[zRPz]REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A) B
1951 (1) SA p1
Citation
1951 (1) SA 1 (A)
Court
Appellate Division
Judge
Centlivres JA, Greenberg JA and Schreiner JA
Heard
October 9, 1950
Judgment
October 11, 1950
Annotations
Link to Case Annotations
C
[zFNz]Flynote : Sleutelwoorde
Criminal procedure - Appeal - Appellate Division - Power D
previously held to review proceedings from superior court in criminal
cases abolished by Act 37 of 1948, sec. 2 - Aggrieved party not
remediless as entitled to invoke sec. 370 of Act 31 of 1917 as amended
by sec. 8 of Act 37 of 1948 - Application to set conviction in superior
court aside on ground of bias of judge - Court has no E jurisdiction to entertain application - Not shown that alleged bias connected with the litigation - Effect.
[zHNz]Headnote : Kopnota
Any power which the Appeal Court might by implication
have had under section 104 of the South Africa Act in its unamended
form to review proceedings in criminal cases heard by a superior court
has now been F abolished by section 2 of Act
37 of 1948 which amends section 104 of the South Africa Act in such a
manner as to confine its operation to civil cases.
Where in an appeal from convictions and sentences of a
superior court, leave having been granted, application was made to set
aside the convictions and sentences on the ground that the presiding
Judge had been biassed,
Held, that the Court had no jurisdiction to entertain the application.
G Held,
further, that the appellants were not remediless as they had their
remedies under section 370 of Act 31 of 1917 as substituted by section 8
of Act 37 of 1948.
Held, further, on the merits, that it had not been shown that the alleged bias had any connection with the litigation.
Held,
further, that the mere fact that a Judge holds strong views on what he
conceives to be an evil system of society does not disqualify him from
sitting in a case in which some of those evils may be brought to light. H
[zCIz]Case Information
Application to set aside the convictions and sentences
in a criminal trial in the Witwatersrand Local Division (LUCAS, A.J.,
and ASSESSORS). The nature of the application appears from the judgment
of CENTLIVRES, J.A.
A. B. Beyers, K.C. (with him H. E. P. Watermeyer, K.C. and
1951 (1) SA p2
J. C. de Wet),
for the second appellant: An application of the nature of the present
one is not an appeal and therefore is not covered by the wording of sec.
369 of Act 31 of 1917 as amended; if, however, the Court is of opinion
that the word 'appeal' in the section was intended to be A
wide enough to cover the present application, then it could give leave
to appeal on the grounds stated in the notice of motion and accompanying
affidavits; in such event the notice of motion would be a sufficient
request for such leave to appeal. The facts referred to in the
application do not constitute an irregularity in the proceedings within B
the meaning of sec. 370 of Act 31 of 1917 as amended. If, however, the
Court is of opinion that they do constitute such an irregularity, it has
power to make the requisite special entry; see Rex v Noorbhai, 1945 AD 58. In this event application is made for a special entry in terms C
of the notice of motion and the accompanying affidavits. This Court has
jurisdiction to entertain an application to review the proceedings of
the trial Court, see Rex v Coganoff, 1933 AD at p. 53; and it has on many occasions, exercised that power in the form of granting a mandamus upon lower Courts; see Rex v Noorbhai (ibid and cases there D
cited). This power, not being conferred by statute, is an exercise of
this Court's inherent power to review the proceedings of a lower Court.
