Source:
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to August 2023/1950/Volume 4: 515 ­ 755 (December)/JAGA v
DÖNGES, NO AND ANOTHER; BHANA v DÖNGES, NO AND ANOTHER 1950 (4) SA 653 (A)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/33017/33593/33621?f=templates$fn=default.htm
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
Flynote : Sleutelwoorde
Immigration ­ Offender's sentence of imprisonment suspended for a period ­ Whether such offender falls within the provisions of sec. B 22 o f
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.
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
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 pre­requisites 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 pre­supposes 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 pre­requisites 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.
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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
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 self­evident 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).
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.
Sec. 22 of Act 22 of 1913 is as follows: ­
'Any person (other than a person born in any part of South Africa which is included in the Union)who . . . has been sentenced to imprisonment ­ . . .
(e) for any offence committed by the sale of, dealing in, or being in possession of unwrought precious metal . . . in contravention of any law and who, by
reason of the circumstances of such offence is deemed by the D Minister to be an undesirable inhabitant of the Union, may be removed from the Union under a
warrant . . .'
The first contention raised by the appellants before this Court was that a suspended sentence of imprisonment on a convicted person does not
mean E that he is 'sentenced to imprisonment' within the meaning of sec. 22. It was argued that the words quoted, read in their ordinary and
natural meaning, refer to an operative sentence ­ a sentence to actual and not merely potential imprisonment. In my view the words used by
the Legislature are wide enough to include a sentence of imprisonment the F whole of which is suspended for a specified period. They are
certainly wide enough to include sentences of imprisonment part of which is suspended for a specified period. It was correctly conceded that
where part of a sentence is suspended an accused is 'sentenced to imprisonment' within the meaning of sec. 22. The question, however, G still
remains whether that section should be so construed as to refer not only to sentence as a result of which the accused is sent to gaol but also
to sentences of imprisonment the whole of which is suspended. If the section is capable of two alternative constructions, viz. (1) as applying to
all sentences of imprisonment whether suspender or not, or H (2) as applying only to those sentences of imprisonment where the accused
actually suffers imprisonment, then I think the second alternative should be adopted as being in favorem libertatis. In my opinion, however, the
section is not capable of two alternative constructions.
In the first place the language used by the Legislature is unqualified: a sentence of imprisonment, the whole of which is suspended on a
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condition,
as much
all sentences of imprisonment whether suspender or not, or H (2) as applying only to those sentences of imprisonment where the accused
actually suffers imprisonment, then I think the second alternative should be adopted as being in favorem libertatis. In my opinion, however, the
section is not capable of two alternative constructions.
In the first place the language used by the Legislature is unqualified: a sentence of imprisonment, the whole of which is suspended on a
specified condition, is as much a sentence of imprisonment as
1950 (4) SA p658
CENTLIVRES JA
a sentence of imprisonment none of which is suspended. It is true that the sentence cannot be enforced unless the condition is breached but it
remains in force and can be carried into execution if during the period A of its suspension the accused breaches the condition. The test imposed
by the Legislature is not whether an accused has served a term of imprisonment (c f. Cape Ord. 10 of 1912, sec. 35 (1)) but whether he has
been sentenced to imprisonment. It is clear that the serving of any part of a sentence of imprisonment is not the test, for an accused, who
has B been found guilty of an offence specified in sec. 22 may, if sentenced to imprisonment and if deemed by the Minister to be an undesirable
inhabitant of the Union by reason of the circumstances of the offence, be deported from the Union before he has served any portion of his
sentence.
C Secondly, in order to hold that sec. 22 does not apply to cases where the whole of a sentence of imprisonment is suspended, one must go
the length of holding that, even if the offender breaks a condition of the suspension and thus brings into operation the sentence of D
imprisonment, he does not render himself liable to the consequences of the section. For, if, as suggested by appellants' counsel, the words
'sentenced to imprisonment' do not include a sentence of imprisonment, the whole of which is suspended, then events subsequent to the
sentence cannot affect the question whether the sentence when it was imposed was a sentence of imprisonment within the meaning of the
section. Either the E sentence when it is imposed brings the offender within the operation of the section or it does not. There is nothing in the
section which makes the liability of the offender to be deported dependent on anything done F by him subsequent to conviction. Counsel for the
appellants suggested that it may well be that, on breach of the condition imposed, the sentence matures and becomes an operative sentence
to actual imprisonment within the meaning of sec. 22. But as I have already said, the test is not whether the offender has served a term of
imprisonment but whether he has been sentenced to imprisonment. It seems to me to be G going too far to hold that the Legislature intended
that an offender who is sentenced to imprisonment, the whole of which is suspended, should not fall within the provisions of the section.
