S v DU TOIT [1981] 3 All SA 633 (C)

Division: Judgment Date: Case No: Before: Parallel Citation: Cape of Good Hope Provincial Division 4 December 1980 Not Recorded Lategan J, Baker J 1981 (2) SA 33 (C) Keywords Cases referred to Judgment

Keywords Criminal Law Intention Criminal procedure - Sentence - Factors affecting - Ignorance of the law Motor vehicle - Fuel restriction regulations - Conveying fuel without permit - Absolute criminal liability Cases referred to: S v Arenstein 1964 (1) SA 361 (AD) - Considered S v De Blom1977 (3) SA 513 (AD) - Discussed, explained and applied S v Fouche 1974 (1) SA 96 (AD) - Applied S v Qumbella 1966 (4) SA 356 (AD) - Referred to S v Rabson 1972 (4) SA 574 (T) - Referred to S v Tsochlas 1974 (1) SA 565 (AD) - Referred to S v Wandrag 1970 (3) SA 151 (O) - Referred to S v Willemse 1975 (1) SA 84 (C) - Considered Judgment BAKER J: The appellant in this matter was charged in the magistrate's court, Riversdale, with a contravention of reg 14 (2) published in Regulation Gazette 2608 or Government Gazette 5898 of 3 March 1978 under Government Notice R386. These are the "Regulations in respect of the Saving of Petroleum Products" promulgated under Act 120 of 1977. Reg 14 (2) provides that:
"Save under the authority of a permit issued in terms of these regulations and subject to any relevant condition No person shall transport petrol in a container other than the tank of the motor vehicle or vessel." The Afrikaans text refers to "a" motor vehicle or vessel, and it seems to me (having regard to the wording of other regulations in this Government Notice) that the English text should be read the same way - not that it matters. "Vessel" means a motor-boat as defined in reg 1.19.2 to 1.19.2.3.

The facts are briefly that on 17 November 1978 and on the national road near Riversdale appellant was found to be in possession of two plastic containers wherein there were 50 litres of petrol. He had no permit to convey this petrol. No evidence was led. Appellant pleaded not guilty. In terms of s 115 of the Criminal Procedure Act 51 of 1977 he explained that he had pleaded not guilty:
"Omdat ek beweer dat daar afwesigheid van skuld in die geval was. Ek erken dat ek die 50 liter petrol in my besit gehad het. Ek erken dat ek nie 'n permit gehad het vir die besit van die petrol nie. Ek erken dat die petrol in houers in my voertuig was. Ek erken dat ek op 17 November 1978 op die nasionale pad te Riversdale gevang was met die petrol in my besit."

The prosecutor in his address to the court said that he did not intend to lead evidence, for the evidence at his disposal was to the same effect as the abovementioned admissions which the appellant

agreed should be noted and should stand as evidence. The prosecutor submitted that there was no need for him to prove either intent or culpa ("opset of skuld"). The mere conveyance of this petrol in containers other than the tank of the vehicle was evidence of the commission of the offence. He submitted that the onus was on the appellant to prove that he was not guilty even though he was not in possession of a permit. The appellant did not wish to call any witnesses but elected to give evidence under oath himself. He said the following:
"Ek is die beskuldigde in die saak. Die ekstra brandstof het ek die spesifieke aand vervoer in opdrag van my werkgewer vanaf Stellenbosch na Stilbaai. Die bedoeling was op geen stadium om in die motor wat ek bestuur het se tenk gegooi te word vir verbruik om verder die nag te ry as wat een tenk brandstof my sou geneem het vanaf ses uur die aand nie. Ek was nie bewus daarvan dat die blote vervoer van brandstof 'n oortreding op sigself is nie. Ek was wel daarvan bewus dat indien 'n mens addisionele brandstof benodig vir jou reis buite verkoopsure te verleng moet jy wel die brandstof gebruik wat jy vervoer, jy moet in die besit van 'n geldige permit wees. Dit was geensins my bedoeling om die brandstof buitensure te gebruik nie."

