versus

2.
THE
MINISTER OF SEA FISHERIES

AND
MARINE RESOURCES OF NAMIBIA SECOND
RESPONDENT

CORAM: STRYDOM,
J.P. et
FRANK,
J.

Heard
on: 1993/11/8,9 Delivered on: 1994/04/08

JUDGMENT

STRYDOM,
J.P.: By
Act 3 of 1990, Section 4(1),

Parliament
of the Republic of Namibia enacted that:

"The
sea outside the territorial sea of Namibia but within a distance of
two hundred nautical miles from the low water line or any other base
line from which the territorial sea was measured shall constitute
the exclusive economic zone of Namibia."

Further,
in terms of the provisions of the said Act 3
of
1990, various amendments were effected to the Sea Fisheries

Act,
1973 (Act 58 of 1973). Inter
alia
the whole section 17 of Act 58 of 1973 was replaced with a new
section 17 which provides for the forfeiture of various items,
including any fishing boat or vessel, by the court convicting any
person of any offence in terms of the Act.

On
the 24th November 1990 the vessel "Frioleiro" was arrested
by the Namibian authorities in the Namibian Exclusive Economic Zone.
The master of the vessel, one Carlos M. Perez Redondo, together with
two others, were charged with a contravention of section 22A(4)(b)
of Act 58 of 1973 read with the provisions of the Territorial Sea
and Exclusive Economic Zone of Namibia Act, no. 3 of 1990 in that on
or about or between 18 November, 1990 and 24 November, 1990 the
accused wrongfully and unlawfully used the said vessel as a fishing
boat and/or factory within the Exclusive Economic Zone of Namibia.

On
the 18th March, 1991 the said Perez Redondo was convicted in
relation to fishing operations within the Exclusive Economic Zone
during the period 20 to 24 November, 1990. On the 10th April, he was
sentenced and the vessel "Frioleiro" was forfeited to the
State together with all its equipment and implements. An appeal,
which was lodged to the Supreme Court, was dismissed on the 18th
June 1992. Although the question regarding the forfeiture of the
"Frioleiro" formed part of this appeal the matter was not
argued as the appellant, Perez Redondo, did not have the necessary
locus. standi.

In
the meantime an application was launched by the applicant for the
setting aside of the forfeiture order. This application was enroled
for the 25 November 1991 but was withdrawn before the date of
hearing. Thereafter, and on the 19th February, 1993, a fresh
application was launched by the applicant by Notice of Motion
wherein, once again, it was claimed to set aside the declaration of
forfeiture of the "Frioleiro" together with all its
equipment and implements, and for the return thereof to the
applicant, who claimed to be the owner of the vessel and equipment.

In
an affidavit deposed to by the President of the applicant, one
Manuel Freire Veiga, it was contended that such forfeiture was
unconstitutional and contrary to public international law. In the
alternative the applicant relied upon its rights in terms of the
provisions of Section 17(1) of Act 58 of 1973.

The
attack foreshadowed against the forfeiture order as set out in the
founding affidavit of the applicant, is three fold. Firstly it was
contended that in as far as section 17(1) purports to deprive
persons other than a convicted person, such as the applicant, of
their rights without a fair hearing, such provision is in conflict
with Article 12 of the Constitution which embodied the right to a
fair trial, and therefore liable to be struck down by a Court of
law. Secondly it was contended that the second part of the proviso
to section 17(1) which requires a person whose rights are thus
affected, such as the applicant, to prove the taking of all
reasonable steps to prevent the use of such vessel or implement in
connection with the offence, is equally in conflict with the right
to a fair trial as set out in Article 12 and therefore also liable
to be struck down. Thirdly it was contended that the applicant's
rights of property are entrenched by article 16 of the Constitution
and that a confiscation of his property without compensation runs
contrary to the provisions of Article 16.

The
respondents opposed the application on various grounds and also
raised, in the affidavit of one Jurgens, certain objections to the
application. Jurgens also incorporated into his affidavit two other
affidavits made by one Jose Luis Rodiquez Carrion and one Athur
William Bluett which mainly dealt with the question of the knowledge
of the various boat owners regarding the use of their vessels m the
Exclusive Economic Zone. It was furthermore denied by respondents
that the applicant was the owner of the "Frioleiro".

