About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1987
>>
[1987] ZASCA 148
|
|
S v Melk (234/85) [1987] ZASCA 148 (30 November 1987)
Saak No 234/85 TPA
EMILY ELIZABETH MELK
APPELLANT
and
THE STATE
RESPONDENT
J J F HEFER JA
IN T
HE SUPREME COURT
OF SOUTH AFRICA
APPELLATE
DIVISION
In the matter between
EMILY ELIZABETH MELK
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: RABIE ACJ, JOUBERT, HEFER, JJA, BOSHOFF et STEYN, AJJA.
HEARD
: 14 SEPTEMBER 1987.
DELIVERED
: 30 NOVEMBER 1987.
JUDGMENT HEFER, JA
:
The African National Congress (the "A N C")
is 2
2.
is an unlawful organization as defined in the Internal
Security Act No 74 of 1982. In terms of sec 56(1) (c)
of the Act any
person who, without the consent of the
Minister of Law and Order, is in
possession of
"any publication published or disseminated by or under the direction or
guidance or on behalf of any unlawful organization"
shall be guilty of an offence.
The discovery in appellant's possession of a
book bearing the title
"Island in Chains" led to her ap-
pearance in a regional court, charged with
contravening
sec 56(1) (c). She pleaded not guilty. In a statement
handed
to the court her defence was set out in the fol-
lowing terms :
"7 3
3.
"7. In my defence, I state that I did not know, nor did I have reason to
believe that it was unlawful to possess a copy of the said
publication.
8. I state further that I deny that the
publication was published, or dissemi-nated by, or under the direction, or
guidance, or on behalf of the African National Congress."
On both the issues. thus raised, the court found against
the appellant.
She was convicted and the conviction was
subsequently confirmed on appeal to
the Transvaal Provin-
cial Division, which, however, granted the appellant
leave
to appeal to this court.
The judgment in the court a
quo
was not repor-
ted but the court's
interpretation of sec 56(1) (c) and
its views on the form of
mens rea
required for the contra-
vention 4
4. vention thereof appear from
S v Mabitselo
1985(4) S A
61 (T). (
Mabitselo's
appeal was heard on the same day and by the same
judges who heard the appellant's appeal and the two cases were argued together).
I mention the interpretation of sec 56(1) (c) and the form of
mens rea
required for its contravention since these were the two matters with which
the regional court and the court a
quo
were mainly concerned. The section
is aimed at the pos-session pf any publication published or disseminated by or
under the direction or guidance
or
on behalf of
an un-lawful
organization. "Island in Chains" was alleged by the State to have been published
or disseminated
on behalf of
the A N C and, in order to decide whether
this was indeed
the 5
5. the case, the meaning of "on behalf of" in sec 56(1) (c) first
had to be ascertained. Both courts construed the words as meaning
"for the
benefit" or "in the in-terest " or "to the advantage of" and found, on this
"construction, that the book had been published
or dis-seminated on behalf of
the A N C. The question of
mens rea
then arose. The regional court held
(and the court a
quo
agreêd) that
mens rea
in the form of
culpa
was suf-ficient. Its actual finding on the type of
mens rea
which the appellant had, will be dealt with at a later stage.
The conviction was challenged in this court
on 6
6.
on four alternative grounds. I shall deal with them in
the sequence in which they were presented.
The main submission related to the interpreta-
tion of the words "on behalf of" in sec 56(1) (c). I re-
ferred earlier to the trial court's interpretation of the
words in
question. It derived from a passage in the judg-
ment of INNES CJ in
De
Visser v Fitzpatrick
1907 T S 355
at p 363 where it was said that
"(the) popular meaning of those words is that everything done for a man's
benefit or in his interest or to his advantage is a thing
done on his behalf. On
the other hand, the more legal view is that they mean something done by a man's
representative or agent."
Whereas the trial court adopted the so-called popular
meaning, appellant's counsel contended for the "legal"
interpretation....7
7. interpretation by submitting that a publication is pub-lished or
disseminated on behalf of an unlawful organi-zation as contemplated
in sec 56(1)
(c), not when it ser-ves the interest or is for the benefit or to the advantage
of the organization, but when it is
published or dissemi-nated by its agent or
by someone (like an independent contractor) engaged or "sponsored" by the
organization.