In cross-examination it emerged that he knew that if he wanted to obtain petrol on a Sunday or after 6 pm he required a permit to do so. He says that he had acquired this knowledge because during the period of the energy crisis in this country it was known to every citizen by reason of publication in every newspaper in the country. The prosecutor put it to him that he also knew that only 10 litres of petrol could be carried by the shortest route to one's home for use in a lawnmower. Appellant replied: "Nee, ek het nie geweet die vyf liter toelaatbaar was nie vir 'n grassnyer nie." He probably had in mind a previous regulation repealed in Government Notice R384 published in the same Gazette abovementioned which confined private domestic use of petrol to five litres. The prosecutor, of course, was incorrect in thinking that the use of such petrol was confined to use in a lawnmower and appellant was correct when he suggested that it was not so confined. It appears that appellant was under the impression that in all cases where a permit was required it was granted because the person requiring the petrol wanted to use it in his car. He said that it was not his intention so to use it. It is undisputed that he was carrying this petrol on orders from his employer between Stellenbosch and Stilbay, where his employer had a motorboat with an inboard engine. The employer wished to use it on the following day. He was not aware that the owner of a vessel could get a permit to carry extra petrol for use in such a vessel. The basis of his defence clearly was that he did not know that the mere carriage of petrol in containers was an offence. In the magistrate's court and before us on appeal he relied upon ignorance of the law. He cited S v De Blom1977 (3) SA 513 (A) . He submitted that intent was an element of the offence and that the State had not proved that he had the necessary intent to commit the offence. He told the court a quo that he had no knowledge of this particular regulation, the regulations as a whole not having come to his notice. He stated in his address to the court that he worked for a bus company but did not state in what capacity. He admitted that from time to time he had to do with fuel regulations. He stated that he had enquired at his local magistrate's office at Stellenbosch as to the regulations affecting his business, and it appears that someone (not specified in evidence) had told him of four circumstances in which a permit had to be obtained for petrol. It is not clear from his words to the court what these circumstances were. He also stated that he had in the past been given permits for the business. It is clear from his address to the court that he had not read the Government Notice R386. His submission was that as a normal citizen (normale burger) in this country he did not think that he could be expected to read every Government Gazette, and submitted that as far as was practically possible for him he had found out what the regulations were and said that he was genuinely under the belief that the mere carriage of petrol was not an offence. In spite of all this he was found guilty and sentenced to a fine of R250 or 100 days' imprisonment. He appealed on the following grounds: "1. 2. Die landdros het fouteer deur te bevind dat art 14 (2) 'n absolute verbod is. Die landdros het fouteer deur te bevind dat S v De Blom1977 (3) SA 513 (A) nie die ignorantia juris rel afgeskaf het nie.

3.

Die landdros het fouteer deur te bevind dat die Staat nie skuld hoef te bewys nie."

Shortly before the date of hearing of the appeal he submitted heads of argument signed by himself on 30 October 1980 and apparently drawn by someone with some knowledge of legal procedure. These heads contain certain allegedly amended grounds of appeal which do not vary in essence from the original grounds filed by him on 24 January 1979, save that they contain the extra ground that the sentence was excessive for certain reasons which I shall mention later. As a general rule the State must prove intent in prosecutions for contraventions of statutory prohibitions. The matter was discussed in S v Arenstein 1964 (1) SA 361 (A) at 365C - D where BOTHA JA said the following:
"The general rule is that actus non facit reum nisi mens sit rea, and that in construing 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 AD 121 at 125, 126; R v Wallendorf and Others 1920 AD 383 at 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 126).)"