Shortly
before the hearing of the matter the applicant applied in terms of
Court Rule 33(4) to have certain questions of law, respectively
raised in paragraph 8 of the applicant's founding affidavit, and
paragraph 8 of the respondents' answering affidavit, be determined
in limine.

At
the hearing of the application the Court was informed by Mr
Gauntlett, assisted by Mr Fitzgerald, on behalf of the respondents,
that they do not persist in the objections raised in paragraph 8 of
the respondent's affidavit. However Mr Gauntlett objected to the
matter being dealt with in terms of Court Rule 33(4) and submitted
that the Court can only deal with the Constitutional matters once
evidence is lead and the full picture is therefore placed before the
Court.

The
Court thereupon ruled that both Counsel address the Court on the
Rule 33(4) application and the objection thereto as well as the
points in limine
raised by the applicant. If the Court upholds the submission of Mr
Gauntlett in regard to the Rule 33(4) application the matter would
then have to be referred to evidence and the points in limine
would have to stand over to be decided thereafter. However if the
Court upholds the contentions of Mr Blignaut, assisted by Mr Smuts,
for the applicant, the Court can then deal with the points in
limine
and refer whatever is left thereafter to evidence.

On
the basis of Mr Gauntlett' s submission that a Court will only deal
with an attack on the constitutionality of a legislative act without
hearing evidence if satisfied that evidence cannot affect the answer
it gives as to such constitutionality, or the relief it grants, it
is therefore necessary, first of all, to embark on such an
investigation before it can be determined whether evidence would be
necessary or not.

During
argument the dispute further crystallised into one main issue namely
whether the second part of the proviso to section 17(1) is in
conflict with Article 12(1)(d) of the Constitution. (I will
furtheron only refer herein to the proviso.) It seems to me that
Counsel for the applicant was correct in jettisoning the other two
points namely that the forfeiture order deprived the applicant of
his rights without giving him a fair hearing and that no forfeiture
of property can take place without compensation.

As
far as the first of these points are concerned it is clear that a
party with rights in the property to be forfeited can join issue
with the State at the time when

application
is made for a forfeiture order. (See S y

Pineiro
and Others
1992(2) SA 683 (NmHC)).

However
such a party is, in terms of section 35(4)(a) of Act 51 of 1977
which is incorporated into section 17, namely section 17(2), also
given the right to apply within a period of three years from the
date of forfeiture, to have his claim investigated. If it is found
to be substantiated, the court is obliged to set aside the order of
forfeiture and order the return of the said article to the applicant
or, if the article was disposed of by the State, order that the
applicant be paid the amount by which the State was enriched by such
disposal. In the circumstances a party, such as the applicant, has
therefore a choice and it cannot be said that he is deprived of a
fair hearing by the forfeiture order. In the latter instance the
declaration of forfeiture is at most provisional in nature.

In
regard to the second point set out above the parties were ad
idem,
and correctly so in my opinion, that section 17(1) constitutes a
penal provision and that the statutory purpose was not to acquire
the vessel but rather to deprive or to prevent repetition of the
offence and to serve as a deterrence to others, which in the
circumstances is permissable. (See Hewlett
v Minister of Finance and Another,
1982(1) SA 490 (ZSC)). The confiscation of property as a penalty for
crime seems to be permitted in International Law. See in this regard
Akehurst: A
modern introduction to International Law;
4th Ed., page 92; Bromlie: Principles
of International Law;
4th Ed. p. 535 and O'Connell: International
Law;
Vol 2 (2nd Ed. 1970) at p. 776.

It
was submitted by Counsel that once it is clear that section 17(1) is
a penalty provision it must comply with article 12(1)(d) of the
Constitution which provides that all persons charged with an offence
shall be presumed innocent until proven guilty according to law. The
section, as far as relevant, provides as follows:

"17(1)
The court convicting any person of any
offence in terms of this
Act may, in addition to
any other penalty it may impose declare
any fish,
sea-weed, shells or implement or any fishing boat
or
other vessel or
vehicle
in respect of which the
offence was committed or which was used
in
connection
with the commission thereof, or any
rights
of the convicted person thereto, to
be
forfeited
to the
State,

Provided
that such a declaration

of
forfeiture shall not affect any rights which any person other than
the convicted person may have to such implement, boat, vessel or
vehicle, if it is proved that such other person took all reasonable
steps to prevent the use thereof in connection with the offence.

