Rex v Wallendorf and Others

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and JER De Villiers AAJA
• Judgment Date: 28 April 1920
• Citation: 1920 AD 383
• Hearing Date: 02 March 1920
• Court: Appellate Division

Solomon, J.A.:

The appellants were convicted before the Additional Magistrate of Wynberg of contravening sec. 8, sub-sec. (5) of Act 27 of 1882 in that they hindered, resisted or disturbed Constable Mooney while in the execution of his duty, and were sentenced to imprisonment with hard labour, the first for a term of 6 months and the others of 3 months. Against this conviction they appealed to the Cape of Good Hope Provincial Division, which by a majority dismissed the appeal, and the case now comes before us for final decision. The facts are fully set out in the judgments delivered in the court below, and it is unnecessary to recapitulate them. For it was not contested by counsel for the appellants that the accused had resisted P.C. Moonev while in the execution of his duty, and that they, therefore, fell within the express words of sec. 8 (5) of Act 27 of 1882, which provides that "any person who shall resist and any person who shall hinder or disturb any constable, policeman or officer of any local authority in the execution of his duty" shall be guilty of an offence. It was, however, contended that this was not sufficient but that it was necessary for the Crown to prove in addition that the accused knew that Moonev was a constable, and that this it had failed to do. The evidence shows that Mooney was in plain clothes at the time of the occurrence, nor does it appear that he informed the accused that he was a constable. It is true that there is sufficient on the record to show that the first appellant was aware of that fact, but this cannot be asserted with any confidence regarding the others, so that it becomes necessary to consider the legal question raised on behalf of the appellants

The contention is based on an application of the legal doctrine "non est reus nisi mens sit rea," or as it is otherwise expressed "actus non facit reum nisi mens sit rea." In his judgment in the case of Reg. v Tolson (23 Q.B.D. 186), STEPHEN, J., points out that the origin of the maxim is obscure, and that it is not to be found in the Digest. It is, however, a recognised principle, not only of English Criminal Law, but also of our own law and practice, that "ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent." The general rule must, however, be understood with certain qualifications. In the first place, it is to be noted that there may be a guilty mind even though there is an absence of any intention

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knowingly to do the act which is prohibited by law. In many cases it is sufficient if the accused intended to commit a crime, even though it were one different from that with which he is charged. Indeed, it has been held by many judges that the mere fact that the accused wilfully did something which he knew to be morally wrong supplies the mens rea which is necessary to constitute a crime. A remarkable illustration of this is afforded by the case of Reg. v Prince (2 C.C.R. 154), where the prisoner was convicted under 24 and 25 Vict. C. 100, sec. 55, of "unlawfully taking an unmarried girl, then being under the age of sixteen years, out of the possession and against the will of her father." The jury found that the prisoner bona fide believed upon reasonable grounds that she was 18, and it was accordingly contended before the Court of Crown Cases Reserved that in these circumstances there was an absence of mens rea and that he was therefore entitled to be acquitted. The case was heard before a bench of 16 Judges, which confirmed the conviction by a majority of 15 to 1. Various reasons were given for the decision, but seven of the Judges supported the conviction upon the ground that the defendant, who believed the girl to be 18, not 16, even then in taking her out of the possession of her father against his will was doing an act wrong in itself. "The Legislature," it was said, "has enacted that if anyone does this wrong act, he does it at the risk of her turning out to be under 16. This opinion gives full scope to the doctrine of the mens rea." Whether the rule here laid down should be accepted in its entirety, it is unnecessary, for the purpose of this decision to determine.

A second qualification to the general rule that "actus non facit reum nisi mens sit rea" is this, that the Legislature may absolutely prohibit the doing of an act and constitute it an offence without reference to the state of mind of the offender, and regardless whether he had any intention of breaking the law or of otherwise doing a wrongful act. Whether in any particular instance a statute - is to be construed in that sense or not is a question upon which the decisions of the English Courts are by no means harmonious. As WILLS, J., points out in The Queen v Tolson (supra p. 173) there is often no difference in the language used in Acts of Parliament in cases where it has been held that mens rea is necessary and in other Acts where the Courts have decided that the prohibition is absolute. He cites a number of

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instances in illustration of the want of uniformity in the decisions, and certainly it is very difficult to reconcile them. One thing, however, is quite clear and that is - that there is strong authority for saying that "the intention of the Legislature cannot be decided upon simple prohibitory words without reference to other considerations." A striking example of this is afforded by the case of Reg. v Tolson already referred to. There the prisoner was convicted of bigamy under 24 and 25 Vict. C. 100, sec. 57, which provides that "whoever being married shall marry any other person during the life of the former husband or wife shall be guilty of felony . . . provided that nothing in this Act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of 7 years last past and shall not have been known by such person to be living within that time." It was proved that the prisoner had married a second time within 7 years of the time when she last knew of her husband being alive, but upon information of his death, which the jury found that she, upon reasonable grounds, believed to be true. A few months after the second marriage he reappeared. She, therefore, fell within the clear and express words of the section, and was not protected by the proviso. Yet in a Court consisting of 14 Judges it was decided by a majority of 9 to 5 to quash the conviction on the ground that there was an absence of that mens rea which was necessary to constitute the offence. The minority took their stand upon the plain language of the section, holding that it was the imperative duty of the Court to give effect to it, leaving it to the Legislature to alter the law if it thinks that it ought to be altered; but this view did not prevail with the majority. It will be seen, therefore, that in England there has been a great conflict of judicial opinion upon the question whether in the case of statutory offences, where the language is plain and unambiguous, it is permissible to import the common law doctrine that a guilty mind is necessary to the commission of an offence. But the bulk of authority is undoubtedly in favour of the view that in certain cases this may he done. In his judgment in Reg. v Tolson, WILLS, J., puts the matter thus: "Whether an enactment is to be strictly construed or with the qualification ordinarily imported into the construction of criminal statutes, that there must be a guilty mind, must, I think, depend upon the subject matter of the enactment and the various circumstances that make the one

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construction or the other reasonable or unreasonable." And in the case of Cundy v le Coq (13 Q.B.D. 210) STEPHEN, J., said: "The substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created." Again, in the case of Parker v Alden (1899, 1 Q.B. 25) it was said: "This is one of those classes of cases in which the Legislature has in effect determined that mens rea is...