S v Fazzie and Others
Jurisdiction | South Africa |
Judge | Beyers JA, Williamson JA and Van Winsen AJA |
Judgment Date | 24 September 1964 |
Citation | 1964 (4) SA 673 (A) |
Hearing Date | 18 August 1964 |
Court | Appellate Division |
H Van Winsen, A.J.A.:
The appellants were convicted of a contravention of sec. 11 (b) ter of Act 44 of 1950 as amended:
'In that, being persons who are or were resident in the Republic, and during the period 27th July, 1962, to the 18th January, 1963, and at Da-brazid, Ethiopia, a place outside the Republic, and within the jurisdiction of the
Van Winsen AJA
Transvaal Provincial Division of the Supreme Court of South Africa in terms of sec. 12 (6) (b) of Act 44 of 1950 did wrongfully and unlawfully undergo training of a military nature, which could be of use in furthering the achievement of objects of the African National Congress, an organisation which has been declared to be an unlawful organisation under the Unlawful Organisations Act, 34 of 1960.'
They were each sentenced to 20 years' imprisonment. All were given leave A to appeal to this Court on the question of sentence. Leave was given to appellant No. 2 to appeal to this Court against his conviction and more particularly on the question of whether the State had proved beyond a reasonable doubt that he was or had been resident in the Republic of South Africa within the meaning of sec. 11 (b) ter of Act 44 of 1950.
B Two questions of law were reserved on behalf of each appellant. The questions reserved were formulated by the Court a quo in the following terms:
'Firstly, whether the provisions of sec. 11 (b) ter of Act 44 of 1950, as amended, are of retrospective effect so as to render the accused liable for the acts committed prior to the enactment of this Act.
Secondly, whether the provisions of sec. 12 (6) (b) of the Act are sufficiently clear and expressive in terms so as to provide this Court C with jurisdiction to try the accused.'
I shall deal at the outset with the two questions of law reserved.
The first question reserved would have been more appropriately phrased had it referred to sec. 5 (a) of Act 37 of 1963 instead of to sec. 11 (b) ter of Act 44 of 1950, which latter section was inserted by the D former into Act 44 of 1950. It was accepted, however, by counsel for appellants and for the State that the question of law reserved concerned the question of whether sec. 5 (a) of Act 37 of 1963 operated retrospectively to the date upon which the Act it amended had commenced, i.e. to the 26th of June, 1950. Should sec. 5 (a) not operate retrospectively the appellants could not have been convicted since the training they had undergone took place before the 1st of May, 1963, the day on which Act 37 of 1963 was assented to.
E Sec. 11 (b) ter of Act 44 of 1950 as inserted by sec. 5 (a) of Act 37 of 1963 provides as follows:
Any person who:
ter is or was resident in the Republic and has, at any time after the commencement of this Act, undergone any training outside the Republic or obtained any information from a source outside the Republic which could be of use in furthering the F achievement of any of the objects of communism or of any body or organisation which has been declared to be an unlawful organisation under the Unlawful Organisations Act, 34 of 1960, and who fails to prove beyond a reasonable doubt that he did not undergo any such training or obtain any such information for the purpose of using it or causing it to be used in furthering the achievement of any such object:
shall be guilty of an offence . . .'
G It seems clear that if the words 'of this Act', which are the concluding words of the phrase 'at any time after the commencement of this Act', refer to Act 44 of 1950 and not to Act 37 of 1963 then the Legislature has, in terms, provided that sec. 5 (a) of Act 37 of 1963 shall have retrospective effect. Counsel for the appellants has drawn attention to the well recognised principle of interpretation that no statute is to be H accorded retrospective operation unless its language plainly requires such a construction. He has referred us to a number of instances of the application of this principle to cases of interference
Van Winsen AJA
with vested rights and to those where it has been sought to attribute criminal liability to a person in relation to acts not forbidden by law at the time of their performance. He has also referred to the principle of the strict construction to be placed upon penal statutes, which, in A case of doubt as to their true meaning, ought to be interpreted in favour of the liberty of the subject. These general principles constitute aids to interpretation in case of ambiguity in the enactment sought to be construed. Despite counsel's argument to the contrary I fail to find any such ambiguity in sec. 5 (a). When the Legislature, by means of that section, introduced an additional sub-section into Act 44 of 1950 and used therein the words 'this Act', it must have intended B that these words should bear the same meaning in the inserted sub-section as they bear in other sections of that Act. As was said by STEYN, J.A., in Minister of the Interior v Machadodorp Investments (Pty.) Ltd., and Another, 1957 (2) SA 395 (AD) at p. 404:
'Where the Legislature uses the same word, in this case the word 'race', in the same enactment, it may reasonably be supposed that out of a proper concern for the intelligibility of its language, it would intend C the word to be understood, where no clear indication to the contrary is given, in the same sense throughout the enactment.'
See too Principal Immigration Officer v Hawabu and Another, 1936 AD 26 at p. 33.
That these words were intended to bear the same meaning when used in D sec. 5 (a) as they bear elsewhere in the Act is, I suggest, emphasised by the use in that section of the past tense viz., 'has . . . undergone any training'. So far from introducing confusion into the section as submitted by counsel on behalf of the appellants, the use of the past tense makes it clear that persons were to be held accountable for any acts prohibited by that section if they had been performed between the E time of the coming into operation of Acts 44 of 1950 and 37 of 1963 as well as after the commencement of the latter Act. Furthermore, as counsel for the State...
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