Bhika v Minister of Justice and Another

• Jurisdiction: South Africa
• Judge: Snyman J
• Judgment Date: 07 May 1965
• Citation: 1965 (4) SA 399 (W)
• Court: Witwatersrand Local Division

E Snyman, J.:

This action arises out of the arrest and detention of the plaintiff on 8th December, 1963, a Sunday afternoon, at Fordsburg, as a result of his attending an illegally held cinema show.

The second defendant, who caused his arrest, has stated in evidence - and his evidence on this point was confirmed by other police officers - that the Police at Fordsburg have had considerable difficulty in F checking a tendency amongst certain cinema owners to hold cinema performances on Sundays under the pretext that such performances were for charitable purposes. The Police have had a considerable number of complaints about the practice from a section of the community and churchmen, at Fordsburg. Prosecutions have been instituted against G cinema owners, but no particular results achieved; the practice continued as did the complaints.

The second defendant, after consultation with other Police officers, came to the conclusion that the only way to stop these illegal practices would be by prosecuting, not only the owners of the cinemas but also the H frequenters of such performances. He was of the opinion that such frequenters could be prosecuted either under the Public Holidays Act of 1952 or the Sundays Observance Law, 28 of 1896. Under the latter law such persons, in his view, could be prosecuted as aiders and abettors of the organisers or owners of cinema halls. It is clear now that the Public Holidays Act of 1952 did not give him the right to prosecute frequenters of such cinema performances, because that Act only deals with certain specific public holidays and not with Sunday performances.

Snyman J

The claim that frequenters could be prosecuted as aiders and abettors of the organisers or owners of cinema halls has been strenuously argued by Mr. Margo, on behalf of the defendants, but it seems to me on a general A reading of the Sunday Observance Law to be untenable. Where that Law intends to make frequenters liable it says so in specific language as in sec. 8. Sec. 7, on which Mr. Margo relied, does not mention the persons who attend unlawful performances. But quite apart from that it seems to me on the authorities (R v Mbande and Others, 1933 AD 382 at p. 392) B that an aider and abettor is a person who participates in the actual organising or holding of the unlawful performance and not a person who merely takes advantage of the unlawful act of others, as did the plaintiff in the present case. It seems, therefore...