[zRPz] JAGA v DÖNGES, NO AND ANOTHER; BHANA v DÖNGES, NO AND ANOTHER 1950 (4) SA 653 (A)
1950 (4) SA p653
Citation / 1950 (4) SA 653 (A)Court / Appellate Division
Judge / Centlivres JA , Greenberg JA , Schreiner JA , Van Den Heever JA , and Hoexter JA
Heard / September 8, 1950
Judgment / October 17, 1950
Annotations / Link to Case Annotations
A
[zFNz] Flynote : Sleutelwoorde
Immigration - Offender's sentence of imprisonment suspended for a period - Whether such offender falls within the provisions of sec . B 22 of Act 22 of 1913 ( as substituted by sec . 4 of Act 15 of 1931) - ' Circumstances of the offence.' - What amount to - Whether Court can substitute its decision on whether there were 'circumstances of the offence' for that of the Minister.
[zHNz] Headnote : Kopnota
An offender whose sentence of imprisonment has been suspended for a specified period falls within the provisions of section 22 of Act 22 of C 1913 as substituted by Act 15 of 1931, section 4 ( per CENTLIVRES, J.A., VAN DEN HEEVER, J.A., and HOEXTER, J.A., concurring; GREENBERG, J.A., and SCHREINER, J.A., dissenting).
Where an order had been made by the Minister declaring a person, who had been convicted and who had received a suspended sentence of imprisonment in respect of an offence specified in section 22 of Act 22 of 1913 as D substituted by Act 15 of 1931, section 4, an undesirable inhabitant and it was contended that the Minister had not exercised his discretion in respect of the 'circumstances of the offence' intended by the Legislature in that there were no such circumstances justifying the decision and the Minister had given no reasons for arriving at his decision,
Held , on the assumption that a Court of law was entitled to differ from E the Minister and to find as a fact that no such circumstances were present, that in the present case it was impossible to say that there were no such circumstances ( per CENTLIVRES, J.A., VAN DEN HEEVER, J.A., and HOEXTER, J.A., concurring).
Where the appellants had bought from a trap unwrought gold worth £90 for £30 and had tested the gold in acid,
Held , while it was not necessary to give an exhaustive definition of F what was meant by 'circumstances of the offence', that the above constituted such circumstances ( per CENTLIVRES, J.A.; VAN DEN HEEVER, J.A., and HOEXTER, J.A., concurring). G
[zCIz] Case Information
Appeal from a decision in the Transvaal Provincial Division. (MARITZ, J.P., MALAN, J., and DE WET, A.J.) The facts appear from the judgment of CENTLIVRES, J.A.
G. Findlay, K.C . (with him M. S. Lowe) , for the appellants: A suspended sentence is not a sentence of imprisonment within the meaning of sec. 22 of Act 22 of 1913; the sentence must be considered as a whole; it does H not consist of two parts, first a sentence to imprisonment and then a suspension thereof. If the suspension applies to the sentence itself, then, only if the conditions are broken, would there be a sentence upon which the Minister could act. If it applied to the imprisonment merely, then it is a sentence of suspended imprisonment and not of real or actual imprisonment. The words 'sentenced to imprisonment' in sec. 22 refer to a sentence to actual and not merely potential imprisonment.
