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[1988] ZASCA 48
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Attorney-General, Cape v Bestall (496/86) [1988] ZASCA 48 (17 May 1988)
ATTORNEY-GENERAL, CAPE
APPELLANT
AND
CLIFFORD NOEL BESTALL
RESPONDENT
NESTADT, JA
CASE NO. 496/86
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
ATTORNEY-GENERAL, CAPE
APPELLANT
AND
CLIFFORD NOEL BESTALL
RESPONDENT
CORAM
: CORBETT, NESTADT, KUMLEBEN JJA et VILJOEN, NICHOLAS
AJJA
DATE HEARD
: 24 MARCH 1988
DATE DELIVERED
: 17 MEI 1988
JUDGMENT NESTADT JA
:
Respondent was convicted by a magis-trate on
two counts of having, in July 1983, unlawfully
taken/
2. taken photographs of certain prisons in contravention of sec
44(1)(e)(i) of the Prisons Act 8 of 1959. Both counts were taken together
for
the purpose of sentence which was a fine of R300 or one hundred days
imprison-ment. On appeal to the Cape Provincial Division
the convictions and
sentence were set aside. The judgment of that court is reported (see
S vs
Bestall
1986(3) S A 761(C)). We are now concerned with a further appeal,
this time by the attorney-general. The decision of the court a
quo
having
been based on a question of law,
sec 311
(1) of the
Criminal Procedure Act 51 of 1977
makes such an appeal
competent.
Sec 44(l)(e)(i)
provides:
"44(1)/
3. "44(1) Any person who -
(e) without the authority in writing
of the Commissioner -(i) makes a sketch or takes a photograph of any prison,
portion of a prison or any burial referred to in sec-
tion 35(4)(b);
shall be guilty of an offence and liable on conviction to a fine not
exceeding two thousand rand or, in default of payment, to imprisonment
for a
period not exceeding two years or to such imprisonment without the option of a
fine or to both such fine and such imprisonment."
In terms of the definition section (sec 1), the Commissioner
is the
Commissioner of Prisons. It will be relevant,
in due course, to consider also
the definition of "prison".
The burial referred to in
sec 35(4)(b)
is that of
a
prisoner executed in terms of a death sentence.
The/
4. The circumstances in which the
photo-graphs, in the form of a television film, were admittedly taken by
respondent are fully set
out in the judgment a
guo
(at 762 H - 765 B).
Insofar as they are material to the issues that arise in this appeal, they may
be brief-ly stated. Respondent
is a free-lance professional cameraman living in
Cape Town. He filmed the prisons in guestion, viz Robben Island and Pollsmoor,
on
the instruc-tions of a television news agency called ITN. He knew that to
lawfully do so, the permission of, as he put it, "the requisite
authorities" was
needed. He assumed that it had been granted (at the instance of his principal).
He was mistaken. It had neither
been granted nor even sought.
Respondent's/
5
Respondent's defence was thus an absence of mens rea; though he intended
to take photographs of the prisons and knew that it was un-lawful
to do so
without authority, he, believing that it had been granted, was unaware that he
was acting unlawfully.
The magistrate accepted that this was
respondent'sstate of mind. He nevertheless convicted him. He did so on the basis
that whilst
mens rea
was required for a contravention of the statute, it
took the form,not of
dolus,
but merely of
culpa
. On the facts it
was hêld that respondent's assumption that he was authorised to take the
photographs was not a reasonable
one/
6. one; he had therefore acted negligently; in the re-sult the
State (which bore the onus) had established
The court a guo, in upholding the appeal to it, did not consider whether
respondent was negligent in assuming that the requisite authority
had in fact
been obtained. This was because, in its view,
sec 44(1)(e)(i)
required
mens
rea
in the form, not of
culpa
, but of
dolus
. This entailed at
the very least the taking of a photograph with knowlsdge (i) that what was being
photographed was a prison and
(ii) that the requisite authority had not been
obtained (see at 768 A - C). Respondent lacked this latter state of mind and
therefore
the nécessary
mens rea
.
The/
7.
The guestion of law raised by the appeal to us is whether the
court a
quo
was correct in its construction of
sec 44(1)(e)(i).
