<*<kh- i/(se)*o*- VENTER v. REX.

*2V
v%.&-
g*C'j-*i7& *><**• %f& e* SS&. 7*+
fdQb **/ &? rs-Oj- [Link]* **f
S*3&/<29/
_ __. Sj^Taj- oUJ
Site *>r ■*'*(•!>■■ /t? 6>/VENTER
;nte V. RE"&£■#(&. **9 <9
(SOh 167(Si C»~ *94 ft (4)*97o(v'
g*&- 739Q) <*©- Wl* October 8, 10. Ixxes, C.J., and Solomon, J_
^ % '%?■&%& . **&»■w3r?
h . >SJriminaf procedure --Entry into Transvaal of person convicted abroad.
—-Interpretation.—Residence. Domicile.—Ordinance 20 of 1905,
t*(»y wy . 3. . 7

Where to give to the words of a statute their ordinary meaning would

lead to an absurdity so glaring that the legislature could not have
contemplated it, or to a result contrary to the intention of the
legislature as shown from the context or otherwise, the Court may
so interpret the language of the statute as to remove the absurdity,
and give effect to the intention of the legislature.
^ By sec. 3 of Ordinance 20 of 1905 “ any person ” convicted outside the
| * Transvaal of certain offences “entering” the Transvaal after the
* passing of the Ordinance is liable to certain penalties. Held, on
j, appeal, that the section did not apply to persons resident in the
, Transvaal at the date of the extra-territorial convictions.
’ V, though domiciled in the Transvaal, resided abroad for six years am*
, was convicted there of an offence included in sec 3 of the Ordt-
j nance. He returned to the Transvaal after the passing of the
.-j Ordinance. Held, on appeal, that he was rightly convicted under
; the section.

Appeal against a conviction by the Assistant Resident Magis­

I* trate of Germiston.
* r
The facts appear from the judgment.
Vf Duxbury (at the request of the Court), for the appellant:
The words “ any person entering ” of sec. 3 of Ordinance 20 of
1905 do not apply to a person domiciled in the Transvaal who
re-enters the Transvaal after a sojourn abroad. “ Entering ”
means entering for the first time: otherwise the word “re­
entering ” should also have been used. The word “ re-enter ’ is
used in the Cape Act similar to the present one; see Belmont v.
Colonial Secretary (16 C.T.R. 231). If the Ordinance is applic­
\
i

able to citizens, then it imposes a punishment of banishment

»
4, which is now obsolete. There is an obligation on every country
to accept its own citizens, and the act of expulsion is usually
 VENTER >. REX. 911

only applied to foreigners who are directed to leave the country.

See Oppenheim’s International Law, vol. 1, p. 381.
Matthews, for the Crown: “Person” and “entering” are
general terms, and no limitation can be placed on their mean­
ing. Banishment is not an obsolete punishment, and the crimes
so punishable are referred to in Proclamation 21 of 1902. The
words of the section must be given their general meaning. The
intention of the legislature was to keep the criminal classes out
o$ the country.
Duxbury, in reply, referred to Maxwell’s Interpretation of
Statutes, 3rd ed. p. 264. .
Cur. adv. mdt.

Pmtea (October 10):—

INNES, C.J.: The appellant was convicted under sec. 3 of

Ordinance 20 of 1905, and sentenced to be imprisoned for one
month, pending his removal from the colony by the Governor.
The facts of the matter are not in dispute. The appellant
was born in the Cape Colony. He came to the Transvaal in
1896, became a naturalised burgher of the late Republic, and
resided here until 1901. In that year he went to Natal, and,
after a short stay, proceeded to the Orange River Colony. He
states that he had no intention of remaining there permanently.
But in spite of that he remained for six years; and during his
residence, in February, 1905, he was convicted of theft before
the High Court at Bloemfontein, and sentenced to one year’s
imprisonment. Having served his term, and remained there
some months longer, he returned in January, 1907, to the
Transvaal, and was arrested here on the 16th September. The
magistrate found that he retained his Transvaal domicile; and
tha question, therefore, for the Court to determine is whether
the appellant comes under the Ordinance, and can be removed at
the discretion of the Governor.
The main sections bearing upon the matter are secs. 3 and 5
of Ordinance 20 of 1905. Sec. 3 provides that any person enter­
ing into this colony after the passing of the Ordinance shall be
guilty of an offence, if he has been convicted elsewhere than in
hi 2
912 VENTER v. REX.

