S v Ranta

• Jurisdiction: South Africa
• Judge: Rabie J and Trengove J
• Judgment Date: 08 August 1969
• Court: Transvaal Provincial Division
• Hearing Date: 25 April 1969
• Citation: 1969 (4) SA 142 (T)

S v Ranta
1969 (4) SA 142 (T)

1969 (4) SA p142

Citation	1969 (4) SA 142 (T)
Court	Transvaal Provincial Division
Judge	Rabie J and Trengove J
Heard	April 25, 1969
Judgment	August 8, 1969

Flynote : Sleutelwoorde A

Communism — Suppression of Communism Act, 44 of. 1950, as amended — Banned organizations — G.N. R.2130 of 28th December, 1962 — Applicability of — 'Persons who were office-bearers, etc.' — B Meaning of in G.N. R.2130 and sec. 5 ter (1) of Act 44 of 1950, as amended — Criminal procedure — Appeal — By Attorney-General — Dismissal of on ground not taken by respondent — Costs awarded to respondent.

Headnote : Kopnota

Government Notice R.2130 of 28th December, 1962, issued in terms of section 5 ter of Act 44 of 1950 as inserted by section 4 of Act 76 of 1962, refers only to organisations banned under section 2 (2) of Act 44 C of 1950, as amended: accordingly it does not apply to office-bearers, officers and members of the African National Congress which was declared to be unlawful under Act 34 of 1960.

It is unlikely that the Legislature intended the words 'all persons . . . who were office-bearers, officers or members of any organisation which has under subsection (2) of section 2 of Act 44 of 1950, as amended, been declared to be an unlawful organisation' in section 5 ter (1) of D Act 44 of 1950, as amended, to relate to persons who had been office-bearers, officers or members of the organisation concerned before its proscription but were no longer such at the time of its proscription.

Where an appeal by the Attorney-General in terms of section 104 (1) of Act 32 of 1944 had been dismissed on a ground not raised by the respondent the Court ordered the State to pay the costs of appeal. E

Case Information

Appeal by the Attorney-General in terms of sec. 104 (1) of Act 32 of 1944. The facts appear from the reasons for judgment.

P. Oosthuizen, for the State.

E. M. Wentzel, for the respondent: (1) In regard to the question whether the Minister's Notice, R.2130 of 28th December, 1962 applies to members, F etc. of A.N.C. at all, this Notice is issued in terms of sec. 5 ter of Act 44 of 1950 and makes no reference to Act 34 of 1960. In fact, the specific wording of the Notice which is issued only in terms of Act 44 of 1950 and refers only to an organisation declared to be unlawful under sec. 2 (2) of Act 44 of 1950, which is referred to in the Notice as 'the G said Act', appears to indicate that the Minister was referring only to organisations banned in terms of Act 44 of 1950 and not to those banned in terms of Act 34 of 1960. In this regard the principle inclusio unius est exclusio alterius applies. The fact that certain of the provisions of Act 44 of 1950 are applied mutatis mutandis in Act 34 of 1960 does not mean that the two Acts should automatically be read together. In the H case of sec. 5 ter of Act 44 of 1950 it simply means that the power given to the Minister can also be applied if the Minister wishes organisations banned in terms of Act 34 of 1960. This does not mean that when the Minister acts in terms of sec. 5 ter of Act 44 of 1950 he is obliged to act both in respect of organisations banned in terms of that Act and those banned in terms of Act 34 of 1960. The Minister may elect to act against both classes or either. If the Minister had chosen to act against both classes he would have done

1969 (4) SA p143

so and his failure so to do is a positive indication that he did not propose to include members etc. of the A.N.C. in the prohibition applied. It is conceded that sec. 2 (a) of Act 34 of 1960 provides that any reference to an organisation declared to be unlawful in terms of sec. 2 (2) of that Act shall be construed as a reference to an organisation declared unlawful in terms of Act 34 of 1960. However, this A merely serves to enable one to interpret the meaning of sec. 5 ter of Act 44 of 1950. What falls to be interpreted in this appeal is the meaning of the Minister's Notice. He is empowered by sec. 5 ter to act in respect of members etc. of the A.N.C.: the question is, did he do so? The following matters should be taken into account in deciding whether B the Minister's Notice refers to members etc. of the A.N.C - (i) the Minister is empowered to act in terms of authority given to him by Parliament and is obliged strictly to act according to limits of that authority; (ii) if - as is contended by the appellant - the Minister is given a legislative power then the proper approach would be to interpret the Notice restrictively as there is no question that the C Notice is ambiguous. See Sach's case, 1953 (1) SA 392; Milne and Erleigh case, 1951 (1) SA 791. Accordingly the Minister's Notice does not refer to members etc. of the A.N.C.