In
particular having regard to the basis on which it granted leave to appeal, the
issue is the narrow one of what form
mens rea
, in relation to
respondent's assumption that he was duly authorised to photograph the prisons,
takes; is it
dolus
or
culpa
? If it be the latter, then the matter
would have to be remitted to the court a
quo
for it to consider the
corrsctness of the magistrate's finding that respondent was negligent. If it be
the former then, naturally,
the appeal must fail.
Inherent in what has been stated, was the acceptance by appellant that,
provided respondent
was/
8.
was not negligent, his ignorance of the unlawfulness
of
what he did constitutes a defence. And, consistent with
this, Mr
vander Merwe
on behalf of appellant, has, to
his credit,
despite certain suggestions from the Bench querying this basic premise, confined
his argument to an attack on the court
a
quo's
finding that
dolus
was, in this regard, required.
Upon reflection, I am of the opinion that,
leaving aside the form of
mens rea
, appellant's approach is the correct
one and that any initial mistrust of it was unwarranted. The idea that the
section perhaps imposed
strict liability was based primarily on a line of cases
exemplified by
S vs Louterwater Landgoed (Edms) Bpk en Andere
1972(2) S A
809(C) in which BAKER AJ, at 818 C - E, said:
"Dit/
9.
"Dit is uitgemaakte reg dat selfs in die geval van daardie wetteregtelike
misdrywe waarby
mens rea
'n vereiste is, as die betrokke Wet 'n
uitsondering, vrystelling of verskoningsgrond skep, word die be-
rede die feit dat hy glo dat hy deur die uitsondering beskerm word; hy moet
bewys dat hy inderdaad deur die uitsondering beskerm
is: d.w.s.
mens rea
is nie relevant nie."
"Uitsondering,
vrystelling of verskoningsgrond" were used
in reference to
sec 315(2)(b)
of
Act 56 of 1955 to which
sec 90 of the present
Criminal Procedure Act, 51 of
1977
corresponds. It provides:
"In criminal proceedings any exception, exemption, proviso, excuse or
quali-fication, whether it does or does not accompany in the
same section the
des-cription of the offence in the law creating the offence, may be proved
by
the/
10.
the accused but need not be specified or negatived in the charge and, if so
specified or negatived, need not be proved by the
prosecution."
principle stated by BAKER
AJ is sound. The
ratio
of the
Louterwater
type of case would
seem to be that where one
has what I will call a
sec 90
situation, the
exemption
(to use a composite term) is not an element of the offence
and
mens rea
in relation to it is not required. But I
am not sure that
this is not unjustifiably elevating what
may be a purely procedural
provision, designed to facilitate
proof by the prosecution, to one affecting
the substan-
tive law. The following remarks of CORBETT J, in
S
vs
Tshwape and Another
1964(4) S A 327(C) at 332 H are
in
point:
"As/
11.
"As I see it, the fact that
sec. 315(2)(b)
relieves the State of the task of
nega-tiving the issue of a permit and places the
onus
in this regard upon
the accused,does not alter the fact that
the absence of such a permit is one of the requisites of a contravention of the
prohibition ... The procedural question as to where
in this connec-tion the
onus
of proof lies does not, in my opinion, affect this
conclusion."
On this reasoning, unless
the statutory provision in
question creates strict liability, a contravention
thereof
by an accused can only be blameworthy if (depending upon
which
form of
mens rea
applies) he knows, or ought reasona-
bly to know, his
conduct to be unlawful. He must have
the necessary guilty state of mind in
respect of the
element of unlawfulness, in addition to the other elements
of/
12. of the offence. If because of a mistake as to the law or facts he
does not, there cannot be a conviction. This consequence follows
from
S vs De
Blom
1977(3) S A 513(A). It also accords with the general rule that
mens
rea
extends to all the elements of a crime.
There is an alternative basis
for coming to the same conclusion. It is one advanced by Prof André Rabie
in a helpful article
on
sec 90
in
1985 THRHR 81.
His view,which appears to
differ from that of CORBETT J in
S vs Tshwape
, set out above, is that the
effect of
sec 90
is that an exemption does not form part of the crime in
question and that a mistake as to its existence is not one in respect of
an
element of the offence created by the statute. However, on the basis that
exemptions in
terms/ ......
