Rex v Zondagh

• Jurisdiction: South Africa
• Citation: 1931 AD 8

Rex Respondent v Zondagh Appellant
1931 AD 8

1931 AD p8

Citation	1931 AD 8
Court	Appellate Division
Judge	De Villiers CJ, Wessels JA, Curlewis JA and Roos JA
Heard	October 2, 1930
Judgment	October 15, 1930

Flynote : Sleutelwoorde

Criminal procedure — Statutory offence — "Exception, exemption, proviso," etc — When Act 31 of 1917, section 127 (2) (b) applicable — Illicit diamond buying — Proclamation 26 of 1922 (S.W.A.), section 2.

Headnote : Kopnota

When considering the applicability of section 127 (2) (b) of Act 31 of 1917 to any statutory offence, the Court should apply the ordinary rules of construction to the language used and decide whether the negative element is an exception to the offence or whether it forms an additional element in the offence.

Section 2 of Proclamation 26 of 1922 (S.W.A.) provides that "it shall not be lawful for any person to buy. any rough or uncut diamonds. . . unless such person so buying. . . shall be duly licensed or authorised thereto by the Diamond Board of South-West Africa."

1931 AD p9

Held, that the offence created by the section was buying rough or uncut diamonds and that the clause introduced by the word "unless" constituted an exception, exemption or qualification of the offence within the meaning of section 127 of Act 31 of 1917, which had not to be stated in the indictment but might be proved by the accused if he intended to rely upon it.

The history of section 127 of Act 31 of 1917, discussed.

Case Information

Appeal upon a question of law reserved by BOK, J., sitting with assessors in the Circuit Court for the South Western Circuit District, South West Africa.

The facts appear from the judgment of DE VILLIERS, C.J.

O. H. Hoexter, K.C., for the appellant: Regard should be had to the actual construction of the sentence in which the offence is described. The place in the section given to the words "shall be an offence" or "shall be unlawful" is important. See R v Gedoi (1927, O.P.D at p. 309) and R v Rabinowitz (1927 T.P.D. 397).

I admit that the rule as laid down in the old English cases is incorrect and that that rule was followed in some South African cases before the Code was passed in 1917, but the rule was properly laid down in another series of cases during that period. R v Mpongwana (1915, E.D.L. 94 at p. 97) is an illustration of an incorrect decision, but the correct view was laid down in R v Joseph (1912, TPD at p. 732). See also R v Ross (1928, E.D.L. 381); R v Tshotsi (1926, TPD at p. 113).

Proclamation 26 of 1922 (S.W.A.) does not purport to prohibit, but it merely regulates and protects the trade in diamonds. That is clear from the name of the proclamation. It differs from the old Cape statutes, 48 of 1882 and 14 of 1885, sec. 5, which expressly put the onus on the accused. That accounts for the decisions in R v Lyons (2 C.S.C. 221) and R v Smith (2 C.S.C. 257); compare R v Liebman (1906 T.S. 473) decided on Proclamation 63 of 1903 (T.) sec. 9; and see R v de Flamingh (1929, S.W.A. 7).

W. G. Hoal, K.C. (with him Dickinson), for the Crown: The proper test is laid down in R v Tshotsi (supra) at pp. 110, 111, 112), and cases there referred to; R v Rabinowitz (supra at p. 400). For the principle on which sec. 127 of the Code is to be applied - see R v Trumpleman (1924 T.P.D. 324 at p. 326 ad fin and 327) which was followed in R v Tshotsi and Gardiner and Lansdown on S.A. Criminal Law (3rd ed., p. 194).

I rely on R v Lyons (supra at p. 225) and R v Smith (supra).

Hoexter, K.C., replied.

Cur adv vult.

1931 AD p10

Postea (October 15th).

Judgment

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...