this colony of certain offences, or if he has in any country other

than this colony lived on or knowingly received any part of the
earnings of prostitution, or procured women for immoral pur­
poses. He may under such circumstances be sentenced to im­
prisonment without hard labour for a period not exceeding two
months, pending removal by the Governor. And sec. 5 says that
it shall be lawful for the Lieutenant-Governor, by warrant, to
remove from this colony any person sentenced under sec. 3.
Then follow clauses wir^h provide that if a person once de­
ported returns, he may be punished by imprisonment for a
considerable period, and may then be sent away again: and that
the Governor may frame regulations for preventing the entry of
such persons, and generally for carrying out the provisions of
the Ordinance.
These clauses provide machinery for the removal and banish­
ment of persons who come into this country after committing
certain crimes abroad—machinery which can only be set in
motion by a conviction under sec. 3 or sec. 4, such as has taken
place in this case. The punishments which the superior courts
of this country may impose in regard to offences committed in
the Transvaal are laid down in sec. 242 of the Criminal Proce­
dure Code, and banishment does not figure in that list. The
question therefore arises whether the legislature intended to
provide that for an extra-territorial crime a resident of the
Transvaal might be perpetually banished, not by the con­
sidered judgment of a court of law, but at the discretion of
the Governor. It is po ssible that crimes may be committed out­
side the Transvaal by persons who have their homes here; and
if such crimes come under the operation of this Ordinance re­
markable results would follow. Let me take an example. A
man proceeds to Natal or Delagoa Bay, for a visit. While there
he yields to temptation, and picks a pocket. He is a resident
of the Transvaal, and has his home here. He is sentenced for
theft. Or a boy is sent to school in the Western Province of the
Cape Colony. While there he steals some fruit, is found out,
prosecuted, and sentenced for the crime of theft. If that man
and that boy come under the Ordinance it would be a criminal
offence for them to return to their homes. At the discretion of
 VENTER v. REX. 913

the Governor they might be perpetually banished from the laml

of their residence, or, it may be, the land of their birth.
Whether these results do follow from the Ordinance depends
upon the right construction of the statute itself; and in con­
struing the statute the object is, of course, to ascertain the inten­
tion which the legislature meant to express from the language
which it employed. By far the most important rule to guide
courts in arriving at that intention is to take the language of
the instrument, or of the relevant portion of the instrument, as a
whole; and, when the words are clear and unambiguous, to place
upon them their grammatical construction and give them their
ordinary effect. But it is universally recognised that though
this is what some judges call a golden rule, it is subject to certain
exceptions. These arise from the difficulty —a difficulty inherent
in the nature of language—that no matter how carefully words
are chosen there is a difficulty in selecting language which, while
on the face of it ex pleasing generally the idea of the framer of
the measure, will not, when applied under certain circumstances,
go beyond it, and, when applied under other circumstances,
fall short of it. The extent to which the exception is allowed to
the general rule is a question on which widely differing opinions
have been held not only by lawyers, but by judges. Some of
the judges would give to the exception a very narrow operation.
As an example of that view I would refer to some remarks by
Lord Esher, then Master of the Rolls, in The Queen v. Judge of
th# City of London Court ([1892] l Q.B.D. 273). Lord Esher,
criticising a judgment of Sir George Jessel, the late Master of
the Rolls, says (p. 290): “ Jessel, M.R., says that the words of sec. 2
are quite clear, and that if the words of an Act of Parliament are
clear you must take them in their ordinary and natural meaning,
unless that meaning produces a manifest absurdity. Now. I say
that no such rule of construction was ever laid down before. If
the words of an Act are clear, you must follow them, even though
they lead to a manifest absurdity. The Court has nothing to do
with the question whether the legislature has committed an
absurdity. In my opinion the rule has always been this—if
the words of an Act admit of two interpretations, then they are
not clear; and if one interpretation leads to an absurdity, and
$*£©!/- /S&-

s»u VENTER v. REX.

