S v Nel

• Jurisdiction: South Africa
• Citation: 1989 (4) SA 845 (A)

S v Nel
1989 (4) SA 845 (A)

1989 (4) SA p845

Citation	1989 (4) SA 845 (A)
Court	Appellate Division
Judge	E M Grosskopf JA, M T Steyn JA and Kumleben JA
Heard	May 23, 1989
Judgment	August 17, 1989

Flynote : Sleutelwoorde B

Internal security — Internal Security Act 74 of 1982 — Sabotage in contravention of s 54(3)(e) — What constitutes — Appellant having blown up planning office of shaft of gold mine from which he had previously been dismissed — Section 54(3)(e) of Act 74 of 1982 C requiring proof of actual intention and dolus eventualis not sufficient — Charge in question framed on basis of commodity related intent — Reference in charge to mine as an industry not introducing allegation of industry directed intent and not rendering charge vague and embarrassing — Actual intention to cripple, prejudice or interrupt the production, D supply or distribution of commodities not proved in instant case — Whether intent envisaged by s 54(3) should have a 'political component' raised but not decided — Conviction of sabotage set aside on appeal and substituted with one of malicious injury to property.

Headnote : Kopnota

E The appellant had been convicted in a regional magistrate's court of sabotage in contravention of s 54(3)(e) of the Internal Security Act 74 of 1982, in that he had damaged, by blowing up with explosives, the planning office of a shaft of a gold mine, thereby causing damage to property and loss of production of gold of approximately R1 000 000. It had appeared from the evidence that the appellant had been dismissed from the mine a few months before the incident and that he had felt deeply aggrieved thereby. In an appeal to a Provincial Division, the F Court rejected the appellant's contention that he should not have been convicted as gold did not fall within the ambit of 'commodities' as intended in s 54(3)(e) of the Act, confirmed his conviction but reduced the sentence from ten to five years' imprisonment. In a further appeal,

Held, that s 54(3)(e) of the Act required proof of actual intention (dolus directus) and that dolus eventualis was not sufficient to sustain a conviction under the section.

G Held, further, that s 54(3)(e) incorporated two distinct and different objectives or intentions and thus two distinct forms of contravention, viz the intent to cripple or prejudice any industry, or the intent to cripple or prejudice the production, supply or distribution of commodities or foodstuffs, and that the charge in question, which explicitly referred to the commodity directed intent, was not made vague or embarrassing by the reference to the mine in question as an industry - the latter did not introduce an allegation of an industry directed intent and the charge therefore set out with sufficient clarity the H essentials of the charge.

Held, further, as to whether a commodity directed intent had indeed been proved, that it was reasonably possible that the appellant had not thought beyond causing damage as an act of vengeance at the time he blew up the planning office.

Held, further, that the Court a quo had also not found that an actual intention to cripple, prejudice or interrupt the production, supply or distribution of commodities had been proved and that it had therefore I convicted the appellant on the basis of dolus eventualis.

The question whether in intent envisaged by s 54(3) of the Act should have a 'political component' raised but not decided.

Held, accordingly, that the conviction of sabotage had to be set aside and substituted with one of malicious injury to property, but that the sentence had to be confirmed.

The dicta in Minister of Law and Order and Others v Pavlicevic 1989 (3) SA 679 (A) J at 689E - 690A approved and applied.

1989 (4) SA p846

A The decision in the Orange Free State Provincial Division in S v Nel 1987 (4) SA 276 varied.

Case Information

Appeal from a decision in the Orange Free State Provincial Division (Hattingh J and Findlay AJ). The facts appear from the judgment of Kumleben JA.

