S v Seremane and Others

• Jurisdiction: South Africa
• Citation: 1964 (2) SA 511 (T)

S v Seremane and Others
1964 (2) SA 511 (T)

1964 (2) SA p511

Citation	1964 (2) SA 511 (T)
Court	Transvaal Provincial Division
Judge	Claassen J and De Kock J
Heard	February 24, 1964
Judgment	March 13, 1964

Flynote : Sleutelwoorde

Communism — Suppression of Communism Act, 44 of 1950 — Sec. 3 (1) (a) — Para. (i) thereof not restricted exclusively to members of an unlawful organisation — Para. (iv) thereof not restricted solely to non-members.

Headnote : Kopnota

D The Legislature did not intend to deal exclusively with members of an unlawful organisation in paragraph (i) and exclusively with non-members in paragraph (iv) of section 3 (1) (a) of the Suppression of Communism Act, 44 of 1950, in the sense that an act performed by a member fell to be dealt with solely under the former and an act performed by a non-member under the latter paragraph. E

Case Information

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

D. A. Bregman, for the appellants: It was the express intention of the Legislature to make it one offence for a person to be a member of an F unlawful organisation and to perform any act as a member; see sec. 3 (1) (a) (i) of Act 44 of 1950. The trial court erred when, once having held that the appellants were members of an unlawful organisation, it then convicted them in terms of sec. 3 (1) (a) (iv), since the said section refers to the offence of performing acts in furtherance of the G interests of the unlawful organisation without being a member. Having held that the appellants were members of an unlawful organisation, any acts subsequently performed would fall within the ambit of sec. 3 (1) (a) (i). As a result of framing the charge in terms of sec. 3 (1) (a) (i) to exclude the words 'or perform any act' and then charging the appellants separately in terms of sec. 3 (1) (a) (iv), the Court a quo H erred in convicting on the second count once having convicted on the charge of being a member. There was an improper splitting of charges because (a) enactments should be so construed that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant, R v Standard Tea & Coffee Co., 1951 (4) SA 412; (b) when there are two possible constructions, one of which would lead to obvious injustice, the Courts act upon the view that such a result was not intended, Maxwell, 11th ed. p. 193; R v Oosthuizen,

1964 (2) SA p512

1952 (3) SA 541; (c) if a person can rebut the presumption created by sec. 12 of the Act, he would commit an offence in terms of sec. 3 (1) (a) (iv), and the said section was intended to apply to non-members and should be restricted to non-members; Clan Transport Co v Road Services A Board, 1956 (4) SA 26 at p. 31. Even if the said sub-section does apply to members, the conviction on the two counts still constituted an improper splitting. The evidence led indicated that the activities of the appellants in respect of which they were convicted on the counts were one offence in substance, R v Kuzwayo, 1960 (1) SA 340, were B done with a single intent and constituted one continuous criminal transaction, R v Johannes, 1925 T.P.D. 782, were such that the evidence necessary to establish one crime involved proving the other crime, and that the activities concerned one course of conduct, R v Grobler, 1961 (1) SA 63. Even if it cannot definitely be said that the C conviction in terms of sub-para. (iv) is wrong, substantial justice would best be served if the conviction were quashed, R v Ntako, 1950 (2) SA 556. Ad. appellant No. 9, the court a quo convicted on the evidence of a single accomplice. As to this, see R v Ncanana, 1948 (4) SA 399, and S v Avon Bottle Store, 1963 (2) SA 389.

S. E. Terblanche, for the State.

Cur. adv. vult. D

Postea (March 13th).

Judgment

E De Kock, J.:

The nine appellants in this matter were jointly charged before a regional magistrate with two contraventions of...