R v Bhana

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and De Beer AJA
• Judgment Date: 16 November 1953
• Citation: 1954 (1) SA 45 (A)
• Hearing Date: 06 November 1953

Centlivres, C.J.:

The applicant was convicted on 24th November, 1952, in a magistrate's court on two counts of contravening sec. 113 of Act 35 of 1908 (Transvaal) in that he unlawfully received from a coloured person G unwrought precious metal in the form of gold by way of purchase. The two counts were regarded as one for the purpose of sentence and the applicant was sentenced to pay a fine of £40 or in default of payment to undergo two months' imprisonment with compulsory labour. In addition he was sentenced to two months' imprisonment with compulsory labour suspended for three years on condition that he did not contravene the Precious Metals and Precious Stones Acts.

H In September, 1953, the applicant applied, by way of petition, to the Transvaal Provincial Division for orders to:

'(a)

Extend the time for noting an appeal in terms of sec. 103 (3) of Act 32 of 1944 to a date to be fixed by this Honourable Court and thereafter;

Centlivres CJ

(b)

Set aside the sentence imposed on the applicant on the 24th November, 1952, on two counts under Act 35 of 1908 and remit the matters to the magistrate to pass sentence again.'

The petition presented to the Provincial Division contained the following allegations (there was no replying affidavit by the Crown):

'3.

That your petitioner came to the Union of South Africa in 1924 A at the age of seven years and lived here ever since save for a visit to India in 1940/1942 to see his aged mother. Your petitioner's father and brother live in South Africa and all his friends, business associations and interests are in South Africa and he has no property or money in India which is a foreign country to him.

4.

That until August, 1952, your petitioner had been a hard working B member of the community eking out a bare living for himself and his wife and child. He had not been able to do more than make a living because of the small profits available to a tailor at the location but it was sufficient for himself and his family.

9.

That this sentence was imposed by the magistrate after taking into account the circumstances in which the offences were committed, the accused's clear record and his circumstances in general. Your petitioner humbly submits that in itself it was a just and equitable sentence.

10.

That neither your petitioner's attorney nor the magistrate C addressed their minds to the very serious consequences which the latter part of the sentence would have in terms of sec. 22 of the Immigrants Regulation Act. 22 of 1913. The magistrate in the exercise of his discretion considered the sentence as imposed by him to be a just and sufficient punishment and your petitioner accepted it as such.

11.

That the full import of the sentence did not occur to anyone concerned in the matter until the latter part of April of this year when a notice dated the 2nd April, 1953, and issued by the D Secretary for the Interior in terms of sec 22 of Act 22 of 1913 was served on vour petitioner.

12.

That in July. 1953, your petitioner was arrested for deportation and on the 24th July he was released until the 20th September, 1953, upon certain conditions. One of the conditions being that he report to the Immigration Officer, Pretoria, 10 days before the above date.

13.

That if your petitioner is deported he has not the funds with which to pay for his wife and child to follow him to India nor E as a stranger in India, in its present economic state can he hope to earn sufficient to pay their passage money.

14.

That immediately the notice of the 2nd April, 1953, was served on him, your petitioner instructed his attorney to confirm with the magistrate that he had not considered the fact that your petitioner became liable to deportation and that in fact deportation would inevitably follow the conviction and sentence and to confirm further that he would not have passed the F sentence in the form that he did if these consequences had not been overlooked. Your petitioner's attorney interviewed the magistrate who confirmed these facts and your petitioner believes that the magistrate will set out these facts in his reasons for judgment furnished to this Honourable Court.

15.

That in April, 1953. your petitioner was already considerably out of time to appeal to this Honourable Court so that he decided to make representations to the Honourable the Minister G of Interior to withdraw the deportation order. Armed, as he was, with the magistrate's statement in relation to the matter, he had every hope that his representations would be successful.

16.

That to date hereof your petitioner's only success has been the postponement of his deportation as set out above in para. 12. Certain representations have not yet elicited a reply from the Department concerned but in view of the fact that your petitioner must present himself to the Immigration authorities during the next ten days he must assume that the deportation order stands.

17.

That your petitioner humbly submits that in the circumstances H here set forth the magistrate's inadvertent misdirection on the full import of the sentence he imposed on your petitioner would result in a serious misjustice unless this Honourable Court sees fit to extend the time for noting an appeal against the sentence so as to allow your petitioner's appeal to be heard and the sentence, either altered so as to allow the option of a fine to the latter portion of the sentence, or, set aside and remitted to the magistrate to pass sentence again.'

Centlivres CJ

The magistrate in his reasons for sentence said:

'It is at this late stage a little difficult, if not impossible, for me to say just how I would have reacted to a plea for mercy based on the grounds now advanced on behalf of the...