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Saak No 234/85 TPA

EMILY ELIZABETH MELK APPELLANT

and

THE STATE RESPONDENT

J J F HEFER JA

IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE DIVISION

In the matter between

EMILY ELIZABETH MELK APPELLANT

and

THE STATE RESPONDENT

CORAM : RABIE ACJ, JOUBERT, HEFER, JJA, BOSHOFF et STEYN, AJJA.

HEARD : 14 SEPTEMBER 1987.

DELIVERED : 30 NOVEMBER 1987.

JUDGMENT HEFER, JA :

The African National Congress (the "A N C")

is 2

2.

is an unlawful organization as defined in the Internal

Security Act No 74 of 1982. In terms of sec 56(1) (c)
of the Act any person who, without the consent of the
Minister of Law and Order, is in possession of

"any publication published or disseminated by or under the direction or guidance or on behalf of any unlawful organization"

shall be guilty of an offence.

The discovery in appellant's possession of a
book bearing the title "Island in Chains" led to her ap-
pearance in a regional court, charged with contravening
sec 56(1) (c). She pleaded not guilty. In a statement
handed to the court her defence was set out in the fol-

lowing terms :

"7 3

3.

"7. In my defence, I state that I did not know, nor did I have reason to believe that it was unlawful to possess a copy of the said publication.

8. I state further that I deny that the

publication was published, or dissemi-nated by, or under the direction, or guidance, or on behalf of the African National Congress."

On both the issues. thus raised, the court found against
the appellant. She was convicted and the conviction was
subsequently confirmed on appeal to the Transvaal Provin-
cial Division, which, however, granted the appellant leave
to appeal to this court.

The judgment in the court a quo was not repor-
ted but the court's interpretation of sec 56(1) (c) and
its views on the form of mens rea required for the contra-

vention 4
4. vention thereof appear from S v Mabitselo 1985(4) S A 61 (T). (Mabitselo's appeal was heard on the same day and by the same judges who heard the appellant's appeal and the two cases were argued together). I mention the interpretation of sec 56(1) (c) and the form of mens rea required for its contravention since these were the two matters with which the regional court and the court a quo were mainly concerned. The section is aimed at the pos-session pf any publication published or disseminated by or under the direction or guidance or on behalf of an un-lawful organization. "Island in Chains" was alleged by the State to have been published or disseminated on behalf of the A N C and, in order to decide whether this was indeed

the 5
5. the case, the meaning of "on behalf of" in sec 56(1) (c) first had to be ascertained. Both courts construed the words as meaning "for the benefit" or "in the in-terest " or "to the advantage of" and found, on this "construction, that the book had been published or dis-seminated on behalf of the A N C. The question of mens rea then arose. The regional court held (and the court a quo agreêd) that mens rea in the form of culpa was suf-ficient. Its actual finding on the type of mens rea which the appellant had, will be dealt with at a later stage.

The conviction was challenged in this court

on 6

6.

on four alternative grounds. I shall deal with them in

the sequence in which they were presented.

The main submission related to the interpreta-

tion of the words "on behalf of" in sec 56(1) (c). I re-

ferred earlier to the trial court's interpretation of the
words in question. It derived from a passage in the judg-
ment of INNES CJ in De Visser v Fitzpatrick 1907 T S 355
at p 363 where it was said that

"(the) popular meaning of those words is that everything done for a man's benefit or in his interest or to his advantage is a thing done on his behalf. On the other hand, the more legal view is that they mean something done by a man's representative or agent."