the other does not, the Court will conclude that the legislature
did noi intend to lead to an absurdity, and will adopt the other
interpretation.” That is an instance of what I may call the
narrow view. For an example of the other I would draw atten­
tion to the remarks of Lord Watson in a case w hich came before
the House of Lords—Vestry of St. >roh n, Hampstead, v. Cotton
(12 App. Cas. 1). He says (p. 7): “ The w ord ‘ street' in sec. 53
admittedly means, according to its natural and ordinary con­
struction, any and every street. On the part of the appellants
it is contended that it must be read, for the purposes of the Act,
a> limited to old streets or to streets other than new' streets as
defined by sec. 112 of the statute. It is quite possible that such
a construction might become imperative; but in order to justify
a departure from the primary meaning of the words of the legis­
lature. it must be shown either that the ordinary and gram­
matical construction of the words wrould lead to some absurdit}',
such as the legislature could never have contemplated, or that it
would be plainly contrary to the general scheme disclosed in the
context of the statute.”
Opinions in favour of either view might be multiplied almost
indefinitely. But it is not necessary to refer to any others,
ljecause it seems to me we should adopt the wider of these two
views, for several reasons. In the first place, it is more likely
to be the view taken by the Privy Council, whose judgments
bind us. and of which Lord Watson was a member, though he
was sitting in the House of Lords w hen lu made the remarks I
have read. Also, because it gives the Court a freer hand in
dealing with cases of hardship and difficulty with which it may
be confronted. Moreover, although this Court has been slow to
depart from the literal language and meaning of Acts of Parlia­
ment, it has not scrupled to do so in the past, where satisfied
that that meaning did not carry out the true intention of the
legislature. I do not intend to refer in detail to our decisions;
the case of Gerandeau v. Rex ([1903] T.S. 458) and the recent
case of Mamabolo v. Registrar of Deeds ([1907] T.S. 76) are
instances of what I mean. That being so, it appears to me
that the principle we should adopt may be expressed somewhat
in this way—that when to give the plain words of the statute
 W w
c5'c> (*J> - 63? fc^/- St?-
S3QJ- 66?- 6o(j*
. _ - ^6ok.
£V£*. 7// _,x [Link] % . HEX. 915
o' 9 6/ - s'Jf v&wm
, .« 'KEV
their ordinary meaning would lead to absurdity so glaring that
it could never have been contemplated by the legislature, or
where it would lead to a result contrary to the iutention of
the legislature, as shown by the context or by such other con­
siderations as the Court is justified in taking into account, the
Court may depart from the ordinary effect of the words to the
extent necessary to remove the absurdity and to give effect to
the true intention of the legislature. I do not for a moment
pretend to say that that rule covers the field of inquiry. He
. would indeed be a bold man who attempted to exhaust a subject
so difficult, and on which so many conflicting opinions have been
held. But it covers sufficient ground to enable one to deal
with the case before the Court, and that is enough for present
purposes.
The words of sec. 3 are undoubtedly wide. ‘ Any person "
includes residents as well as non-residents: and “ entering
applies to every act of crossing the Transvaal border from with­
out. whether it is done for the first or fot the hundredth time.
But after careful consideration I am of opinion that the Court
should limit the operation of these general words so as not to
include or allow them to apply to persons resident in the Trans­
vaal and having their homes here at the time when the crime
was committed. I arrive at that conclusion, not because the full
effect of the wrords—their plain meaning—would lead to an
absurdity : it might lead to some hard cases, but then the wdiole
Ordinance is most drastic, and its results in any case are excep­
tional and unusual. The reason for my opinion is that I am
satisfied from the context of the statute itself that the legis­
lature did not intend that residents should come within the
operation of this Ordinance. The mischief aimed at by the
Ordinance is clear. It was the influx into this colony of
criminals from abroad, who would be likely to enter the Trans­
vaal in order to make it the scene of their criminal enterprises.
And the mode in which Parliament proceeded to deal with that
mischief was by prohibiting persons guilty of certain crimes or
certain conduct from entering the Transvaal, and deporting
them if they did enter. It is significant that the crimes and
practices which under sec. 3 are brought within the purview of
 VENTER v. REX.