(2)
The provisions of section 35(3) and (4) of the Criminal Procedure
Act, 1977 (Act 51 of 1977), shall mutatis
mutandis
apply in respect of any such rights.

It
was accepted by both Counsel that the proviso to section 17(1)
places an inverted or reverse onus on any person, other than the
convicted person, who has any rights in respect of the forfeited
article, to prove that he took all reasonable steps to prevent the
use thereof in connection with the offence.

I
must agree with Counsel. It seems to me that the proviso requires
proof that all reasonable steps were taken and the only person who
can do so and who has knowledge thereof will inevitably be the
person who wants to establish his rights in regard to such article.
If he cannot show that he took all reasonable steps such forfeiture
becomes absolute. My finding in S
v Pineiro,
supra,
at p. 694, to the effect that section 17(1) does not directly place
an onus on the parties i.e. the State and the applicant, is
therefore not correct.

As
I have stated earlier Counsel were also agreed that Article 12(1)(d)
of the Constitution applies to section 17(1).
This,
so it seems to me, will depend on the
interpretation of Article 12(1)(d) because strictly speaking the
applicant is not standing before the Court as an accused in criminal
proceedings to which the provisions of -the article will undoubtedly
apply.

It
has been well established in the Courts of Namibia that in the
interpretation of the provisions of the Constitution, and more
particularly in giving effect to the fundamental rights and freedoms
as set out and enshrined in Chapter 3, the provisions of the
Constitution are to be:

"broadly
liberally and purposively be interpreted so as to avoid the
'austerity of tabulated legalism' and so as to enable it to continue
to play a creative and dynamic role in the expression and the
achievement of the ideals and aspirations of the nation, in the
articulation of the values bonding its people and in disciplining
its Government (per Mahomed, C.J. in Government
of the Republic of Namibia and Another v Cultura 2 000 and Another
NmSC, unreported 15 October, 1993) at p. 20-21.

In
the same case it was furthermore stated at p. 21 that the
interpretation should ensure that its clear words be given a
construction which is "most beneficial to the widest possible
amplitude."

(See
also Minister
of Defence v Mwandinqhi
1992(2) SA 355 (NmS)).

As
set out before the seizure of the applicant's property (this must be
accepted for purposes of this judgment) without compensation
on the basis of section 17(1) constitutes a penalty
provision. It flowed from the use of the vessel for illegal fishing
in Namibia's Exclusive Economic Zone and the conviction of the
Master of the vessel. The applicant itself was not charged with the
crime and was not convicted at any stage. However, by forfeiting the
vessel it is directly penalised, for the commission of a crime in
respect of which it was not convicted and section 17(1) would
undoubtedly have been unconstitutional if it did not make such
forfeiture subject to the rights of persons other than the convicted
person. It would have militated against the provisions of Article
12, the right to a fair trial, and Article 16, the right to own
property.

The
fact that a rightholder can by application, even within a period of
three years, apply to establish his rights in the article, does not
detract anything from the penal character of the section because if
such rightholder can't discharge the onus, the forfeiture becomes
absolute.

Although
the wording of Article 12(1)(d) is that

"All
persons charged with an offence shall be
presumed innocent until
proven guilty according to
law "

and
the applicant in an application such as this is not charged with an
offence, his position is analogous to that of a person charged with
an offence in that if he cannot discharge the onus placed upon him a
penalty will be exacted from him, which can have a far reaching
effect.

Taking
into account the purpose of section 12 of the Constitution and the
values that it represents and bearing in mind that the Court should
"broadly, liberally and purposively" interpret the
provisions of the Constitution (Per Mahomed, C.J. in Government
of the Republic of Namibia and Another v Cultura 2 000 and Another
NmSC, supra),
I have come to the conclusion that the presumption of innocence
enshrined in Article 12(1) (d) does also apply to a person such as
the applicant whose rights are affected by a forfeiture order in
terms of Section 17(1).

