liability is sufficiently
strong to cast serious doubt on the conclusion that strict liability was
intended.
The significance of the application of a statute to persons engaged in a
specified activity must in any event, and precisely like
the scope and object of
the legislation, be viewed in its proper perspective. In
Sweet v Parsley
[1969] 1 All E R 347
(HL) at 362 Lord Diplock described it thus:
24
" ...Where penal provisions are of general application to the conduct of
ordinary citizens in the course of their everyday life, the
presumption is that
the standard of care required of them in informing themselves of facts which
would make their conduct unlawful,
is that of the familiar common law duty of
care. But where the subject-matter of a statute is the regulation of a
particular activity
involving potential danger to public health, safety or
morals, in which citizens have a choice whether they participate or not, the
court may feel driven to infer an intention of Parliament to impose, by penal
sanctions, a higher duty of care on those who choose
to participate and to place
on them an obligation to take whatever measures may be necessary to prevent the
prohibited act, without
regard to those considerations of cost or business
practicability which plays a part in the determination of what would be required
of them in order to fulfil the ordinary common law duty of care. But such an
inference is not lightly to be drawn, nor is there any
room for it unless there
is something that the person on whom the obligation is imposed can do directly
or indirectly, by supervision
or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to influence or control,
which
will promote the observance of the obligation (see
Lim Chin Aik v
Reqinam
(1963) 1 All E R 223)."
This passage (which
was quoted with approval in
25
Gammon (Hong Kong) Ltd and Others v Attorney
General of Hong Kong
[1984] 2 All E R 503
(PC) at 508) neatly expresses just
about everything that needs to be said. I would only add that care should be
taken not to rely
upon the objects of the legislation as a "convenient umbrella
beneath which to seek refuge when excluding the basic principle of
criminal
liability" (Edwards:
Mens rea in statutory offences 114)
. Although it is
obviously an important consideration, the fact that the prohibition in question
regulates an activity involving potential
danger to the public should not be
overrated; most penal statutes are, after all, conceived in the public interest
(
S v Pretorius
1964(1) SA 735 (C) at 740 pr). Its true significance must
be judged in conjunction with other determinants like the ease with which
liability may be evaded if
mens rea
were required. I have indicated that
liability for
26
contravening the present prohibition will not be
easily evaded if
mens rea
in the form of
culpa
were
required.
Summarizing what has hitherto been said we have, on the
one hand, an
actus reus
which logically implies knowledge of the
contamination of the food and is at least more consistent with the presence than
the absence
of
mens rea
in that form. On the other hand we have the scope
and object of the legislation. But we have seen that this object may generally
be attained if
mens rea
in the form of
culpa
were to be an
essential ingredient of the offence, and moreover that members of the affected
class will not necessarily escape liability
for the acts and omissions of their
employees. The prescribed penalty is admittedly not a heavy one but,
nevertheless, I find myself
unable to say that there are sufficiently clear and
convincing indications
27
that the legislature intended to dispense with
mens rea
.
This conclusion brings about that the question of
negligence which neither the trial court nor the court a
quo
considered
must now be decided. Only a brief discussion is required.
It was
mentioned earlier that evidence was led to the effect that the bottle of mineral
water had passed through the appellant's plant
without the presence therein of
the offending insect being discovered. It also emerged that the appellant had
installed costly electronic
devices, and generally conducted its cleaning and
bottling process, with a view to avoiding the presence of any foreign objects in
its products; and that the filled and capped bottles passed two trained
inspectors for final visual inspection at the end of the
conveyor where they
were stationed. Despite these precautions
28
foreign objects still found their way into
bottles on rare occasions.
There is, in my view, one obvious reason
why it happened. It is the speed of the last stage of the process. At the final
inspection
stage the filled and capped bottles passed the inspectors at the rate
of 360 per minute or 6 every second. This is plainly expecting
far too much of
the human eye, no matter how practised it may be. Any reasonable person ought to
have foreseen that objects - particularly
small ones - may pass unnoticed.
Moreover, contamination of this kind did occur. Rare though these occasions
might have been the
officials forming the appellant's directing mind must have
been aware of them. Yet they allowed the process to continue. They were
plainly
negligent.
29
The result is that the appeal is dismissed.