Relying on Rex v Pakhim (1930 CPD 308), in which it was held that H the words 'sentenced to imprisonment' in a statutory provision similar to
sec. 22 did not include a sentence to pay a fine and in default of payment to undergo imprisonment, counsel for the appellants contended that
there is a true analogy between imprisonment imposed to compel payment of a fine and imprisonment imposed so as to enforce the result
intended by the convicting court, viz. good conduct, because (1) both are conditional, (2) both constitute for their purposes 'a mode of
distress, a way of putting pressure upon a person' (Rex v Pakhim, supra at p.
1950 (4) SA p659
CENTLIVRES JA
312) and (3) in both cases the convicted person has an unfettered option to avoid the imprisonment altogether. This contention begs the
question as to what the Legislature meant by the words 'sentenced to imprisonment'. These words were used by the Legislature both in 1913
when it first enacted sec. 22 and in 1931 (vide Act 15 of 1931, sec. 4) A when it amended that section. Both in 1913 and in 1931 different
forms of punishment were recognised, and included in those forms were fines and whipping. A sentence of imprisonment the whole of which is
suspended is just as much a sentence of imprisonment as a sentence to pay a fine the whole of which is suspended is a sentence of a fine.
When the B Legislature used the expression 'sentenced to imprisonment' it intended, in my opinion, to exclude forms of punishment other than
imprisonment, e.g. fines and whipping. Were its intention otherwise, it would have used the word 'convicted'. See for example sec. 4 (1) (f) of
C the Act. What it had in mind was a particular form of punishment. By using the word 'imprisonment' it intended, as was correctly held in Rex v
Pakhim (supra), to exclude a sentence of a fine even although that sentence was coupled with an alternative of imprisonment in default of
payment of the fine. For the main punishment intended by the D convicting court was the payment of a fine, which could be exacted against
the will of the offender, but where a suspended sentence of imprisonment is given the only punishment intended is imprisonment if the offender
commits a breach of the conditions of suspension.
It was also contended that the general policy of the Act is to be E gathered from a comparison of sec. 4 (f) and (j) with sec. 22, that
immigrants may be excluded on the simple ground that they have been convicted, whereas persons who have lawfully entered may be deported
only when they have been sentenced to imprisonment, that the Legislature intended that only those persons whom the convicting court
considered to F be unfit to remain in contact with South African society should be liable to deportation and that when the convicting court
imposes a suspended sentence of imprisonment it considers that only further misconduct will justify the estrangement of the offender from
society. It was further urged that a suspended sentence is notoriously a much G milder sentence than an unsuspended sentence of
imprisonment and it therefore cannot be classified as a sentence of imprisonment.
This contention seems to me to rest upon a misconception of the considerations which courts of law take into account when suspending the
operation of sentences. An important consideration is whether the H offender is, as each of the appellants was, a first offender or not. If he is
a first offender then the court carefully considers whether, regard being had to the nature of the crime committed by him, he should be sent to
gaol at once or whether a suspended sentence should be imposed. In deciding on this issue the court takes into consideration the fact that if
he is sent to gaol he will come into contact with hardened criminals who may corrupt him,
1950 (4) SA p660
CENTLIVRES JA
whereas if he is given a chance he may eventually become a good citizen. Even if the offender is not a first offender but has for a considerable
period observed the law, he may be given another chance to reform A himself. Other considerations also enter into the question, e.g. his
youthfulness or advanced age, whether he suddenly gave way to temptation or acted on the spur of the moment. Bearing in mind all these
considerations it does not follow that, when a court passes a sentence of imprisonment and suspends the whole of it, it does so because it B
thinks that the circumstances in which the offence was committed do not warrant a heavier punishment. Thus when two accused are tried
jointly and each is equally guilty, a court may impose an unsuspended sentence of imprisonment on one accused and a suspended sentence of
imprisonment on the other. It would be anomalous if one of the accused C is liable to be deported and the other not. A suspended sentence of
imprisonment may in certain circumstances be lighter than a sentence of a fine: on the other hand a sentence for a very brief period, e.g. four
days, may be lighter than a fine. Even if an offender is sentenced to imprisonment for only four days he comes within the terms of the D
section. Consequently the test is not the severity or the lightness of the punishment but its nature. Nor is the test whether the convicting
court decided by a sentence of imprisonment to segregate the offender from society for a specified period. The test is, was the offender
sentenced to imprisonment and if the sentence was one of imprisonment E the offender falls within the section even although the operation of
the whole sentence is suspended.
