The State v Carneson

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Ludorf J and De Vos AJ
• Judgment Date: 16 May 1962
• Citation: 1962 (3) SA 437 (T)
• Hearing Date: 01 May 1962

H Ludorf, J.:

This is an appeal against the order of the magistrate made in the following terms:

'In terms of sec. 212 (1) Act 56 of 1955 read with sec. 83 the proceedings are adjourned for seven days until 10.3.1962 and the respondent Fred Carneson is committed to gaol for that period unless he sooner consents to answer questions 1 and 2 above put to him.'

The power to grant the order emerges from these two sections. Sec. 212 (1) reads:

Ludorf J

'Whenever any person who appears, either in obedience to the subpoena or by virtue of a warrant or is present and is verbally required by the court to give evidence in any criminal proceedings refuses to be sworn, or having been sworn, refuses to answer such questions as are put to him, or refuses or fails to produce any document or thing which he is A required to produce, without any just excuse for such refusal or failure, the court may adjourn the proceedings for any period not exceeding eight days and may, in the meantime, by warrant commit the person so refusing or failing, to gaol, unless he sooner consents to do what is required of him.'

And sec. 83 reads:

'(1) A magistrate may, at any time upon the request of the local public prosecutor, require the attendance before him of any person who is B likely to give material evidence as to any alleged offence, whether or not it be known or suspected who the person is by whom the offence has been committed.

(2) The provisions of secs. 206, 207, 209, 211, 212 and 219 shall apply in respect of persons required to attend and give evidence under this section: Provided that the examination of such persons may be conducted in private at any place appointed by the magistrate for that purpose.'

C It was pointed out that in the previous Act there appeared the words 'supposed offence' instead of the words 'alleged offence' which now appear in sec. 83 (1) but in my view nothing turns on this position in the present case.

It appears that the appellant was summoned to appear before a magistrate by a subpoena issued in terms of sec. 83 and served on him on the 15th February, 1962. I quote the material part thereof:

'The magistrate's court for the district of Johannesburg.

To the messenger of the court:

You are hereby required in the State's name to summons Fred Carneson that he appear personally before this court at room 163 on the 17th day of February, 1962 at 10 a.m. to testify and declare all he knows concerning the supposed offence of contravening sec. 3 (1) (a) (iv) read with sec. 1 (c) of Act 44 of 1950 alleged to have been committed by Walter Sisulu.

E The nature of the information required is as follows:

(Annexure to be used if necessary.)

(1)

Who was the author of article titled 'The National convention - What is to be done?' which was published in New Age of the 28th of December, 1961.

(2)

How did the manuscript come into possession of New Age.'

F When the appellant appeared the prosecutor handed in a copy of a newspaper called the New Age in which appeared an article under the head lines 'The National Convention - What is to be Done?' In the middle of the second column in large print there appeared the words 'By Walter Sisulu' and below the headlines there appeared a picture of a man and below the picture the words 'Mr. Walter Sisulu'.

G Thereafter the appellant was sworn and from the record it appears that the following questions were put and answers given:

'1.

Q. Are you the editor of the New Age?

A. Yes it is correct.

2.

Q. Do you see the article 'The National Convention - what is to be done' published in exh. 'B'?

A. H Yes, I see it.

3.

Q. Who is the author of that article?

A. I refuse to answer that question as it incriminates me or tends to incriminate me.

4.

Q. How did the original manuscript come into the possession of New Age?

A. I also refuse to answer that on the same grounds.'

Counsel then argued the objection and thereafter the objection was dismissed. The appellant nevertheless persisted in his refusal, whereupon the magistrate made the order committing him to gaol.

The appeal is in effect an appeal against the decision of the magistrate

Ludorf J

in overruling the appellant's objection when he claimed the privilege of silence. On his behalf it is contended that the privilege affords him a 'just excuse' as provided for in sec. 212. The nature of the privilege appears from sec. 234. It reads as follows:

'No witness in any criminal proceedings shall, except as provided by A this Act or any other law, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer, by reason that his...