The recent decision of this court in
S v Moloi and
another
1987(1) S A 196 (A D) disposes of this submis-sion. In that case
BOSHOFF AJA, in whose judgment two other members of the court concurred,
approved of the judg-ment in
Mabitselo's
case (
supra
) and adopted
the very in-terpretation of "on behalf of" in the context of sec 56(1)
(c) 8
8. (c) which appellant's counsel sought to avoid. Faced with this,
difficulty appellant's counsel took a curious course. He was unable
to refer us
to any error in the judgment which could have a bearing on the decision ar-rived
at therein; he had no answer to BOSHOFF
AJA's reasoning to the effect that "on
behalf of" in the Eng-lish text of sec 56(1) (c) has to be reconciled with "ten
behoewe van"
in the Afrikaans text; that, according to several well known
dictionaries, "ten behoewe van" is not capable of any meaning other
than "in the
interest of" or "to the advantage of" or "for the benefit of", and that a
reconciliation between the two texts can only
be effected if "on behalf of" is
interpreted as synonomous
with'. 9
9. with the English expressions which I have just used. Thus,
without suggesting any reason why the decision should not be followed,
appellant's counsel asked us to consider the question afresh. It is difficult,
to say the least, to differ from a decision of this
court which all the
ingenuity of counsel could not fault. I am unable to find any reason for doing
so. I agree with the reasoning
and decision in
Moloi's
case and the main
submission can, accordingly, not be sustained.
The alternative submissions
were advanced on the basis of the correctness of the trial courb's
interpre-tation of sec 56(1) (c). The
first two may conveniently
be 10
10. be discussed together. By way of introduction mention should be
made of the fact that the magistrate based his finding that "Island
in Chains"
was published or dissemi-nated in the interest or for the benefit or to the
advan-tage of the A N C entirely on his own
perception of the tenor of the book.
Appellant's counsel submitted that such a finding could not be made in the
absence of evidence
to show what the interests of the A N C are. What is
lack-ing, so he argued, is evidence relating to the aims and objectives of the
organization. He submitted, moreover, that the tenor of the book alone is not
such that a find-ing could be made that it would serve
the interests of the A N
C or that the latter would reap any benefit or
advantage 11
11.
advantage from its publication and dissemination. These submissions
are without substance. Any publication which seêks to advance
the cause of
an organization, whether it be by enlisting popular support or by engendering
sympathy for it or by extolling the justness
of its cause,obviously serves the
interests of the organization, whatever its in-terests may be; such a
publication is plainly for
its benefit and to its advantage. And "Island in
Chains" is precisely such a publication. It was written by Indres Naidoo, a
member
of the A N C, with the assistance,accor-ding to the foreword, of Albie
Sachs,"a lawyer who was him-self imprisoned and banned in
South Africa". Naidoo,
so the reader is informed in the foreword, was "one of the
first 12
12.
first volunteers for Umkhonto we Sizwe, 'Spear of the Nation',
the armed wing of the African National Congress". Caught
in the act of attempting to blow up certain railway instal-
lations, he was arrested, tried and sentenced to ten years'
imprisonment, the best part of which he served on Robben
Island. After his release he left the country and told
his experiences to
Sachs. It is said in the foreword that
he and Sachs then"grouped the themes
into chapters, and
so produced this book. It is a narrative of one of
the
central episodes of recent South African history, the
story of an
island in chains, the story of resistance as
seen through the eyes of one who
lived through it all for
ten years". It is unnecessary to describe Naidoo's
narra-
tive 13
13.
tive of his experiences from the time of his arrest to
the time of his release,in this judgment. A description
of the message which the book conveys, appears in the
foreword (written by Francis Meli, the Director of Exter-
nal Publicity of
the A N C). It reads as follows:
"This book is the voice of struggle, the voice of the oppressed, the voice of
the future, It expresses what is embodied and crystallized
in our slogans :
'Amandla Nga-wethu', 'Maatla Kea Rona', 'Power to the
People' : It simply means 'Mayibuye i
Afrika' - we are determined to seize power.