The second ground of appeal is that the Minister did not in fact direct his attention to, and did not exercise his discretion in respect of, F 'the
circumstances of the offence' in the manner intended by the Legislature in that there were no such circumstances justifying the Minister's
action under sec. 22.
Counsel for the appellants did not attack the bona fides of the Minister but contended that, when it is apparent that there are no
circumstances G of the offence justifying the Minister's decision, a court of law is entitled to set aside that decision. I shall assume for the
purposes of this case that a court of law is entitled to differ from the Minister and to find as a fact that no such circumstances are present, but
in my view, it is impossible in the present case to say that this is so. The fact that the Minister has not stated his reasons for arriving at his H
decision carries the matter no further, for he is under no obligation to state those reasons. See Jeewa v Dönges, N.O. and Others (1950 (3),
S.A.L.R. 414, at p. 423 (A.D.)).
It is not necessary for the purposes of this case to give an exhaustive definition of what is meant by the phrase 'circumstances of the offence':
it is sufficient to say that that phrase would undoubtedly include the circumstances proved at the trial
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1950 (4) SA p661
decision carries the matter no further, for he is under no obligation to state those reasons. See Jeewa v Dönges, N.O. and Others (1950 (3),
S.A.L.R. 414, at p. 423 (A.D.)).
It is not necessary for the purposes of this case to give an exhaustive definition of what is meant by the phrase 'circumstances of the offence':
it is sufficient to say that that phrase would undoubtedly include the circumstances proved at the trial
1950 (4) SA p661
GREENBERG JA
of the offender as well as, probably, the prevalence of the offence. In the present case the value of the unwrought gold bought by the
appellants for £30 was £90 and the appellants tested the gold in acid. These constitute 'circumstances of the offence' which may well have
weighed with the Minister and this Court cannot substitute its own A decision for that of the Minister who has stated on oath that he arrived at
his decision bona fide after a careful consideration of the circumstances of the offence.
Both appeals are dismissed with costs.
B GREENBERG, J.A.: I have had the advantage of reading the reasons prepared by my Brothers CENTLIVRES and SCHREINER and am prepared to
assume, in consonance with the view of the former, that the test imposed by sec. 22 is not the severity or lightness of the punishment, but its
nature; it appears to me however that there may be such a difference C between an unsuspended sentence of imprisonment and one that is
not suspended as to constitute a difference in the nature of the punishment.
I do not think that in construing the words in the section 'sentenced to imprisonment' one should have recourse to secs. 359 and 360 of Act 31
of D 1917. There is nothing in the context of the words to warrant the view that they were not being used in their ordinary meaning as they
connote nothing which is technical but merely convey the concept that a court of law before which a person has been tried and convicted has
ordered that he be imprisoned. I agree with my Brother CENTLIVRES that if the section E is capable of applying either to sentences of
imprisonment whether suspended or not or only to those that are not suspended, then the latter meaning should be adopted as being in
favorem libertatis.
I am not disposed to attach no significance whatsoever to the use of the F preposition 'to'. It is true that, once the Legislature elected to use
the phrase 'has been sentenced' (veroordeeld is), the preposition 'to' necessarily followed. But there was an election between the choice of the
words 'has been sentence to imprisonment' and such words as 'on whom a sentence of imprisonment has been passed' and if the words actually
used are more favourable to the appellants' contention, they are G entitled to the benefit of this consideration.
