Rex v Roux and Another

• Jurisdiction: South Africa
• Judge: Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 17 April 1936
• Citation: 1936 AD 271
• Hearing Date: 12 March 1936
• Court: Appellate Division

Curlewis, J.A.:

The appellants were charged in the magistrate's court, Durban, with crimen laesae majestatis in that they unlawfully printed and published "certain scandalous and dishonouring words against our Sovereign Lord the King and him Government in South Africa whereby the Majesty of our said Sovereign Lord and his said Government was dishonoured and their dignity and power injured" by having printed and published in a newspaper called "Umsebenziz" the words contained in the schedule annexed to the summons.

Curlewis, J.A.

The appellants were also charged on a second count with having Contravened sec. 29 (1) of the Native Administration Act, 38 of 1927, by having published the same words as formed the subject of the first charge with intent to promote a feeling of hostility between natives and Europeans.

The schedule to the summons was as follows:

"Who is King George anyway? Who is this King George? Remember the blood that was shed at Cartwright's Flats. We the Bantu people and workers of Durban have been asked to celebrate the Silver Jubilee of King George V on May 6th, the 26th anniversary of his accession to the Throne. Who is this King George and why should we celebrate his jubilee? King George is the figurehead of the English and Boer Imperialists whose local representatives are Hertzog and Smuts. These oppressors are robbing and exploiting the poor people and workers of South Africa, in particular the Bantu people. The soldiers of King George's father (King Edward VII) killed Bambata and cut off his head because he led the struggle against the poll tax in 1906. It was the police of King George's lickspittle South African Government who shot down the people of Durban in the I.C.U. riots in 1929. It was the police of Durban Borough Council which is calling upon you to celebrate King George's Jubilee that murdered Johannes Nkosi, brave leader of the Communist Party, on these very Cartwright's Flats at the pass-burning on Dingaan's Day, 1930. Workers and oppressed people of Durban: do not be bluffed by this King George nonsense. Do not kiss the boot that kicks you. Refuse to worship King George, he is not our king but the king of our oppressors. Unite in protest against pass-laws, liquor laws and all other forms of oppression. Demand freedom in our land of your fathers. Refuse to go to Cartwright's Flats, the place where our martyrs were murdered in 1929 and 1930. GOD BEHOED DE KONING. What a parasite family is paid. South Africa has just witnessed the most expensive celebrations of the silver jubilee of him

Curlewis, J.A.

Britannic King George the Fifth on the part of British and Boer Imperialist. It may interest readers of 'Umsebenzi' what George and his relations are paid every year by the workers of the British Empire
	The King and Queen	£553,000
	Our 'smiling' Prince of Wales	66,000
	The Duke of York	25,000
	Princess Louise (illegible)	000
	Duke of Connaught	25,000
	Princess Beatrice	6,000
	King Edward VIIs daughters	18,000
		£705,000
A native miner on the Rand gold mines gets 1s. 6d. for a day's labour, digging out gold at the risk of his life (fifty African miners were drowned at the Machavie mine a few days ago). He would have to work for over twenty thousand years to earn for his family what George's family gets in one year for doing nothing. The King and Queen have four palaces in Britain, Buckingham, Windsor, Balmoral and Sandringham. The rest of the Royal family share 22 palaces, castles and mansions among them. In Vrededorp, Jeppes and other poor working districts in South Africa we have families of six and more living in a single room. The poor black workers in the mine compounds are herded like cattle. The poor whites in the platteland often live in houses made of old tins, rags and sacks...... (Cartoon.)
	One law for whites Another for blacks. Justice, but not for Natives. All these in King George's rule."	Motto for S.A. 'Killing niggers is not murder.'

The appellants were found not guilty on the second count but, guilty on the first count; Roux, a European, was sentenced to four months' hard labour, and Ngedlane, a native, received a sentence of two months' hard labour, suspended on good behaviour They appealed to the Natal Provincial Division unsuccessfully. They then applied to that Court for leave to appeal to this Court, but the application was refused. FEETHAM, J.P., in refusing leave to appeal, indicated that the only point which had been raised on

Curlewis, J.A.

behalf of the two accused was that the crime of which they had been convicted - crimen laesae venerationis - no longer existed in South Africa, and stated: "The only argument addressed to us in support of that contention was Mr. Chapman's argument, based on a passage in Voet, 48.4.2, in which Voet defines majestas humana, that the definition of majestas as humana given by Voet shows that the crime crimen laesae venerationis can only be committed against the dignity of a ruler who has majestas in the sense described, that is, a ruler whose powers of Government are absolute and unrestricted by law. That is the point with which we have dealt in our judgment and, for the reasons we have given in our judgment, it appears to us to be quite clear that the contention advanced by Mr. Chapman is without foundation. That being so it is impossible for us to say that the case is an arguable one. The point raised, with which we have thought it our duty to deal, is the only point with which this Court is concerned; in regard to that point we regard the case as so clear as to be unarguable, and we should therefore not be justified in granting leave to appeal to the Appellate Division from the decision we have given."

Application was thereafter made to this Court for leave to appeal and for condonation of delay, appellants setting out various other grounds of appeal in addition to that on which their counsel had relied before the Court below. After having heard counsel this Court condoned the delay and granted leave to appeal, the matter appearing to us to be of sufficient importance and sufficiently arguable in view of the points raised before us and in view of the judgment which the Cape Provincial Division had delivered in Gomas and Another v Rex since the judgment of the Natal Provincial Division.

Mr. Lucas supported the appeal on various grounds, which I may set out shortly as follows: (1) That the charge sheet or summons did not disclose the offence because the words complained of do not constitute crimen laesae majestatis or the species of that crime known as crimen laesae venerationis; (2) That the King and his Government in South Africa do not possess majestas and therefore the crime charged cannot be committed against them; (3) That there is no such crime as crimen laesae venerationis in our law, and if it ever existed in this country it has become obsolete; (4) That the sentences were excessive.

Curlewis, J.A.

Before dealing with the first ground of appeal I should state that it appears from the record and from the judgment of the lower court that though the notice of appeal from the magistrates court gave the grounds of appeal as being (1) that the judgment was bad in law and against the evidence and the weight of evidence, and (2) that the sentence was excessive, counsel for appellants in the court below based his argument solely on the contention that crimen laesae venerationis no longer existed in South Africa; he admitted that if crimen laesae venerationis was still a crime in South Africa the accused had been rightly convicted. But though in the court below counsel for appellants restricted the appeal to this one point, the appellants are not debarred from raising the other points before us; the contention that the summons does not disclose the offence with which the accused are charged is not raised now as a new point before us, it was raised in the magistrate's court. The record shows that the accused appeared in person in the magistrate's court and handed in an objection to the indictment which the magistrate overruled; the objection was contained in a notice to the public prosecutor, signed by Roux on behalf of himself and the other accused, that they excepted to both charges on the ground of splitting of charges, and that they excepted to the charge of crimen laesae majestatis on the grounds that "the same does not disclose any offence cognisable by the Court, more particularly that the printed articles in 'Umsebenzi' do not disclose and cannot be interpreted to disclose the crime of laesae majestatis."

The magistrate found that the two accused are joint editors of the newspaper "Umsebenzi," and that the article in question (which was a translation of a leaflet written in Zulu) taking its tone and contents together "aimed at bringing both King George and his Government in South Africa into contempt, particularly the expressions 'Who is King George anyway?' 'These oppressors (that is General Hertzog and Smuts) are robbing and exploiting the poor people and workers of South Africa, in particular the Bantu people'; 'King George's lickspittle South African Government,' 'this King George nonsense,' 'he (i e. King George) is not our...