13.
terms of
sec 90
amount, in effect, to statutory grounds
of
justification, he submits the following (at 85):
"Since an exception (in terms of
section 90
of the
Criminal Procedure Act)
amounts
in effect to a statutory ground of jus-tification, comparable to any common-law
ground of justification, a mistaken belief that the
exception applies should be
regarded as a mistake in respect of the lawfulness of the conduct in question,
and should be treated
on the same basis as mistakes with regard to common-law
grounds of justification. An accused who mis-takenly believes that his conduct
is covered by a statutory ground of justifi-cation accordingly believes that his
con-duct is lawful. De
Blom
(1977 3 SA 513(A))
constitutes decisive
authority for the principle that an accused who is unaware of the fact that his
conduct is unlawful, cannot
be held liable for a crime in re-spect of which
intention is required. The view that reliance upon an exempting pro-vision will
only
avail an accused who proves
that/
14.
that he in fact falls within the terms of an exemption is
tantamount to a denial of the element of fault and constitutes a preoccupation
only with the element of unlawfulness."
It would seem, therefore, that, even if the
Commissioner's authority
referred to in
sec 44(1)(e)(i)
constitutes an exemption in terms of
sec 90
,
respondent's
assumption that it existed would, leaving aside the issue
of
whether it need be reasonable, be a defence. It is, how-
ever, unnecessary to
express a definite view in this regard.
This is because I do not, in any
event, think that on a
proper construction of
sec 44(1)(e)(i)
, the portion
reading
"without the authority in writing of the Commissioner" is an
"exception, exemption, proviso, excuse or qualification"
within/
15. within the meaning of
sec 90.
As
appears from what SCHREINER JA said in
R vs Kula and Others
1954(1) S A
157(A) at 159 F - H, the application of the section is not always easy. What has
to be decided is whether the negative
element or excusing factor forms a
material part of the offence itself or whether it is merely an exclusion (to be
established by
the accused) from the general pro-hibition contained in the
provision. In each case it is a question of construction of the relevant
legislation. Factors used as an aid in this regsri, in addition to the form in
which the prohibition ±s cast, include the grammatical
shape of the
provision, its context, its apparent scope and object and the practical
consequences
of/
16. of the competing constructions. . In addition, according to the
so-called "truncation test", assistance may be derived from considering
whether
if the alleged exemption be excised, what remains looks like something that the
Legislature might well have intended to make
an offence (see
R vs Kula
supra
, at 161 A - B).
In the present case the apparent object of
sec 44
as a whole is to shroud prisons and prisoners with anonymity; to draw a veil
between them and the public. Presumably, the purpose
of this is to promote the
security of prisons, avoid the publication of false information about conditions
in them, prevent escapes
and minimise the humiliation of prisoners. It may
be
conceded/
17. conceded that, in these circumstances, the mere taking of
a photograph of a prison was something which the Legislature possibly
wished to
penalise so that, applying the truncation test, the authority of the
Commissioner is to be regarded as an exculpatory factor
and, accordingly, an
exemption. On the other hand, the form which
sec 44(1)(e)(i)
takes tends, in my
view, to favour the con-clusion that the absence of the Commissioner's authority
is a material part of the offence;
it is woven into the language of the
prohibition. Moreover, it would be a simple matter for the State to negative the
existence of
authority; it has to be an authority given by the Commissioner in
writing. Indeed, in the present case, it was alleged in each charge
that a
photograph of a
prison/
18. prison had been taken without the
necessary authority and the State had no difficulty in establishing this. An
affidavit to this
effect by the Commissioner was handed in by consent. The
decision is a borderline one but, on balance, I take the view (with which
counsel for appellant agrees) that the authority required by
sec 44(1)(e)(i)
is
not an exemption within the meaning of
sec 90.
To sum up so far, I am of the
opinion that respondent's assumption that he was authorised to photograph the
prisons was capable of
constituting a defence of contravening
sec
44(l)(e)(i).
After/
19. After this somewhat lengthy diversion, I return to a
consideration of appellant's argument that
culpa
rather than
dolus
constituted the necessary form of
mens rea
. The main submission was that
this was so in relation to all the elements of the offence created by
sec
44(1)(e)(i).