My conclusion however rests on the broad question whether the section is capable of the construction contended for by the appellants and my
opinion is that they are. I agree with my Brother SCHREINER that there H is much to be said for the view that the words 'sentenced to
imprisonment' without reference to the context, mean 'ordered to go to prison'. I am inclined to think that, in ordinary parlance, this is the more
probable meaning. Analogies are often dangerous or useless, but some assistance may be derived from a consideration of the question from the
point of view of the law of defamation. It appears to me that if a defendant has baldly said of a plaintiff that the latter has been sentenced to
1950 (4) SA p662
SCHREINER JA
imprisonment, and relies on a defence which involves proof of the truth of his statement, he would fail if he merely proved that the plaintiff had
been sentenced to a term of imprisonment the whole of which had been suspended. And if I am right in thinking the the defendant would fail, A
the reason for his failure is that the ordinary meaning of the statement he made is not that a suspended sentence has been imposed, or at least
that they are ordinarily capable of meaning that an unsuspended sentence had been passed. If the words 'sentenced to imprisonment' taken by
themselves are capable of meaning either an unsuspended sentence or a B sentence whether suspended or not or if they are more capable of
the former meaning, the next question is whether the meaning to be given to them is altered by the context, but I can find nothing in the
context to affect the position.
My conclusion is also not affected by the fact that I am by no means C satisfied that a person who has been sentenced to imprisonment which
has been suspended and who breaches the conditions of suspension and is thereupon imprisoned would fall within the section. This however
does not alter my view of the meaning of the section, and I think therefore that the appeal should be allowed.
D SCHREINER, J.A.: As pointed out by my Brother CENTLIVRES, two contentions were advanced on behalf of the appellants in this appeal. In
view of the conclusion at which I have arrived on the first contention E it is unnecessary to express any opinion upon the second.
In regard to the first contention the question to be decided is what is the meaning of 'tot gevangenisstraf veroordeel is' in sec. 22 of Act 22 of
1913, as substituted by sec. 4 of Act 15 of 1931. The Act of 1913 was signed in English and the amending Act of 1931 was signed in Afrikaans
F but in the present instance no difficulty appears to result therefrom. It was not suggested that there was the slightest difference in the
meanings of the two versions and for convenience I shall refer to the English version, namely 'has been sentenced to imprisonment'.
G Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according
to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points
in relation to the application of this principle. The first is that 'the H context', as here used, is not limited to the language of the rest of the
statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its
apparent scope and purpose, and, within limits, its background. The second point is that the approach to the work of interpreting may be along
either of two lines. Either one may split the inquiry into two parts and concentrate, in the first instance, on finding out whether the language to
be interpreted has or appears to have one clear ordinary
1950 (4) SA p663
SCHREINER JA
meaning, confining a consideration of the context only to cases where the language appears to admit of more than one meaning; or one may
from the beginning consider the context and the language to be interpreted together.
The first line of approach is illustrated, graphically if not quite A typically, by what was said by DE VILLIERS, J.A., in Principal Immigration
Officer v Hawabu and Another (1936 AD 26). The question to be decided was whether the words 'in any Province' in a statute meant 'physically
present' or 'resident' in a province. At p. 31, after quoting Lord WENSLEYDALE'S wellknown propositions, the learned Judge said,
'I have quoted these passages in order to emphasise the necessity of B establishing at the outset that the words are capable of a secondary meaning in
addition to their ordinary 'physical presence' meaning. If the words are capable only of the 'physical presence' meaning, they must be held to bear that meaning,
regardless of consequences. It is true that, even where the words of an Act are C capable of one meaning only, there is an exceptional class of extreme cases in
which courts of law have felt themselves compelled to 'modify' or 'cut down' or 'vary' the words used by the Legislature. In a sense this might be called
amputation rather than interpretation. This process has been applied to statutory enactments in a few cases, such as Storm & Co v Durban Municipality (1925 AD
49 at p. 55); Brown v Brown D (1921 AD 484); and Venter v Rex (1907, T.S. 910). The present case, however, does not fall within that rare and exceptional
class, and therefore the ordinary rule must apply, to which I have already referred, viz., that it must be shown that the words are capable of bearing, in addition
to their ordinary meaning, the other signification which the Court is asked to assign to them'.
E Two comments on this passage suggest themselves. The first is that the expression 'secondary meaning' is not, of course, used in the sense
in which it is used in the law of defamation; here it means only a meaning less usual than some other, which latter is called the 'ordinary' or,
sometimes, the 'natural' or 'primary' meaning. The other comment is that F cases of the drastic form of interpretation described as 'amputation'
probably only differ in degree from others, less striking, in which the less usual meaning is preferred to the more usual; they are cases where the
context operates with force sufficient to override even clear language pointing the other way.