There is nothing in the regulations to indicate that innocent violations thereof were meant to be punishable. As far as the parent Act (Act 120 of 1977) is concerned, s 2 (1) provides, inter alia, that the Minister may by regulation (a) for the purpose of ensuring a saving of petroleum products regulate in such manner as he may deem fit, or prohibit (b) the transportation of any petroleum product specified. "Petroleum product" means, inter alia, any petroleum fuel (s 1 (iv)). This plainly includes petrol; and the regulations in Government Notice R386 were made by the authorised Minister in terms of s 2 of the Act (see preamble to the Government Notice). Section 7 (1) of the Act provides that an employer may be convicted and sentenced for any act of an employee which constitutes an offence under the Act unless he proves (a) that he did not permit or connive at such act; (b) that he took all reasonable measures to prevent such act; and (c) that the act, whether legal or illegal, which constitutes an offence under the Act did not under any condition or in any circumstances fall within the course of employment or the scope of the authority of the employee concerned. Section 7 (2) provides that for the purposes of s 7 (1) (b) above the fact that the employer forbade the act shall not by itself be regarded as sufficient proof that the employer took all reasonable measures to prevent the act. Section 7 (3) provides that the provisions of s 7 (1) shall not relieve the employee concerned of liability to be convicted and sentenced in respect of the act in question. It is under this sub-section that appellant was made liable for an act ordered or authorised by his employer, I presume. Section 12 (1) provides for a fine not exceeding R2 000 or imprisonment not exceeding two years, or both, for a contravention of any provision of the Act (which would include a contravention of any regulation validly made under the Act). In addition, with certain exceptions not applicable to this case, the court may suspend or cancel the driver's licence of the person who committed the offence by using, or by means or with the aid of, a motor vehicle; or may confiscate any property of the person convicted which was used to commit the offence in question or by means or with the aid of which the offence in question was committed (s 12 (2)). This would include appellant's motor car. It is clear that the Legislature views wastage of petrol in a most serious light. Bearing in mind the absence of any indication in the Act that mens rea is to be excluded when the question of guilt is considered; the fact that the Act (and regulations) is designed to secure the minimum use (or maximum saving) of petrol; the severity of the penalties for contraventions; and the ease with which the prohibition contained in reg 14 (2) could be evaded if the alleged offender could plead ignorance of its contents, it seems to me that the Legislature did not intend an innocent contravention of reg 14 (2) to be punishable. Mens rea is therefore an essential element in the

offences created by reg 14 (2). The same may, incidentally, be said of all the prohibitions contained in these regulations (see, eg, reg 7 re fake information in certain registers; reg 8 - re "topping up" one's tank or drawing petrol from it; reg 14 (1) - as to how much petrol one may keep in a container at home; and a number of others which I do not propose to detail here). Further as to the question whether mens rea is essential to a finding of guilt in this type of case, see S v Qumbella 1966 (4) SA 356 (A) ; E M Burchell in Gedenkbundel: H L Swanepoel 1976 ed J A Coetzee (article entitled "Onus of Proof of Mens Rea in Statutory Offences") at 178 - 181; Annual Survey of South African Law 1977 at 413 - 4 (General) and 415 - 7 (Statutory Offences). As to the matter of onus, it is now clear that the onus of proving mens rea is on the prosecution throughout (S v De Blom1977 (3) SA 513 (A) discussed in 1977 Annual Survey at 416 - 417). There is no onus on the accused (in the strict sense) where mens rea takes the form of culpa, to prove that he was not negligent once the State has proved that his acts fell within the statutory prohibition (S v Qumbella (supra); S v Fouche 1974 (1) SA 96 (A) discussed in 1978 Annual Survey at 654). The same applies where mens rea takes the form of dolus (S v De Blom (supra)). But when the State has proved (or the accused has admitted) the statutory contravention charged, there lies upon the accused what may be called an evidentiary onus to produce evidence in rebuttal of the State's case. In 1974 Annual Survey 338 and in 1976 Annual Survey 409 there are discussions of this onus. They are referred to in 1977 Annual Survey at 417, where Burchell and Milton observe that:
"The disharmony was resolved in S v De Blom... where RUMPFF CJ took the last-mentioned view. The learned CHIEF JUSTICE stated the law in the following significant passage"