the statute are all crimes and practices arising and committed
outside the Transvaal. A man might break eveiy law while
residing in the Transvaal: he might live on the proceeds of
prostitution in this country for an indefinite period. But if he
then left the country, the statute makes it no crime for him to
return, and he certainly could not be deported if he did. But
if he did the same things outside the Transvaal he would come
within the operation of the Ordinance. What was the reason
for the distinction ! There must have been some reason; and
after careful consideration it seems to me that the only possible
reason is that the legislature did not intend the Ordinance to
apply to residents. Because if the}7 intended it to apply to resi­
dents, why not deport residents who were guilty of crimes
within the borders of the colony .' They would be just as
criminal, and just as undesirable persons to remain in the
country as those who committed crimes outside its borders, and
then returned to their homes. The fact that the cases dealt
with are all extra-territorial satisfies me that the criminals
aimed at were those not resident here when the crimes were
committed.
I come to this conclusion from the words of the statute itself.
But if I had any doubt on the matter there are other considera­
tions, which I think the Court is warranted in taking into
account, which would fortify me in the conclusion at which I
have arrived. The legislature, having excluded banishment as
a punishment to be inflicted by the courts of the country on
residents in the Transvaal, is not likely to have intended to
empower the Governor, under any circumstances, to banish its
citizens. I think the presumption is the other way. Not only
so, but for a country by Act of Parliament to deport its own
criminals to other countries is a step so unusual and remark­
able that the presumption is against the idea that the legislature
intended any such thing. An independent State, of course, has
a right to prohibit the entry of aliens within its borders; and it
has a right, if they do enter, against its laws and regulations, to
deport them to the country of their origin. But the case of its
own citizens appears to me to stand on a very different basis.
I know of no principle of public international law which, in
 VENTER v. REX. 917

the absence of treaty, would permit a State to deport its re­

sidents to other countries merely because they were criminals.
It is true that this is not an independent State: and it is
common cause that the Ordinance was intended to apply to
British subjects from other colonies as well as to aliens. But
it seems to me that, in the case of a colony, circumstances
of residence offer the same test as circumstances of citizen­
ship would in the case of an independent State. And we
should presume that the colonial legislature has no inten­
tion of deporting its own resident criminals into the territory
of other states or colonies. For these reasons it is clear that
the legislature did not intend the words of the Ordinance to
apply to persons resident in this colony at the time the crimes of
which they were convicted were committed. But that descrip­
tion would not include persons who had resided here before the
commission of the crime, but had also before that gone to make
their homes elsewhere. Nor would it include those who enter
the colony from abroad after the commission of the crime and
then reside here for some time until discovered by the police.
Their original contravention of the Ordinance would not be
cured by their subsequent residence in this colony.
Applying this conclusion to the fact*: of the present case,
I ffnd that the appellant was not resident here: his home was
not in the Transvaal when he committed the crime. The magis­
trate held, on what appears to me to be very slender evidence
indeed, that he was still domiciled here. But I am not pre­
pared to say that the legislature did not intend the law to apply
to persons domiciled in the Transvaal, but not resident here at
the time when they committed the crime : because different con­
siderations arise in such cases. The question of domicile is a
4 highly technical test to apply, and I do not think it was within
the contemplation of the legislature. A man may have a domi­
cile, either of origin or choice, in the Transvaal, and he may be
absent from this country for years, and yet acquire no new
domicile. In this very case the appellant was absent for six
years, and absent when he committed the crime; and at that
time, so far as the record goes, his home was in the Orange
i River Colony. I am not prepared to say that the Ordinance

I
j
91* VENTER v. REX.

was not intruded to meet such a case: therefore it appears to

me that the appeal cannot succeed.
At the same time, though the case may fall under the law.
it is in my opinion hardly one of the kind ordinarily intended
to lie met by it. 1 should be surprised if the Governor exercised
his power of deportation in this case. Venters country of origin
was the Gape Colony. He became a burgher of the late Re­
public : then lie went to the Orange River Colony; and he has
not l>een in the Cape for eleven years. Is he to be sent back to
Cape Colony, or to the Orange River Colony ? I cannot con­
ceive that h < will be merely dumped down on the border.
There must be some method in these deportations. But these
are administrative considerations for the Governor, and not for
the Court. In my opinion, though the Ordinance should be read
as restricted in the way which I have endeavoured to indicate,
this is a case wThich is covered by its provisions, even so read,
and the appeal should be dismissed.