1950 (4) SA p654
Although sec. 345 (1) of Act 31 of 1917 expressly refers to a sentence alternative to a fine as 'a sentence of imprisonment', that does not avail to make it a 'sentence to imprisonment' under sec. 22 of Act 22 of A 1913; see Rex v Pakhim (1930 CPD 308). The use of the preposition 'to' and not 'of' in the latter phrase supports the view that the section contemplates nothing less than a sentence to actual imprisonment. The true nature of a suspended sentence is an injunction to good conduct, the threat of imprisonment enforcing that injunction; B there is a true analogy between imprisonment imposed so as to enforce good conduct and imprisonment imposed to compel payment of a fine. If the phrase in question in sec. 22 is capable of referring not only to actual but also to potential or suspended imprisonment, then, where a statute constitutes as here a drastic invasion of civil liberty, C it must be construed in favorem libertatis in the absence of express or clear provisions to the contrary. The general policy of Act 22 of 1913, as gathered from a comparison of sec. 4 (f) and (j) with sec. 22, is also against the view that the phrase 'sentence of imprisonment' in the latter section includes a suspended sentence; for, if the convicting court considers the accused unfit to remain in contact D with South African society, it orders his imprisonment upon which the Minister may, by deportation, permanently remove him from such society. But a suspended sentence is not such a sentence for it means that, in E the opinion of the convicting court, only further misconduct will justify the accused's estrangement from South African society, he being allowed to remain at large in such society unless he is guilty of further misconduct. If regard is had to the sentence objectively, apart from the intention of the convicting court, 'a sentence to imprisonment' F is selected as a sentence of a certain level of severity anything less than which is inadequate as a criterion of deportation. The Minister has not, in fact, directed his attention to, and has not exercised his discretion in respect of, the circumstances of the offence, in the manner intended by the Legislature, in that he has paid no regard to matters lying outside the requisites of sec. 22; these requisites, which G are pre-requisites of any deliberation by the Minister are that the person is a foreigner, not born in the country, that he must have been convicted of one or other of the specified offences and that the offence must have elicited from the convicting court a sentence of imprisonment. H The section pre-supposes that all these requisites may be present and the person yet be fit to remain in the country; otherwise expulsion would be automatic and the Ministerial discretion would not be interposed. It follows that these pre-requisites in themselves are not good grounds for deportation. The Act intends that the Minister shall consider whether there are circumstances adverse to the accused, giving the offence a particular antisocial character; in the present case there are no such circumstances.
O. Pirow, K.C . (with him J. J. Hoexter and C. J. Mouton) , for
1950 (4) SA p655
the respondents: The words 'sentenced to imprisonment for any offence' in sec. 22 Act 22 of 1913 mean 'lawfully sentenced to imprisonment'; a lawful sentence can only be imposed in terms of Act 31 of 1917, sec. 338 which enumerates all the lawful sentences that may be imposed. Chap. 18 A does not add anything thereto. An order made under sec. 360 which empowers the suspension of a sentence, can only be made after a valid sentence in terms of sec. 338 (2) has been passed. The test under sec. 22 of Act 22 of 1913 is the sentence and not its enforcement; see Rex v Pakhim (1930 CPD at pp 310 - 11); the essential nature of the B sentence is a sentence of imprisonment and the subsequent order suspending its operation cannot affect its nature; see Rex v Jansen (1949 (3), S.A.L.R. 928); if the conditions attached to the sentence are not complied with, the sentence is automatically carried into execution without the intervention of a Court of law. The fact that Act 31 of 1917 speaks of a 'sentence of imprisonment' and that Act 22 of 1913 uses the C phrase 'sentenced to imprisonment', is of no assistance in interpreting sec. 22 of the latter Act. The analogy sought to be drawn by appellants is false in that, in the case of a fine with the alternative of imprisonment, an alternative sentence is imposed, whereas D it is clear from the Code that, in the case of a suspended sentence, one cannot speak of the sentence being 'imprisonment suspended for a period, alternatively imprisonment'. The Court must first pass a sentence of imprisonment and thereafter decide whether the execution is E to be suspended. There is no self-evident difference in severity between a brief, light sentence of imprisonment and a heavy sentence of imprisonment suspended for a long period. Whether a person is an undesirable inhabitant of the Union in terms of sec. 22 is a matter exclusively for determination by the Minister; further, it is a matter F which may, and almost inevitably will, be entirely decided by different Ministers, according to varying standards. It is not competent, therefore, for the Court to say whether or not it is in agreement with the canons of a particular Minister; see Ah Sing v Minister of the Interior (1919 TPD at p. 342). The circumstances referred to in sec. 22 are attendant facts which suggest themselves to the Minister as G being relevant to his enquiry. When once the Minister has determined the circumstances and they have bona fide exercised his mind, the Court cannot review his decision. When appellants aver that there are prima facie no circumstances adverse to themselves, they are substituting H their discretion for that of the Minister. In terms of sec. 22, however, the discretion of the Minister is decisive. Where a matter is left to the determination or discretion of a public officer and where his discretion has been bona fide exercised and his judgment honestly expressed, the Court will not interfere with the result. It is not admissible to call evidence merely to show that his conclusion was injudicious or wrong; see Shidiack v Union Government (1912 AD at p. 651). The reasons for the Minister's
1950 (4) SA p656
CENTLIVRES JA
decision can only become relevant to determine whether he acted mala fide; see Judes v Registrar of Mining Rights, Krugersdorp (1907, T.S. at p. 1049); Ah Sing's case ( supra) . The onus of proving mala fides is upon appellants and they have not discharged that onus; see Ah Sing's case ( supra ).