Whereas the trial court adopted the so-called popular

meaning, appellant's counsel contended for the "legal"

interpretation....7

7. interpretation by submitting that a publication is pub-lished or disseminated on behalf of an unlawful organi-zation as contemplated in sec 56(1) (c), not when it ser-ves the interest or is for the benefit or to the advantage of the organization, but when it is published or dissemi-nated by its agent or by someone (like an independent contractor) engaged or "sponsored" by the organization.
The recent decision of this court in S v Moloi and another 1987(1) S A 196 (A D) disposes of this submis-sion. In that case BOSHOFF AJA, in whose judgment two other members of the court concurred, approved of the judg-ment in Mabitselo's case (supra) and adopted the very in-terpretation of "on behalf of" in the context of sec 56(1)

(c) 8
8. (c) which appellant's counsel sought to avoid. Faced with this, difficulty appellant's counsel took a curious course. He was unable to refer us to any error in the judgment which could have a bearing on the decision ar-rived at therein; he had no answer to BOSHOFF AJA's reasoning to the effect that "on behalf of" in the Eng-lish text of sec 56(1) (c) has to be reconciled with "ten behoewe van" in the Afrikaans text; that, according to several well known dictionaries, "ten behoewe van" is not capable of any meaning other than "in the interest of" or "to the advantage of" or "for the benefit of", and that a reconciliation between the two texts can only be effected if "on behalf of" is interpreted as synonomous

with'. 9
9. with the English expressions which I have just used. Thus, without suggesting any reason why the decision should not be followed, appellant's counsel asked us to consider the question afresh. It is difficult, to say the least, to differ from a decision of this court which all the ingenuity of counsel could not fault. I am unable to find any reason for doing so. I agree with the reasoning and decision in Moloi's case and the main submission can, accordingly, not be sustained.
The alternative submissions were advanced on the basis of the correctness of the trial courb's interpre-tation of sec 56(1) (c). The first two may conveniently

be 10
10. be discussed together. By way of introduction mention should be made of the fact that the magistrate based his finding that "Island in Chains" was published or dissemi-nated in the interest or for the benefit or to the advan-tage of the A N C entirely on his own perception of the tenor of the book. Appellant's counsel submitted that such a finding could not be made in the absence of evidence to show what the interests of the A N C are. What is lack-ing, so he argued, is evidence relating to the aims and objectives of the organization. He submitted, moreover, that the tenor of the book alone is not such that a find-ing could be made that it would serve the interests of the A N C or that the latter would reap any benefit or

advantage 11

11.
advantage from its publication and dissemination. These submissions are without substance. Any publication which seêks to advance the cause of an organization, whether it be by enlisting popular support or by engendering sympathy for it or by extolling the justness of its cause,obviously serves the interests of the organization, whatever its in-terests may be; such a publication is plainly for its benefit and to its advantage. And "Island in Chains" is precisely such a publication. It was written by Indres Naidoo, a member of the A N C, with the assistance,accor-ding to the foreword, of Albie Sachs,"a lawyer who was him-self imprisoned and banned in South Africa". Naidoo, so the reader is informed in the foreword, was "one of the

first 12

12.

first volunteers for Umkhonto we Sizwe, 'Spear of the Nation',

the armed wing of the African National Congress". Caught

in the act of attempting to blow up certain railway instal-

lations, he was arrested, tried and sentenced to ten years'

imprisonment, the best part of which he served on Robben

Island. After his release he left the country and told
his experiences to Sachs. It is said in the foreword that
he and Sachs then"grouped the themes into chapters, and
so produced this book. It is a narrative of one of the
central episodes of recent South African history, the
story of an island in chains, the story of resistance as
seen through the eyes of one who lived through it all for
ten years". It is unnecessary to describe Naidoo's narra-

tive 13

13.

tive of his experiences from the time of his arrest to

the time of his release,in this judgment. A description

of the message which the book conveys, appears in the

foreword (written by Francis Meli, the Director of Exter-
nal Publicity of the A N C). It reads as follows:

"This book is the voice of struggle, the voice of the oppressed, the voice of the future, It expresses what is embodied and crystallized in our slogans : 'Amandla Nga-wethu', 'Maatla Kea Rona', 'Power to the

People' : It simply means 'Mayibuye i

Afrika' - we are determined to seize power.
It is a declaration of confidence in our
just cause ."