(the learned authors quote the English version from Juta's Translations but the original text runs as follows):
"In 'n saak soos die onderhawige moet aanvaar word dat wanneer die Staat getuienis voorgel het dat die verbode handeling begaan is, 'n afleiding gedoen kan word, na gelang van omstandighede, dat die beskuldigde willens en wetens (dws ook met onregmatigheidsbewussyn) die handeling begaan het. Indien die beskuldigde op 'n verweer wil steun, soos in die onderhawige geval, dat sy nie geweet het dat haar handeling onregmatig was nie, kan haar verweer slaag indien van die getuienis as geheel afgelei kan word dat daar 'n redelike moontlikheid bestaan dat sy nie geweet het dat haar handeling onregmatig was nie; en verder, wanneer slegs culpa en nie dolus alleen as mens rea vereis word nie, daar ook 'n redelike moontliheid bestaan dat sy nie juridies geblameer kan word nie, dws dat, wat al die omstandighede betref, dit redelik moontlik is dat sy met die nodige omsigtigheid te werk gegaan het om haar op hoogte te stel van wat van haar verwag word in verband met die vraag of toestemming om geld uit te neem nodig is of nie. Sou daar op die getuienis as geheel, dws insluitende die getuienis dat die handeling gepleeg is, 'n redelike twyfel bestaan of daar wel mens rea, in die sin soos hierbo beskryf, by die beskuldigde bestaan het, sou die Staat sy saak nie sonder redelike twyfel bewys het nie."

(S v De Blom at 532E - H.) The passage quoted indicates to my mind that, once a prima facie contravention has been made out, the accused in order to escape liability must show that in all the circumstances he acted with the circumspection required by the relevant enactment or regulations in finding out what was required of him in order not to commit that contravention. I refer also to S v Fouche (supra at 101H - 102 first two lines), where the learned CHIEF JUSTICE put the matter as follows:
"Selfs wanneer ges word dat daar 'n las op die beskuldigde rus om 'n sgn prima facie- saak van die Staat te weerl, moet die inhoud van daardie las nie verkeerd vertolk word nie. Dit beteken dat die inhoud van die las sodanig is dat die beskuldigde hom van die las kwyt indien hy getuienis voorl waardeur die getuienis, in sy geheel beskou, 'n redelike moontlikheid skep dat daar geen culpa was nie, maw dit is voldoende as die beskuldigde getuienis voorl waardeur daar 'n twyfel ontstaan of daar culpa was of nie. Slaag die beskuldigde daarin om sodanige getuienis voor te l, het die Staat sy saak nie sonder redelike twyfel bewys nie."

The next question that arises is: what degree of mens rea does the State have to prove when prosecuting under the "petrol regulations"? In my opinion, for the following reasons, culpa is sufficient though appellant contended that dolus - a deliberate disobedience of reg 14 (2) or alternatively a deliberate refusal to acquaint himself with the full text of the regulations well knowing that they existed - is required. Mr Viljoen, for the State, submitted that culpa was sufficient. I have already quoted the passage from Arenstein's case which I think provides the solution to this question. In my view the following considerations indicate that a high degree of care is required of motorists in this country when they are engaged upon the activity of driving their cars: The object of