B C Ploos van Amstel for the appellant referred to the following authorities: Strauss (1962) 25 THRHR at 231 - 43; 1962 Annual Survey of South African Law at 48 - 49; Mathews Law, Order and Liberty in South Africa at 164 - 9; Milton and Fuller South African Criminal Law and Procedure vol III at 102 - 12; Ackermann Die Reg insake Openbare Orde en Staatsveiligheid at 34, 43; Mathews Freedom, State Security and the Rule C of Law at 42, 43, 221 - 2, 224; S v Radebe 1988 (1) SA 772 (A); Mathews 'The Newspeak Version of Sabotage' (1988) 1 SAS 175; Joubert (ed) Law of South Africa vol 6 para 428 at 458 - 60; S v Sinkankanka and Another 1963 (2) SA 531 (A); S v Nobomvu and Others 1963 (2) SA 107 (E); S v Alexander and Others 1965 (2) SA 181 (C); S v Xakana 1966 (1) SA 733 (O) D ; S v Moadira 1978 (4) SA 110 (O); S v Ndlovu 1978 (2) SA 417 (A); Manchanda and Lal Law Relating to Defence and Emergency 2nd ed at 226 - 7; Steyn Die Uitleg van Wette 5th ed at 111 - 13; Du Plessis The Interpretation of Statues at 89 - 90; Bhyat v Commissioner for Immigration 1932 AD 125 at 129; University of Cape Town v Cape Bar Council and Another 1986 (4) SA 903 (A) at 913I - J; Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662; E Perishable Products Export Control Board v Molteno Bros 1943 AD 265 at 273 - 4; R v Sisulu 1953 (3) SA 276 (A) at 286 - 7; Verslag van die Kommissie van Ondersoek na Veiligheidswetgewing RP 90/1981 para 9.2.3.3; Dugard 'A Triumph for Executive Power - An Examination of the Rabie Report and the Internal Security Act 74 of 1982' (1982) 99 SALJ 589; S v F Bacela 1988 (2) SA 665 (E) at 668I - 699A; Burchell and Hunt South African Criminal Law and Procedure vol I at 140 - 8; 150 - 4; S v Du Preez 1972 (4) SA 584 (A) at 588H - 589G; R v Sheshe and Others 1951 (2) SA 108 (T); S v Singh 1962 (3) SA 799 (N); S v Moloinyane 1965 (2) SA 109 (O); S v AR Wholesalers (Pty) Ltd and Another 1975 (1) SA 551 (NC) at 556E - F; S v Maphinda 1979 (2) SA 343 (N).

G J Nel for the State referred to the following authorities: R v Kirk 1914 CPD 564 at 567; Bhyat v Commissioner for Immigration 1932 AD 125 at 129; List v Jungers 1979 (3) SA 106 (A); Steyn Die Uitleg van Wette 5th ed at 111 - 14; Moss v Sissons & McKenzie 1907 EDC 167; S v Perth Dry Cleaners and Launderers (Pty) Ltd and Another 1964 (1) SA 134 (T) at H 136H et seq ; S v Majola 1975 (2) SA 727 (A); University of Cape Town v Cape Bar Council and Another 1986 (4) SA 903 (A) at 913I - J; Shenker v The Master and Other 1936 AD 136 at 143; Ebrahim v Minister of the Interior 1977 (1) SA 665 (A) at 678A - G; Verslag van die Kommissie van Ondersoek na Veiligheidswetgewing RP 90/1981 at paras 9.2.3.2 - 3 (the I Rabie Commission).

Cur av vult.

Postea (August 17).

Judgment

Kumleben JA:

The appellant was charged in the regional court with, inter alia, sabotage in terms of s 54(3)(e) of the Internal Security Act 74 of J 1982,

1989 (4) SA p847

Kumleben JA

A alternatively, with malicious injury to property. Initially he pleaded not guilty to both charges. At the close of the State case, he altered his plea on the alternative charge to one of guilty. This was not accepted by the State. The trial proceeded, at the conclusion of which he was found guilty on the main charge and sentenced to 10 years' imprisonment. His appeal to the Orange Free State Provincial Division of B the Supreme Court was partially successful. The conviction was confirmed but the sentence altered to one of five years' imprisonment. The judgment is reported (S v Nel 1987 (4) SA 276 (O)) and the page citations in this judgment refer to the reported decision. Leave was granted by the Court for a further appeal against both the conviction C and reduced sentence.

The facts giving rise to these charges are fully set out in the judgments of the trial court and the Court a quo. Only certain of them, which were undisputed or plainly proved, need be initially recounted.

The appellant started work at the Western Holdings Gold Mine ('the mine') in 1981. In April 1983, when he was a shift boss at No 7 shaft, D it was inspected by officials not connected with the mine. Their selection of his working place at the mine was a random one. After their inspection they submitted an unfavourable report to Mr Edkins, the production manager of No 6 and No 7 shafts. He severely reprimanded the appellant, amongst others. (His work record hitherto had been exemplary.) During the period June to November 1983 three underground electrical substations were blown up and sabotage was suspected. This E led to the appellant being transferred to No 6 shaft. After about two weeks he was allowed at his request to return to No 7 shaft but was warned that any further trouble there could result in his dismissal. There was a further mishap. A fire broke out in the appellant's section of the shaft. This led to Mr Edkins discharging him on grounds of incompetence. The appellant felt that this action was unfair and was F deeply aggrieved by it.

For the next four weeks he unsuccessfully applied for work at various gold mines in the area. He eventually found employment as a shift boss on the Free State Geduld Gold Mine. After he had been working there for about a fortnight, the personnel officer informed the appellant that he G was in trouble for having engaged him since the reason for the appellant's dismissal from his previous employment had come to the notice of this official's superiors. The appellant was told that on this account he might well lose his job. This was on Friday 18 May 1984. That day, whilst working underground, he stole 14 packets of explosives (about 2 kilograms in weight) and took them home with him. On the H following Monday the appellant was in fact discharged. That same evening he took the stolen explosives and went...