Alternatively it was contended that even if the taking of a
photograph of a prison had to be intentional, it sufficed if an accused
was
negligent in assuming that he had the necessary authority. I deal immediately
with the latter proposition. The possibility of
a type of hybrid form of
mens
rea
(as
LAWSA
Vol 6 para 112 p 108 calls it) has been judicially
recognised (see
S vs Ngwenya
1979(2) S A 96(A) at 100 C - E).
But/ ......
20. But it does not avail appellant because, as will appear, I
do not think that
mens rea
in the form of
culpa
applies to any of
the ingredients of the offence.
The type of problem raised by the main
argument has engaged the attention of our courts on many occasions over the
years. Most recently
it arose, as far as this Division is concerned, in
Attorney-General, Natal vs Ndlovu
1988(1) S A 905(A). It stems from the
fact that the Legislature frequently omits to indicate what form of
mens
rea
is required (or indeed, equally often, to stipulate whether
mens
rea
is an ingredient of the offence at all). Its intention has then to be
discovered by interpreting the statute
in/
21. in question. This is often a matter of difficulty. As far as the
issue under discussion is concerned, i e the degree of blameworthiness,
it was
stated in
R vs Arenstein
1964(1) S A 361(A) at 366 C that there is no
general rule favouring
dolus
or
culpa
; negli-gence may constitute
sufficient proof of
mens rea
if there was a duty on the accused to be
circumspect. On the other hand, it hasbeen said that the form of
mens rea
that the Legislature had in mind will usually be taken to be
dolus
(
S
vs Ngwenya
,
supra
, at 100 A) I am not sure that the two approaches
(as to which see, too,
LAWSA
Vol 6 para 112, p 105 - 106; Snyman:
Strafreq
/
22.
Strafreg 2nd ed 268) are in conflict with each other. In any
event, it is unnecessary to choose between them. Even assuming that the
scales
are initially evenly balanced, it seems to me, for the reasons which follow,
that, in the end, there are considerations in
favour of a finding that
sec
44(1)(e)(i)
reguires intentional wrongdoing which outweigh those that negligence
suffices.
There are a number of well-established criteria which are taken
into account in determining what degree of
mens rea
was intended by the.
Legislature. They are similar to those which govern the enquiry whether
mens
rea
is required at all. The main ones are: (i) the language and context of
the prohibition;
(ii)/
23.
(ii) the ease with which the provision can be evaded if only
dolus
constitutes the necessary
mens rea
; (iii) the reasonableness
or otherwise of holding that
culpa
suffices and (iv) the degree of
circumspection which the statute demands. Relevant in the latter regards are (a)
the object and scope
of the statute and (b) the nature of the penalty imposed.
(See, generally,
LAWSA
Vol 6 para 112 pp 105 - 108.)
It cannot be
gainsaid that certain of these criteria point to
culpa
being the intended
form of
mens rea
in
sec 44(1)(e)(i).
There is firstly its context. As
counsel for appellant was understandably quick to indicate, sub secs (c) and (d)
of
sec 44(1)
respectively
(in/
24. (in broad terms) make it an offence to "wilfully" ride,
drive or lead any animal or vehicle through a group of
prisoners and in
any manner to "wilfully" interfere with
any prisoner. The use of "wilfully"
in these sub-
sections is to be contrasted with its absence in sub-sec
(e)(i) (and the rest of sub-sec (e)). It is
prima facie
a strong
indication that a different and lesser degree of
mens rea
is required
for the offence created by the
latter provision (
S vs Oberholzer
1971(4) S A 602(A) at
611 H;
S vs Willemse
1975(1) S A 84(C) at 91 F). I
am not impressed
by the suggestion of Mr
Kuny
,
representing respondent, for the
difference in wording. It was
that the acts of riding etc and interfering
referred to in
sub-secs/
25. sub-secs(c) and (d) could be committed either deliberately
or unintentionally; it was in order to ensure that the latter not be
punishable
that "wilfully" was introduced; but in the nature of things taking a photograph
inherently requires conscious volition;
it was therefore unnecessary to make the
prohibition in this regard subject to wilful-ness. Whilst counsel may be right
as regards
the actual taking of a photograph, it is not difficult to imagine (as
will be seen) a case where a prison falls unknowingly, and
therefore
accidentally, within the picture.
