S v Nathie

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Botha JA, Holmes JA and Wessels JA
• Judgment Date: 30 May 1964
• Citation: 1964 (3) SA 588 (A)
• Hearing Date: 21 May 1964
• Court: Appellate Division

H Wessels, J.A.:

The appellant, an Indian male, was found guilty in the court of a regional magistrate of the offence of contravening sec. 2 (a) of the General Law Amendment Act, 8 of 1953, and sentenced to 12 months' imprisonment. An appeal to the Transvaal Provincial Division was dismissed, but the appellant was granted leave to appeal to this Court.

The charge on which the appellant was convicted alleged that,

Wessels JA

'the accused did wrongfully and unlawfully at a meeting or gathering advise, encourage, incite, command, aid or procure certain Indians . . . to commit certain of the offences specified in Act 77 of 1957, as amended, to wit to contravene the provisions of sec. 15 (1) and/or sec. 16 (1) (a) and/or sec. 23 (1) and/or sec. 17 (1) and/or sec. 42 (3) of the said Act by way of protest against, or in support of a campaign for A the repeal or modification or for the variation or limitation of the application or administration of the Group Areas Amendment Act, 77 of 1957, to wit by saying or using or addressing the words mentioned in annexure 'A', or words to that effect, to the said Indians.'

Annexure 'A' is a lengthy document and I do not propose setting it out in full. It is headed 'Report of Joint Honorary Secretaries'. The evidence led on behalf of the State proves that appellant attended a B conference of the Transvaal Indian Congress on 25th November, 1962, and addressed the meeting in his capacity as secretary of the organisation. About 200 people, Indians and some Bantus, attended the conference. In the course of his address appellant read out the contents of annexure 'A'.

C The report (i.e., annexure 'A') opens with a reference to the fact that the last elections of the Transvaal Indian Congress were held in July, 1959, and continues,

'Much has happened since then, in this country and abroad, which has had a profound effect on our lives and on the lives of all peoples of this country. It will not be possible to deal at length with all the major events and happenings, but in this report we will attempt to deal with the most significant of these.'

D The first 'major event' alluded to in the report is the celebration in 1960 of the centenary of the landing of the first Indian Settlers in South Africa. Reference is made to the Indian community's contribution to the progress of South Africa. The report states:

'In the face of increasing obstruction placed by the law makers of the country at every turn of our lives, in the face of mounting persecution E and injustice, the Indian community has marched courageously forward and made a proud contribution in every field of South African life, a contribution second to none.'

After detailing the various fields in which the Indian community made its contribution, the report states:

'Yet, proud as our contribution and progress has been, 1960 for us was also a year of stocktaking, a year of fresh challenge. With all our unchallenged contribution we still had to commemorate the centenary F under the shadow of oppressive 'apartheid' rule and rigorous racial discrimination. We still remained second class citizens, insulted, humiliated, pushed about, our freedoms getting less and less, our rights flouted with impunity, our future and the future of our children presenting a picture of gloom and despair.

While extending to us with the one hand the recognition as permanent inhabitants of this country, white authority held out its other fist threatening us in no uncertain manner with a future of perpetual subservience.

After a hundred years of toil and labour, for the common good of all, G this is the lot of the Indian people, this their reward.'

The report proceeds to deal with the Group Areas Act and the effect which its application has on the domestic and commercial life of the Indian community. Reference is made to the fact that hearings of the H Group Areas Board had taken place in most towns and cities of the Transvaal. The report continues:

'In places such as Ermelo, Lydenburg, Pretoria, Coligny, Koster, the time limit has already expired, by which the Indian communities were supposed to move. In Kliptown, a number of Indian families who had been occupying properties belonging to the Community Development Board were forced to move within 24 hours. In Ventersdorp four Indian families occupying premises from the time when the town was little more than bare veld were found guilty just the other day because they did not move by the end of October as they were required to. Theirs was a moral stand against an immoral act. They have now until the end of this month to vacate, failing which they will be sent to prison.'

After sketching the hardships facing Indian traders whose means of

Wessels JA

livelihood will be affected by the application of the Act, the...