S v Singh and Another

• Jurisdiction: South Africa
• Judge: Leon J and Hoexter J
• Judgment Date: 31 October 1974
• Citation: 1975 (1) SA 330 (N)
• Hearing Date: 27 August 1974
• Court: Natal Provincial Division

Leon, J.:

The two appellants appeared together with one Chanderdeo Sewpershad on a charge of contravening sec. 29 (1) of Act 38 of 1927. It was alleged that on 21 March 1973 and at a public meeting of non-White

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persons including Bantu male and female persons, numbering approximately between 150 and 200 persons, held at Kajee Hall, Leopold Street, Durban, the appellants and Sewpershad each individually did wrongfully and unlawfully utter words mentioned in the schedule to the charge in the form of an A address or speech delivered or made to the said audience there present, the whole of the said address or speech or alternatively the portions thereof which were underlined (when read in their context) having been delivered or made with the intent to promote feelings of hostility between Bantu and European (White) persons. The appellants were tried jointly in B terms of sec. 328 of the Criminal Code.

There was annexed to the charge a schedule headed

"Transcript of the tape-recorded statements allegedly made at Kajee Hall on 21.3.1973."

The schedule contained a transcript of the speeches or C addresses alleged to have been made by the appellants and Sewpershad.

On 21 June 1973 an application was made on behalf of Sewpershad for his trial to be separated from that of the appellants. In the absence of any opposition on the part of either counsel for the appellants or the prosecutor that application was granted. Sewpershad stood down and the trial of the appellants was adjourned to 10 September 1973.

D On 10 September 1973 and before the appellants were called upon to plead, an application was made on behalf of the defence for permission to listen to the replay of certain casette tapes which the State alleged contained recordings of the speeches made by the appellants on 21 March 1973 at the meeting at Kajee E Hall. That application was granted and the tapes were replayed in the presence of the prosecutor and both defence counsel. For reasons of convenience it was then decided to adjourn the trial to 11 September 1973.

When the trial was resumed on 11 September 1973 the prosecutor informed the magistrate that the State, having listened to the F tape recordings, had made a new copy of the transcript of the tape-recorded speeches allegedly made by the appellants. This had been done in a hurry and he asked the magistrate for a further adjournment in order to listen to the recordings again, in order to be quite certain that the new annexure which had G been prepared was correct. That application was granted and when the court resumed the prosecutor informed the court that the State had substituted a new annexure in place of the original annexure. Counsel for the defence then handed in to court their version of the tape recordings which differed in certain respects from the new annexure which the State had prepared. The appellants were then called upon to plead to the H charge as amended. According to the record both appellants pleaded not guilty. However, according to the magistrate's judgment, both the appellants refused to plead. They refused to do so because they considered that the South African courts "were an extension and a tool of the sadistically oppressive White racist regime of this country". In terms of sec. 175 of Act 56 of 1955 pleas of not guilty were entered by him on behalf of the appellants.

Three witnesses testified on behalf of the State, namely Captain du

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Toit, Warrant Officer Taylor, and Bantu Constable Nkosi. At the close of the State case an unsuccessful application was made for the discharge of the appellants. Thereupon the appellants elected to make unsworn statements. That of the first appellant reads as follows:

A "Black people in South Africa have one common denominator and that is the oppression that they suffer in South Africa. The intent of my speech was to bring about the solidarity of Black people to fight against the racism and the oppression that Black people undergo in South Africa and if this is thought to be an intent at promoting racial hostility, then there isn't very much more I can say. As far as the contents of the tapes go, I dispute, although I cannot remember every word that I did B say, I dispute a lot that has been recorded and allegedly to have been said by me, the content of it. Besides that, all I can say again is that my intention was to fight against racism-sadism of the White man in South Africa and to do this one has to unify Black masses together and the oppression is the common denominator."

The second appellant, in his unsworn statement merely said "I concur with accused No. 1."

The appellants were convicted as charged. The first appellant C was fined R100 or 50 days' imprisonment and, in addition, sentenced to nine months' imprisonment which was suspended for three years upon certain conditions. The second appellant was fined R75 or one month's imprisonment. In addition he was sentenced to seven month's imprisonment which was suspended for three years upon certain conditions.

D The appellants noted an appeal against their convictions on the following grounds:

"1.

The learned magistrate erred in convicting the accused on insufficient evidence.

2.

The learned magistrate erred in concluding that the E requisite intention (mens rea) was present.

3.

The learned magistrate erred in accepting the evidence of the tape-recordings as reliable evidence.

4.

The learned magistrate erred in finding that the intention to arouse racial hostility was the main or only intention, F thereby failing to take cognisance of other reasonable inferences that can clearly be drawn from the utterances.

5.

The learned magistrate erred in finding that the guilt of the accused was proved beyond all reasonable doubt."

The transcript of the tape-recorded statements allegedly made G by the appellants, which is annexed to the charge, occupies twelve pages of the record. For the purposes of this judgment it is unnecessary to set out the annexure in full but I shall refer to certain portions of it when I consider whether the appellants possessed the necessary mens rea.

In the court below it was submitted on behalf of the appellants that the quality of the tape-recordings was so poor that they H should be discarded in toto. Para. 3 of the notice of appeal appeared to raise the same question. (I should add that the evidence shows that two recordings were made of the proceedings at the meeting in question and that two recorders were used for that purpose). This Court considered it necessary to listen to the tape recordings (see R. v Koch, 1952 (3) SA 26 (T) at pp. 29 - 30) and did so in open Court in the presence of counsel before argument commenced on the appeal. We were of the opinion that there was no justification for the submission made by the

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defence in the court below. We were of the view that, despite certain interference in the form of extraneous noises which were audible from time to time, the quality of the recordings was good enough to enable us to hear what the speakers were saying and that the annexure to the charge accorded with what A we had heard. After this Court had listened to the recordings we informed counsel of our views and they indicated that they agreed with them.

With regard to the admissibility of the tape recordings the magistrate, relying upon Hoffmann, S. A. Law of Evidence, 2nd ed., p. 288, and the cases there cited, held that the real B evidence is the tape itself and that the court and the parties can check its...