J J F
HEFER JA
EKSTEEN JA)
- Concur KRIEGLER AJA)
JUDGMENT
BOTHA JA
:-
2
I have had the
advantage of reading the judgment of HEFER JA, to which I shall refer as "the
majority judgment". It holds (a) that
mens rea
is an element of the
offence with which the appellant was charged; (b) that negligence is sufficient
to constitute the requisite
mens rea
; (c) that the appellant was proved
to have been negligent; and (d) that the appeal fails. With respect, I disagree
cm (a); therefore
I agree on (d); and consequently (b) does not arise and I need
not decide (c).
My disagreement on the main issue of
mens rea
stems from my divergent assessment of the weight to be accorded to the various
factors which are discussed in the majority judgment
as being relevant to the
decision on the issue.
In my judgment the factor which is of
decisive weight is the subject-matter of the by-law in question. In essence it
prohibits food
traders
3 from dealing in contaminated food. It does
so with the object of safeguarding the health of the public, which is obviously
a matter
of great importance to the lawgiver. (Its importance is perhaps not as
well illustrated by the picture of a bee in a bottle as by
the idea of typhoid
germs in a batch of meat pies.) It is accordingly inherently probable that the
lawmaker intended its prohibition
to be as effectively enforceable as possible.
Most statutory prohibitions are conceived in the public interest, to be sure
(see
S v Pretorius
1964 (1) SA 735
(C) at 740A, cited in the majority
judgment); but not all of them clamour for strict enforcement with the same
degree of urgency.
A prohibition against any person selling bread at a price
less than a prescribed minimum price does not stand on the same footing
as a
prohibition against persons who do business as bakeries from making and
distributing bread which contains noxious
4 substances. (The example
is derived from the remarks of MURRAY J in
R v Meltzer and Another
1946
TPD 597
-cited in the majority judgment - at 600.)
Two features of
the subject-matter of the by-law emerge as pointing strongly, in my view, to the
intention of the lawmaker to impose
strict liability. Firstly, contraventions of
the prohibition endanger and may have disastrous effects on public health, which
it
is the concern of the lawmaker to protect. Secondly, the prohibition is
directed only at that specific class of persons who are engaged
in the business
of dealing in food. I fully agree with the significance which is ascribed to
these two considerations in the judgment
of the Court
a quo
. The first is
dealt with in its reported judgment
(1992 (3) SA 562)
at 565H-566F and 367C; the
first-mentioned passage contains quotations of the very apposite observations of
LORD EVERSHED in
5
Lim Chin Aik v Reginam
[1963] 1 All ER 223
(PC) at 228-9. This point does not require further elaboration. The second
consideration is dealt with in the reported judgment at
565A and 567D. It calls
for further discussion, in view of what is said about it in the majority
judgment.
The importance in the present context of the distinction
between prohibitions of universal application, directed at every member of
the
community, and prohibitions directed only at members of a special class, is well
established in our case law, as appears from
the cases cited in the majority
judgment. So, in
Ex parte Minister of Justice : In re Rex v Nanabhai
1939
AD 427
and in
Meltzer
's case
supra
prohibitions in general terms
were held not to have excluded
mens rea
, while in
Rex v Wunderlich
1912 TPD 11143
and
Rex v Dywili and Another
1944 TPD 461
prohibitions
against a specific class were held
6 to have imposed strict
liability. If the reasoning in the first-mentioned two cases suggests "the utter
unreasonableness" of an
absolute prohibition of universal application (which is
the phrase used in the majority judgment), the reasoning in the latter two
cases
points indisputably to the reasonableness of such a prohibition where it applies
only to persons who are voluntarily engaged
in an activity from which they reap
financial benefit. I disagree, with respect, with the view expressed in the
majority judgment
that in the latter two cases the distinction was applied for
"a different reason", viz that the offences in question could only be
committed
by members of the affected class and not by their servants. In
Wunderlich
's case the tenor of the reasoning of DE VILLIERS JP at 1121-4
as a whole shows, in my opinion, that the point of the distinction
was to
explain why some prohibitions exclude
7
mens rea
and others
not; the learned Judge-President's observation at 1124 that "it would render the
law inoperative if the barman could do
with impunity what the licensee could not
do" was no more than a supplementary reason for justifying the finding that
mens rea
was not an element of the offence in question there. In
Dywili
's case the servant could not only commit the offence himself; he
actually did, and was charged and convicted together with his employer.
