Penrice v Dickinson

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Tindall JA, Greenberg JA and Davis AJA
• Judgment Date: 05 October 1944
• Citation: 1945 AD 6
• Hearing Date: 26 September 1944

Tindall, J.A.:

This is in effect an application for relief under Rule 12 against the applicant's failure to file and serve his notice of appeal within the 21 days prescribed by Rule 6 (2). The judgment against which the applicant wishes to appeal was given on 30th May, 1944, by HATHORN, J.P., in the Natal Provincial Division and the, applicant (the unsuccessful plaintiff in the trial court) filed his notice of appeal on 20th June in that Division and on 24th June in this Court, while his service on the respondent (defendant) took place on 21st June. It is unnecessary to set out the plaintiff's explanation of the delay; for counsel for the defendant, while not abandoning the point that sufficient cause has not been shown for the exercise of the Court's discretion by condoning the delay, has raised the contention that the appeal has no reasonable prospect of success, and has specially requested the Court to refuse the application on the latter ground. In an application for condonation the merits of the appeal may in some cases be an important factor; see Liquidators, Myburgh Krone & Co. Ltd. v Standard Bank of SA Ltd. (1924 AD 226 at p. 231). If in the present application there is sufficient information before this Court to enable it to decide whether the appeal has or has not a reasonable prospect of success, I think we ought to decide the question; for, if the appeal is hopeless, the great expense of prosecuting it

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would be mere waste of time and money. I proceed, therefore, to consider the merits of the case.

In the action in question the plaintiff claimed damages sustained by reason of two orders made by the defendant (who at the time was functioning as the magistrate of Howick, Natal) in terms of which the defendant on 17th March, 1941, ordered the plaintiff to be removed to the Fort Napier Mental Institution, Pietermaritzburg, for observation and subsequently on 31st March, 1941, committed him to the said institution pending the signification of the Governor-General's decision. The plaintiff was kept in the institution until 11th June of the same year. In order to appreciate the nature of the plaintiff's grievance it is desirable to mention as briefly as possible the main circumstances which led UP to the proceedings in which those orders were made.

In March, 1940, the plaintiff and his wife complained to the police at Howick that a man named Shadrach had removed some of the material of a certain building situate on land belonging to Mrs. Penrice. The then magistrate, Mr. Lockwood, as a result of an interview with the plaintiff, instructed the police to lay a charge against Shadrach of malicious injury to property. The charge was subsequently tried by Lockwood who acquitted Shadrach on the ground, I gather, that he was satisfied that Shadrach had received advice that he was entitled to remove the material and that therefore the Crown had not proved the malicious intent which is a necessary element in that offence. Thereafter in June, 1940, Mrs. Penrice instituted a civil action against Shadrach for damages in respect of the removal of the material. The some magistrate tried the case and dismissed it, ordering Mrs. Penrice to pay the costs. Mrs. Penrice did not appeal against this judgment.

The plaintiff, who was greatly dissatisfied with Lockwood's decisions in the two cases mentioned, expressed himself (in a letter addressed to a clergyman) so strongly about Lockwood's decisions that he was prosecuted in September, 1940, for contempt of court and was sentenced to pay a fine or alternatively to imprisonment. He appealed to the Natal Provincial Division but the conviction was confirmed, although the sentence was altered to a caution. By this time the plaintiff was smarting under what he considered to be a series of miscarriages of justice and between 2nd September, 1940, and 15th February, 1941, he wrote a number of letters,

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addressed to the then Attorney-General of Natal (Mr Beardmore) and his professional assistant which contained various complaints about the three cases already mentioned, amongst others the complaint that in trying Shadrach the magistrate, Lockwood, asked a clerk in his office, (without putting him on oath) whether he had told Shadrach that he might remove the building material and, on receiving a reply in the affirmative, found Shadrach not guilty and discharged him. In one of his letters the plaintiff (apparently crediting the Minister of Justice with a jurisdiction which he does not possess) desired the setting aside by the Minister of the judgment in the civil case against Shadrach.

It appears also that there had also arisen in the plaintiff's mind a burning grievance against a police sergeant, van Wyk, who was stationed at Howick and who had taken a statement from the plaintiff on 6th March, 1940, for the purposes of the prosecution of Shadrach. The burden of his complaint against van Wyk was that the words of the plaintiff in that statement- "I now wish to prosecute the accused according to law" were, in a copy of the statement, falsified by van Wyk so as to read "I now wish to biting a charge of malicious injury to property against the accused". After the civil action against Shadrach the plaintiff tried to get van Wyk to prosecute Shadrach for perjury, but the Attorney-General declined to prosecute. The plaintiff also suggested a prosecution against a man named Allan for leasing certain land to Shadrach, on the ground that Shadrach was a native and the lease was a contravention of Act 27 of 1913. The public prosecutor declined to prosecute in view of the Attorney-General's previous decision declining to prosecute another lessor. In addition to the communications by letter the plaintiff had several interviews with the Attorney-General and with members of his staff. A letter from the plaintiff, dated 6th January, 1941, concluded with the intimation that the writer did not wish to meet the Attorney-General again as there might be a breach of the peace. I may remark that there is no reason for thinking that the first part of that intimation was at all unwelcome to the Attorney-General, for a letter by the latter to the Secretary for Justice, dated 20th January, 1941, contains the information that he had. had to refuse to see the plaintiff again.

It appears that on 10th January, 1941, the plaintiff interviewed van Wyk, and thereafter van Wyk intimated to the Attorney General that at the interview the plaintiff had made certain

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defamatory remarks about the Attorney-General. The latter, having received this information, wrote to the Secretary for Justice enclosing the police docket and stating that, as he (the Attorney-General) was in a sense the complainant, he would be glad to have the Minister's directions. The letter mentioned that the Physician Superintendent of the Town Hill Mental Hospital (Dr. Glashan), to whom the contents of the docket had been read, had no doubt that the plaintiff was mentally disordered and that the superintendent had urged him to allow the charge against the plaintiff to proceed "so that the magistrate could commit the plaintiff under sec. 28 of Act 38 of 1916, the Menial Disorders Act". The Minister authorised the prosecution and thereafter a charge was drawn charging the plaintiff with criminal defamation in that on 10th January, 1941, the plaintiff uttered to van Wyk certain defamatory and malicious words concerning the Attorney-General, Ernest Beardmore, namely:

"The Attorney-General is the biggest scoundrel and the biggest fool that is walking on God's earth to-day. . . . The Attorney-General has committed forgery. I have Been a certain document in the office of the Attorney-General on one of my recent visits there, bearing my signature, and which was signed with an indelible pencil. I have never signed such a document with an indelible pencil and it is a deliberate forgery."

No summons was issued, but on 17th March, 1941, two police sergeants (who had in their possession a warrant of arrest) went to the plaintiff's residence by car, and under the pretext that he was wanted at the magistrate's court where an inquiry was to be held (the nature of which was not stated), they got the plaintiff to accompany them in the car to...