R v Sachs

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and Hoexter JA
• Judgment Date: 12 December 1952
• Citation: 1953 (1) SA 392 (A)
• Court: Appellate Division

R v Sachs
1953 (1) SA 392 (A)

1953 (1) SA p392

Citation	1953 (1) SA 392 (A)
Court	Appellate Division
Judge	Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and Hoexter JA
Heard	November 24, 1952; November 25, 1952
Judgment	December 12, 1952

Flynote : Sleutelwoorde C

Communism — Suppression of Communism Act, 44 of 1950, as amended. D — General secretary of Garment Workers' Union prohibited by notice under sec. 9 from attending any gathering other than gatherings of a bona fide religious, recreational or social nature — Parliament intended to confer autocratic powers on Minister under sec. 9 — Duty of Court to give effect thereto — 'Gathering' in sec. 9 and notice thereunder means gathering as defined in sec. 1 — Notice not too E wide as to area or period of operation — Validity of — Notices under secs. 5 and 9 served at same time — Such notices independent of each other — Full effect to be given to each — Charge of contravening sec. 11 (h) read with sec. 9 — Not necessary to allege or prove Minister held opinion required by sec. 9 — Such F implied — Fact that Minister had failed to apply his mind to sec. 17 in purporting to issue a notice under sec. 10 no proof that he failed to apply his mind to sec. 9 — Criminal procedure — Sentence — Ignorance of law a mitigating factor — Statute — Interpretation — Act capable of more than one meaning — Court G will give it the effect which least interferes with the liberty of the individual.

Headnote : Kopnota

Courts of law scrutinise with the greatest care statutes which give the Executive the power to invade the liberty of the individual, but where the statute under consideration in clear terms confers on the Executive autocratic powers over individuals, courts of law have no option but to give effect to the will of the Legislature as expressed in the statute. H Where, however, the statute is reasonably capable of more than one meaning a court of law will give it the meaning which least interferes with the liberty of the individual.

The mere fact that autocratic powers are conferred on the Minister by section 9 of Act 44 of 1950 does not mean that the section is ambiguous. It is clear that Parliament intended to confer autocratic powers upon the Minister and it is the duty of courts of law to give effect to the intention of Parliament.

When a person is served at one and the same time with a notice under section 5 of Act 44 of 1950, as amended, and a notice under section 9, full effect

1953 (1) SA p393

must be given to each notice, as each is independent of the other, and if the notice under section 9 has the effect of prohibiting the officer of a trade union from attending a meeting of the union, that officer is not entitled to attend, even though he has not been prohibited from retaining his office.

The meaning to be given to the word 'gathering' in section 9 of Act 44 A of 1950, as amended, and in a notice issued under that section, is the meaning assigned to that word in section 1.

In a prosecution for attending 'any gathering' in contravention of a notice delivered or tendered in terms of section 9 the Crown must show that the 'gathering' referred to in the charge is a gathering as defined in section 1.

The mere fact that in some cases it may be difficult to determine B whether the gathering under consideration falls within or without the definition is no ground for saying that a notice issued under section 9 of the Act is void for uncertainty.

While ignorance of the law can never be a defence to a criminal prosecution. there is every reason why it should be regarded as a mitigating circumstance. (per CENTLIVRES, C.J., GREENBERG, J.A. and VAN DEN HEEVER, J.A., concurring.)