The
offence in question was the contravention of a prohibition contained in a War
Measure against the supply of petrol by a reseller
to any person without the
latter delivering petrol rationing coupons for it to the former. Both the owner
of a filling station and
his employee had been convicted of a contravention of
the prohibition. In an appeal, the sentence of the employee was in issue, but
not the conviction, and the main issue for decision was
8 the
correctness or otherwise of the conviction of the employer. In his judgment
dismissing the appeal MALAN J at 462-4 discussed
inter alia
the cases of
Nanabhai
and
Wunderlich supra
, pointing out in respect of the
latter that it was important that very strong reliance was placed in that case
on the fact that in
the section of the legislation in issue there "a special
class or section was intended to be struck"; and after reference to further
cases, including
Meltzer
's case
supra
, the judgment continued (at
464-5):
"Accepting these principles and in the absence of an absolute prohibition in
express terms in the regulations, can it be said that
the necessary inference to
be drawn from all the circumstances is that it was intended to be an absolute
prohibition and thus to
constitute a crime for an employer to sell through his
servant even though he was not aware of it and it was done without his
authority?
It is clear, in the present case, that the selling of the petrol had
been entrusted to the servant so what he did was within the
scope of his
authority and certainly was for
the
9
benefit of his employer.
The question which arises is whether
the public in general is affected or whether a limited class merely is intended
to be struck.
It is quite clear that it was intended to hit a limited class
only, the limited class being the resellers of petrol as defined in
reg. 1. The
mischief aimed at is to prevent petrol being sold without proper control. The
conservation of petrol and ensuring that
stocks are obtained through the proper
channels and distributed according to regulation are of the utmost public
importance because
any shortage of this commodity may result in paralysing all
transport communication between various parts of the country. The evil
of
maldistribution had therefore to be drastically kept under
control.
The next question is whether the mischief could be
successfully checked by holding merely the person who actually sells responsible
or whether it was necessary to go further and make the employer equally liable
for a contravention of this section. It is common
cause that there is a large
number of petrol filling-stations in the country and that commonly native
servants are in attendance
to supply petrol to the general public. It will,
therefore, be an extremely difficult if not an impossible task to control the
sale
of petrol by the natives in these circumstances. It will be almost
impossible, unless inspectors are placed at practically all the
garages and
filling-stations, to keep the
10
sale under control. It is suggested that the fact that the very high penalty
attached to a contravention would be a sufficient deterrent
and make it
unnecessary to hold the employer personally responsible as well. In my view the
severity of the penalty alone will not
be effective as a deterrent because the
sale of petrol may be continued illegally and almost uninterruptedly by a
frequent change
of sellers. It does not follow that a very severe penalty will
necessarily be inflicted upon the native nor does it follow that on
every
occasion on which a sale in contravention of the regulations the servant will be
caught. It becomes necessary in order to secure
effective control over the
supply of petrol to adopt drastic measures to combat the danger of illegal
disposal."
In his concurring judgment
BLACKWELL J said (at
466):
"The second appellant's appeal raises a question of law. He has raised the
question whether under the regulations as framed he can
be vicariously liable in
a criminal sense for the actions of his native employee. Sec. 9(1) provides for
the conduct of the business
of the sale of petrol. It lays certain prohibitions
upon a reseller of petrol and it lays certain prohibitions also upon the person
who acquired petrol from a reseller.
The
11
prohibitions in each case are naturally different but they are all
contained in the same section. It would have been quite possible
for the
draftsman to have drafted two different sections, one setting out the duties of
the reseller and another setting out the
duty of a person who acquires petrol
from the reseller, but in fact he has put them both in the same section. But
there is a world
of difference between the two classes. A reseller of petrol is
defined in the Act as a person who sells petrol by retail in the course
of or as
part of any business carried on by him. Therefore, a reseller of petrol is a
member of a small and limited class, the class
of persons who sell petrol as a
business. A person who acquires petrol includes naturally the whole petrol
buying community, that
is the potentially whole population of the Union. This
brings into sharp opposition the difference between a prohibition applying
to
the whole community, in which case there can be no vicarious liability, and a
prohibition applying solely to a limited class in
which case the Court is
entitled to infer that there may be vicarious liability and the very definition
of reseller that I have quoted
shows that it is contemplated that a reseller of
petrol will employ agents and servants to assist him in the carrying out of his
business."
