Rex v Zondagh

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA and Roos JA
• Judgment Date: 15 October 1930
• Citation: 1931 AD 8
• Hearing Date: 02 October 1930
• Court: Appellate Division

De Villiers, C.J.:

This appeal turns upon the meaning of sec. 127 (2) (b) of Act 31/1917. Sub sec. (1) provides that each count of the indictment, summons or charge must set forth the offence with which the accused is charged in such manner and with such particulars as may be reasonably sufficient to inform the accused of the nature of the charge. Then comes sub-sec. (2) which reads as follows:

The following provisions shall apply to criminal proceedings in any superior or inferior court - (that is to say) - (b) any exception, exemption, proviso, excuse or qualification whether it does or does not accompany in the same section the description of the offence in the statutory enactment or statutory regulation or by-law creating the offence, may be proved by the accused but need not be specified or negatived in the indictment, summons or charge and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution.

The accused was charged in the Circuit Court at Luderitz, South West Africa, before BOK, J., and two assessors with contravening 2 of Proclamation No. 26 of 1922 in that on a date specified he did wrongfully and unlawfully buy certain rough and uncut diamonds from one Steyn, a member of the Diamond Detective Department, without being duly licensed or authorised thereto by the Diamond Board for South-West Africa. The Crown produced no evidence that the accused had not been so licensed or authorised. At the conclusion of the evidence the Court found the accused guilty and sentenced him to nine months' imprisonment with hard labour. At the request of counsel for the accused a question of law was reserved by the presiding Judge under sec. 372 of Act 31 of 1917 for the consideration of this Court. The question, after referring to the nature of the charge, was formulated as follows: Is it necessary for the prosecution in order to secure a conviction, to prove that the accused was not duly licensed or authorised by the Diamond Board for South-West Africa to buy the rough or uncut diamonds?

The section of the proclamation with the contravention of which the accused was charged, reads as follows: -

It shall not be lawful for any person to buy, deal in, or receive by way of barter, pledge or otherwise as principal or agent any

De Villiers, C.J.

rough or uncut diamond unless such person so buying, dealing in, or receiving, as aforesaid, shall be duly licensed or authorised thereto by the Diamond Board for South-West Africa.

The cases in our Courts on this question are difficult to reconcile. In the case of Rex v Tshotsi (1926 T.P.D. 100) the accused was charged with unlawfully practising as a medical practitioner without being registered as such, in contravention of sec. 39 of Ordinance 29 of 1904 which makes it an offence for any person to practise as a medical practitioner without such registration. Sec. 18 of the Ordinance provides that "no person. . . shall be entitled to practise as a medical practitioner or dentist unless he has obtained a registration certificate. At the trial the Crown proved that the accused had practised as a medical practitioner but did not prove that he was not registered. The Transvaal Provincial Division held that registration was a "qualification" within the meaning of sec. 127 (2) (b) of Act 31 of 1917, which the Crown was not bound to prove; and that a conviction on that charge should be confirmed.

The case of Rex v Gedoi (1927 OPD 306) was decided on a somewhat similar section in the Orange Free State Provincial Division. The headnote reads: "Sec. 22 of Ordinance 1 of 1904 provides that any person who without a certificate of registration shall practise as a medical practitioner for gain, hire or hope of regard shall be liable to a fine not exceeding £100 for every such offence. On a charge in a magistrate's court of contravening that section the Crown failed to prove non-registration. But the accused was convicted. Held, on appeal, that the phrase 'without...