(2) The listing provisions: It would seem that not all the provisions of Act 44 of 1950 in regard to the appointment and duties of the liquidator D apply to an organisation proscribed in terms of Act 34 of 1960. Sec. 2 of Act 34 of 1960 specifically excludes the operation of secs. 4 (10) and 7 (2) of Act 44 of 1950. These latter sections are the statutory authority for the compiling of a list of office-bearers, officers, members or active supporters of organisations proscribed in terms of Act 44 of 1950. Their specific exclusion in regard to organisations declared E unlawful in terms of Act 34 of 1960 must mean that there is no power to compile such a list for organisations proscribed in terms of Act 34 of 1960. It is Parliament and not the Minister which has chosen not to empower the compiling of such a list.

Sec. 5 ter of Act 44 of 1950 applies to three categories of persons - (i) listed persons; (ii) restricted persons; (iii) office-bearers, F officers or members of an unlawful organisation declared to be such in terms of sec. 2 (2). Those persons belonging to classes (i) and (ii) above belong to a readily-ascertainable group. Furthermore, they belong to such a group because they are engaged in activities considered undesirable. In the case of listed persons their names are included only after they are given an opportunity of being heard; while restricted G persons are restricted because the Minister specifically directs his mind to their particular activities and they can enquire as to the reasons. It is only those in class (iii) who become members of that class and subject to its disabilities without any hearing. They are in the most unfavourable situation of all. The Legislature would not wish H to constitute an exceedingly wide, difficult-to-ascertain class, and the ambit of this class should not be extended. It is only in the case of an organisation banned in terms of Act 44 of 1950 that the liquidator is empowered to list persons associated prior to the banning and the specific exclusion of such power in Act 34 of 1960 is a further indication of the Legislature's intention not to extend the restrictions to persons associated with the A.N.C. before its banning. Sec. 1 (3) (a) of Act 34 of 1960 by its mention of a specific

1969 (4) SA p144

date appears to lend support to respondent's contentions in this regard. The Communist Party was declared to be unlawful in terms of sec. 2 (1) of Act 44 of 1950, but sec. 3 (1) equates the situation in terms of sec. 2 (1) with that in terms of sec. 2 (2) and the same consequences result. A In both cases a liquidator is appointed (vide sec. 3 (1) (b)) and sec. 4 (10) applies equally to both cases.

Oosthuizen, in reply.

Cur adv vult.

Postea (August 8th).

Judgment

B Rabie, J.:

This is an appeal by the Attorney-General in terms of sec. 104 (1) of the Magistrates' Courts Act, 32 of 1944, against the judgment of a regional court magistrate in which he found the respondent, a Bantu woman, not guilty on a charge of contravening sec. 11 (f) ter, read with C sec. 5 ter, of the Suppression of Communism Act, 44 of 1950, as amended.

The allegations in the charge sheet are, briefly, to the following effect: that respondent was during April, 1956 an office-bearer, officer or member of the organisation known as the African National Congress; D that this organisation was on 8th April, 1960, by Proc. 119, declared to be an unlawful organisation; that on 28th December, 1962, by Government Notice R.2130, the Minister of Justice, acting in terms of sec. 5 ter of Act 44 of 1950, prohibited persons who had been office-bearers, officers or members of organisations which had been declared to be unlawful from being or becoming office-bearers, officers or members of organisations referred to in the Notice, and that E respondent contravened the said Notice and, therefore, sec. 11 (f) ter read with sec. 5 ter of Act 44 of 1950, in that she was during the period 1st February, 1963 to 30th April, 1968 an office-bearer, officer or member of an organisation referred to in the Notice.

F Sec. 11 (f) ter was inserted in Act 44 of 1950 by sec. 10 (1) (c) of the General Law Amendment Act, 76 of 1962, which came into operation on 27th June, 1962. It provides as follows:

'Any person who -

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in contravention of a notice under sec. 5 ter is or becomes an officebearer, officer or...