The power to review which the Transvaal Supreme Court had, before Union,
under Proc. 14 of 1902 sec. 18, has devolved on this Court; cf. sec. 103 E
of the South Africa Act, sec. 368 of Act 31 of 1917, sec. 104 of Act 46
of 1935. Prior to Union there existed a right to appeal to the Privy
Council by special leave; the Privy Council also had inherent
jurisdiction to review any proceedings on the ground that by a disregard
of the forms of legal process or by some violation of the principles of
natural justice or otherwise, substantial and grave injustice might be F done; see Dillet's
case, 1887 (12) A.C. 467; after Union and by virtue of sec. 104 of the
South Africa Act, a person aggrieved could not approach the Privy
Council but could approach this Court in the same manner as he could
have approached the Privy Council formerly; Rex v Didat, 1913 AD 299 goes no further than this in its interpretation of G sec. 104; sec. 104 merely eliminates any direct approach to the Privy Council. The suggestion in Rex v Kalogeropoulos,
1945 AD 38 that this Court derives its extraordinary jurisdiction from
the Privy Council by virtue of the provisions of sec. 104, goes too far,
it is respectfully submitted; for its suggestion the Court relied on Didat's case (supra) H but this case does not appear to support the suggestion. In any event, in Rex v Kalogeropoulos (supra)
the distinction between a criminal appeal and a criminal review was
stressed (at p. 42). Sec. 2 of Act 37 of 1948 does not, therefore,
affect this Court's right to review the proceedings of an inferior Court
where substantial justice has not been done. Act 37 of 1948 was passed
for the purpose of extending the jurisdiction of this Court in criminal
matters. By the amendment of sec. 104, the Legislature
1951 (1) SA p3
in no way intended to restrict the jurisdiction
previously exercised by this Court. The abolition of the right of appeal
to the Privy Council by Act 16 of 1950 makes it all the more essential
that this Court should retain its jurisdiction to set aside proceedings
where it finds that substantial justice has not been done; otherwise,
while superior Courts A can exercise such
jurisdiction, the highest Court in the land would no longer have the
power to prevent injustice. The principles to be applied in an
application of the nature of the present one, have been set out in a
number of English cases; see Rex v Sussex Justices: Ex parte McCarthy, 1924 (1) K.B. 256 at p. 259, Rex v London Justices: Ex parte B South Metropolitan Gas Co., 1908 (98) L.T. at pp. 521 - 2, Rex, v Huggins and Another, 1895 (72) L.T. at p. 195, Rex v Justices of Essex, 1927 (137) L.T. at p. 457, Eckersley and Others v Mersey Docks & Harbour Board, 1894 (71) L.T. at pp. 310 - 11, Cottle v Cottle, 1939 (2) A.E.R. 535. Similar principles have been applied in our Courts; see C Rex v Hatch, 1914 CPD at pp. 73 - 4, Head and Fortuin v Woollaston, N.O., and de Villiers, N.O., 1926 T.P.D. 549, City & Suburban Transport (Pty.) Ltd v Local Board Road Transportation, Johannesburg, 1932 W.L.D. at p. 106, Brink v Baston and Others, 1942 D T.P.D. at p. 132, Slade v Pretoria Rent Board, 1943 T.P.D. at p. 257, Liebenburg and Others v Brakpan Liquor Licensing Board and Another, 1944 W.L.D. 52, Rose v Johannesburg Local Road Transportation Board, 1947 (4) SA 766. The question is, is there a justa cause suspiciendi?; E see Damhouder, Praxis Rerum Civilium (1.25.2, 16), Van Leeuwen, Rom. Holl. Recht (5.3.3.), Voet (5.1.44), Merula (4.40.4).
N. E. Rosenberg, K.C. (with him G. Lowen), for the first appellant, associated himself with the foregoing argument for second appellant.
