Rex v Naran Samy

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 29 May 1945
• Citation: 1945 AD 618
• Court: Appellate Division

Rex Respondent v Naran Samy Applicant
1945 AD 618

1945 AD p618

Citation	1945 AD 618
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
Heard	March 16, 1945; May 16, 1945
Judgment	May 29, 1945

Flynote : Sleutelwoorde

Statute — Government Notice — Minister empowered — to notify certain facts — Notice signed by Under-Secretary — Validity of Notice — Omnia praesumuntur rite esse acta — Notification of Government marks under Section 94 of Defence Act 13 of 1912.

Headnote : Kopnota

Government Notice No. 101 of 1914 published for general information in the Gazette and signed by the Under-Secretary for Defence stated that in terms of section 94 (1) of the South Africa Defence Act 13 of 1912 "the Minister

1945 AD p619

of Defence hereby declares and makes known that the following marks applied to animals or articles shall denote the property of the Union Government in those animals or articles." Section 94 (1) of the Defence Act 13 of 1912 empowers the Minister by notice in the Gazette to make known what mark or marks applied to animals or articles shall denote the property of the Union Government. An accused having been convicted of contravening section 94 (2) read with section 94 (1) of Act 13 of 1912 and read with Government Notice No. 101 of 1914 in that he was in unlawful possession of certain tyres bearing marks denoting them to be the property of the Union Government, the point was taken in an application for leave to appeal that the Notice was invalid as it had not been signed by the Minister.

Held, that the signature of the Minister was not necessary; that as there was a presumption that the notice stated the facts accurately it should be presumed in the absence of proof to the contrary that the Minister had himself directed that the publication should be made, and that the notice was therefore not invalid.

The maxim omnia praesumuntur rite esse acta donec probetur in contrarium, applied.

Case Information

Application for leave to appeal from a decision of the Transvaal Provincial Division dismissing an appeal from a conviction in the magistrate's court, Pretoria.

The facts appear from the judgment of DAVIS, A.J.A

C.D.J. Theron, for the applicant: Government Notice 101 of 1914 denoting the marks which show Government ownership of any article is invalid. The Minister of Defence did not exercise his powers under sec. 94, Act 13 of 1912, in regard to the publication of the marks, but delegated them to the Secretary for Defence. Further on the facts.

F.E. Lutge, K.C., Attorney-General for the Orange Free State, for the Crown: There are two essentials to the validity of a law, (1) power to make such law, (2) promulgation; Byers v Chinn and Another (1928 AD 322). Sec. 94 (1), Act 13 of 1912 does not prescribe a specific, method of publication; see sec. 15, Act 5 of 1910, and cf. Rex v Ramathula (1931, N.P.D., at 173). For an example where the Legislature requires the signature of a Minister, see sec. 46, Act 37 of 1944; see also sec. 9 (1) (b) and (e), Act 13 of 1941. The Court will assume that the Minister properly directed his mind to the matter; Byers v Chinn and Another (supra); Rex v Seligson (1926 T.P.D. 27); Rex v Kramer (1929 T.P.D. 173); Rex v Sussman. (1939 OPD 68); Seedat v Rex (1942 NPD 189); Point of Ayr Collieries Ltd. v Lloyd-George (1943, 2 A.E.R. 546). Further on the facts.

1945 AD p620

Cur adv vult.

Postea (May 29th).

Judgment

Davis, A.J.A.:

The accused was charged in the magistrate's court, Pretoria, with the theft of three tyres, the property of the Union Defence Force, or alternatively "with the offence of contravening sec. 94 (2) read with sec. 94 (1) of Act 13 of 1912 further read with Government Notices 101 and 339 of 1914 in that upon (or about) the 1st day of January, 1944, and at (or near) Pretoria the said accused did wrongfully and unlawfully possess articles, to wit three tyres, the property or in the lawful possession of the Union Defence Force bearing marks denoting the property of the Government in those articles". I need say no more as to the main charge, upon which he was found not guilty; but on the alternative charge he was found guilty and was sentenced to imprisonment for four...