Rex v Sutherland and Others

• Jurisdiction: South Africa
• Judge: Murray J, and Ramsbottom J
• Judgment Date: 08 August 1950
• Court: Transvaal Provincial Division
• Hearing Date: 23 June 1950
• Citation: 1950 (4) SA 66 (T)

Murray, J.:

This matter came before the Court on appeal against the H judgment of the additional magistrate, Johannesburg. The appellants are (1) the Sunday Express, Ltd., a company incorporated with limited liability, and represented by one Sutherland in his capacity as the manager and secretary of that company, (2) one Hughes, who was at the relevant time the editor of a certain weekly newspaper called the 'Sunday Express' owned by the aforesaid company, and (3) one Cross who was at the relevant time employed as a journalist and cartoonist by the aforesaid company. The offence charged was the contravention of sec. 29 (1) of Act 38 of

Murray J

1927 and it was alleged in the charge sheet that in the issue of 30th October, 1949, of the aforesaid newspaper the three appellants composed, printed and published, or caused to be composed, printed and published, a cartoon drawn by the third appellant which was entitled 'Won't you come in' and which (so it was alleged) depicted a European brutally A assaulting natives with some blunt instrument. Such conduct, it was alleged in the charge sheet, constituted the wrongful and unlawful utterance of words or the performance of an act or thing with intent to promote a feeling of hostility between natives and Europeans, and was therefore a contravention of the section of the statute above set out.

B The magistrate convicted all three appellants and imposed on each a fine of £50, with (in the case of the second and third appellants) an alternative of three months' imprisonment with hard labour in default of payment. While the appellants admit that as at 30th October, 1949, first C appellant owned the newspaper in question, that the second appellant was the responsible editor thereof, that the third respondent drew the cartoon referred to and that such cartoon appeared in the issue of the newspaper published on 30th October, 1949, the magistrate's conviction is attacked on appeal as being incorrect both in fact and in law.

D The Statute in question, Act 38 of 1927, was signed by the Governor-General in Afrikaans, and is entitled 'Wet om voorsiening te maak vir betere bestuur en beheer van Naturellesake' (Act to provide for the better control and management of Native Affairs). Sec. 29 (1) provides that

'Elkeen wat woorde uit of enige ander handeling of ding doen met die E doel om vyandige gevoelens tussen Naturelle en blanke te bevorder is skuldig aan 'n misdryf en by veroordeling strafbaar met gevangenisstraf van hoogtens een jaar of met 'n boete van honderd pond of met albei.'

The English version renders the provision as follows: -

'Any person who utters any words or does any other act or thing whatever with intent to promote any feeling of hostility between F Natives and Europeans shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding one year or to a fine of one hundred pounds, or both.'

For the purposes of this judgment it suffices, I think, to quote the G magistrate's description of the cartoon in question, as appearing in his judgment.

'The cartoon is headed 'Won't you come in?' On the right are two natives in tribal dress representing the Protectorates; the central figure is that of the Prime Minister, Dr. Malan. He is bowing to the two natives representing the Protectorates and indicating a portal on his right. He is clearly extending the invitation to come in. Within the portal, which represents the Union, are depicted a European with H his left hand gripping the throat of a native; in his right hand, which is raised high in the act of striking, there is a heavy blunt instrument. The Native has his left hand flung high and there is a look of terror in his face. Clearly the European is in the act of brutally assaulting him. Immediately to the rear of the European there is the prone figure of a native who has been either killed or rendered insensible.'

In the magistrate's court the prosecution contented itself with proof (which was unchallenged) of the first appellant's ownership

Murray J

of the newspaper named and of the capacity of the second and third appellants, and their consequent responsibility for the cartoon in the event of its publication being held to constitute an infringement of the section charged. It was also proved that the newspaper circulated in A practically every town and village in South Africa, that its sale was restricted neither to European nor to Native, that of the issue in question 1,420 copies were sent to Newclare, 260 to Orlando and 290 to Pimville (which are predominantly native inhabited areas of Johannesburg), and these copies were available for purchase by European B or Native alike. Natives could also have bought copies elsewhere in the streets of Johannesburg. As was emphasised by counsel for the appellants, the Crown led no evidence of a positive and direct character to establish aliunde the specific 'doel' or 'intent' on appellants' part particularised in the section, but contented itself with maintaining C that the cartoon spoke for itself and showed, beyond reasonable doubt, that in publishing it to all sections of the community the appellants must inevitably have had such 'doel' or 'intent'.

Two preliminary observations must be made before the cartoon itself and D the evidence given by the second and third appellants are considered in detail.

In the first place it is almost unnecessary to emphasise that the onus lay on the Crown throughout to prove that in their conduct the appellants had the intent made...