F A. Faure Williamson, K.C. (with him S. Bekeer, C. D. J. Theron and R. S. Welsh),
for the Crown: The grounds upon which second appellant's application is
based do not fall within any of the categories of grounds for
recusation set out by the Roman-Dutch authorities; see Merula, G Manier van Procedeeren (15.10.4), Kersteman, Rechtsgeleerde Woordenboek (s.v. recusatie), Huber, Hed. Rechts. (4.15.26 - 33, Gane's tr., Vol. II, pp. 65 - 6), Recusation (Art. in 41 S.A.L.J., p. 33), Levy and Levy v Additional Magistrate of Rustenburg and Attorney-General, 1925 T.P.D. at pp. 320 - 1, Letterstedt v Morgan and Others, 5 S. 373. The general test laid down by our Courts is that they H
will not set aside the proceedings of a judicial or quasi-judicial body
unless facts are proved from which a real likelihood of partiality or
bias can reasonably be inferred; see Halsbury's Laws of England (Hailsham ed., Vol. 21, paras. 953, 956; Vol. 26, para. 606), Rex v Rand, 1866 L.R. (1) Q.B. at pp. 232 - 3, Rex v Sunderland Justices, 1901 (2) K.B. at pp. 366 - 7, Nieuwoudt v R.M. Richmond, 23 S.C. 769, Head and Fortuin v Wollaston, N.O. and de Villiers, N.O. (supra), City &
1951 (1) SA p4
Suburban
Transport (Pty.) Ltd v Local Board, Road Transportation Johannesburg
(supra), Brink v Baston and Others (supra), Slade v Pretoria Rent Board
(supra), Liebenberg and Others v Brakpan Liquor Licensing Board and
Another (supra), Rose v Johannesburg Local Road Transportation Board
(supra at pp. 287 - 9). Since second appellant's A
application is, in effect, for a review of the criminal proceedings,
the test is whether second appellant has proved facts from which a real
likelihood can reasonably be inferred that the presiding Judge was, in
fact, biassed; see Appel v Leo and Another, 1947 (4) SA at pp. 773 - B
4; even if this Court is satisfied that the learned Judge had, and
published, preconceived opinions as to the social system which presently
exists, that is not sufficient to warrant the setting aside of the
proceedings; see Reg v London County Council: Re The Empire Theatre, 71 L.T. at p. 639, M'Geehen v Knox and Others, 1913 (50) Sc. L.R. 463; C
the passages in the judgment, referred to by second appellant, do not
show either that there has been an interference with the course of
justice or that the presiding Judge prejudged the issues which he had to
try or failed to consider the evidence on its merits; see Rex v Mcunu D and Others, 1938 NPD 229, Rex v Venter, 1944 AD 359, Rex v P.,
1948 (4) SA 103; in so far as these passages are relied upon as
constituting an irregularity this Court may not interfere unless it
appears that a failure of justice has in fact resulted; see sec. 384 (1)
of Act 31 of 1917 (as amended). The extraordinary criminal jurisdiction
E which this Court exercised up to 1948
cannot be invoked by second appellant; that jurisdiction was derived
from sec. 104 of the South Africa Act, which, since the passing of sec. 2
of Act 37 of 1948, does not apply to criminal cases; see Rex v Didat, 1913 AD 299, Rex v Kalogeropoulos, 1945 AD at pp. 42 - 4, sec. 368 (2) of Act 31 of 1917 F
(as amended). In any event, the allegations made in second appellant's
petition do not show that, by a disregard of the forms of legal process
or by some violation of the principles of natural justice or otherwise,
grave injustice has been done; see Rex v Didat (supra at p. 301). As the gravamen of second appellant's complaint is that there was an G
irregularity in connection with his trial application should have been
made by him for a special entry to be made in terms of sec. 37 of Act 31
of 1917 and the procedure by way of appeal under sec. 370 (1) should
have been followed. The fact that second appellant relies upon
circumstances dehors the record would not necessarily have debarred him H from making the application; see Gardiner and Lansdown, South African Criminal Law & Procedure (5th ed., Vol. I, pp. 349 - 50), Rex v Knight, 1935 NPD 125; 1935 AD 342, Rex v Sebeso and Others, 1943 AD at pp. 199 - 200, cf. Rex v Abid,
1938 AD at pp. 521 - 2. This is not a case where the presiding Judge
has wrongly refused an application for the making of a special entry: cf. Rex v Noorbhai,
1945 AD 58, sec. 370 (6) of Act 31 of 1917 (as amended). There are no
special circumstances set forth in the petition which should induce this
Court to interfere, second
1951 (1) SA p5
CENTLIVRES JA
appellant having neglected to take advantage of the procedure which was available to him under secs. 370 and 371; see Rex v Didat (supra at p. 303), Rex v Kalogeropoulos (supra
at p. 52). This Court has no power itself to make a special entry in
the circumstances of this case; see sec. 370 (2) and (6) of Act 31 of
1917 (as amended).