It is a declaration of
confidence in our
just cause ."
In order to confirm the accuracy of this description I
shall refer to only
one passage in the book where Naidoo
tells of an incident when he met members
of the Black
Consciousness 14
14.
Consciousness Movement in what he calls a "transit cell".
It reads as
follows :
"They want to find out if the rumours they have heard about the Island are
true and how they sh.ould conduct themselves when they
get there. So we tell
them that some of the hard times and terrible suf-fering have passed because of
our struggles, and we stress
that there is only one way to get through, and that
is to remember, each and every day, that they are political prisoners fighting
for a just cause, that they must always stand together and never lose sight of
their goal. We remind them that the people of South
Africa, and of the world,
will always be standing by them,that they will never be forgotten, however
iso-lated they might feel, and
that we are con-fident that the A N C will
continue the fight and bring victory to the people of our country."
There can be no doubt whatsoever that this
book
serves 15
15. serves the interest of the A N C or that it is to the advantage or for
the benefit of the organization.
What remains for consideration is the
question of
mens rea
in the
context of the appellant's statement that she "did not know, nor had reason to
be-lieve that it was unlawful to possess a
copy of the said publication". The
magistrate ruled that
culpa
on the part of the possessor may constitute
the mental element of thë offence of being in possession of a publication
in contravention
of sec 56(1) (c), and in effect found that the appellant
ought to have known
that it was un-lawful to possess a copy of "Island in
Chains" .
The 16
16. The question is whether his ruling on the sufficiency of
culpa
is
correct.
The magistrate ruled and counsel who argued the appeal were in
agreement that sec 56(1) (c) does not impose so-called strict liability.
In the
absence of clear indications to the contrary in the Act, the presump-tion
against an intention to impose that kind of liability
must prevail (
S v
Arenstein
1964(1) S A 361 at p 365) and I agree with the magistrate that
mens rea
is an element of the offence.
There is no indication in sec 56(1) (c) of
the form of
mens rea
required but, as BOTHA JA stated in
Arenstein's
case (at p 366) :
" it 17
17.
" it is clear that
'negligence may constitute sufficient proof of
mens rea
even in cases
where negligence is not the gist of the offence charged, if there was a duty on
the part of the person
charged to be circumspect '
- per CENTLIVRES JA in
R v H supra
at p 130.-
The degree of blameworthiness required for a culpable violation of a
statutory pro-hibition or injunction must in the first place
be sought in the
language used by the law-
giver and in the absence of any words
expressly indicating the particular mental state required, the degree of
mens rea
must depend on that foresight or care which the statute in the
circumstances demands."
See also
S v Jassat
1965(3) S A 423 (A D),
S v Qumbella
1966(4) S A 356 (A D),
S v Marais
1971(1) S A 844 (A D)
at p 851,
S v Oberholzer
1971(4) S A 602 (A D) at p 612.
According to these
decisions
culpa
may be sufficient if
it appears that a high degree of
circumspection or care
is 18
18. is demanded for the observance of a statutory prohi-bition or injunction.
Whether that is so depends upon the intention of the
legislature.
Sec 56(1)
(c) appears in an Act which, ac-cording to its long title, was passed to provide
for the security of the State and the maintenance
of law and or-der and for
matters connected therewith. A large variety of matters, all related somehow or
other to the security of
the State or the maintenancê of law and order,
are pro-vided for in different parts of the Act. For presentpur-poses reference
need only be made to some of the provi-sions relating to unlawful
organizations..
If the Minister of Law and Order is satisfied
that 19
19.
that the activities of an organization endanger or are
calculated to endanger the safety of the State or the maintenance of law and
order, he may declare it an unlaw-
ful organization. (Sec 4(1).) One of the
effects of such a declaration is that no-one may thereafter take part in the
activities of
the organization or carry on in its direct or indirect interest
any activity in which it was or could have engaged (sec 13(1) (a)
(iv)); or
advocate, advise defend or encourage the achievement of any of its objects (sec
13(1) (a) (v)). What the legis-lature sought
to achieve by these measures is
clear. A declaration in terms of sec 4(1) will not necessarily bring about the
discontinuance of
the activities of the
organization 20
20. organization. For that reason sec 13(1) (a) (iv) was
introduced. The legislature deemed it necessary, more-over, to prevent the
propagation of the achievenent of the organization's objectives. To that end it
introduced sec 13(1) (a) (v).
