S v Wood

• Jurisdiction: South Africa
• Judge: Botha JA, Holmes JA and Corbett JA
• Judgment Date: 28 November 1975
• Citation: 1976 (1) SA 703 (A)
• Hearing Date: 26 November 1975
• Court: Appellate Division

Botha, J.A.:

The appellant was convicted by a regional magistrate F of a contravention of sec. 11 (h) read with sec. 9 (1) of the Suppression of Communism Act, 44 of 1950, as amended, and of a contravention of sec. 11 (i) read with sec. 10 (1) of the said Act as amended, and sentenced to 14 days' imprisonment, both counts being taken as one for purpose of sentence. An appeal against his conviction to the Cape Provincial Division was G dismissed in respect of both counts, but the whole of the sentence imposed upon the appellant was suspended on certain conditions. Appellant was, however, given leave to appeal to this Court against his conviction on the first count only.

In that count it is alleged that on 20 July 1973 and at 26 Dublin Road, Woodstock, Cape, the appellant did wrongfully and unlawfully contravene H sec. 11 (h) of Act 44 of 1950 in that he did attend a social gathering in contravention of a notice duly delivered to him in terms of sec. 9 (1) of the said Act. The sole question in this appeal is whether it has been shown that the appellant had on the date and at the place alleged attended a 'gathering' as defined in sec. 1 (1) of the said Act as:

'Any gathering, concourse, or procession in, through or along any place, of any number of persons having, except in the case of any gathering contemplated in sub-para. (ii) of para. (e) of sub-sec. (1) of sec. 5 or para. (b) of sub-sec. (1) or (3) of sec. 9, a common purpose, whether such purpose be lawful or unlawful.'

Botha JA

The notice served upon the appellant was issued by the Minister under sec. 9 (1) of the Act, as amended, which reads as follows:

'(1)

Whenever the Minister is satisfied that any person engages in activities which are furthering or are calculated to further the achievement of any of the objects of communism, he may, by A notice under his hand addressed and delivered or tendered to that person, prohibit him from attending, except in such cases as may be specified in the notice or as the Minister or a magistrate acting in pursuance of his general or special instructions may at any time expressly authorise -

(a)

any gathering; or

(b)

any particular gathering or any gathering of a particular nature, class or kind, B

at any place or in any area during any period or on any day or during specified times or periods within any period.'

By the notice served upon the appellant he is prohibited, for a period set out in the notice, from attending, inter alia -

'(1)

any gathering contemplated in para. (a) of the said sec. 9 (1); or

(2)

any gathering contemplated in para. (b) of the said sec. 9 (1), of-the nature, C class or kind set out below:

(a)

any social gathering, that is to say, any gathering at which the persons present also have social intercourse with one another;

(b)

.............

(c)

..............'

D It is common cause that during the evening of 20 July 1973 i.e. during the period set out in the notice and at the place alleged in the first count, the appellant was engaged in a game of contract bridge in a room with three other persons. The crisp question is whether the coming together of those four persons constituted a 'gathering' as defined for the purposes of the Act. The fact that the four persons in question were E engaged in playing contract bridge at the time seems to indicate that they had come together or were together for a common purpose but, in so far as the notice served upon the appellant was issued under sec. 9 (1) (b) of the Act to prohibit his attendance at 'any social gathering', that consideration is irrelevant by reason of the words

'except in the case of any gathering contemplated in... para. (b) of F sub-sec. (1) or (3) of sec. 9'

in the definition of 'gathering' in sec. 1 (1). Those words were inserted...