In my view the importance of the distinc-
12 tion evident
from the above cases is in no way detracted from by the fact that in
Wunderlich
and
Dywili supra
the Court was directing attention to
the question of the vicarious liability of the employer for the acts of his
employee. The discussion
of vicarious liability was inseparably part and parcel
of the enquiry into the overriding question as to whether
mens rea
constituted an element of the offence. And it surely cannot be otherwise. In
criminal law a master is ordinarily not vicariously
liable for the acts of his
servant, precisely because the general rule is that a person is not criminally
liable unless he has
mens rea
(cf
Nanabhai
's case
supra
at
429). In general, and subject to contrary indications in the wording of the
particular legislative provision which is under consideration,
if
mens
rea
(be it
dolus
or
culpa
) is held to be an ingredient of the
offence, there can be no vicarious
13
liability. Conversely, if it is held that a person is vicariously liable
for the contravention of the prohibition by his servant,
it can only be on the
footing that his
mens rea
is excluded and strict liability imposed by the
prohibition. Speaking generally, therefore, in my opinion vicarious liability is
not an alternative to strict liability; it is merely one form of the
manifestation of it. (I shall revert to the question of vicarious
liabili-
ty.)
The importance of the distinction is underlined by the rationale which
underlies it, and which was explained by LORD DIPLOCK in
Sweet v Parsley
[1969] UKHL 1
;
[1969] 1 All ER 347
(HL) at 362. The passage is quoted in the majority
judgment, but for its clarity and cogency I must quote it again:
"Where penal provisions are of general application to the conduct of
ordinary citizens in the course of their everyday life, the presumption
is that
the standard
14
of care required of them in informing themselves of facts which would make
their conduct unlawful, is that of the familiar common
law duty of care. But
where the subject-matter of a statute is the regulation of a particular activity
involving potential danger
to public health, safety or morals in which citizens
have a choice whether they participate or not, the court may feel driven to
infer an intention of Parliament to impose, by penal sanctions, a higher duty of
care on those who choose to participate and to place
on them an obligation to
take whatever measures may be necessary to prevent the prohibited act, without
regard to those considerations
of cost or business practicability which play a
part in the determination of what would be required of them in order to fulfil
the
ordinary common law duty of care. But such an inference is not lightly to be
drawn, nor is there any room for it unless there is
something that the person on
whom the obligation is imposed can do directly or indirectly, by supervision or
inspection, by improvement
of his business methods or by exhorting those whom he
may be expected to influence or control, which will promote the observance
of
the obligation (see
Lim Chin Aik v. Reqinam
([1963]
1 All ER 223
at 228,
[1963] AC 160
at 174))."
(In passing I may
say that I consider the concluding
observations in this passage to be an effective
15 answer to
the argument frequently advanced by the opponents of strict liability that it
can have no deterrent effect.)
Against the strong pointers to strict
liability discussed above, consideration must now be given to the factors which
are regarded
in the majority judgment as pointing in the other direction. There
are two of them: the lawmaker's use of the words "cause or permit"
in the
by-law, and the lack of ease with which the prohibition may be contravened if
negligence is held to be a constituent element
of the offence. I shall deal with
each of these in turn.
In regard to the words "cause" and "permit" ,
I do not consider that either has an immutable connotation which must be applied
irrespective
of the context in which it is used. At first sight "permit" may
suggest knowledge of that which is permitted, and
16
some of the cases cited in the majority judgment can be said to have been
decided on the basis of the simple proposition that a person
can only be said to
permit an act if he has knowledge of its commission. But that simple proposition
is decidedly not universally
applied, as is manifest from many of the cases
cited in the majority judgment. I shall refer to a few of them. In
S v
Kritzinger en 'n Ander
1973 (1) SA 596
(C) at 598E the proposition that
permission implies knowledge of the relevant act, coupled with consent or
acquiescence, is qualified
by the statement that the knowledge can be actual or
constructive. The notion of constructive knowledge immediately detracts from
the
apparent logic of the simple proposition without the qualification. The cases,
both South African and English, which are reviewed
in
Kritzinger's
case
at 598H-600C show that the concept of constructive knowledge in this
context
17 has been interpreted in a large variety of ways. For
example, in
R v Webb
1911 TPD 280
at 282-3 we find that the words used
are "either knows of it or ought to have known of it", the latter apparently in
the sense of
negligence. But in
Davidson v Rex
1910 TPD 1236
at 1240
there is no mention of negligence in relation to the statement that permission
can be found to exist in the power to prevent
an act and the omission to do so.