In order to confirm the accuracy of this description I
shall refer to only one passage in the book where Naidoo
tells of an incident when he met members of the Black

Consciousness 14

14.

Consciousness Movement in what he calls a "transit cell".
It reads as follows :

"They want to find out if the rumours they have heard about the Island are true and how they sh.ould conduct themselves when they get there. So we tell them that some of the hard times and terrible suf-fering have passed because of our struggles, and we stress that there is only one way to get through, and that is to remember, each and every day, that they are political prisoners fighting for a just cause, that they must always stand together and never lose sight of their goal. We remind them that the people of South Africa, and of the world, will always be standing by them,that they will never be forgotten, however iso-lated they might feel, and that we are con-fident that the A N C will continue the fight and bring victory to the people of our country."

There can be no doubt whatsoever that this book

serves 15

15. serves the interest of the A N C or that it is to the advantage or for the benefit of the organization.

What remains for consideration is the
question of mens rea in the context of the appellant's statement that she "did not know, nor had reason to be-lieve that it was unlawful to possess a copy of the said publication". The magistrate ruled that culpa on the part of the possessor may constitute the mental element of thë offence of being in possession of a publication in contravention of sec 56(1) (c), and in effect found that the appellant ought to have known that it was un-lawful to possess a copy of "Island in Chains" .

The 16

16. The question is whether his ruling on the sufficiency of culpa is correct.
The magistrate ruled and counsel who argued the appeal were in agreement that sec 56(1) (c) does not impose so-called strict liability. In the absence of clear indications to the contrary in the Act, the presump-tion against an intention to impose that kind of liability must prevail (S v Arenstein 1964(1) S A 361 at p 365) and I agree with the magistrate that mens rea is an element of the offence.

There is no indication in sec 56(1) (c) of
the form of mens rea required but, as BOTHA JA stated in

Arenstein's case (at p 366) :

" it 17

17.

" it is clear that

'negligence may constitute sufficient proof of mens rea even in cases where negligence is not the gist of the offence charged, if there was a duty on the part of the person

charged to be circumspect '

- per CENTLIVRES JA in R v H supra at p 130.-

The degree of blameworthiness required for a culpable violation of a statutory pro-hibition or injunction must in the first place be sought in the language used by the law-

giver and in the absence of any words

expressly indicating the particular mental state required, the degree of mens rea must depend on that foresight or care which the statute in the circumstances demands."

See also S v Jassat 1965(3) S A 423 (A D), S v Qumbella

1966(4) S A 356 (A D), S v Marais 1971(1) S A 844 (A D)
at p 851, S v Oberholzer 1971(4) S A 602 (A D) at p 612.
According to these decisions culpa may be sufficient if
it appears that a high degree of circumspection or care

is 18

18. is demanded for the observance of a statutory prohi-bition or injunction. Whether that is so depends upon the intention of the legislature.
Sec 56(1) (c) appears in an Act which, ac-cording to its long title, was passed to provide for the security of the State and the maintenance of law and or-der and for matters connected therewith. A large variety of matters, all related somehow or other to the security of the State or the maintenancê of law and order, are pro-vided for in different parts of the Act. For presentpur-poses reference need only be made to some of the provi-sions relating to unlawful organizations..

If the Minister of Law and Order is satisfied

that 19

19.

that the activities of an organization endanger or are calculated to endanger the safety of the State or the maintenance of law and order, he may declare it an unlaw-
ful organization. (Sec 4(1).) One of the effects of such a declaration is that no-one may thereafter take part in the activities of the organization or carry on in its direct or indirect interest any activity in which it was or could have engaged (sec 13(1) (a) (iv)); or advocate, advise defend or encourage the achievement of any of its objects (sec 13(1) (a) (v)). What the legis-lature sought to achieve by these measures is clear. A declaration in terms of sec 4(1) will not necessarily bring about the discontinuance of the activities of the

organization 20
20. organization. For that reason sec 13(1) (a) (iv) was introduced. The legislature deemed it necessary, more-over, to prevent the propagation of the achievenent of the organization's objectives. To that end it introduced sec 13(1) (a) (v).

