Jaga v Dönges, NO and Another; Bhana v Dönges, NO and Another
Jurisdiction | South Africa |
Judge | Centlivres JA, Greenberg JA, Schreiner JA, Van Den Heever JA, and Hoexter JA |
Judgment Date | 17 October 1950 |
Citation | 1950 (4) SA 653 (A) |
Hearing Date | 08 September 1950 |
Court | Appellate Division |
B Centlivres, J.A.:
The two appellants who were tried jointly before a magistrate pleaded guilty to contravening sec. 113 of Act 35 of 1908 (T.) as amended in that they unlawfully received from a coloured person, viz. a native detective constable, unwrought gold by way of purchase. The sentence was as follows:
'Each fined £50 or three months I.H.L. and a further three months C suspended for three years on condition the accused are not convicted of a similar offence.'
The evidence showed that the native constable, who was a trap, sold to the appellants for £30 unwrought gold of the value of £90 15s. 2d. and D that the appellants tested the gold in acid before they bought it.
Purporting to act in terms of sec. 22 of Act 22 of 1913 (as substituted) the Minister of the Interior deemed the appellants to be undesirable inhabitants of the Union and caused a warrant to be issued for their E removal from the Union. Both appellants were born in India.
Each appellant petitioned the Transvaal Provincial Division for relief, alleging that the Minister had acted unlawfully in that neither appellant had, within the meaning of sec. 22 of Act 22 of 1913 been sentenced to imprisonment. That Court issued a rule nisi in each case F calling on the Minister and the Commissioner of Police to show cause why an order should not be made declaring the deeming of the Minister, wherein he deemed the appellants to be undesirable inhabitants of the Union, to be irregular and improper and setting aside the deeming as well as the deportation warrant founded thereon. Before the return day G of the rule nisi each of the appellants filed a further affidavit setting forth a further ground for attacking the Minister's decision. Each of these affidavits stated -
'Your petitioner particularly begs leave to direct the attention of this Honourable Court that upon this one occasion upon which he has contravened the law he was induced and inveigled into so doing by H officers of the law acting as traps and instigating him thereto.
That your petitioner says that there are no circumstances attached to the said offence by reason of which it would be possible to distinguish his case as that of an undesirable inhabitant, and such circumstances neither exist nor could have been placed before the first respondent, and your petitioner respectfully submits and avers that the first respondent has not in fact directed his attention to any of the circumstances of the offence, and/or could not have directed his attention thereto, as required in terms of sec. 22 of Act 22 of 1913.'
Centlivres JA
The Minister in a replying affidavit admitted that the case was a trapping case and said that this circumstance was not overlooked by him when he came to the conclusion that the appellants were undesirable inhabitants of the Union. The rest of the allegations he denied and said:
'The circumstances of the said offence for which applicant was A sentenced to imprisonment satisfied me that the applicant is an undesirable inhabitant of the Union and my decision deeming him as such was not come to lightly but was arrived at bona fide after careful consideration of the said circumstances. I repeat that I did apply my mind to the circumstances of the said offence before and for the purpose of deciding whether or not to deem the applicant an B undesirable inhabitant of the Union of South Africa in terms of sec. 22 of Act 22 of 1913.'
The matter came before RAMSBOTTOM, J., who discharged the rule nisi. An appeal to the Transvaal Provincial Division was dismissed and, that C Division having granted leave to appeal, the matter is now before this Court.
Sec. 22 of Act 22 of 1913 is as follows: -
'Any person (other than a person born in any part of South Africa which is included in the Union) who . . . has been sentenced to imprisonment - . . .
for any offence committed by the sale of, dealing in, or being in possession of unwrought precious metal . . . in contravention of any law and who, by reason of the circumstances of such offence is deemed by the D Minister to be an undesirable inhabitant of the Union, may be removed from the Union under a warrant . . .'