the Act and regulations is to save petrol at a time when that product is scarce, expensive, requires the expenditure of foreign exchange to obtain it, and simply cannot be wasted on joy-riding or speeding. The Act was passed for the protection of a most vital national necessity. The more petrol is wasted, the less there will be available for military defence purposes and the more crude oil will have to be imported to make up the deficit until this country succeeds in producing its own oil from coal or other substances. The saving of petroleum products is clearly vital in the interests of national agricultural and industrial productivity and defence. These objects can be defeated by careless wastage of a product which is dwindling away the world over as oil fields are exhausted, for it must be remembered that crude oil is a wasting asset; it cannot be grown like sunflowers. Unless motorists are compelled to exercise restraint in the use of petroleum products this country might land in trouble. It is therefore unlikely that the Legislature intended that only deliberate wastage of petroleum products should be punished. Disobedience of the savings-laws is visited with heavy penalties and possible confiscation of motor vehicles. All this indicates to me that a high degree of care in the use of petrol is required of motorists (compare the language of BOTHA JA in Arenstein's case at 366G - H). I therefore conclude that a mere negligent failure by a motorist to obey the regulations amounts to an offence; ie the mens rea for this offence can consist in culpa and does not comprise dolus only, as appellant contended. Further, on the subject of how to determine what degree of mens rea constitutes the essential element for liability, see S v Wandrag 1970 (3) SA 151 (O) at 159F - G and S v Tsochlas 1974 (1) SA 565 (A) at 573E. Both passages lay down that, where an accused person knows that he ought to be circumspect in embarking upon a course of conduct, and he fails to be so, he is guilty of culpa and therefore possesses the necessary mens rea. Appellant submitted that S v De Blom had abolished the ignorantia juris rule entirely. I am not satisfied that it did. As I read the judgment, the Appellate Division rejected the clich "Everyone is presumed to know the law" - and rightly rejected it, with respect. But it did not decide that ignorance of the law is an excuse even though that ignorance is culpable. The passage at 533D - E seems to me to preserve this much of the maxim "ignorantia juris haud (or neminem) excusat". Appellant in the De Blom case succeeded on appeal in regard to the count involving taking her jewels out of the country because she had a reasonable belief that it was no offence to do so. A reasonable belief negates culpa. It has no part in dolus, which was present in the other charge, ie the removal of money without permission. In that context it was shown by the State that she knew that she needed permission and knew that it had not been given by the Exchange Control authorities (at 532H). That was a case of dolus, not of culpable ignorance (culpa). In an informative article in 1977 SA Journal of Criminal Law and Criminology November issue vol 1 No 3 Prof Max Loubser says this:
"Finally the Court considered whether knowledge of unlawfulness of the conduct in question was an element of the required mens rea. In this regard it held that the maxim 'ignorance of the law is no excuse' is legally unfounded in the light of the present day concept of mens rea and is no longer applicable. However, the Court approved of the approach that it can be expected of a person who involves himself in a particular sphere to keep himself informed of the legal provisions applicable to that particular sphere. Failure to do so can amount to culpa. Applying these principles, the Court found that the accused took out the money with knowledge of unlawfulness, ie with the necessary mens rea. As far as the taking out of the jewels was concerned, the Court found there was a reasonable possibility that the accused had acted without knowledge of unlawfulness and her appeal succeeded on that count."

I agree with the learned author's analysis of this aspect of S v De Blom. An unreasonable ignorance of the law does not exclude culpa where culpa is the basis of mens rea. The final question that arises in this appeal is whether appellant's admitted failure to read the appropriate Government Notice, of whose existence he was aware, amounts to culpable negligence. In my opinion it does. Appellant was not ignorant of what he was carrying in his car: there is no question of ignorance or mistake of fact here. He was on his own admission ignorant of the existence of reg 14 (2): his is therefore a case of ignorance or mistake of law. In this context I think the extract from S v De Blom (supra at 531H - 532B) is apposite. Quoting an article by D A Botha in 1975 THRHR vol 38 on "Verwytbare Regsonkunde en die Skuldsoort Culpa " at 41 et seq, the learned CHIEF JUSTICE reproduced this passage by the author:
"In ons regspraak is daar nou minstens twee riglyne vir die bepaling van culpa ten opsigte van die regmatigheid van die dader se optrede. In Wandrag het die Hof bevind dat daar redelikerwys van 'n werkgewer in die boubedryf verwag kan word om homself op hoogte te hou van die regsvoorskrifte wat

betrekking het op die indiensneming van werkers in die boubedryf. Versuim hy om dit te doen, kan sy gevolglike regsonkunde tot die verwyt van onagsaamheid lei. Dieselfde sal vermoedelik geld vir 'n persoon wat hom in 'n moderne staat, waarin talle fasette van die regsonderdaan se doen en late deur regsvoorskrifte beheer word, op 'n besondere gebied begeef. Van die motorhawe-eienaar kan seker redelikerwys verwag word dat hy vertroud moet wees met wetgewing wat op sy vak van toepassing is, en van die hengelaar kan seker verwag word om vas te stel wat die hengelregulasies veroorloof en verbied. Die persoon wat 'n transaksie in diamante wil aangaan, en wat weet dat die diamantbedryf deur streng wetgewing gekontroleer word, kan tereg verwyt word as hy, soos in Tsochlas, versuim om regsadvies in te win en dientengevolge wederregtelik handel."