The
fact that a reverse onus is placed on an accused does not mean that
such reverse onus is unconstitutional in all circumstances. There is
a lot of authority concerning reverse onus provisions under the
Canadian Bill of Rights and section 11(3) of the Canadian Charter of
Rights. See Regina
v Oaks
26 DLR (4th) 200 (1986). Laskin in his work The
Canadian Charter of Rights
(annotated (1985)) 16. 4-2
summarised the decision in Regina
v Oaks,
supra,
as follows:

"While
statutory exceptions to the general rule that an accused has the
right to be presumed innocent do not contravene the presumption of
innocence if they are reasonable, a statutory exception which is
arbitrary or unreasonable does. For a reverse-onus clause to be
reasonable and hence constitutionally valid, the connection between
the proved fact and the presumed fact must at least be such that the
existence of the proved fact rationally tends to prove that the
presumed fact also exists. The presumed fact must also be one in
which it is rationally open to the accused

^•I
u»

to
prove or disprove." (See also R
v Bray,
144 DLR (3d) at 309; R
v Dubois,
8CCC (3d) 344 (1983) at 346 - 347 and R
v Frankforth,
70CCC (2d) 488 (1982) at 451.)

As
far as the United States is concerned dealing with the presumption
of innocence as embodied in the Fifth and Fourteenth Amendments of
that Constitution it was stated in Learv
v United States,
395 US 6 (1969) at 36 as follows:

"A
criminal presumption must be regarded as 'irrational' or 'arbitrary'
and hence unconstitutional unless it can be said with substantial
assurance that the presumed fact is more likely than not to flow
from the proved fact on which it is made to depend. And in the
judicial assessment the congressional determination favouring the
particular presumption must, of course, weigh heavily."

See
also TOT
v United States,
319 U.S. 463 and United
States

v
Gainey
380 US 63 (1965).

In
the Namibian Courts the "rational connection" test as
applied in Canada and the United States seems to have found favour.
See in this regard: Namibian
National Student's Organisation and Others v Speaker for the
National Assembly for S.W.A. and Others
1990(1) SA 617; S
v Titus,
(unreported judgment of this Court by Frank, J in which O'Linn, J,
concurred) given on 13 June, 1991, where reference is made to the
situation in the United States of America.

In
my opinion the test as applied in these cases is a practical one
which would require an accused to speak up in circumstances where an
explanation would be required because of the presumption raised by
the proved facts and because of the personal knowledge of the
accused. However where the proven facts are not such that an
explanation is readily

»

required
the placing, in those circumstances, of an inverted onus on an
accused will require an accused to prove his innocence which will be
contrary to the Constitution containing a provision as that set out
in Art. 12(1)(d) of the Namibian Constitution.

In
the present matter Mr Blignaut has argued that there is no rational
connection between the fact that the vessel "Frioleiro"
was fishing illegally within the Exclusive Economic Zone of Namibia
and the fact that the applicant is the owner of the boat. Mr
Blignaut submitted that the proviso in section 17(1) could only be
constitutional if and when the State has proved knowledge on the
part of the owner that the vessel was fishing illegally. I think Mr
Blignaut is putting the test too high.

As
was stated by Laskin
in his work The
Canadian Charter
of Rights,
supra,
"the connection between the proved fact and the presumed fact
must at least be such that the existence of the proved fact,
rationally tends
to prove that the presumed fact also exists." (My underlining).
If the State is required also to prove knowledge on the part of the
applicant there is very little to presume. The requirement is that
the proved facts must tend to prove and not actually prove the
presumed fact.

In
the case of an owner-applicant it seems to me that once

it
is proven that its boat was caught fishing illegally in

Namibia's
Exclusive Economic Zone and it is further proved

that
the crew was in its employ and ostensibly acting within

—<

the
course and scope of such employment and that the fish so caught was
for the benefit of the owner there is in my opinion a rational
connection between the proved facts and the presumed fact. It is
further rationally open for the applicant to disprove the assumed
fact by proving that he took all reasonable steps to prevent the use
of the vessel in connection with the offence, and/or to prove his
lack of knowledge.

Reverting
back to the present case and although such rational connection may
have been established in regard to the applicant as owner of the
vessel "Frioleiro" so that the reversed onus cannot be
said to be unconstitutional as it is concerned, I need not decide
the issue for reasons which will hopefully become clear.

The
proviso to section 17(1) is couched in wide and general terms to
include any
rights
which any
person
other than the convicted person may have to such implement, boat,
vessel or vehicle. The section then continues to saddle all and any
holder of a right in such implement, vessel or boat with a reverse
onus to prove the taking of all reasonable steps to prevent the use
thereof in the commission of the offence. There are a wide variety
of rights which may be held in respect of a boat or vessel and thus
a variety of people and or institutions holding such rights.