Solomon, J.: I agree that the appeal should be dismissed,

and I desire to state as shortly as I can the reasons which have
led me to that conclusion. I think it is clear on the facts that
this case fails within the express words of sec. 3 of the Ordi­
nance ; for the appellant was a person who entered this colony
after the passing of the Ordinance, and who had previously been
convicted in the Orange River Colony. So that his ease exactly
falls under the words which are used in sec. 3 of the Ordinance.
Now’ 1 take it that the primary and fundamental rule for the
construction of statutes is that the language used by the legis­
lature must be construed in its natural and ordinary sense; and
if that rule is to be strictly applied in this case there is nothing
more to be said, inasmuch as the language used by the legislature
in sec. 3 is perfectly clear, and admits of only one construction.
It is true that Mr. Duxbwi'y, who argued this case on behalf of
the appellant, suggested that the word “ entering ” was not
properly applicable to persons who were residing in the colony,
or w’ho were domiciled here. But I cannot say that I feel dis­
posed to take that view of the matter, because it appears to me
that any person who is outside the colony, and who crosses its

I
 VENTER v. REX. 919

borders, does “ enter ” the colony. The appellant was in the

Orange River Colony : he crossed the borders of this colony,
and I am satisfied, therefore, that he entered the colony, within
the meaning of the section.
The language of the section being clear, is there any reason
why we should not follovr the rule—what I may call the primary
rule—in the construction of the statute ? I think the answer
to that is that this fundamental rule cannot be accepted without
certain qualifications. What those qualifications are is a very
large subject to enter upon, and I do not propose to discuss it
fully at present, because I think it is unnecessary for the pur­
pose of this case to attempt to cover the whole of the ground
which is opened up by that question. I think it is sufficient
to refer to one of the qualifications which has been clearly
recognised in very many cases, although stated in different
words by different judges. The subject is very fully dealt
with by Hardcastle on Statute Law, who quotes a number of
extracts from the judgments of various judges. 1 refer to the
case of Caledonian Railway Co. v. North British Railway Co.
(6 App. Cas. 114), w here Lord Blackburn said (p. 131): “ Now

I believe there is not much doubt about the general principle.

Lord Wennleydale used to enunciate (I have heard him many
and many a time) that which he called the goiden rule for con
struing all written engagements. I find that he stated it very
clearly and accurately, in Grey v. Pear. in the following
terms: ‘ I have been long and deeply impressed with the wisdom
of the rule, now. I believe, universally adopted, at least in the
courts of law in Westminster Hall, that in construing w ills, and
indeed statutes, and all written instruments, the grammatical and
ordinary sense of fhe words is to be adhered to, unless that would
lead to some absurdity, or some repugnance or inconsistency with
the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, .so as to avoid that
absurdity and inconsistency, but no further.’ ’’ In the case of
Christopherson v. Lotinga Willes, J., also referred to the rule
w'hich had been laid down by Lord Wensleyuale. Ho quoted
the words which I liave already read, and he continued, “ I
certainly subscribe to every word of the rule except the word
920 VENTER v. REX.