G The second line of approach appears from what was said by Lord GREENE, then Master of the Rolls, in Re Bidie (1949, Ch. 121). The question
related to the meaning of the word 'representation' in a provision requiring certain proceedings to be brought 'within 6 months from the date on
which representation in regard to the testator's estate H for general purposes is first taken out.' At p. 129 Lord GREENE says
'The first thing to be done, I think, in construing particular words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and
attribute to them what is sometime called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense
that their meaning is entirely independent of their context. The method of construing statutes that I myself prefer is not to take out particular words and attribute
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1950 (4) SA p664
related to the meaning of the word 'representation' in a provision requiring certain proceedings to be brought 'within 6 months from the date on
which representation in regard to the testator's estate H for general purposes is first taken out.' At p. 129 Lord GREENE says
'The first thing to be done, I think, in construing particular words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and
attribute to them what is sometime called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense
that their meaning is entirely independent of their context. The method of construing statutes that I myself prefer is not to take out particular words and attribute
to them a sort of prima facie
1950 (4) SA p664
SCHREINER JA
meaning which may have to be displaced or modified, it is to read the statute as a whole and ask myself the question: 'In this statute, in this context, relating
to this subject matter, what is the true meaning of that word?'. In the present case, if I might respectfully make a criticism of the learned Judge's method of
approach, I think he attributed too much force to the abstract or unconditioned meaning of A the word 'representation'. No doubt in certain contexts the word
'representation' would be sufficient to cover not merely probate, not merely letters of administration with the will annexed, but administration simpliciter. The real
question that we have to decide is, what does the word mean in the context in which we here find it, both in the immediate context of the sub­section in which the
word occurs and in the general context of the Act, having regard to the declared intention B of the Act and the obvious evil that it is designed to remedy.'
No doubt the result should always be the same, whichever of the two lines of approach is adopted since, in the end, the object to be attained
is unquestionably the ascertainment of the meaning of the C language in its context. But each has its own peculiar dangers. While along the line
approved by Lord GREENE there is the risk that the context may in a particular case receive an exaggerated importance so as to strain the
language used; along the other line there is the risk of verbalism and consequent failure to discover the intention of the D law­giver. The
difference in approach is probably mainly a difference of emphasis, for even the interpreter who concentrates primarily on the language to be
interpreted cannot wholly exclude the context, even temporarily; and even the interpreter who from the outset tries to look at the setting as
well as the language to be interpreted cannot avoid E the often decisive first impression created by what he understands to be the ordinary
meaning of that language. Seldom indeed is language so clear that the possibility of differences of meaning is wholly excluded, but some
language is much clearer than other language; the clearer the F language the more it dominates over the context, and vice versa, the less
clear it is the greater the part that is likely to be played by the context.
Ultimately, when the meaning of the language in the context is ascertained, it must be applied regardless of the consequences and even G
despite the interpreter's firm belief, not supportable by factors within the limits of interpretation, that the legislator had some other intention. So
too, if, when interpretation is complete, it is clear that the legislator has failed to deal with a class of case that in all probability would have
been dealt with if it had not been overlooked, there is a casus omissus which the courts cannot fill. But the H legitimate field of interpretation
should not be restricted as a result of excessive peering at the language to be interpreted without sufficient attention to the contextual scene.
The context in the present case includes the preamble of Act 22 of 1913, which reads,
'To consolidate and amend the Laws in force in the various Provinces of the Union relating to Prohibited Immigrants, to provide for the establishment of a Union
Immigration Department, to regulate Immigration into the Union or any Province thereof, and to provide for the removal therefrom of undesirable persons'.
1950 (4) SA p665
SCHREINER JA
It is sec. 22 which, both in its original form and as substituted by Act 15 of 1931, provides for the removal of undesirable persons. These
persons need not be prohibited immigrants and may even be Union nationals, by birth as well as by naturalisation, and domiciled in the Union.
The only limitation, so far as the class of persons affected is A concerned, is that the section does not apply to persons born in any part of
South Africa which has been included in the Union. Any person born outside the Union who has been 'sentenced to imprisonment' for any of the
enumerated offences is liable to be deemed, by reason of the B circumstances of the offence, to be an undesirable inhabitant and be deported.