Because
of the generality of the provision and because it

does
not distinguish between the various rightholders in

such
boat or vessel, in order to be constitutional the

rational
connection must exist in respect of all these

—»■
-

possible
rightholders otherwise it may be found that the presumption
contained in section 17(1) is unconstitutional as regards some of
those rightholders. If that is the case the presumption cannot be
allowed to stand vis-a-vis those rightholders and the extend to
which it is declared unconstitutional will depend on whether the
Court is able to sever the good from the bad.

At
this stage it is necessary to consider the effect of the case of
Banco
Exterior de Espana SA and Another v Government of the Republic of
Namibia and Another
1992(2) SA 434.

The
background to this case is that various Spanish fishing vessels were
declared forfeited in terms of Section 17(1) of Act 58 of 1973,
after conviction of the Masters and other crew members of the
vessels for illegal fishing in the Exclusive Economic Zone of
Namibia in terms of Section 22A(4) of the said Act. The applicants
in that matter, were the holders of mortgage bonds in the vessels.
These bonds were registered in Spain according to Spanish law. The
relief claimed by each applicant was a declarator whereby the
respondents were required to recognise the rights of the applicants
in the vessels. The Court, per Levy J, came to the conclusion that
the issue of the liens or mortgages had to be decided according to
the lex
fori,
i.e. the law of Namibia, and that the applicants' liens or
mortgages, not complying with the law of the lex
fori,
would consequently give them no rights whatsoever in Namibia. For
purposes of my decision I shall accept the correctness of this
decision.

Although
therefore the Banco
Exterior de Espana-case
has narrowed down the ambit of rightholders to those who are holders
of such rights according to Namibian law the number of people or
institutions which may have rights in a vessel or boat are still
substantial. As was correctly found by Levy, J, the South
African Admiralty Jurisdiction Regulation Act,
Act No. 105 of 1983 does not apply to Namibia.

However
prior to Act 105 of 1983 Admiralty Jurisdiction was exercised by
South African Courts by virtue of the provisions of section 2 of the
Colonial
Courts of Admiralty Act
1890. (See in this regard Trivett
& Co (Pty) Ltd v WM Brandt's Sons & Co Ltd,
1975(3) SA 432 (A)). The provisions of the Colonial
Courts of Admiralty Act
1890 was therefore part of the statute law of the Cape of Good Hope
when by section 1(1) of Proclamation 21 of 1919 the law as existing
and applied in that province was introduced into the then South-West
Africa. (See further R
v Goseb,
1956(2) SA 696 (SWA). S
v Redondo
1993(2) SA 528 (NmSc) and The
Law of Shipping and Carriage in South Africa,
3rd Edition, by Bamford, p. 4 footnote 27). In cases such as Tittel
v The Master
of the High Court,
1921 SWA 58 and Krueger
v Hoge,
1954 (4) SA 248 (SWA) it was decided that statutes which applied in
the Cape as at 1 January 1920 also apply iⁿ
South-West
Africa by virtue of the provisions of Proclamation 21 of 1919.
This was again reaffirmed in the

Redondo-case,
supra,
at 5391 - 540B. Admiralty law as applied by the Colonial
Courts of Admiralty Act,
1890, is therefore part of the Namibian Law.

Although
Act 5 of 1972 of South Africa was enacted to govern jurisdiction of
Courts in Admiralty cases, and was made specifically applicable to
Namibia, this Act was however never promulgated and thus never
applied in either South Africa or Namibia (See Euromarine
International of Mauren v The Ship Berg,
1984(4) SA 647 at 665 E.)

By
virtue of the Colonial Courts of Admiralty Act 1890 some six
maritime liens exist and are therefore recognized according to
Admiralty Law, applicable in Namibia, namely those of (1) salvage,
(2) collision damage, (3) seaman's wages, (4) bottomry, (5) master's
wages and (6) master's disbursements. (See Transal
Bunker BV v MV Andreco Unity and Others
1989(4) SA 325 (A) at 331 G; Lawsa, Vol 25 pa 177). According to
Dillon and van Niekerk, Maritime
Law and Marine Insurance
22 - 25 the maritime lien " ... arises automatically, by
operation of law and without any agreement or formality, and comes
into existence from the moment when the circumstances giving rise to
the maritime lien occurs. It attaches the res
secretly and without any record or registration, is not dependent
upon possession of the res
by the lien holder and remains so attached even if the res is
thereafter alienated for value to a bona
fide
alienee without notice of the lien."