A Beyers, K.C., in reply.
Cur. adv. vult.
Postea (October 11th).
[zJDz]Judgment
B CENTLIVRES JA: This is an
application by the second accused to set aside his convictions and
sentences on the ground that the learned trial judge who sat with two
assessors was biassed In his petition the accused alleged that he was a
builder developer and pioneer of C
constructive enterprise and came under the general term of a financier
that he was regarded as a wealthy capitalist that he had had extensive
transactions in shares on his own account from which he had profited
considerably and that he was a large landowner He and the first accused
were convicted on certain counts of theft and fraud in relation to
certain dealings in shares in companies and they were also convicted of D contravening certain sections of the Companies Act
The ground on which it is alleged by the second
accused that the learned trial judge was biassed is stated in his
petition as follows:
' Since the trial which resulted in my being convicted upon certain E
charges against which I am now appealing to this Honourable Court,
certain facts which were unknown to me or to my legal advisers at the
time of the trial have come to my notice. I have ascertained that His
Lordship Mr. JUSTICE LUCAS who presided at my trial, thus being one of
the arbiters of fact and the sole arbiter of law, has published and/or
sponsored and/or been associated with continuous publication of printed
pamphlets, and/or printed articles and a book, covering an F
extensive period of years immediately prior to my trial,. . ., in which
he has expressed continuous views clearly hostile and inimical to
persons coming under my category, to such an extent that I verily
believe that I did not have nor could I have had a fair trial.'
During the course of the hearing counsel for the first accused filed an G
affidavit made by his client setting forth that he (the first accused)
only became aware of the publications referred to by the second accused
after the judgment and sentence in his trial. The first accused's
counsel associated himself with the second accused's application.
The first point that arises for consideration is one
of procedure and the question that arises is whether this Court has any
jurisdiction to H consider this application. It was contended by Mr. Beyers,
on behalf of the second accused, that the present proceedings were by
way of review and that this Court has an inherent jurisdiction to
consider the application. This Court was created by the South African
Act and its jurisdiction is to be ascertained from the provisions of
that Act as amended from time to time and from any other relevant
statutory enactment. There is no provision in
1951 (1) SA p6
CENTLIVRES JA
that or any other Act conferring a review jurisdiction in criminal matters on this Court. Prior to the decision in Rex v Kalogeropoulos,
1945 AD 38, the jurisdiction of this Court to entertain an application
for special leave to appeal in criminal cases heard by a superior court A was described as 'inherent', 'assumed' or 'extra-statutory' (vide Rex v Kalogeropoulos (supra at p. 43)). In that case it was pointed out by WATERMEYER, C.J., that in Rex v Didat,
1913 AD 299, this Court construed sec. 104 of the South Africa Act as
impliedly investing it with that jurisdiction and it was held that that
jurisdiction did not B exist by virtue of
inherence nor was it acquired by assumption or in some extra-statutory
way. The learned CHIEF JUSTICE stated that it would be better to give
that jurisdiction the name of extraordinary criminal jurisdiction,
thereby contrasting it with the Court's ordinary criminal jurisdiction
under Chap. XX of Act 31 of 1917.
C Any power which this Court
might by implication have had under sec. 104 of the South Africa Act in
its unamended form to review proceedings in criminal cases heard by a
superior court has now been abolished by sec. 2 of Act 37 of 1948 which
amends sec. 104 of the South Africa Act D in such a manner as to confine its operation to civil cases.
Mr. Beyers
contended that this Court, by the very fact of its being the highest
court in the land, has the power to hear an application for the review
of the proceedings of a provincial or local division. No E
authority was quoted for the proposition that a Court such as this
Court, which was created by statute, has any jurisdiction beyond what is
conferred on it by statute. The jurisdiction contended for by Mr. Beyers
is not a jurisdiction which is incidental to a jurisdiction conferred
by statute but a jurisdiction to hear a matter which is not provided for
in the statute.
