R v Hina and Another

• Jurisdiction: South Africa
• Judge: Jennett J and Sampson J
• Judgment Date: 10 January 1957
• Citation: 1957 (2) SA 59 (E)
• Hearing Date: 30 November 1956
• Court: Eastern Districts Local Division

A Jennett, J.:

The two appellants were charged with a contravention of reg. 1 (a) of Government Notice 2017 of 18th September 1953 read with Government Notice 354 of 2nd March 1956 in that they had wrongfully and unlawfully held, presided at or addressed a meeting or gathering at which more than ten natives were present at one time. In a second count B they were charged with malicious injury to property and a third count charged a contravention of sec. 22 (5) of Act 56 of 1955.

Against their convictions on all three counts they now appeal.

The evidence accepted by the magistrate, I think rightly, established that the two appellants had addressed a crowd of about 200 native C children in a square in the Municipal Area of Port Elizabeth. They and some of the children had thrown stones that caused damage to a police van and thereafter when asked by a constable for their names and addresses refused and failed to give them.

On appeal it was argued that the charge on the first count was defective D in that it contained no averment that the appellants did not have the permission of the Native Commissioner to address the meeting or assembly. It was argued too that the conviction on that count is bad for lack of proof of that fact.

Reg. 1 (1) of the Schedule to Government Notice 2017 of 1953 reads:

'Any person who, without the approval in writing of the Native Commissioner . . . (a) holds, presides at or addresses any meeting, gathering or assembly at which more than ten natives are present at any E one time, shall be guilty of an offence.'

The question that arises is whether or not the words 'without the approval in writing of the Native Commissioner' constitute an exception, exemption etc. within the meaning of sec. 315 (2) (b) of Act 56 of 1955.

F Reg. 1 (2) of the Government Notice provides that reg. 1 (1) shall not apply to a meeting, gathering or assembly held for any of the purposes set out in that section.

The provisions of the Government Notice come from the power in sec. 27 (1) (c) of Act 38 of 1927 as amended to make regulations for the G prohibition, control or regulation of gatherings or assemblies of natives.

It is difficult to conceive any way of controlling the gathering or assembly of natives. They may gather at the scene of an accident or in a square for a bus.

The method of control adopted by the regulations is to place a fetter H upon the actions of persons towards gatherings and assemblies of...