Rex v Alberts

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 05 December 1941
• Citation: 1942 AD 135
• Hearing Date: 26 November 1941
• Court: Appellate Division

De Wet, C.J.:

The appellant was charged in a magistrate's court with a contravention of sec. 9 (1) (a) of the National Security Regulations published under Government Notice No. 20 of, 1941 in the Gazette of the 4th February, 1941, in that on the night of the 24th May, 1941, and in the Tzaneen Bioscope Hall he wrongfully and unlawfully did an act which he intended should have the effect, or which was likely to have the effect, of preventing interfering with or disturbing the lawful gathering of a number of persons there present, by remaining seated when "God Save the King" was being played and whilst the rest of the audience was standing to attention out of respect for the anthem then being played.

From the evidence adduced it appeared that on the evening in question about 80 people attended the bioscope performance. At the conclusion of the performance in accordance with the usual procedure, the opening bars of "God Save the King" were played. As was customary the audience rose and remained standing, with the exception of the appellant and another person sitting in front of him, who both remained seated. The proprietress, who considered their conduct insulting, immediately proceeded to the spot and remonstrated with them. The appellant made no reply. There was no actual disorder or breach of the peace but, according to the witnesses, there was considerable commotion and excitement amongst the other members of the audience. The appellant gave no explanation of his action and did not give evidence at the trial.

Having been convicted by the magistrate, the appellant appealed to the Transvaal Provincial Division. Before that Court the main arguments on behalf of the appellant were that his conduct was not an act within the meaning of the regulation in question and that, as he was exercising his legal rights, he was not responsible

De Wet, C.J.

for any disturbance, even if there was such disturbance (which was denied). The appeal was dismissed by the Provincial Division and, by special leave, an appeal is now brought to this Court.

At the hearing before us, Mr. de Villiers, on behalf of the appellant, reiterated the arguments in the Provincial Division but raised a further point which seems to have been mentioned but not elaborated in that Court. He contended that on a correct reading of the regulation it did not apply to a gathering of people at a bioscope performance. In support of this contention he relied...