Attorney-General Transvaal v Additional Magistrate for Johannesburg

JurisdictionSouth Africa
JudgeInnes CJ, De Villiers JA, Kotzé JA, Wessels JA and JER De Villiers AJA
Judgment Date28 May 1924
Citation1924 AD 421
Hearing Date26 March 1924
CourtAppellate Division

Innes, C.J.:

This appeal, which raises an important question of administration under the Children's Protection Act, 1913, comes before us in the following circumstances. Two minors - an Indian boy aged 15, and a coloured boy aged 12, were charged, jointly with a European man and woman by whom they were employed, with the crimes of housebreaking and theft. The case had been remitted by the appellant to be dealt with under the increased jurisdiction conferred by sec. 92 of the Magistrate's Court Act. The boys pleaded guilty. The public prosecutor desired to proceed with the trial; but the respondent determined to deal with the case under the Children's Protection Act. After due enquiry and after hearing the, probation officer he made an order under sec. 34 of Act No. 25 of 1913, committing each if

Innes, C.J.

the boys to an institution certified under the statute, until he should attain the age of 18. The course which the magistrate took was sanctioned by the decision of the Transvaal Provincial Division in R v Smith (1922 T.P.D., p. 199), to which reference will presently be made. The Attorney-General, who desired to test the correctness of that decision, applied to the Provincial Court for a mandamus directing the respondent to proceed with the trial and to pronounce judgment. The application was refused; and he then approached this Division for leave to appeal against the refusal. If the matter were covered by sec. 104 of the South Africa Act an appeal would have lain as of right. But admittedly it is not, And without the grant of special leave there would, be no way of taking our decision upon the point. There is no express statutory provision for such leave. But in view of the fact that by sec. 106 the Privy Council can only be approached via the Appellate Division, we have held that in cases not falling under sec. 104 we should be prepared in special circumstances to grant leave to appeal. This is a case proper for the exercise of that jurisdiction; for it raises an important question of practice, depending upon the construction of an obscurely expressed statute, with regard to which judicial decisions have not always been harmonious. Mr. Roper, who appeared for the minors, did not oppose the preliminary application., and special leave was accordingly granted.

With regard to the appeal, the dispute lies in a nut shell. The control of all criminal prosecution is vested in the Attorney-General. In the exercise of his discretion, and under his statutory powers, that officer remitted to the magistrate the charge against these boys to be dealt with under his enlarged jurisdiction. The contention of the appellant is that criminal proceedings thus instituted must go forward to an issue. The charge having been made and plea taken either a conviction or an acquittal must follow. The accused indeed are entitled to demand a definite verdict. And to engraft, what were styled the administrative provisions of the Children's Protection Act upon criminal proceedings duly instituted And enjoined would be an interference with the powers and the jurisdiction of the Attorney-General. These submissions deserve careful attention, for the authority of the public prosecutor will not be lightly interfered with. And

Innes, C.J.

first as to the form of the proceedings. Upon consideration of a preparatory examination it is for the Attorney-General, if he determines to prosecute, to select the court before which the accused shall be brought to trial. He may decide to indict before a superior court, or to remit the case to the magistrate either under his ordinary or his increased jurisdiction. In the latter event the magistrate's powers are automatically enlarged, but his judicial independence is in no respect impaired. If the evidence is insufficient it is his duty to acquit; if sufficient he will convict - in which case he may avail himself of his extended jurisdiction in passing sentence. But he is not bound to do so. Circumstances may come to light during the trial which convince him that punishment under his ordinary jurisdiction would be appropriate to the offence. The responsibility for the decision is upon him alone. So far therefore as the present enquiry is concerned the fact that the case was remitted is irrelevant. If the magistrate could proceed under the Children's Protection Act during a trial originating in the ordinary way, then he could do so in a matter remitted to him by the Attorney-General. The question in either case depends upon the true interpretation of sec. 34 of the Statute. The object of the Act is sufficiently indicated by its title. Among other things it provides machinery for the special treatment of children who have fallen into crime, by removing them from their old environment and placing them amid surroundings conducive to reformation. Chapter 3 deals with Government Industrial Schools and Certified Institutions, and it is in that Chapter that sec. 34 occurs. The clause is practically identical with sec. 76 of the Prisons and Reformatories Act, 1911, now repealed, and it appears to have been originally adapted from Ed. VII., c. 67, sec. 58. The English provisions are perfectly clear. The first sub-section empowers any petty sessional court after due enquiry to send a child found in undesirable surroundings to a certified industrial school; and the second sub-section authorizes a court before which a child is charged with certain offences to send him to a similar school if satisfied that it is expedient so to deal with him. The non-criminal and the criminal cases are separately dealt with, and in regard to the latter the intention plainly is to supersede the criminal proceedings by the commitment order. Children convicted on a criminal charge are

Innes, C.J.

