R v Supra

• Jurisdiction: South Africa
• Judge: Williamson J, Bekker J and Hiemstra J
• Judgment Date: 11 December 1957
• Court: Transvaal Provincial Division
• Hearing Date: 18 November 1957
• Citation: 1958 (1) SA 474 (T)

F Williamson, J.:

I have had the advantage of reading the judgment prepared in this appeal by my Brother HIEMSTRA and I agree with the conclusions to which he has come, namely that the appeal should fail on G all three of the grounds on which it was argued. I have nothing to add to what he has said on the first two grounds, that is on the merits of the appeal on the facts proved and on the question whether the regulations in question were properly promulgated by the Governor-General in terms of sec. 10 of Act 14 of 1912, as amended. In regard to the third point raised on behalf of the appellant, I would however like to set out briefly my reasons for agreeing that the H particular regulation under which the appellant was convicted - reg. 38 (48) published under Government Notice 3250 of 1951 - is not ultra vires on the ground that it is void for vagueness.

In the course of his argument Mr. Dison conceded that in a disciplined body such as an army or a police force it might well be necessary to have some internal regulation such as reg. 38 (48) in the

Williamson J

regulations under consideration which makes it an offence under the regulations for a policeman to conduct himself 'in a manner unbecoming a policeman of his rank'. In other words it must be necessary to provide that a policeman must behave in a manner proper and fitting to his position. This regulation is obviously an adaptation of the well-known A army offence applicable to officers of 'scandalous conduct unbecoming the character of an officer and a gentleman'. Such an offence has existed as an offence under the Army Act in England since at least 1879 and is now contained in sec. 16 of that Act as presently in force. It may be noted that the regulation - reg. 38 (49) - under which the alternative charge in this matter was framed, has also appeared in almost identical form as an offence under the English Army B Act since 1879. It appears presently as sec. 40 of the operative Army Act which provides that it is an offence to be guilty of 'any act, conduct, disorder or neglect to the prejudice of good order and discipline'. In terms of sec. 2 of Act 32 of 1932 these two sections of C the English Army Act presently form part of the Union Military Discipline Code in which they appear also as secs. 16 and 40 respectively.

In the light of the long history of the existence of such offences in an organisation such as the army in England and the Defence Force in South Africa and on a consideration of the conditions which must be produced in a properly disciplined force such as the Police Force, I think Mr. D Dison's concession as to the propriety of and necessity for such provisions in the disciplinary code of the police force is very properly made. In my view they are entirely reasonable provisions, although they are very general in form and entirely unspecific as to the exact nature of the acts or neglects which might fall under them; yet they are proper provisions when one considers the infinite variety of acts of commission E and omission which for the purposes of proper order and discipline should fall within their terms but which would be impossible fully to define or specify. But having made that concession, Mr. Dison contended that while such provisions are proper to be dealt with by domestic disciplinary tribunals, they are not proper when it comes to the F creation of offences or crimes cognisable by the ordinary courts and in respect of which a finding of...