C The appellant, the general secretary of the Garment Workers' Union, had been convicted on two counts of contravening section 11(h) read with section 9 of Act 44 of 1950, as amended, and had been sentenced to six months' imprisonment with hard labour on each count, the sentences to run concurrently. The particulars of one of the charges, they being in identical language, were as follows: 'Where the Minister did in terms of D section 9 of Act 44 of 1950 as amended by a notice under his hand, dated 8th May, 1952, and addressed and delivered or tendered to the accused, prohibit him from attending any gathering whatever within the Union of South Africa and the Territory of South West Africa for a period of two years from the 8th May, 1952, other than gatherings of a bona fide religious, recreational or social nature, the accused did upon E or about the 24th May, 1952, and at Johannesburg wrongfully, unlawfully and in contravention of the said notice delivered or tendered to the accused in terms of section 9 of the Act, attend a gathering, not being of a bona fide religious, recreational or social nature.' The notice, signed by the Minister of Justice, with which the appellant had been served read as follows: 'Under the powers vested in me by section 9 of Act 44 of 1950, as amended, you are hereby prohibited from attending any F gathering whatever within the Union of South Africa and the Territory of South West Africa for a period of two years from date hereof other than gatherings of a bona fide religious, recreational or social nature.' At the same time he had been served with a notice under section 5 requiring him to resign within 30 days from 8th May, 1952, as an officebearer, officer or member of the Garment Workers' Union. He was also served with a notice under section 10 which provided 'that after G thirty days from date hereof you are hereby prohibited for a period of two years from being within any Province in the Union of South Africa or the Territory of South West Africa other than the Province of the Transvaal'. When the appellant received the first two notices he consulted an eminent senior counsel who advised him that the orders relating to the prohibition of attending meetings and resignation from the union were too wide, conflicting, ambiguous and vague and that the union and he should make an urgent application to Court to have these H two orders set aside. Prior to the meeting which was referred to in the charge sheet the appellant had filed an application for an order declaring that he was, up to and including 7th June, 1952, entitled to attend meetings of the Garment Workers' Union or any constituent bodies or committees thereof in pursuance of his duties as general secretary. On the morning of the 24th May, the appellant was advised by letter that the Minister had no objection to his attending the meetings referred to in his petition, and accordingly the necessity for the application fell away. The two meetings which appellant had attended on 24th May and 26th May, which respectively formed the subject of the charges were (a) a mass meeting

1953 (1) SA p394

in protest against the notices served on the appellant and (b) a meeting of, inter alios, members of the union who went on strike in protest against the Minister's action. An appeal to a Provincial Division having been dismissed, on a further appeal the appellant contended, inter alia, A (1) that the summons was defective in that it did not allege that the Minister had held the opinion required by section 9 of the Act; (2) that the notice under section 9 was bad because it contained no statement that the Minister was of the opinion that there was reason to believe that the achievement of any of the objects of communism would be furthered if the appellant were to attend any gathering in any place, and it was too vague and uncertain; (3) that the notice was too vague by reason of the addition of the words not appearing in section 9, viz. B 'other than gatherings of a bona fide religious, recreational or social nature'; (4) that it was neither alleged nor proved that the meetings which he attended were gatherings; (5) that there was no evidence that there was in the opinion of the Minister reason to believe that the achievement of any of the objects of communism would be furthered if he were to attend gatherings; (6) that the fact that the Minister had purported to issue a notice under section 10 without C appointing a committee to make a factual report before issuing the notice as required by section 17, showed that he had not applied his mind to the requirements of the Act; (7) that the Minister had exceeded the powers vested in him in section 9 in that the notice covered the whole of the Union and South West Africa instead of being restricted to areas and since the period of time was grossly unreasonable; (8) that D the meetings which he attended were covered by the permission granted him. Finally it was contended that the sentence was excessive.

Held, as to (1), that the inference from the allegation that the Minister had acted in terms of section 9 was that he held the opinion required by the section, for he could not have so acted unless he did.

Held, as to (2), that the notice had been issued under statutory authority and this in itself implied that the Minister, before issuing E the notice, had complied with the requirements of that authority.

Held, further, that effect had to be given to both the notice under section 9 and the one under section 5 as each was independent of the other.

Held, as to (3), that the mere fact that there might be difficulty in determining whether a particular meeting fell within the excepted category of gathering did not make the notice void on the ground of vagueness.

Held, as to (4), that the definition of 'gathering' in section 1 was F applicable to the word 'gathering' in section 9 as that section was the main section in which the word occurred, the object of that section being to empower the Minister to prohibit, in the circumstances therein prescribed, attendance by a particular person at gatherings eo nomine.

Held, as to (5), that...