F Mr. Beyers
further contended that, assuming that his client had a just cause of
complaint, he would be remediless unless this Court assumed
jurisdiction. There is no substance in that contention, for in my view
his client would have a remedy under sec. 370 of Act 31 of 1917 as
substituted by sec. 8 of Act 37 of 1948. Sub-sec. (1) of that section is
as follows:
G '(1) If
an accused person thinks that any of the proceedings in connection with
or during his trial (whether by jury or not) before a superior court
are irregular or not according to law, he may,. . . apply for a special
entry to be made on the record stating in what respect the proceedings
are alleged to be irregular or not according to law and such a special
entry shall, upon such application, be made unless the court to H which or the Judge to whom application is made is of opinion that the application is not made bona fide, or that it is frivolous or absurd, or that the granting of the application would be an abuse of the process of the Court.'
In my view there can be no doubt that if a Judge, who
ought not, because he is biassed, to preside at a criminal trial,
nevertheless does so he commits, within the meaning of sub-sec. (1), an
irregularity in the proceedings every minute he remains on the bench
during the trial of the accused. If he refuses to make a special entry,
the accused may, under sub-sec. (6) of sec. 370, apply
1951 (1) SA p7
CENTLIVRES JA
to the Court of Appeal for a special entry to be made
on the record. Under sec. 374, of the Act as substituted by sec. 12 of
Act 37 of 1948 it is provided that the Court of Appeal may set aside the
judgment, of the trial court if on any ground there was a failure of
justice. Thus it A will be seen that the
Legislature has made ample provision for enabling the Court of Appeal to
set aside a conviction on the ground of an irregularity. As Mr. Williamson,
for the Crown, pointed out in his argument the proceedings by way of a
special entry, although called an appeal in sec. 371, are in essence
review proceedings. If this Court can B assume
a jurisdiction in certain cases in order to see that justice is done - a
point which may raise considerable difficulty but on which I express no
opinion (cf. Minister of Labour and Another v Amalgamated Engineering Union,
1950 (3) SA 383 at p. 391 (A.D.) - such an assumption of jurisdiction
can only be justified when the Legislature has not provided a remedy. In
the present case the C Legislature has
furnished a remedy and there is therefore no justification for assuming
jurisdiction. It follows therefore that this Court has no jurisdiction
to consider the application made by accused No. 2.
As counsel for accused No. 2 desired a decision on the
merits and as the merits were fully argued and the question at issue is
of considerable importance I think that we should state our view on the
matter. A D similar course was adopted by this Court in Rex v Deitch, 1939 AD 178 at p. 183.
On the merits Mr. Beyers drew the attention of the Court to a number of E
passages in a book called 'South Africa As She Might Be' and a pamphlet
called 'Put an End to Poverty' both of which were published by the
learned trial Judge when he was a practising barrister. In the book the
author attempts to find a remedy for unemployment and poverty. The cause
of unemployment and poverty is, he says,
F 'land monopoly which confers the power to hold land out of use and to demand a ransom price for the opportunity to use it.'
He then proceeds to find a remedy by which land
monopoly can be removed and suggests a 'land duty' - a phrase which he
uses to represent
G 'the
annual payment to be collected from a landowner in respect of the
privilege he enjoys of having the exclusive possession of a portion of
what is the joint inheritance of all of us.'
In his foreword the author says:
'I have set out to show that that is
attainable if we are prepared to take the right course. The steps on
that course are all practicable and they are fair to everybody. There is
no proposal that I am making H that could not
be easily put into effect by a Parliamentary majority which wishes to
do it. We can have our Better South Africa on a basis of justice for all
but on no other. I am convinced that a measure can be economically
sound only if it is also ethically sound. What is proposed will satisfy
that test.'