That the provision is extremely drastic is, of course, obvious and it is reasonable, therefore, to suppose that Parliament, when it required that
the person in question should have been 'sentenced to imprisonment', had in mind that this would provide some guarantee, relatively objective
and C not dependent only on Ministerial opinion, that he was of a type that might well be undesirable in the Union. No doubt the guarantee was
very limited, since no minimum period of imprisonment was laid down. Nevertheless, if a court had sentenced the person to imprisonment this D
was at least some indication that he might fairly be held to be undesirable.
Secs. 359 and 360 of Act 31 of 1917 provide for 'suspended sentences', that is for the passing of sentence coupled with an order that the
operation of the whole or part of the sentence be suspended upon E specified conditions. The system in this form is apparently not used in
Britain but it is in use in the United States of America. The basis of the system is probation, the convicted person being given the opportunity of
avoiding imprisonment provided that the conditions are fulfilled or not broken. A fine may also be suspended but in practice F this is unusual; the
suspension of fines does not in my view throw light upon the present problem. The suspended sentence may be employed for various reasons
connected with the personality and previous history of the convicted person as well as with the nature of the offence, but whatever the
reasons operative in any particular case the result is that the convicted person is not sent to prison but is released under threat G of
imprisonment if the conditions bring the sentence into operation. He has the opportunity of keeping out of prison, and he has the spur to good
behaviour in the threat of imprisonment hanging over him throughout the period of suspension. The suspended sentence is one of the devices H
directed towards the substitution of mainly reformative for mainly deterrent sentences. Both in its objects and in its effects it differs widely from
the ordinary unsuspended sentence under which the court compels the convicted person to go to prison. When the court imposes a suspended
sentence it does so because it has decided for one or more reasons not to imprison the convicted person but to leave him free among his
fellows, subject only to the conditions of suspension.
1950 (4) SA p666
SCHREINER JA
Much reliance was placed for the respondent on the form of the language used in secs. 359 and 360 of Act 31 of 1917. Since a suspended
sentence of imprisonment is in terms a sentence of imprisonment the operation of A which is suspended, it is argued that it necessarily falls
within the language used in sec. 22 of Act 22 of 1913. Subject to an argument for the appellant based on the use of a particular phrase
including the word 'to' (in the Afrikaans, 'tot') in the latter section, the respondent's argument so far as it goes is quite logical. RAMSBOTTOM,
J., at first B instance held that it carried the respondent all the way to success, and this was the view upheld in the Transvaal Provincial
Division. It seems to me, however, that there is a weakness in the argument that because secs. 359 and 360 in terms only suspend the
operation of a sentence of imprisonment therefore the expression C 'sentenced to imprisonment' in sec. 22 embraces a sentence that has been
suspended. It seems to me to be altogether too formal an approach to the question; it obscures the substantial problem which is to ascertain
the meaning of 'sentenced to imprisonment' in its context in the Immigration Regulation Act.
D A similar approach was adopted at first instance in the case of Watkinson v Hollington (1943 (2), A.E.R. 74), where the question was
whether 'distress damage feasant' was covered by a provision of the Courts (Emergency Powers) Act 1939, which prohibited the exercise, E
without the court's leave, of any remedy by way of the levying of distress or the taking possession of any property. OLIVER, J., though he was
convinced that this was not the intention of the Legislature, held that the language was plain, that 'distress damage feasant' was a form of
distress, and that accordingly it could not be levied without the leave of a court. Logically it was difficult to escape from this F conclusion, but
the Court of Appeal (1944 (1), K.B. 16) had no difficulty in finding that taking the whole context of the provision it was not intended to include
'distress damage feasant' under the term 'distress', although that term was clearly wide enough to cover it. The G details of the case are of
course very different from those of the present one and it would be absurd to treat it as in any way an authority to be followed, but the
problem was similar and it provides a good illustration of the unfortunate consequences of arguing with too formal a logic from the precise
wording of a statutory provision.
If, for a moment, one considers the expression 'sentenced to H imprisonment' without reference to the context, it seems to me that there is
much to be said for the view that it means 'ordered to go to prison' and 'ordered to go to prison' prima facie means ordered unconditionally to
go to prison. It seems to me to strain the language somewhat to say that a man is sentenced to imprisonment if he is told that he must go to
prison if he does or omits something. And looking at the substance of the matter, and not at the mere form, this is so even if, considered from
the angle
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1950 (4) SA p667
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go to prison. It seems to me to strain the language somewhat to say that a man is sentenced to imprisonment if he is told that he must go to
prison if he does or omits something. And looking at the substance of the matter, and not at the mere form, this is so even if, considered from
the angle
1950 (4) SA p667
SCHREINER JA
of secs. 359 and 360, there is a sentence of imprisonment the operation of which is suspended.