In the next line the learned CHIEF JUSTICE expressly approved this passage: "Ek dink dat hierdie benadering onderskryf kan word" (at 532B). In S v Wandrag 1970 (3) SA 151 (O) a building contractor was found guilty of contravening certain regulations relating to what races could be employed in certain departments of the building industry. He was held to have failed to have found out what the regulations were which governed this aspect of the building industry; that his mens rea consisted in culpa; and that his failure amounted to culpable ignorance of the law.
"Wat klagtes 1 - 4 betref was appellant se verweer dat hy bona fide maar verkeerdelik, as gevolg van 'n blykbare misverstand tussen hom en die Departement van Arbeid, onder die indruk was dat hy geregtig was om Kleurlinge as messelaars in diens te neem. Die appellant was bewus dat die aangeleentheid deur wetgewing gerel is, en dat hy moes vasstel wat die werklike posisie is. Ek is op die getuienis tevrede dat 'n 'redelike man', wat doelbewus gaan om inligting van die betrokke Department te verkry, nie onder so 'n misverstand sou kom nie. Volgens appellant se getuienis weet hy nie eintlik wat mnr Grobler hom ges het hy mag doen nie. Appellant het nie aan die vereiste standaard voldoen nie, en na my mening het die Staat bo redelike twyfel bewys dat hy nalatig was en derhalwe skuldig is aan klagtes 1 tot 4."

(See at 160A - D.) It is clear that in S v De Blom this approach was approved of. In S v Rabson 1972 (4) SA 574 (T) the defence of ignorance or mistake of law succeeded because the appellant satisfied the Court of appeal (the TPD) that his ignorance of the regulations relating to the importation of certain wild flower plants from Mocambique was reasonable; he had made all the inquiries as to the regulations governing importation that he could reasonably have been expected to make. His error was that he was wrong in his interpretation of s 82 (1) of Ord 17 of 1967 (T) which forbade imports of protected plants without a permit from the Administrator. He knew of this section, but applied it wrongly. That case is plainly distinguishable from the present, where appellant on his own admission knew of the existence of "petrol regulations" but had never bothered to read them, relying instead on some vaguely stated information obtained from the magistrate's office at Stellenbosch. He is in an even more culpable situation than the appellant in S v Willemse 1975 (1) SA 84 (C) . In Willemse's case the appellant had unlawfully increased the rent of premises let by him to two tenants. He testified that he had made enquiries from "officials" at the offices of the Rent Board and that "they" (unspecified and unnamed except for someone called Du Toit) had told him that certain alterations to the building that he had effected had brought about such a change of identity in the building that the Act no longer applied to it. He thereupon increased the rent without reference to the Board.
"Under cross-examination, however, it appeared that there was only one person with whom he discussed the matter, viz a Mr Du Toit (no other officials being named or otherwise indicated by him) and that he did not even know in what capacity this person was employed by the Rent Board. Assuming that Du Toit did give the appellant the legal advice that the alterations effected by him to his property were such as to cause it to be released from the control of the Act and that the appellant bona fide accepted this advice, it was - in my opinion - grossly negligent of the latter to allow himself to be guided in such an important matter as that with which he was concerned, by the opinion of an official of unknown status. I am satisfied that he failed to take the precautions which would have been observed by a reasonable man in his position to exclude the possibility that he would, by increasing the rent payable in respect of his property, be contravening the provisions of the Act. In other words, I am satisfied that it was established at the trial that he had the mens rea required for a contravention of s 2 (1) (a)."