Secondly, there are factors which favour
the view that a high degree of circumspection to ensure compliance with the
prohibition created
by
sec 44(1)(e)(i)
is/
26.
is demanded by the lawgiver. This suggests that
mens
rea
, in its less stringent form of
culpa
, was intended (
S vs
Arenstein
,
supra
, at 366 F). The one is the undoubtedly severe
penalties which are provided for a contravention of
sec 44(1)
generally. The
other is the object of sub-sec (e). It follows from what has been indicated
earlier that it is not merely the prevention
per se
of escapes (as the
court a
quo
found) but also,indirectly, the promotion of the security of
prisons.
What has been stated, however, does not give the whole picture.
There are other considerations which must be taken into account and
which, in my
view,
militate/
27.
militate against a conclusion that
mens rea
in the
form of
culpa
suffices for a contravention of
sec 44(l)(e)(i).
They are
the following:
(i) As appears from the judgment of RABIE ACJ
in
Attorney-General, Natal vs Ndlovu
,
supra
, the fact that the
statute in question demands a high degree of circumspection is only one of the
factors to be taken into account;
it does not necessarily show that negiigence,
as opposed to
dolus
, is the form of
mens rea
(see at 915 D - 916
A). (ii) I cannot agree with
Mr van der Merwe
that
to
insist on
dolus
would result in the whole
object
of /
28.
of the prohibition being frustrated; that it could easily be evaded;
and that it would be difficult for the State to prove the necessary
state of
mind. I think this is an exaggeration of the position. Evidence as to the
circumstances in which the photograph was taken
(whether surreptitiously or
otherwise), the occupation of the accused, his education, his motives, his
explanation for taking the
photograph, his knowledge of and familiarity with
local condi-tions and to pography would be some of the factors which might, in
a
given case, facilitate the necessary proof by the State of
dolus
.
And,
of/
29.
of course, it must be borne in mind that
dolus
eventualis
could be relied on. (iii) At 766 I - 767 B of the judgment a
quo
,
attention is drawn to some of the ways in which
sec 44(1)(e)(i)
could be
unintentionally con-travened. Clearly a multitude of situations is covered. They
result, in part, from the wide de-finition
of "prison" (quoted at 766B - D) and,
in partf from the activity sought to be regulated (taking photographs) being so
commonplace.
Prima facie
therefore, in the absence of a clear indication
to the contrary, an interpretation is called for which restricts the ambit of
the
section.
In/
30.
In other words, so it seems to me, rather than
the section
requiring a high degree of circumspec-tion from members of the public, a high
degree of circumspection is called for in
applying the Act. This must have been
Parliament's intention. It can best be achieved by requiring
dolus
. To
require
culpa
, would obviously spread the net of the prohibition more
widely. Those falling within it would then be exposed to the risk of a
conviction
were it proved that they had acted unreasonably. This is a
consequence which is, if possible, to be avoided. In principle, a wide-ranging
prohibition applicable
to/
31
to all citizens indicates
dolus
alone as the re-quired form of
mens rea
, if the application of the
standard of
culpa
will result in great hardship to the various groups of
persons who may contravene the section in question through mere carelessness
or
thoughtlessness. (LAWSA, op
cit
, 108). This is the position here.
The
cumulative effect of the consideratións referred to in the previous
paragraph leads me to the conclusion that the court
a
quo
correctly
interpreted sec 44(1)(e)(i) as requiring
mens rea
in the form of
dolus
and not
culpa
. It follpws that respondent's ignorance of the
unlawfulness of what he did constituted a good defence.
On/
32.
On behalf of respondent it was submitted that, in the event
of the appeal failing, he was entitled to his costs thereof. Sec 311(2)
of Act
51 of 1977 makes provision for such an order. I see no reason why it should not
be made in this case (as it was in
Attorney
-
General, Natal vs
Ndlovu
,
supra
, at 918 I). It would be unfair that the correctness of
the law point relied on by appellant should be tested (partly) at the expense
of
respondent.
The appeal is dismissed with costs. Such costs are to include the
fees of two counsel.
NESTADT, JA CORBETT, JA ) KUMLEBEN, JA ) CONCUR VIWOEN, AJA ) NICHOLAS, AJA
)