Sec 56(1) (c) could only have been intended
to bolster secs 13(1) (a) (iv)
and (v). Although it is conceivable that the kind of publication at which it is
aimed was considered
to be so harmful or potentially harm-ful that no-one should
even be allowed to possess it , it is more likely that the prohibition
was
intended as an impediment to the continuation of an organization's acti-vities
after a declaration in terms of sec 4(1) and to
the 21
21. the propagation of the achievement of its objectives. The
section thus forms part of the legislature's scheme to combat these
evils, for
the protection of the State and for the maintenance of law and order. One is
temp-ted to say, therefore, that a high degree
of circumspec-tion is required
for the observance of the prohibition and, applying the principle stated in the
cases mentioned earlier,
that
culpa
on the part of the possessor of a
pro-hibited publication is sufficient to justify his convic-tion for
contravening sec 56(1) (c).
The problem pre-sented by the present case cannot,
however, be solved in this way. A closer look at the section is required in
order
to discover what it entails.
What 22
22.
What is prohibited therein is the
possession
(without the Minister's consent) of
any
publication
pub-
lished
or
disseminated by
or
under the direction
or gui-
dance
or on
behalf of
(in the sense explained
earlier)
an unlawful organization
. The complexity of the
des-
cription of a prohibited publication becomes apparent im-
mediately.
To identify a publication as a prohibited one
may in many cases prove to be
extremely difficult if not
impossible. This problem is aggravated by the fact
that
no unlawful organization and no-one acting in its inte-
rests will
openly disseminate publications, the posses-
sion of which is prohibited, and
will much rather resort
to covert measures to spread its philosophy or to
advance
its 23
23.
its aims. "Island in Chains" was eg printed, published and
reproduced by reputable companies in England. Nothing is known about the
manner
in which it was disseminated, nor is it known by whom this was done. It is for
this very reason that the State could only
allege and prove, by reference to the
contents of the book itself, that it was published and disseminated
on behalf
of
the A N.C. And in many cases the contents of the publication will not be
so revealing. "Island in Chains" is a crude example of A
N C propaganda but in
other publications the approach may be more subtle. Indeed, any publication
published or disseminated by or
under the direction or guidance of an unlawful
organization - even a religious treatise
or 24
24. or a textbook on the industrial law - is prohibited. It will often be
wholly impossible to know or even to suspect that it may
not be lawfully
possessed, or to find out whether it may.
Every prohibited publication is,
moreover, related in sec 56(1) (c) to an unlawful organization. As mentioned
earlier, an organization
is
declared
to be an unlawful one. The
declaration is published in the Gazette. Although many of these organizations
are prob-ably known to the
average South African, others undoub-tedly are not.
Appellant's counsel supplied us with a list containing the names of some of
them.
The list in-cludes some well known names. It also includes the names
of 25
25. of "Dance Association", 5 A A Football League", "Foot-ball
Club","Football League","Educational and Cultural Advancement of the
African
People in S A" and "Zimele Trust Fund". Personally I have never heard these
names before and I am sure that many others share
my ignorance. What is more
important, is that the names suggest nothing -at least not what the activities
of thesê organizations
are. If I were to receive a book openly published
by the "S A A Football League" I would, unless its contents are as revealing as
the contents of "Island in Chains",not have the faintest suspicion that it was
published by an organization which has been shown
to the Minister's
satis-faction to have been engaged in activities endangering
the 26
26.
the safety of the State or the maintenance of law and order.
I would not know, nor would I have reason to suspect, that I have in
my
possession a publication pro-hibited in terms of sec 56(1) (c).