In the majority judgment it is said in this regard that logically knowledge is
still required,
because a man cannot truly be said to have the power to prevent
something of which he has no knowledge. But that was not the way
the notion of
"power to prevent" was applied on the facts of that case, as I understand the
judgment of DE VILLIERS JP. Nor did knowledge
play any part in subsequent cases
in which the notion of "power to prevent" was applied, as in the concurring
judgment of CURLEWIS
J
18
in
Wunderlich
' s case
supra
at 1126-7, and in
Rex v
Combrink
1939 TPD 213
(which is referred to in the majority judgment in a
different context).
The last-mentioned case merits further
discussion. The appellant had been convicted of a contravention of section 9(4)
of Act 39 of
1930, which made it an offence for the holder of a motor carrier
certificate issued under the Act to contravene any condition of
such
certificate. The appellant was the holder of a certificate, clause (e) of which
read: "The owner and his servants shall not
permit any person to enter or be
carried upon the motor vehicle ... in excess of the number authorised ....". A
servant of the appellant
in charge of the motor vehicle concerned had allowed it
to be overloaded, thus breaching the condition of the certificate. The evidence
was that the appellant had taken steps to prevent overloading,
inter alia
by means of
19
express instructions to his servant and by the employment of inspectors
on the route. The appeal against the conviction was dismissed.
GREENBERG JP,
delivering the judgment of the Court, discussed
Wunderlich
's case
supra
and other cases, and proceeded to say (at 216):
"It would appear, therefore, that even if there is a prohibition against the
holder of a certificate permitting certain things to
be done, and merely against
the holder, he will be responsible if the person to whom he delegates the
authority - the person whom
he puts in the position of permitting or not
permitting - does permit, even though it is against the holder's instructions or
without
his knowledge. Consequently, even if sec. (e) of these provisions did
not contain the words 'and his servants,' it appears to me
that the owner of the
vehicle would be responsible if the person whom he has placed in charge permits
a contravention of the section."
It is
clear that the offence was treated as one of
strict liability, despite the presence of the word
"permit" in the certificate. With this case may be
20
contrasted the remarks made in
S v Mathebula
1972 (1) SA 495
(T)
at 497C, which are quoted in the majority judgment. They are to the effect that,
in relation to the offence of carrying on motor
carrier transportation without a
certificate, which is created by section 9(1) of the same Act (39 of 1930), the
use of the word
"permitted" in section 11(1)(a) (which created a presumption in
respect of that offence) was more consistent with an intention that
mens
rea
was to be an element of the offence. Supposing that those remarks were
correct, there is yet no conflict between the two cases. The
point of
distinction is very important. In
Mathebula
's case the prohibition in
section 9(1) was directed at "any person", and section 11(1)(a) is similarly
worded; in
Combrink
's case the legislative precept was directed only at
persons who were the holders of certificates (cf the further remarks in
Mathebula
's case at 499F-500B).
21
So we are brought right back to square one: the importance of the
distinction between prohibitions of general application and those
applying only
to the members of a specified class.
The conclusion to be drawn from
the above discussion is, I think, that it is unsafe to attempt to draw general
conclusions from the
cases as to the meaning of the words such as "cause" or
"permit" in any particular statutory provision. The only safe course is to
consider the context in which the words are used, with a view to ascertaining
the probable intention of the legislature. In the present
case, for the reasons
which appear from what has been said above, I do not consider that the context
of the bylaw requires the words
"cause or permit" to be interpreted as importing
mens rea
. In the majority judgment it is emphasized that the by-law
prohibits the distribution of
contaminated
food, and it is
argued
22
that one cannot logically be said to cause or permit
the distribution of such food without knowledge of
the contamination. However, the cases show that the
perceived logic is not the determining factor in
establishing the intention of the lawmaker. This is
well
illustrated by the case of
Gammon (Hong Kong)
Ltd and Others v Attorney General of Hong Kong
[1984]
2 All ER 503
(PC), which is cited in the majority
judgment. The issue was whether
mens rea
was an
element of the offences created by sub-sections
(2A)(b) and (28)(b) of a certain Buildings Ordinance.