4 absurdity.’ unless that be considered as used there in the

same sense as repugnance: that is to say, something which
would be so absurd with reference to the other words cf the
statute as to amount to a repugnance.” The same rule is laid
down differently in the case of Vestry of St. John, Hamp­
stead. v. Cottmi (12 App. Cas. 1). Lord Halsbury said in that
case (p. 6): “Doubtless there are cases in which when in the
instrument itself, whether a will or a contract or a statute, evi­
dences may be discovered of the general intention of the framer
and of the general meaning, or what lias been called the govern­
ing sense, in which the words or the provisions are to be under­
stood, you may occasionally modify the language which you have
to construe with reference to that general intention which has
been so ascertained.” And I find that even Lord Esher, who
was such a strong authority in support of construing the words
of a section in their ordinary and natural meaning, somewhat
departed from the rule which he himself laid down in the case
which has already been quoted by the Chief Justice. In
Hornsey Local Bournl v. Monarch Investment Building Society
([1889] 24 Q.B.D. 1) Lord Esher said (p. 5): “An Act of Par­
liament is to be construed according to the ordinary meaning of
the words in the English language as applied to the subject-
matter, unless there is some very strong ground, derived from
the context or reason, why it should not be so construed.” And
in the subsequent case of Clerical. c(:c.. Assurance Co. v. Carter
(22 Q.B.D. 444) he uses somewhat similar language (p. 448):

“There has been a long discussion of various puzzling matters

in relation to the provisions of the Income Tax Acts, but after
all we must construe the words of schedule D according to the
ordinary canon of construction: that is to say, by giving them
their ordinary meaning in the English language as applied to
such a subject-matter, unless some gross and manifest absurdity
would be thereby produced.” I wish to quote one other case,
because it is a case in the Privy Council, of an appeal from
Natal (The Mayor and Councillors of the Burgh of Pieter-
mantzbnrg v. Thr Natal Land and Colonisation, Co., 18 App.
Cas. 478), and therefore the rule which was there laid down, I
take it, we are not only justified, but probably liound to follow.
 VENTER v. REX. 921

In that case Lord Macnaghten, delivering the considered judg­

ment of the Pri\y Council, said (p. 488): “Their lordships do
not intend to depart from the rule that in the construction
of a statute the ordinary meaning of the words used must
l>e adhered to, unless that meaning is at variance with the
intention of the legislature, to be collected from the statute
itself, or leads to some absurdity or repugnance.” Applying
that rule to the present case, are we entitled to modify the
plain meaning of the words of sec. 8, on the ground that, if
we adhere to the plain meaning of the words, it would lead us
either to some absurdity or to something which is repugnant
to the intention of the legislature, to be gathered from the other
portions of the statute ? Speaking for myself, I think it would
be going too far to say that to adhere to the plain meaning of
the words would lead to an absurd conclusion. But I think
there are the strongest grounds for saying that it would lead
to results which are repugnant to the intention of the legislature
as shown by the whole of the Ordinance in question. It is an
Ordinance for the prevention of crime; and I think it is per­
fectly clear that the object of the legislature in enacting sec. 8
was to prevent undesirable persons from entering the colony.
The first section deals with persons who are convicted In the
colony. I need not refer in detail to the provisions of that sec­
tion ; they apply to persons in the colony, and who have been
convicted within the colony: they are subjected to very strict
supervision, and under certain circumstances their conduct may
be a criminal offence. Sec. 3 refers to persons who have been
convicted outside the colony, and I think it is clear that the
object of that section was to prevent such persons from coming
into the colony. It was considered by the legislature undesirable
that such persons should come into the colony, but it was mani­
festly impossible to keep them out, and therefore the legislature
enacted that any such person entering into the colony should be
guilty of a criminal offence for which he might be convicted
and sentenced to imprisonment for a period not exceeding two
months; and they also enacted, in sec. 5, that it should be lawful
for the Governor, by warrant, to remove from this colony any
person convicted of a contravention of sec. 3. But sec, 3 refers
922 VENTER v REX