It
was further submitted by Mr Blignaut that if regard is had to
English Admiralty law foreign mortgagors would also have rights in a
vessel according to Namibian Law which includes English Admiralty
Law. (See Peca
Enterprises (Pty) Ltd and Another v Registrar of the Supreme Court,
Natal N.O. and Others,
1977 (1) SA 76(N) at 81 C - D; Lawclaims
(Pty)

Ltd
v Rea Shipping Co SA: Schif
f scommerz

Aussenhandelsbetrieb
Per WB Schiffbau Intervening,
1979(4) SA 745 (N) at 750 G - H, and Ex
parte Government of the United States of America: In re SS Union
Carrier,
1950(1) SA 880 (C) at 884.) For purposes of this judgment I need not
decide this issue but it is further illustation of the wide variety
of rights which may attach to a boat or vessel.

Looking
at the rights which may attach to a boat or vessel, and I have only
set out the examples above, it is immediately clear that any of
those rightholders will also be subject to the provisions of section
17(1). Consequently if a boat or vessel in which such a lienholder
has a real right, is forfeited by a court in terms of the provisions
of section 17(1) the proviso to the section will require of such a
lienholder to prove that he took all reasonable steps to prevent the
use thereof in connection with the offence in order to avoid or set
aside the forfeiture order. A lienholder in respect of damage caused
by the vessel, or for salvage or master's disbursements, has nothing
to do with illegal fishing and usually has no control over the boat.
There is in my opinion no rational connection between such fact,
i.e. the illegal fishing, and the presumed fact, i.e. the complicity
of such a rightholder in the illegal fishing, so as to tend to prove
the existence of such presumed fact in order to cast an onus on him
to explain. The proved fact of illegal fishing simply does, in these
instances, not raise a presumption that those holders of real rights
in the vessel knew or could have taken reasonable steps to prevent
it. In the case of such holders of rights the statutory inroad made
into the presumption of innocence is arbitrary and unreasonable and
therefore unconstitutional. To saddle them in these circumstances
with a reverse onus will require of them to prove their innocence.

Mr
Gauntlett submitted with reference to Pineiro's
case
that in the case of rightholders, other than the owner, they could
with the greatest of ease discharge the onus placed on them by
section 17(1). That may be so but the ease with which an onus can be
discharged is not the test. In Pineiro's
case
the constitutionality of the presumption was neither raised nor
argued. Further, on the basis that the provisions of section 35(3)
and (4) were incorporated by reference into section 17, Mr Gauntlett
argued that Section 17(1) should be so interpreted that not every
person having a right in the vessel can apply for the setting aside
of a forfeiture order but it should be limited to only the owner or
hire-purchase owner as set out in section 35(4)(a)(i) and (ii) .

In
my opinion the incorporation of the provisions of section 35(4) and
(5) mutatis
mutandis
cannot change and limit the wide meaning of section 17(1) where it
states that the forfeiture order shall not affect any
rights
which any person
other than the convicted person may have in such vessel. (See
also the Banco
Exterior de Espana-case,
supra,
at 446H) .

The
Court has come to the conclusion that in respect of a certain class
of rightholder, e.g. the owner of the vessel or boat, the placing of
a reversed onus on such class may be constitutional whereas it is
unconstitutional as far as certain other classes of rightholders are
concerned. If at all possible the Court would be entitled to sever
the bad from the good and only declare unconstitutional that part of
the proviso to section 17(1) which militates against Article
12(1)(d) of the Constitution.

However
the Legislator did not categorize the various rightholders but have
joined them all together by stating that a forfeiture order shall
not effect "any
rights
which any
person
other than the convicted person may have to such implement boat,
vessel or vehicle", "if it is proved that such other
person took all reasonable steps." The words "Such other
person" refer back to "any person other than the convicted
person."

In
the circumstances it is impossible for this Court to sever the good
from the bad, short from ourselves legislating and reading for "any
person" the word "the owner" which in my opinion is
not permissible. (See Johannesburg
City Council v Chesterfield House (Pty) Ltd. 1952
(3) SA 809 (A)).

From
this it follows that that part of the proviso to