Sub-section (2B) provided as follows:
"Any person ... directly concerned with any site formation works ... or
other form of building works who - (a) .... (b) carries out
... such works, or
authorizes or permits or has authorized or permitted such works to be carried
out, in such manner as is likely
to cause risk of injury to any person or damage
to any property, shall be guilty of an offence
...."
LORD SCARMAN said, at
511h-512a:
23
"The construction of sub-s (2B)(b) is more difficult, but their Lordships
are satisfied that it imposes strict liability for substantially
the same
reasons as those which have led them to this conclusion in respect of sub-s
(2A)(b). The offence created clearly requires
a degree of
mens rea
. A
person cannot carry out works or authorise or permit them to be carried out in a
certain manner unless he knows the manner which
he is employing, authorising or
permitting. The appellants laid great emphasis on the reference to 'permitting'
as an indication
of full
mens rea
. They referred their Lordships to
James & Son Ltd v Smee
[1954] 3 All ER 273
,
[1955] 1 QB 78.
But their
Lordships agree with the answer of the Court of Appeal to this point:
'We would therefore hold that the word 'permitting' in s 40(2B)(b) does
not by itself import
mens rea
in the sense of intention to cause a
likelihood of risk of injury or knowledge that such likelihood would result but
does require
that the defendant shall have had a power to control whether the
actus reus
(the carrying out of the works in the manner which in fact
causes a likelihood of risk of injury) shall be committed or not.'"
In the present case, it may be assumed that
24
an accused must have knowledge of the fact that food is being distributed
etc; but knowledge of the fact that it is contaminated is
not a necessary
corollary of the words "cause or permit". The accused "ought to know" of the
contamination (cf the remarks of LORD
SCARMAN at 511 f-g) , not in the sense of
negligence related to a particular incident, but in the general sense that as a
member
of the class he is under an absolute obligation to make it his business
to know.
1 turn to the question of the ease with which the by-law
could be contravened if
mens rea
were held to be an element of the
offence. I respectfully disagree with the view taken in the majority judgment
that the prohibition
will not be easily evaded if
mens rea
in the form of
culpa
were required. My view accords with that expressed by the Court
a quo
in the passages of its judgment at 564G and 565B-C, which are
quoted in the majority judg-
25
ment. The force of the reasoning in those passages is not materially
diminished by the postulate of negligence as the requisite form
of
mens
rea
. As it was pointed out, the contamination would in many instances not be
apparent upon visual examination. In my opinion it would
not make the by-law
materially less difficult to enforce if, instead of requiring proof of knowledge
by the accused of the contamination,
it is regarded as enough if he ought to
have been aware of it, or should have foreseen the possibility of its occurring
and failed
to take all reasonable precautions to prevent it. The nature of the
activity which is prohibited is such that contraventions of the
by-law can be
committed in a multitude of ways which would render it exceedingly difficult,
and in many instances impossible, to
bring home a charge on the basis of
negligence. I can think of many examples, but let us take the facts of
26
the present case as an illustration. The bee in the bottle was distinctly
visible, but the appellant cannot be blamed for not having
been aware of its
presence there. It should have foreseen the possibility of such a thing
happening, because of its past experience,
but could it have prevented it by
taking reasonable precautions? The evidence for the appellant was that its
equipment and the measures
it takes to prevent contamination are so elaborate,
sophisticated and expensive that it was "commercially impossible" to do more
or
to achieve a 100% elimination of the possibility of foreign bodies getting into
the bottles. The details given in the evidence
lay peculiarly within the
knowledge of the appellant. Such evidence is ordinarily very difficult to
challenge, and in fact the prosecutor
in this instance did not really attempt to
do so (he sought rather to show negligence on the part of the appellant's
ser-
27 vants, a matter which will be referred to presently). In the
majority judgment it is found possible to hold that the appellant
was negligent
in respect of the speed at which bottles passed the inspectors at the final
inspection stage. The appellant's witness
was not challenged, in the face of his
evidence as to the "commercial impossibility" of taking further steps, on the
point as to
whether it would have been a
reasonable
precaution to slow
down the passage of the bottles in the plant. However that may be, the facts of
this case demonstrate how difficult
it must frequently be for the prosecution to
establish negligence in respect of a contravention of the by-law. And if the
prosecution
cannot prove negligence and the accused consequently goes free, the
remarks in the concluding part of the passage of LORD DIPLOCK's
judgment in
Sweet v Parsley supra
, quoted earlier, lose much of their force; and so,
in my view, does
28
the by-law.