The first contention raised by the appellants before this Court was that a suspended sentence of imprisonment on a convicted person does not mean E that he is 'sentenced to imprisonment' within the meaning of sec. 22. It was argued that the words quoted, read in their ordinary and natural meaning, refer to an operative sentence - a sentence to actual and not merely potential imprisonment. In my view the words used by the Legislature are wide enough to include a sentence of imprisonment the F whole of which is suspended for a specified period. They are certainly wide enough to include sentences of imprisonment part of which is suspended for a specified period. It was correctly conceded that where part of a sentence is suspended an accused is 'sentenced to imprisonment' within the meaning of sec. 22. The question, however, G still remains whether that section should be so construed as to refer not only to sentence as a result of which the accused is sent to gaol but also to sentences of imprisonment the whole of which is suspended. If the section is capable of two alternative constructions, viz. (1) as applying to all sentences of imprisonment whether suspender or not, or H (2) as applying only to those sentences of imprisonment where the accused actually suffers imprisonment, then I think the second alternative should be adopted as being in favorem libertatis. In my opinion, however, the section is not capable of two alternative constructions.
In the first place the language used by the Legislature is unqualified: a sentence of imprisonment, the whole of which is suspended on a specified condition, is as much a sentence of imprisonment as
Centlivres JA
a sentence of imprisonment none of which is suspended. It is true that the sentence cannot be enforced unless the condition is breached but it remains in force and can be carried into execution if during the period A of its suspension the accused breaches the condition. The test imposed by the Legislature is not whether an accused has served a term of imprisonment (cf. Cape Ord. 10 of 1912, sec. 35 (1)) but whether he has been sentenced to imprisonment. It is clear that the serving of any part of a sentence of imprisonment is not the test, for an accused, who has B been found guilty of an offence specified in sec. 22 may, if sentenced to imprisonment and if deemed by the Minister to be an undesirable inhabitant of the Union by reason of the circumstances of the offence, be deported from the Union before he has served any portion of his sentence.
C Secondly, in order to hold that sec. 22 does not apply to cases where the whole of a sentence of imprisonment is suspended, one must go the length of holding that, even if the offender breaks a condition of the suspension and thus brings into operation the sentence of D imprisonment, he does not render himself liable to the consequences of the section. For, if, as suggested by appellants' counsel, the words 'sentenced to imprisonment' do not include a sentence of imprisonment, the whole of which is suspended, then events subsequent to the sentence cannot affect the question whether the sentence when it was imposed was a sentence of imprisonment within the meaning of the section. Either the E sentence when it is imposed brings the offender within the operation of the section or it does not. There is nothing in the section which makes the liability of the offender to be deported dependent on anything done F by him subsequent to conviction. Counsel for the appellants suggested that it may well be that, on breach of the condition imposed, the sentence matures and becomes an operative sentence to actual imprisonment within the meaning of sec. 22. But as I have already said, the test is not whether the offender has served a term of imprisonment but whether he has been sentenced to imprisonment. It seems to me to be G going too far to hold that the Legislature intended that an offender who is sentenced to imprisonment, the whole of which is suspended, should not fall within the provisions of the section.
Relying on Rex v Pakhim (1930 CPD 308), in which it was held that H the words 'sentenced to imprisonment' in a statutory provision similar to sec. 22 did not include a sentence to pay a fine and in default of payment to undergo imprisonment, counsel for the appellants contended that there is a true analogy between imprisonment imposed to compel payment of a fine and imprisonment imposed so as to enforce the result intended by the convicting court, viz. good conduct, because (1) both are conditional, (2) both constitute for their purposes 'a mode of distress, a way of putting pressure upon a person' (Rex v Pakhim, supra at p.
Centlivres JA
312) and (3) in both cases the convicted person has an unfettered option to avoid the imprisonment altogether. This contention begs the question as to what the Legislature meant by the words 'sentenced to imprisonment'. These words were used by the Legislature both in 1913 when it first enacted sec. 22 and in 1931 (vide Act 15 of 1931, sec. 4) A when it amended that section. Both in 1913 and in 1931 different forms of punishment were recognised, and included in those forms were fines and whipping. A sentence of imprisonment the whole of which is suspended is just as much a sentence of imprisonment as a sentence to pay a fine the whole of which is suspended is a sentence of a fine. When the B Legislature used the expression 'sentenced to imprisonment' it intended, in my opinion, to exclude forms of punishment other than imprisonment, e.g. fines and whipping. Were its intention otherwise, it would have used the word 'convicted'. See for example sec. 4 (1) (f) of C the Act. What it had in mind was a...
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