A Findlay, K. C. , in reply.
Cur. adv. vult .
Postea (October 17th).
[zJDz] Judgment
B CENTLIVRES, J.A.: The two appellants who were tried jointly before a magistrate pleaded guilty to contravening sec. 113 of Act 35 of 1908 (T.) as amended in that they unlawfully received from a coloured person, viz. a native detective constable, unwrought gold by way of purchase. The sentence was as follows:
'Each fined £50 or three months I.H.L. and a further three months C suspended for three years on condition the accused are not convicted of a similar offence.'
The evidence showed that the native constable, who was a trap, sold to the appellants for £30 unwrought gold of the value of £90 15s. 2d. and D that the appellants tested the gold in acid before they bought it.
Purporting to act in terms of sec. 22 of Act 22 of 1913 (as substituted) the Minister of the Interior deemed the appellants to be undesirable inhabitants of the Union and caused a warrant to be issued for their E removal from the Union. Both appellants were born in India.
Each appellant petitioned the Transvaal Provincial Division for relief, alleging that the Minister had acted unlawfully in that neither appellant had, within the meaning of sec. 22 of Act 22 of 1913 been sentenced to imprisonment. That Court issued a rule nisi in each case F calling on the Minister and the Commissioner of Police to show cause why an order should not be made declaring the deeming of the Minister, wherein he deemed the appellants to be undesirable inhabitants of the Union, to be irregular and improper and setting aside the deeming as well as the deportation warrant founded thereon. Before the return day G of the rule nisi each of the appellants filed a further affidavit setting forth a further ground for attacking the Minister's decision. Each of these affidavits stated -
'Your petitioner particularly begs leave to direct the attention of this Honourable Court that upon this one occasion upon which he has contravened the law he was induced and inveigled into so doing by H officers of the law acting as traps and instigating him thereto.
That your petitioner says that there are no circumstances attached to the said offence by reason of which it would be possible to distinguish his case as that of an undesirable inhabitant, and such circumstances neither exist nor could have been placed before the first respondent, and your petitioner respectfully submits and avers that the first respondent has not in fact directed his attention to any of the circumstances of the offence, and/or could not have directed his attention thereto, as required in terms of sec. 22 of Act 22 of 1913.'
1950 (4) SA p657
CENTLIVRES JA
The Minister in a replying affidavit admitted that the case was a trapping case and said that this circumstance was not overlooked by him when he came to the conclusion that the appellants were undesirable inhabitants of the Union. The rest of the allegations he denied and said:
'The circumstances of the said offence for which applicant was A sentenced to imprisonment satisfied me that the applicant is an undesirable inhabitant of the Union and my decision deeming him as such was not come to lightly but was arrived at bona fide after careful consideration of the said circumstances. I repeat that I did apply my mind to the circumstances of the said offence before and for the purpose of deciding whether or not to deem the applicant an B undesirable inhabitant of the Union of South Africa in terms of sec. 22 of Act 22 of 1913.'
The matter came before RAMSBOTTOM, J., who discharged the rule nisi . An appeal to the Transvaal Provincial Division was dismissed and, that C Division having granted leave to appeal, the matter is now before this Court.