Sec 56(1) (c) could only have been intended
to bolster secs 13(1) (a) (iv) and (v). Although it is conceivable that the kind of publication at which it is aimed was considered to be so harmful or potentially harm-ful that no-one should even be allowed to possess it , it is more likely that the prohibition was intended as an impediment to the continuation of an organization's acti-vities after a declaration in terms of sec 4(1) and to

the 21
21. the propagation of the achievement of its objectives. The section thus forms part of the legislature's scheme to combat these evils, for the protection of the State and for the maintenance of law and order. One is temp-ted to say, therefore, that a high degree of circumspec-tion is required for the observance of the prohibition and, applying the principle stated in the cases mentioned earlier, that culpa on the part of the possessor of a pro-hibited publication is sufficient to justify his convic-tion for contravening sec 56(1) (c). The problem pre-sented by the present case cannot, however, be solved in this way. A closer look at the section is required in order to discover what it entails.

What 22

22.

What is prohibited therein is the possession
(without the Minister's consent) of any publication pub-
lished or disseminated by or under the direction or gui-
dance or on behalf of (in the sense explained earlier)
an unlawful organization. The complexity of the des-
cription of a prohibited publication becomes apparent im-
mediately. To identify a publication as a prohibited one
may in many cases prove to be extremely difficult if not
impossible. This problem is aggravated by the fact that
no unlawful organization and no-one acting in its inte-
rests will openly disseminate publications, the posses-
sion of which is prohibited, and will much rather resort
to covert measures to spread its philosophy or to advance
its 23

23.

its aims. "Island in Chains" was eg printed, published and reproduced by reputable companies in England. Nothing is known about the manner in which it was disseminated, nor is it known by whom this was done. It is for this very reason that the State could only allege and prove, by reference to the contents of the book itself, that it was published and disseminated on behalf of the A N.C. And in many cases the contents of the publication will not be so revealing. "Island in Chains" is a crude example of A N C propaganda but in other publications the approach may be more subtle. Indeed, any publication published or disseminated by or under the direction or guidance of an unlawful organization - even a religious treatise

or 24

24. or a textbook on the industrial law - is prohibited. It will often be wholly impossible to know or even to suspect that it may not be lawfully possessed, or to find out whether it may.
Every prohibited publication is, moreover, related in sec 56(1) (c) to an unlawful organization. As mentioned earlier, an organization is declared to be an unlawful one. The declaration is published in the Gazette. Although many of these organizations are prob-ably known to the average South African, others undoub-tedly are not. Appellant's counsel supplied us with a list containing the names of some of them. The list in-cludes some well known names. It also includes the names

of 25
25. of "Dance Association", 5 A A Football League", "Foot-ball Club","Football League","Educational and Cultural Advancement of the African People in S A" and "Zimele Trust Fund". Personally I have never heard these names before and I am sure that many others share my ignorance. What is more important, is that the names suggest nothing -at least not what the activities of thesê organizations are. If I were to receive a book openly published by the "S A A Football League" I would, unless its contents are as revealing as the contents of "Island in Chains",not have the faintest suspicion that it was published by an organization which has been shown to the Minister's satis-faction to have been engaged in activities endangering

the 26
26.

