S v Moonsamy

• Jurisdiction: South Africa
• Citation: 1963 (4) SA 334 (N)

S v Moonsamy
1963 (4) SA 334 (N)

1963 (4) SA p334

Citation	1963 (4) SA 334 (N)
Court	Natal Provincial Division
Judge	Milne JP and James J
Heard	August 12, 1963
Judgment	August 19, 1963

Flynote : Sleutelwoorde F

Communism — 'Gathering' — What amounts to — Act 44 of 1950, secs. 1 (v), 9 (1) (a) as amended by Act 76 of 1962 — Meeting of G members of a society called to discuss its affairs not such a 'gathering'.

Headnote : Kopnota

A meeting of members of a society called to discuss its affairs, without any reference to the possible taking of some concerted action as a result of the intended discussion, is not one which has a common object which the members intend or desire to achieve by concerted action: H consequently it is not a gathering within the meaning of section 9 (1) (a) of the Suppression of Communism Act, 44 of 1950, as amended by Act 76 of 1962, read with the definition of 'gathering' in section 1 (v), as amended by section 1 of Act 76 of 1962.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

R. N. Leon, Q.C. (with him A. B. M. Wilson), for the appellant.

M. W. Botha, for the State.

1963 (4) SA p335

Cur adv vult.

Postea (August 19th).

Judgment

A Milne, J.P.:

The appellant was charged with contravening sec. 11 (h) read with sec. 9 (1) (a) and (b) of the Suppression of Communism Act, 44 of 1950, as amended by Act 76 of 1962.

'In that whereas the Minister of Justice did in terms of sec. 9 (1) of the Act aforesaid by notice in writing dated the 28th February, 1963, addressed and delivered or tendered to the said accused, personally on the 18th March, 1963, require the said accused during the period B commencing on the 18th March, 1963, and expiring on the 29th February, 1968, not to attend

(1)

any gathering as contemplated in para. (a) of sub-sec. (1) of sec. 9 of the Act aforesaid; or

(2)

Any gathering as contemplated in para. (b) of sub-sec. (1) of sec. 9 of the Act aforesaid (not being such a gathering as is contemplated in the said para. (a) of sec. 9 (1) of the Act aforesaid), of the nature class or kind set out below:

(a)

Any social gathering, that is to say, any gathering at which the C persons present also have social intercourse with one another;

(b)

Any political gathering, that is to say, any gathering at which any form of State or any principle or policy of the Government of a State is propagated, defended, attacked or discussed;

within the Republic of South Africa or the territory of South West Africa.

Now therefore the said accused did -

Main Charge:

D Upon or about the 1st April. 1963, and at or near Durban in the regional division of Pietermaritzburg/Durban within the Republic of South Africa, wrongfully and unlawfully and in contravention of the said notice attend a gathering as contemplated in sec. 9 (1) (a) read with sec. 1 (v) of the Act aforesaid.

Alternative charge:

E Upon or about 1st April, 1963, and at or near Durban in the regional division of Pietermaritzburg/Durban within the Republic of South Africa, wrongfully and unlawfully and in contravention of the said notice attend a gethering as contemplated by sec. 9 (1) (b) of the Act aforesaid, to wit, a social gathering at which the persons present also had social intercourse with one another.'

He pleaded not guilty but was found guilty on the main charge and was sentenced to 18 months' imprisonment of which half was conditionally F suspended. He now appeals upon a number of grounds one of which claims, in effect, that the magistrate did not evaluate correctly the evidence led for the State. (The appellant closed his case without calling any evidence). One of the grounds of appeal is as follows:

'The learned magistrate erred in finding on the evidence led that there was any evidence of persons meeting with a common purpose or if there G was such evidence of a meeting with a common purpose the learned magistrate erred in finding that there was any intention to achieve this object by concerted action which findings are implicit in his judgment.'

Apart from formal evidence proving the due delivery to the appellant of the notice dated 28th February, 1963, the State case consisted of the evidence of five witnesses of whom the last two were policemen. This H evidence established that at about 7 p.m., on 1st April, 1963, about a dozen people, including the appellant, assembled at the cigar factory in Dayal Road at Clairwood of one Balla Naidoo, who was one of those present. A witness named Padayachee said that he had gone to the factory because he had been invited by his friend, Dan Naicker, to attend a meeting there and that he had arrived at about 6.55 p.m. He said that both he and Dan Naicker were members of the Natal Indian Congress and that although he did not know what the meeting was

1963 (4) SA p336

Milne JP

called for he assumed it was a meeting of the Natal Indian Congress because he had previously attended Congress meeting. He said he could not say whether the other persons who arrived were members but that he A recognised some as having been present at meetings of the Congress. It appears that one of the persons present was Dan Naicker. Padayachee said that on entering he had had a social chat with Balla whom he thereafter saw using, in the room where the people had assembled, a telephone at a table and that he had seen Balla picking up the telephone and 'dialling B some numbers' just after he had been spoken to by the appellant. The evidence showed that the police arrived at about 7.20 p.m. and, although they looked through the windows and saw persons inside in a group, it is clear that no meeting was in progress at the time. Balla was then at the telephone. In the course of his evidence Padayachee said that someone had asked the others present to be seated. The next C witness, Ismail, who also said that he was a member of the Congress said that, on the 1st April, whilst he was walking in Dayal Road, he met a friend called James who asked him to walk with him and that James went to the cigar factory. He said that James went in first, that he (Ismail) asked, 'Can...