But assuming that, without reference to the context, the ordinary meaning of the expression 'sentenced to imprisonment' would include cases
where a person has been sentenced conditionally to imprisonment by A way of a suspended sentence, I am unable to agree with the view that
no other meaning is possible and that it is incapable of meaning 'sentenced unconditionally to imprisonment'. No commoner problem is presented
to the interpreter than that of deciding whether wide, unqualified, words or expressions should be given their full ambit or should be restricted,
B and the mere width of the language must rarely be a good reason in itself for holding that the words do not admit of a more restricted
meaning.
I am also unable to agree that in order to exclude suspended sentences C it is necessary to hold that if the conditions of suspension are broken
and the sentence of imprisonment is brought into operation the offender is not brought within the provisions of sec. 22. Conditions are, of
course, a common feature of legal transactions and questions often arise as to the effect of the failure or satisfaction of a condition. There is
D an interesting passage on conditions in contracts in Buckland, Roman Law (2nd Ed., at p. 424). It reads:
'If, in an ordinary conditional contract, the condition failed the result was that there was ab initio no contract at all. When the condition was satisfied, if no
intervening event had discharged the obligation, there was a simple contract. Some texts say that the E effect was retrospective. But though this proposition is in
harmony with some of the rules, it is inconsistent with others, and the better view is that it is not really an expression of any actual principle of law. In fact the
various decisions, even where classical, were a compromise ­ the needs of life were more important than theory'.
F Whether or not resort to the concept of retrospectivity would be necessary in forming the reasons for a decision on the point, I can see no
serious objection to the sensible conclusion that when a suspended sentence of imprisonment comes into operation by the fulfilment of the
condition the offender has been sentenced to imprisonment within the G meaning of sec. 22, although that was not the position before the
condition was fulfilled.
It appears to me that whether one follows the line of approach in Hawabu's case (supra) or that of Lord GREENE the weight to be given to the
context is decisive of this case. Bearing in mind that context ­ the drastic nature of the provision, the wide range of persons H potentially
affected and the important differences in the purpose and effect of suspended and unsuspended sentences ­ it seems to me that sec. 22
should not be read as covering suspended sentences in the absence of clear language to show that this was intended (cf. per WATERMEYER,
C.J., In Isaacs v Commissioner for Inland Revenue (1949 (4), S.A.L.R. 561, at pp. 567 ­ 8 (A.D.)).
For these reasons I think that the appeals should be allowed and the rules confirmed with costs in all Courts.
1950 (4) SA p668
VAN DEN HEEVER, J.A.: I have had the advantage of reading the reasons prepared by my Brothers CENTLIVRES, GREENBERG and SCHREINER. I
concur in the judgment of my Brother CENTLIVRES and would like to add a few observations on one aspect of the appeal. I agree that, if the
section A in the light of its objects and all other aids to interpretation is fairly capable of two meanings, it should in favorem libertatis receive
the more liberal construction. But to my mind this is not a case 'affording foothold for balanced speculations as to the probable intention of the
Legislature.' The language seems to me clear and B unequivocal unless we read into it something which the Legislature has not said.
Whatever the theory or theories of the punishment of crime may be, it is obvious that punishment has a function which is totally different from
that of the expulsion of undesirable persons who were born abroad. In C Rex v Friedman (10 C.A.R. 72) DARLING, J., held that it was improper to
make a technical use of the Aliens Act in order further to punish the accused. The rules governing the punishment of criminals were conceived
as of application, in general, to permanent inhabitants of the country. The law relating to deportation was necessarily conceived to D affect a
limited and special class of person, namely those born abroad, who have gained admission to this country and who in the opinion of the
Legislature may be considered as having by their conduct proved to be undesirable immigrants and should there fore be deported.
E
Sec. 22 of Act 22 of 1913 provides that
'Any person (other than a person born in any part of South Africa . . .) who has been sentenced to imprisonment for (a number of specified offences) and who
by reason of the circumstances of such offence is deemed by the Minister to be an undesirable inhabitant of the Union, may be removed from the Union . . .'