the safety of the State or the maintenance of law and order. I would not know, nor would I have reason to suspect, that I have in my possession a publication pro-hibited in terms of sec 56(1) (c).
Viewed in the context of the question under discussion viz whether negligent violations of the pro-hibition in sec 56(1) (c) have been penalized, the prob-lem now becomes clear. Negligence implies inter alia lack of reasonable foresight - in this case lack of rea-sonable foresight of the possibility that a publication may be a prohibited one. From what I have said, the difficulty to foresee such a possibility must be appa-rent, . It is clear that, in cases where a publication

cannot 27

27. cannot, by reference to its contents or to extraneous
circumstances, be identified as a prohibited one, there can be no foresight that it may be. It is clear too that there is a very real likelihood of such cases occur-ringJ Publications which are identifiable as prohibi-ted ones are not without difficulty either. The ques-tion is: by whom are they supposed to be identifiable? If the so-called objective test of negligence is applied, as it generally is, the court hearing a case brought for an al-leged contravention of sec 56(1) (c) will be called upon to answer this question according to its own objective assessment of the reasonableness of the accused's failure to identify the publication; and in doing so, it will

not 28

28.

not take the accused's personal capabilities into ac-count (S v Ngubane 1985(3) S A 677 (A D) at p 687); the unsophisticated and uneducated shepherd will be trea-ted no differently from the professor and no heed will be taken of the "widely differing standards of culture, edu-
cation and social awareness of the various groups of per-sons to whom, as citizens of South Africa, this Act ap-plies." (per FANNIN J in S v Naidoo 1974(4) S A 574 (N) at p 576). On the magistrate's construction of sec 56(1), (c)such an inequitable result must have been inten-ded-by thé legislature. I find that difficult to accept. (On that construction the same result would follow if an accused were to raise by way of defence his ignorance

of 29

29. of the prohibition (cf S v de Blom 1977(3) S A 513 (A D). I find it equally difficult to accept that that was intended). Taking everything into account, I have come
to the conclusion that the legislature did not intend to demand the high degree of circumspection for the obser-vance of the prohibition which is required for an infe-rence that culpa on the part of the possessor of a pro-
hibited publication is sufficient to justify his convic-tion. I am fortified in this view by the fact that sta-tutory prohibitions against the possession of certain ar-ticles or substances have always in the past (except in one case) been interpreted in such a way that knowledge was required on the part of the possessor that

what 30

30.

what he has in his possession,. is the prohibited article

or substance. It was said in S v Smith 1965(4) S A

166 (C) at p 171 that

"(t)he weight of this authority is undoub-
tedly in favour of the general proposition
that, where a person is charged with the
contravention of a statutory provision
which prohibits the possession of certain
articles except under special circumstan-
ces or under the authority of a permit,
mens rea, in the sense of the accused per-
son knowing that he has in his custody or
under his control the forbidden article,
is normally an essential ingredient of the
offence " (My italics)

(To the authorities referred to by the learned judge,
may be added S v Mdeleleni 1975(2) S A 682 (C), S v Cow-

ley 1976(1) S A 376 (E), S v Lombard 1980(3) S A 948 (T)
and S v Ngwenya 1979(2) S A 96 (A D). After the passing

of 31

31. of the Act there were others.) In S v Goncalves 1974 (2) S A 122:: (NC) culpa was held to be sufficient for

the unlawful possession of certain drugs. But the cor-
rectness of the decision was doubted (cf S v Lombarcf (supra) at p 951-2 and the judgments of FANNINJ and VAN HEERDEN J in S v Naidoo (supra)). The legislature could hardly have been unaware that this was the state of the law and, had it been the intention to create in. sec 56(1) (c) yet another offence entailing the posses-sion of an article but with a different form of mens rea,
it is unlikely that it would not have been expressly or

at least clearly stated.

I have accordingly come to the conclusion

that 32

32.

that mens rea in the form of culpa on the part of the possessor of a prohibited publication is not sufficient to justify his conviction on a charge of contravening sec 56(1)(C). The magistrate found that the appellant "could, and should have realized, as a reasonable member of society that her possession o.f the book was unlawful". In the absence of a finding that she knew that her posses-sion was unlawful or foresaw that it might be, the con-viction cannot be sustained.

The appeal is upheld and the conviction

and sentence are set aside.

J J F HEFER JA. RABIE ACJ )

JOUBERT JA ) CONCUR.

STEYN AJA )

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