It is to be noted that what appellant in the present case was told did not include an assurance that he could carry petrol in a can in his car without a permit. Had he been told this, his position might well have been different, depending on his source of information. As it is, he is in the position of Mr Wandrag, who was quite unsure of what he had been told by the departmental officials. Appellant here

seems to have been told of four situations where he needed a permit, but never enquired about carrying petrol in a can in his car. He certainly did not discharge the "evidentiary onus " of adducing evidence that he had asked for the whole of the regulations to be explained to him. Nor did he buy or borrow a copy of the Gazette. As said earlier, Tsochlas' case (1974 (1) SA 565) was also approved by the Appellate Division (see S v De Blom at 531G, 532B). In that case the appellant had bought uncut diamonds in this country, delivery and payment to be made in Zambia (outside this country). Mens rea in the form of culpa had to be proved by the State. The State did this, the culpa being appellant's lack of circumspection in entering into the transaction when he knew that uncut diamonds could not lawfully be bought here without a permit, and knew that he had no permit, but never bothered to check with his lawyers whether his scheme (to pay and take delivery outside this country) was lawful. The failure to check on the law was culpa. I think that the same applies here. If a builder (Wandrag) or a gemdealer (Tsochlas) or a landlord (Willemse) or a trout-fisherman or anyone else engaging in an activity which to his knowledge is governed by regulations or laws designed to achieve a known object and which carry or may carry severe penalties for infringements is expected to acquaint himself with those regulations or laws, then in my view the same is expected of a motorist who drives a car today (or in 1978), five (or three) years after the petrol scarcity assumed world-wide prominence and the Government of this country used every means available (press, radio and what not) to bring to the notice of the public - and in particular the motoring public - that there are certain drastic restrictions upon the use and misuse of petrol, the breach of which constituted offences bringing with them severe consequences, both penal and confiscatory. Every person in this country who can read or hear must have been aware from the press and from the SA Broadcasting Corporation that there have been, since 1975 at least, regulations in existence from time to time dealing with this most important national problem. I refer in particular to the regulations repealed on 3 March 1978, namely Government Notice R1741 of 12 September 1975 dealing with aviation fuel and Government Notice R1974 of 22 October 1976 dealing with the disposal or use of motor vehicle fuel. The set of regulations in that Government Notice cover much the same ground as the 1978 Government Notice applicable to this case. That Government Notice in reg 3 (2) (b) carried a provision identical with reg 14 (2) of the Government Notice under discussion; and also made it an offence for anyone to have in his possession more than five litres of petrol in a container other than his petrol tank without a permit. And finally Government Notice R2489 of 10 December 1976 which added to Government Notice R1974 of that year (reg 12 in Government Notice R2489 defined more closely the offence of transporting petrol in a container other than the tank of a motor vehicle or seafaring vessel without a permit). In my view anyone who failed to acquaint himself fully with the contents of the present regulation, bearing in mind the prominence given to it and its predecessors in the news media, is guilty of negligence. I consider that in the present instance the prosecution had shown on appellant's own admission that he knew of the existence of the current set of regulations and that he had not taken the trouble to discover for himself what those regulations laid down. In the circumstances I think the conviction was sound, and the appellant's excuse is unsound. The appeal against the conviction fails. As far as concerns the sentence, however, I am of opinion that in all the circumstances it was too severe. The appellant's grounds for appealing against his sentence seem to me to be good. They are: 1. 2. 3. That there was no deliberate flouting of the regulation. He acted quite bona fide in conveying the petrol at the request of his employer. That he had no intention in frustrating the purpose of the regulations as he understood them (ie he never used the petrol). That he is a first offender.

4.

There was in fact no wastage of petrol in this case, as far as the record shows. It was intended for use in a motorboat, which is a permissible use provided the operator of that boat has a permit. His employer could just as easily have bought petrol in Stilbay on the day when appellant was caught carrying the 50 litres, and indeed on the following day as well. For some reason, as appellant stated in his argument to this Court, his employer asked him to take petrol from the bus company's premises and bring it to him at Stilbay. This has, strictly speaking, no relevance, but it does indicate that the appellant was in no sense, as far as I can ascertain, guilty of wasting petrol, which is the thing which the regulations seek to prevent. In the circumstances, the sentence is suspended for three years on condition that appellant does not in that period contravene any provision of the currently applicable regulations promulgated under Act 120 of 1977. LATEGAN J concurred. Appearances In person - Advocate/s for the Appellant/s WC Viljoen - Advocate/s for the State