Viewed in the
context of the question under discussion viz whether negligent violations of the
pro-hibition in sec 56(1) (c) have
been penalized, the prob-lem now becomes
clear. Negligence implies
inter alia
lack of reasonable foresight - in
this case lack of rea-sonable foresight of the possibility that a publication
may be a prohibited
one. From what I have said, the difficulty to foresee such a
possibility must be appa-rent, . It is clear that, in cases where a
publication
cannot 27
27. cannot, by reference to its contents or to extraneous
circumstances,
be identified as a prohibited one, there can be no foresight that it may be. It
is clear too that there is a very real
likelihood of such cases occur-ringJ
Publications which are identifiable as prohibi-ted ones are not without
difficulty either. The
ques-tion is: by whom are they supposed to be
identifiable? If the so-called objective test of negligence is applied, as it
generally
is, the court hearing a case brought for an al-leged contravention of
sec 56(1) (c) will be called upon to answer this question according
to its own
objective assessment of the reasonableness of the accused's failure to identify
the publication; and in doing so, it will
not 28
28.
not take the accused's personal capabilities into ac-count
(
S v Ngubane
1985(3) S A 677 (A D) at p 687); the unsophisticated and
uneducated shepherd will be trea-ted no differently from the professor and
no
heed will be taken of the "widely differing standards of culture, edu-
cation
and social awareness of the various groups of per-sons to whom, as citizens of
South Africa, this Act ap-plies." (per FANNIN
J in
S v Naidoo
1974(4) S A
574 (N) at p 576). On the magistrate's construction of sec 56(1), (c)such an
inequitable result must have been inten-ded-by
thé legislature. I find
that difficult to accept. (On that construction the same result would follow if
an accused were to
raise by way of defence his ignorance
of 29
29. of the prohibition (cf
S v de Blom
1977(3) S A 513 (A D). I find
it equally difficult to accept that that was intended). Taking everything into
account, I have come
to the conclusion that the legislature did not intend to
demand the high degree of circumspection for the obser-vance of the prohibition
which is required for an infe-rence that
culpa
on the part of the
possessor of a pro-
hibited publication is sufficient to justify his
convic-tion. I am fortified in this view by the fact that sta-tutory
prohibitions
against the possession of certain ar-ticles or substances have
always in the past (except in one case) been interpreted in such a
way that
knowledge was required on the part of the possessor that
what 30
30.
what he has in his possession,. is the prohibited article
or substance. It was said in
S v Smith
1965(4) S A
166 (C) at p 171 that
"(t)he weight of this authority is undoub-
tedly in favour of the general
proposition
that, where a person is charged with the
contravention of a
statutory provision
which prohibits the possession of certain
articles
except under special circumstan-
ces or under the authority of a
permit,
mens rea
,
in the sense of the accused per
-
son
knowing that he has in his custody or
under his control the forbidden
article
,
is normally an essential ingredient of the
offence " (My
italics)
(To the authorities referred to by the learned judge,
may be added
S v
Mdeleleni
1975(2) S A 682 (C),
S v Cow
-
ley
1976(1) S A 376 (E),
S v Lombard
1980(3) S A 948 (T)
and
S v Ngwenya
1979(2) S A 96 (A D). After the passing
of 31
31. of the Act there were others.) In
S v Goncalves
1974 (2) S A 122::
(NC)
culpa
was held to be sufficient for
the unlawful possession of certain drugs. But the cor-
rectness of the
decision was doubted (cf
S v Lombarcf
(
supra
) at p 951-2 and the
judgments of FANNINJ and VAN HEERDEN J in
S v Naidoo
(
supra
)). The
legislature could hardly have been unaware that this was the state of the law
and, had it been the intention to create in.
sec 56(1) (c) yet another offence
entailing the posses-sion of an article but with a different form of
mens
rea
,
it is unlikely that it would not have been expressly or
at least clearly stated.
I have accordingly come to the conclusion
that 32
32.
that
mens rea
in the form of
culpa
on the part
of the possessor of a prohibited publication is not sufficient to justify his
conviction on a charge of contravening
sec 56(1)(C). The magistrate found that
the appellant "could, and should have realized, as a reasonable member of
society that her
possession o.f the book was unlawful". In the absence of a
finding that she knew that her posses-sion was unlawful or foresaw that
it might
be, the con-viction cannot be sustained.
The appeal is upheld and the conviction
and sentence are set aside.
J J F HEFER JA. RABIE ACJ )
JOUBERT JA ) CONCUR.
STEYN AJA )