S v Msoki

• Jurisdiction: South Africa
• Judge: De Wet CJ and Erasmus AJ
• Judgment Date: 09 November 1984
• Citation: 1985 (2) SA 63 (CkS)
• Hearing Date: 16 August 1984
• Court: Ciskei Supreme Court

De Wet CJ:

This is an appeal by the State on certain points of G law stated by the regional magistrate for consideration by this Court, following on a request by the Attorney-General in terms of s 310 of the Criminal Procedure Act 51 of 1977.

The respondent was charged on two counts and acquitted on both.

The first charge alleges that the respondent contravened s 18 (i) of the National Security Act 13 of 1982 (Ck) in that he H wrongfully possessed two publications published by the unlawful organisations: the South African Communist Party and the African National Congress.

The second charge alleges that the respondent contravened s 8 (1) (d) of the Publications Act 42 of 1974 in that he had wrongfully possessed five publications the possession whereof had been prohibited.

I I might mention that both State and defence agreed that the State had proven its case in regard to the possession of the publications by respondent and accepted the magistrate's findings on credibility. The notice in terms of s 310 (1) of the Act 51 of 1977 reads:

"Notice in terms of s 310 (1) of Act 51 of 1977

1.

Be pleased to take notice that I, Willem Frederick Jurgens, Attorney-General of Ciskei, do hereby require, in terms of J s 310 (1) of Act 51 of 1977, the learned presiding magistrate to state a case for the consideration of the Supreme Court

De Wet CJ

of Ciskei, setting forth the questions of law and his A decision(s) and his findings of fact in so far as they are material to the question(s) of law.

2.

It appears that the accused were charged on two counts: firstly, contravening s 18 (i) of the National Security Act 13 of 1982 (Ck) read with ss 1, 7, 18 (iii) and 71 of Act 13 of 1983 (being in possession of publications published by unlawful organisations) and, secondly, contravening s 8 (1) (d) of the Publications Act 42 of 1974, read with ss 9, 43 and 47 of Act 42 of 1974 (being in possession of B publications prohibited for possession.)

3.

It appears further that, after the State and defence led evidence (which included the production of the publications concerned as exhibits) the court found that it was proved that the accused had the publications in his possession, but returned a verdict of not guilty to both counts on the grounds that (on count 1) the State failed to prove the contents of these publications and more specifically that C the State failed to prove that they were published or disseminated by unlawful organizations in that the presumption contained in s 71 of Act 13 of 1982 did not come into operation, and that (on count 2) the State failed to prove the identity of the documents concerned, and more specifically that the State failed to prove that the publications before the court were the publications prohibited for possession in the Government Notices mentioned in the charge sheet.

4.

I submit that the acquittal of the accused by the learned D magistrate on both counts resulted from decisions given in favour of the accused on questions of law as meant in s 310 (1) of Act 51 of 1977, to wit that the magistrate:

(A)

on count 1, held that the presumption in s 71 (a) of Act 13 of 1982 did not apply and thus held that he should not examine the publications produced as exhibits before him to ascertain who were the E publishers or disseminators of those publications; and

(B)

on count 2, held that the State must produce further evidence, extraneous to the publications produced as exhibits before him, to establish their identity as being the publications described in the Government Notices mentioned in the charge sheet and thus held that he should not examine those publications to compare them with the description of the prohibited publications contained in those Government Notices and to ascertain whether they are in fact the prohibited F publications as alleged.

5.

It is suggested that the questions of law be framed as follows:

A.

On count 1:

1.

Was the court correct in holding that the presumption contained in s 71 (a) of Act 13 of 1982 did not come into operation where it was proved that the publications concerned were found in or removed from the possession, custody or control of the G accused?

2.

Should the court not have examined the publications produced as exhibits with the view to establishing who are alleged (in those publications) to be the publishers thereof?

3.

Could any reasonable court, upon a proper examination of the exhibits, and applying the presumption contained in s 71 (a) of Act 13 of 1982, have found otherwise than that those publications were in fact published by the unlawful organizations mentioned in the H charge sheet?

B.

On count 2:

4.

Where an accused is charged with being in possession of publications, the possession whereof has been prohibited, and where those publications are produced as exhibits at the trial, should the court not examine those publications to ascertain whether they are in fact the publications mentioned in the Government Notices referred to in the charge sheet?

5.

Was the court correct in holding that the I State must produce further evidence, extraneous to the publications themselves, to prove the identity of those publications as being prohibited publications?

6.

Could any reasonable court, upon a proper examination of the exhibits, have found otherwise than that those publications were in fact the prohibited publications referred to in the Government Notices mentioned in the charge sheet?"

J In his stated case the magistrate states, inter alia :

De Wet CJ

A "The accused was acquitted on both counts because the court held that the provisions of the presumptions contained in s 71 (a) of Act 13 of 1982 did not come into operation notwithstanding the fact that the...