dealt with by another section which provides that they may be sent to a certified reformatory school in lieu of any other punishment. But the Union Act endeavours to embrace all cases where commitment to a non-prison establishment is authorized in single sub-section. (Sec. 34 (1) ). And the result has been to render confused what would otherwise be plain. But it comes to, this that a child not accused of crime but found by a magistrate's court sitting in camera, to fall under certain specified subheads may be sent to a Government industrial school or to a certified institution; and that a child who is being charged, or within the previous six months has been charged with a criminal offence may be similarly committed. The words "is being charged with any crime or offence" as here used are equivalent to "is being tried for any crime or offence," (see sec. 15 (1) 2) (3)); and that being so it follows that the magistrate is empowered during the trial to apply the machinery of the Children's Protection Act, instead of following the ordinary course. Special statutory authority is conferred upon him to engraft upon and supersede the criminal charge by an enquiry and a procedure which is sui generis. It is an authority which is exercisable in the magistrate's discretion after due enquiry into the circumstances and with due consideration to the interests of the child. That is the true construction of the somewhat involved language of the section, and it is a construction which is in harmony with the object of the Act. The idea which underlies this part of them Statute is that children who fall into crime in consequence of their environment should not be treated as criminals, but should be removed from their surroundings and enabled to start life under better conditions. That purpose would be frustrated if a magistrate were compelled to convict and punish every child against whom a criminal charge micht be established. It was to avoid that result that the concluding portion of sec. 34 (1) was drafted. Nor, rightly regarded, does that section impair the authority of the Attorney-General. His duty is discharged when he has remitted...

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93 practice notes
  • Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others
    • South Africa
    • Invalid date
    ...Broadcasting Corporation [1980] AC 303 (HL) ([1980] 3 All ER 161) Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 Bates v State Bar of Arizona 433 US 350 (1977) Bell v Wolfish 441 US 520 (1979) Bennett Coleman & Co v Union of India (1973) 2 SCR 757 (SC) Bern......
  • Florence v Government of the Republic of South Africa
    • South Africa
    • Invalid date
    ...(2010 (7) BCLR 640; [2010] 3 All SA 261; [2010] ZASCA 9): referred to Attorney General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421: dictum at 436 Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others C 1996 (4) SA 671 (CC)......
  • Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd
    • South Africa
    • Invalid date
    ...to every word. See Steyn Die Uitleg van Wette 5th ed at 17-19. In Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 Kotze JA said at 436 G that to regard words occurring in a section as having been inserted per incuriam is contrary to the well-approved canon o......
  • Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others
    • South Africa
    • Invalid date
    ... ... , the 'Act' or the '1967 Act'), in the Randburg magistrate's court ... [2] The charges were based on the ... in a shopping centre parking lot in Northgate, Johannesburg ... [3] The Case applicants made their first ... Obscene Publications Act, [8] provisions of the Transvaal  B  Criminal Law Amendment Act, [9] and the Orange ... And counsel for the Attorney-General conceded that the Act amounted to a 'loaded shot gun' with ... [94]      Attorney General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436 (a statute ... ...
  • Request a trial to view additional results
92 cases
  • Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others
    • South Africa
    • Invalid date
    ...Broadcasting Corporation [1980] AC 303 (HL) ([1980] 3 All ER 161) Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 Bates v State Bar of Arizona 433 US 350 (1977) Bell v Wolfish 441 US 520 (1979) Bennett Coleman & Co v Union of India (1973) 2 SCR 757 (SC) Bern......
  • Florence v Government of the Republic of South Africa
    • South Africa
    • Invalid date
    ...(2010 (7) BCLR 640; [2010] 3 All SA 261; [2010] ZASCA 9): referred to Attorney General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421: dictum at 436 Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others C 1996 (4) SA 671 (CC)......
  • Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd
    • South Africa
    • Invalid date
    ...to every word. See Steyn Die Uitleg van Wette 5th ed at 17-19. In Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 Kotze JA said at 436 G that to regard words occurring in a section as having been inserted per incuriam is contrary to the well-approved canon o......
  • Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others
    • South Africa
    • Invalid date
    ... ... , the 'Act' or the '1967 Act'), in the Randburg magistrate's court ... [2] The charges were based on the ... in a shopping centre parking lot in Northgate, Johannesburg ... [3] The Case applicants made their first ... Obscene Publications Act, [8] provisions of the Transvaal  B  Criminal Law Amendment Act, [9] and the Orange ... And counsel for the Attorney-General conceded that the Act amounted to a 'loaded shot gun' with ... [94]      Attorney General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at 436 (a statute ... ...
  • Request a trial to view additional results
1 books & journal articles
  • The scope of the expression ‘necessarily incurred’ in section 18(1) of the Income Tax Act
    • South Africa
    • Juta South Africa Mercantile Law Journal No. , May 2019
    • 25 May 2019
    ...is used, inter alia,in ss 11(a) and (c),11(bA)and11A(1)(a).17Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 at436.‘NECESSARILY INCURRED’ IN SECTION 18(1) OF THE INCOME TAX ACT 185© Juta and Company (Pty) onus imposed by section 102(1)(b) of the Tax Administ......

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