S v Mbiline and Another

• Jurisdiction: South Africa
• Judge: Eksteen J and Addleson J
• Judgment Date: 08 December 1977
• Citation: 1978 (3) SA 131 (E)
• Hearing Date: 01 November 1977
• Court: Eastern Cape Division

Addleson J:

The appellants were convicted by a regional magistrate of contravening s 1 of the Second General Law Amendment Act 94 of 1974, namely of the distribution at King William's Town on 19 March 1977 of

Addleson J

copies of a certain pamphlet, with intent thereby to cause, encourage or foment feelings of hostility between the different population groups in the Republic. They were each fined R200 (or 100 days' imprisonment) of which R150 (or 75 days) was conditionally suspended.

A The appellants appeal against their convictions. The appeal against their sentences was not pursued.

The Court is indebted to Mr Mahomed, for the appellants, and Mr Meyer, for the State, for their objective analysis of the issues and for the helpful heads of arguments which were submitted by them.

B Before I deal with the facts of this appeal it is necessary to consider the approach to be adopted in the application of s 1 of Act 94 of 1974. That section reads as follows:

"Any person who utters words or performs any other act with intent to cause, or encourage or foment feelings of hostility between different population groups of the Republic, shall be guilty of an offence and C liable on conviction to a fine not exceeding R2 000 or to imprisonment for a period not exceeding two years or to both such fine and imprisonment."

There appear to be no reported decisions on this section but it is substantially the same in effect as s 29 (1) of Act 38 of 1927 (the Bantu Administration Act) which provides that:

"Any person who utters any words or does any other act or thing D whatsoever with intent to promote any feelings of hostility between Bantu 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 £100 or both."

It is surprising that the enactment of s 1 of Act 94 of 1974 did not bring about the repeal of s 29 (1) of Act 38 of 1927 since the former embraces E the same prohibition as the latter, but with vastly increased penalties. Both penalise the performance of any act with intent to cause hostility between, inter alia, Blacks and Whites in South Africa. Assistance as to the interpretation and application of the 1974 Act can therefore be derived from the decisions on the 1927 Act; and from the outset it must in my view be regarded as significant that the Legislature, when it approved F the wording of the 1974 section, reiterated and enshrined provisions which had been the subject of definitive judicial interpretation over a period of nearly 50 years.

We were referred by both counsel to the material principles which emerge from those decisions. In so far as they are relevant to this appeal, I G think that the judicial interpretation of s 29 (1) of the 1927 Act can be limited to the following summary:

A.

The provisions of the section must be applied with due regard to basic rights of freedom of speech and comment on matters of public importance. In R v Bunting 1929 EDL 326 at 332 GRAHAM JP states that the section

H "does not forbid the mere utterance of words, which have or might have the effect of promoting any such feeling of hostility, for, before a person can be found to have contravened the section, there must be proof that such utterance, etc, was accompanied with an intention 'to promote any feeling of hostility' between the two races. The necessity of such a qualification is obvious, for otherwise no person, be he politician, historian, pressman, or educationalist, could discuss matters of vital interest to both Natives and Europeans without risking a prosecution. It is clear that it was not the intention of the Legislature to stifle all public comment on questions of importance, which might affect the relations between Europeans and Natives."

Addleson J

And he further pointed out

"that the section does not prevent the utterance of words which may promote any feeling of hostility between the two races has also been pointed out; no doubt it was felt that such a prohibition would lead A to a dangerous interference with the honest and impartial criticism of any policy or doctrine upon which divergent views and opinions might reasonably be held, and no doubt the framers of the section felt that it would be unjust to prevent a man from advocating doctrines, in which he sincerely believed, though such doctrines may be regarded as dangerous or extreme by one or other section of the population. Hence the necessity of finding that the words complained of were intended to have the effect of promoting a feeling of hostility, before a person can be convicted."

B B.

Since race relations is an important issue in political discussion (as is indeed evidenced by the very enactment of the section now under consideration) the Courts have stressed that strong criticism of, and even attacks on, the constituted authority of the time is not C by itself enough to attract the penalties provided by the section. In R v Brown 1929 CPD 221, in setting aside the conviction of the accused, GRAHAM JP said:

"The Native is a most important factor in the political life of this country, and both the Government and Parliament are from time to time confronted with problems relating to him, and it is only natural that, in their dealings with such problems, members or ex-members of the Government, and members of Parliament generally, will, at times, D be severely criticised. The Legislature, however, could not have intended to bring such criticism, even though couched in offensive and abusive language, within the scope of s 29 (1) of Act 38 of 1927."

C.

It is not an offence under the section to do an act which is calculated to, or does, cause hostility between different race groups E unless it is proved that there was also the intention to cause, or promote such hostility. Thus in R v Sutherland and Others 1950 (4) SA 66 (T) at 70 MURRAY J held that:

"Conviction is warranted only when in all the circumstances and on the evidence as a whole the only conclusion which can reasonably be drawn is one inconsistent with the absence of the particular mental attitude charged against the accused. Consequently the principle that F a man is presumed to have intended the natural and probable consequences of his actions by word or deed does not conclude the matter. If his speech or his act is reasonably consistent with the absence of a particular intent, he is entitled to be acquitted and the evidence tendered by him to rebut any presumption of intent arising from the nature of his actions must be taken into consideration."

At 71 of the same judgment, the learned Judge stated:

G "Secondly it must be emphasised that s 29 (1) does not punish the utterance of language or the performance of an act which is likely to promote or calculated to promote hostility as described. Attention may be drawn to the difference in wording in s 29 (1) regarding anything 'reasonably calculated to cause or promote' any hostile racial feelings. What the Legislature expressly penalised in s 29 (1) was that the person accused should have had the H promotion of such racial hostility as his aim and object - that his word was spoken or his deed performed with the deliberate purpose of promoting such hostility, such promotion being the target at which his shaft was...