R v Conrad and Others

• Jurisdiction: South Africa
• Judge: Quénet JP, Macdonald JA and Fieldsend AJA
• Judgment Date: 18 October 1966
• Hearing Date: 28 September 1966
• Court: Appellate Division

E Quènet, J.P.:

Seven persons, Joseph Conrad, Emerstone, Pio, Stephen Tinarwo, Herbert, Isaac Katsweya and Fannie, appeared before the magistrate on various charges. The main charge alleged the accused were guilty of the crime of public violence in that on 5th March, 1966, at or near Salisbury, they

'did then and there make a riot and affray, and did march in a body to the house of Peter Mabgwe, a Native there residing, and did assault him F and throw sticks and bricks and other instruments at and towards him and his property, and did after this march in a body to the house of Phillip Kajokoto, a Native there residing, and did then and there assault Eric Kajokoto, a Native there residing, and did interfere with the rights of the people there being by creating a disturbance and shouting slogans with intent to cause alarm and despondency'.

As an alternative to this charge two offences, each forming the subject G of a separate count, were alleged. The first charged an assault on Eric Kajokoto, the second the crime of maliciously injuring the property of Peter Mabgwe. These two offences were said to have been committed on 5th March. The magistrate found all the accused not guilty on the main charge. He returned a verdict of guilty on count 1 of the alternative H charge in respect of the first, the third and the sixth accused. He sentenced the first accused to one month's imprisonment with hard labour, the third to a fine of £5 or, in default of payment, one month's imprisonment with hard labour and the sixth accused to two months' imprisonment with hard labour. He found all the accused guilty on count 2 of the alternative charge. He sentenced the first accused to ten months' imprisonment with hard labour, the third to a moderate correction of six cuts and three months' imprisonment with hard labour suspended on conditions. The sixth accused was sentenced to six

Quènet JP

months' imprisonment with hard labour and the seventh to nine months' imprisonment with hard labour. The first, sixth and seventh accused appealed against their conviction and sentence. The certificate granting A leave to argue appeals in person indicated the Court wished to hear argument on certain specific points. Counsel was assigned to act on their behalf.

In the course of his judgment the magistrate said:

'. . . I do not think that it would be stretching the law at all to find you guilty of public violence, in relation to the events involving Peter Mabgwe and his property'.

And further on:

B 'I feel it would have been eminently desirable to have followed the courses which I indicated I had in mind - that is, to convict all of you on the main charge of public violence in relation to the events involving Peter Mabgwe, and accused 1, 3 and 6 only in respect of the incidents involving Eric Kajokoto. But, as I say, I am of the opinion that I am in law precluded from adopting this course. I could, perhaps, of course, convict accused 2, 4, 5 and 7 of public violence on the main C charge and the other three of both the alternative charges, but I do not think that this would meet the justice of the case, because the crime of public violence, I think, is generally regarded as being more serious than malicious injury to property, and it would be unfair to convict some of you of public violence whose degree of participation may well have been less than others, and to convict such others of malicious injury to property. I still have, however, in terms of a recent High Court decision, a discretion to choose the appropriate alternative D charges on which to convict you, regard being had to all the circumstances of the case. From what I have already said, accordingly, I consider that the facts I have found proved in this case prove your guilt beyond reasonable doubt on count 1 of the alternative charge as far as accused 1, 3 and 6 are concerned, and on count 2 of the alternative charge as far as...