F The initial test adopted by the Legislature was the result of a previous screening, namely persons who have been sentenced to imprisonment.
In a rough and ready manner such a sentence is indicative of the seriousness of the offence. It may be true that corporal G punishment is
usually a more severe sentence than imprisonment, but the Legislature no doubt considered that as a rule such punishment is imposed in
addition to imprisonment and that juveniles may receive corporal punishment in lieu of another form of punishment.
Where a sentence has been suspended and upon a breach of any condition H it is subsequently enforced, it is still the same sentence which is
put into operation, not a different one. To say that it is within the power of the person sentenced to incur or avoid it and that therefore the
sentence to imprisonment is merely minatory and so alternative, does not impress me. Courts have a wide discretion to frame conditions subject
to which sentences are suspended. Where the condition relates to restitution or the payment of aliment, the event may prove that the person
sentenced had in reality no selection at all and unless he applies and is granted a
1950 (4) SA p669
VAN DEN HEEVER JA
fresh suspension the original and only sentence will be put into execution. Suspension of sentence may be an act of mercy Bolon v Rex (1910,
T.S. 410); Rex v Nowayile (1920, E.D.L. 234). The Court passes sentence, 'but orders the operation of the whole or any part of the sentence to
be suspended for a period . . .' (Cf. sec. 12 Act 38 of 1909 A (T.); sec. 3 (b) Act 40 of 1914 and sec. 360 (b) Act 31 of 1917). The order for
suspension is something outside the sentence: it does not diminish or enlarge it but suspends its operation. The fact that, where all the
conditions specified in the order have been observed, the sentence shall not be enforced, is something which flows neither from B the sentence
nor from the order, but is a benefit ex lege. On the basis that by far the majority of persons who are sentenced in our courts are permanent
members of this society, suspension is often used in the interests of prevention or reformation and considerations may induce a court to
suspend a sentence which have no bearing on the heinousness of the offence per se, but upon considerations peculiar to the person
sentenced. On the other hand, without attempting to determine the extent of the 'circumstances of such offence' which the Minister may
properly take into consideration when exercising his discretion, it seems to me plain D that such extent must be as wide as, if not wider than
the extent of those considerations which induce a court to suspend a sentence and that often those personal considerations which led to
suspension may well weigh against a potential deportee. In England, for example the fact that an alien has within three months been in receipt
of poor relief or E has been found wandering without ostensible means of subsistance qualifies him for deportation (Halbury's Laws of England,
2nd Ed., Vol. 9, p. 242). Where a deserted wife of foreign extraction is forced by circumstances for example because her babies are starving, to
commit an offence mentioned in the first schedule to Act 22 of 1913, a court may F well incline towards suspending a sentence of imprisonment
imposed, while it may well be in the interests of the country that she be repatriated. It seems to me highly improbable that the Legislature could
have intended to render a qualification for deportation, which as a test G is admittedly rough and ready, quite arbitrary by importing into it
considerations which may have no bearing on the desirability of the person concerned as an immigrant.
In England conviction of an offence for which the Court has power to impose imprisonment without the option of a fine empowers the Court to
recommend deportation (Halsbury­Hailsham, Vol. 9, p. 242, sec. 342). Our H Legislature has deemed it fit to select a particular type of sentence
as a criterion. Whether the sentence is accompanied or followed by a judicial order suspending it under sec. 360 of Act 31 of 1917 or sec. 98
(2) of Act 32 of 1944 or by an executive order under sec. 379 of the former Act, is immaterial. Had the Legislature intended not only the
sentence but its execution to be the test, it would have said so. In my judgment the appeal is dismissed.
1950 (4) SA p670
VAN DEN HEEVER JA
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HOEXTER, J.A., concurred in the reasons for judgment of CENTLIVRES, J.A.
sentence but its execution to be the test, it would have said so. In my judgment the appeal is dismissed.
1950 (4) SA p670
VAN DEN HEEVER JA
HOEXTER, J.A., concurred in the reasons for judgment of CENTLIVRES, J.A.
Appellants' Attorneys: Metelerkamp and Ritson, Pretoria; Daniels and
Pretoria; Naudé and Naudé, Bloemfontein.
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A
Smit, Bloemfontein. Respondents' Attorneys: Government Attorney,
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