R v Kweyi

• Jurisdiction: South Africa
• Judge: Jennett J and Van Der Riet J
• Judgment Date: 18 January 1957
• Citation: 1957 (3) SA 663 (E)
• Hearing Date: 04 January 1957
• Court: Eastern Districts Local Division

H Jennett, J.:

The appellant's attendance before a magistrate had been procured by a summons issued under sec. 83 of Act 56 of 1955. Certain questions were put to him and he refused to answer each and every one of them.

Jennett J

Thereafter the prosecutor handed in two sworn statements, presumably to shew that he had grounds for believing that the appellant possessed information which the questions were designed to elicit. Appellant was then asked if he had any reason for refusing to answer the questions put to him. The result is recorded in these terms:'Getuie weier om enige rede te gee waarom hy weier om te antwoord op die vrae wat aan hom gestel is'.

On the application of the prosecutor the enquiry was adjourned for seven days and in terms of sec. 212 appellant was committed to a gaol.

Most of the questions were directed to ascertaining whether appellant had had in his possession or had sold copies of a publication called B Fighting Talk, or whether other persons had sold or instructed him to sell copies thereof.

On appeal it was argued that the appellant was protected in his refusal to answer by the privilege conferred in sec. 234 of the Act. In other words that if that privilege had been claimed such claim could not have been disallowed.

C The next submission was that the appellant's failure to claim the privilege did not disentitle him to the protection it confers. Then it was said that, as the reasonable inference was that he had refused to answer the questions because of the privilege he had, in effect, claimed its protection.

D It is not necessary to consider the first argument. It is, I think, clear from the decisions in R v Heard, 1937 CPD 401, and Waddell v Eyles, N.O. & Welsh, N.O., 1939 T.P.D. 198, that the protection of the privilege is accorded only to the witness who successfully claims the privilege. A claim to privilege must be decided by the presiding officer E whatever views may be held as to the material on which he must make his decision. If the privilege is not claimed the issue is not raised for decision. In the present case the failure to claim the privilege, in my view, disentitles the appellant to the protection it would afford if that claim is upheld.

The further argument I find difficult to understand. It is by no means F clear that the reason for appellant's refusal to answer the questions was...