to avy person entering the colony; and if we give the words

their ordinary meaning it is clear that it would include persons
who were resident in the colony at the time the crime was com­
mitted—persons resi ling here who had been temporarily absent,
and who, during the period of their temporary absence, had
yielded to temptation, had committed crime, and had been con­
victed in some other colony. It would include the case of a man
who was living here with his wife and family, and had gone out
of the colony for a short time, either on business or for a visit,
and during that time had committed a crime and had l)een con­
victed. It would include the case of a boy or girl whose parents
were living in this colony, and who had been sent to some school
outside the colony. Is it conceivable that the legislature intended
to prevent such persons from returning to their homes ? Tim
object of the Ordinance, as I understand it. was not to keep out
of the country residents of the colony, who are dealt with speci­
fically under sec. 1. The object of the Ordinance, in my opinion,
was to keep out residents of other colonies and states who had
been convicted in those colonies or states, and whom it was
■deemed undesirable to admit into this colony. If the legislature
intended to deal in this drastic manner with residents of the
colony, why confine the provisions of sec. 3 to a person who had
been convicted outside the colony; why not enable the Governor
to remove persons who were residing in the colony, and who had
been convicted here ? Such persons may be convicted over and
over again, but there is no provision in tlm law which enabled
the Governor to remove them from the colony: and yet we are
asked to construe the section to mean that if a person leaves the
colony for a temporary purpose, and while beyond its borders
commits a single offence, he commits a crime by returning to his
home, and that it is in the discretion of the Governor to make an
order for his removal. It seems to me that considerations or
that nature lead one very strongly to the conclusion that sec 3
was not intended to deal with residents of the colony, but only
with persons residing outside it.
There are also other considerations, to which I may shortly
refer. If the section in question refers to residents in the colony
4is well as to persons who are residing outside the colony, one
 VENTER v. REX. 923

naturally inquires what is to become of these residents if the

section is to be put in operation against them. Where are such
persons to be sent ? In the case of persons who are residing
outside the colony, and who enter the colony, it is a very simple
matter to send them back to the country from which they came.
But in the case of a person who is residing in the colony, and
who has committed a crime outside the colony, if the section is
to be applied to him, what is to become of him ? Where is he to
be sent—to what place is he to be removed ? Is he merely to l>e
put across the border and left there ? I cannot imagine that
that could have been the intention of the legislature, because it
would inevitably lead to trouble with the neighbouring colonies
and states. That also. I think, is a consideration which one may
fairly take into account in coming to a conclusion as to what the
intention of the legislature was. Considerations of this nature
lead me without any hesitation to the conclusion that the section
was not intended to include residents of the colonv «/ who were
temporarily absent, and who during their temporary absence had
committed crimes outside the colony. In my opinion the words
“any person” used in sec. 3 must be limited by excluding from
its operation persons who were resident in the colony at the
time when the crime was committed.
In the present case the accused was not a person who was
residing within the colony at the time when he committed the
crime of which he was convicted in the Orange River Colony.
The magistrate finds that the Transvaal was his domicile. His
domicile of origin was the Cape Colony, but he had come to the
Transvaal and had taken up his domicile here. He left the Trans­
vaal in 1901. He has been absent from the Transvaal since that
time, and has been resident in the Orange River Colony : and
although his domicile was still, as the magistrate finds, in the
Transvaal, his residence at the time the crime was committed
was not in the Transvaal, but in the Orange River Colony. I
am not prepared to say that we are justified in going further
than I have already said in excepting from the provisions of
the Ordinance only persons who were resident in the colony at
the time the crime was committed. There is no doubt a good
deal to be said in favour of extending the exception even to
9*24 VENTER v. REX,

persons not resident here, but who were domiciled here at the
time the crime was committed. But I am not clear that tin-
legislature intended to exclude such persons. I do not think we
are justified in departing from the ordinary words used by the
legislature, unless we are perfectly satisfied that they did not
intend then) to apply to any particular class or classes of
persons. From the whole context, and from other considera­
tions, I am satisfied that the legislature did not intend to include
persons who wer^ resident in the colony. But I am not equally
satisfied that they did not intend to include persons who were
domiciled in the Transvaal, but resident elsewhere. It may very
well be that they intended that such persons^ should be included,
and should not be allowed to enter the colony if they committed
a crime or crimes outside the colony. Therefore, although there
is a great deal to be said in favour of that argument, I come to
the conclusion that we are not justified in departing so far from
the words of sec. 3 as to exclude such persons from its operation,
and that consequently the appeal must be dismissed.

Innes, C.J.: The appeal will be dismissed. I had intended

to express our sense of indebtedness to Mr. Duxbwi'y for the
way in which he argued the case on behalf of the appellant; I
should like to take the opportunity of doing so now.