It is necessary in this context to revert to the question of vicarious
liability. It is seen in the majority judgment as a lesser
evil than strict
liability. Again, with respect, I am unable to agree. As I have indicated, I
regard vicarious liability as but one
form of strict liability. Notionally it
may be possible to separate strict liability in the form of vicarious liability
from the
remaining field of strict liability (i e where the acts of employees
are not involved), but I can perceive no practical profit in
doing so. It does
not appear from the majority judgment whether vicarious liability is postulated
on the premise that there must
be
mens rea
on the part of the servant. If
it is, the same difficulties of proving negligence on the part of the servant
will certainly be encountered
as in the case of the employer. Let us take
again
29
the facts of the present case. The prosecutor did attempt to show, by
cross-examination of the appellant's witness, that its inspectors
might have
been negligent in not having kept a proper look-out, as it were, but the
inspectors concerned were not called as witnesses,
and in the absence of
evidence by them the prospect of proving negligence on their part was remote,
bearing in mind also the comments
in the majority judgment about expecting too
much of the human eye. (In passing, it may be noted that the references in the
judgment
of the Court
a quo
at 567A and 567C to the negligence of the
appellant's servants were no more than general considerations advanced in
support of the
view that
mens rea
on the part of the appellant was not an
element of the offence; they were obviously not meant to constitute a finding of
negligence
on the part of the servants on the particular facts of this case.) In
any event,
30
if negligence on the part of a servant can be established, that still
does not prove
mens rea
on the part of the employer. If vicarious
liability is postulated on the premise that negligence of the servant need not
be shown,
then also,
a fortiori
, it is a case of strict liability. There
is no doubt that strict liability can only be found to exist where there are
strong and
clear indications of the legislature's intention to exclude the
general principle that there can be no criminal liability without
mens
rea
. If such indications are found to be present, it means that there are
good and sufficient reasons for holding an accused strictly
liable. When once
that point is reached, in my view, it is not evil to give effect to the
legislature's intention, but good. There
is then no reason for doing so
halfheartedly.
One must, of course, face up to the
fact
31
that strict liability can occasionally produce undesirable results. If a
retailer acquires a tin of food from a wholesaler with contamination
hidden
inside it and sells it, it is undesirable that he should be convicted of an
offence. But in cases of that kind it is highly
unlikely that those in charge of
enforcing the by-law will lay a charge against the middle-man instead of going
to the source of
the contamination, the manufacturer. And if perchance the
retailer is prosecuted and convicted, there is little doubt that no greater
harm
will befall him than a caution and discharge or perhaps a nominal fine. In my
judgment the undesirable results that may come
about in such exceptional cases
are mild in comparison to the much greater potential harm that may eventuate
from holding that
mens rea
is an element of the offence and thus
depriving the by-law of much of its effectiveness.
32
In conclusion I would add this. I am aware that many voices are raised
against the concept of criminal liability without
mens rea
. I have
studied the article of prof C R Snyman in 1993 Tydskrif vir Hed R-H Reg at 132,
in which the judgment of the Court
a quo
in this case is criticized. I
have tried in this judgment to address and to answer the author's points of
criticism. My view is that
strict liability should only be found in cases where
there are compelling reasons to do so, but that the circumstances of this case
proclaim the need to recognize that rare exceptions to the general rule of
mens rea
must be allowed, for the sake of the proper, practical
administration of criminal justice. Indeed, if strict liability is not accepted
on the facts of this case, I have difficulty in visualizing any case at all
where strict liability can be found to exist, apart from
express provisions
which are plainly to
33
that effect. Such a result will no doubt gladden the hearts of the
purists, but speaking for myself, I am saddened by it, for I am
convinced that
it leaves our law the poorer.
In the result I hold that
mens
rea
is not an element of the offence with which the appellant was charged,
and on that ground I concur in the order that the appeal be
dismissed.
A S BOTHA JA NIENABER JA
CONCURS