Mr. Beyers drew the Court's attention to, inter alia, the following passages in 'South African As She Might Be':
1. Foreword:
'How the more important of our many economic problems can be brought
1951 (1) SA p8
CENTLIVRES JA
into line with a better future for
our country is treated in separate sections. Though they cannot, I
believe, be solved under our present economic system, they can all be
successfully solved if we end the power which that system gives to a few
people to exploit their fellows.
The outlining of the means to that
end is the purpose of this book. To adopt that means will not involve
violent revolutionary action. It is A not
Communism or Nazism or any form of totalitarianism. It does not require
or permit regimentation of our daily lives. It will take the monopoly
out of 'Capitalism' and make it harmless. It will end exploitation,
overseas or local. It will in fact give us a far greater degree of
individual liberty and scope for individual initiative and enterprise
than we have under our present laws.'
2. Page 11:
B 'The
word 'land' is used as a comprehensive term to cover 'all the material
universe outside of man and his products.' Thus it includes everything
that is provided by nature - air, sea, rivers, sunshine, rain, the
fertility of the soil and its mineral contents. None of those things can
be used or enjoyed except on or from the land.'
C 3. Page 17:
'All that part of the activities of
the Stock Exchange which depended on gambling in mining shares would
fall away. The price of such shares would correspond with the value of
the true capital of the mines, that is, of the plant and equipment and
shafts. As that would be a readily ascertainable amount there would be
no more scope for gambling in those D shares
than there is for gambling in Union Loans. The Stock Exchange would be a
place where investments were dealt in much the same way as a grocery
store is a place where groceries are sold.'
4. Page 27:
'A rich man becomes rich only
because of some monopoly. If we destroy land monopoly the power to
exploit and, therefore, to become very rich, E
would disappear. The rich man's riches would consist merely of his
actual wealth, his houses, motor-cars, racehorses, machinery, and so on.
Of these he could have no monopoly because new ones could be readily
produced by the application of labour to our natural resources.'
5. Page 31:
F 'It is
the monopolist who is the enemy. The proposed remedy by breaking land
monopoly would as a result destroy all monopolists. Unrestricted access
to national resources would make possible the production of any
commodities we needed in such quantities as to make a monopoly of them
wholly impossible . . . The chief power of an industrialist to grow rich
by exploiting low paid workers lies in the fact that they are, under
our present system, compelled to compete with one another for a limited G
number of jobs and so have to accept what is offered to them. The wages
they receive do not allow of their being able to save anything to join
in starting a business or industry.'
6. Page 37:
'It should be noted, too, that the
public does not benefit from Blyvoor's 10s. shares being sold on the
Stock Exchange at 125s. All the profit of that rise goes to private
individuals and in no way assists the mining operations of the company.
All that such profits can do, beyond enriching a few shareholders, is to
encourage people to put money H into new
mining ventures. But, as all money that would be needed for opening up
new mines could easily from working the existing mines which they would
take over, there would be no need to look to private investors and,
therefore, no need to encourage them to invest their money by giving
them huge profits out of public property.'
7. Page 66:
'Actually many private businesses
are owned by companies, the shareholders in which have no knowledge of
or say in the method of running them. Whereas
1951 (1) SA p9
CENTLIVRES JA
the profits of a State trading
concern go to the public, those of such a company go to the
shareholders. In both instances the work of management and production is
performed by employees and not by the owners.'
Mr. Beyers also directed the Court's attention to the pamphlet on 'Put an End to Poverty' and inter alia, referred to the following passage:
A ' There
is no injustice in taking back for the people what no one ever had the
right to part with. The right to land under our present system is solely
the right to make someone work for nothing for the owner. It is the
grossest form of exploitation. The so-called owners are really in the
position of robbers or of receivers of stolen property. The people need
that property to be restored to them. They can let bygones be bygones
and make no claim B for the return of the vast
sums that have been taken from them in the past by those who have
hitherto held that property without a true right to it, but the robbery
must be stopped for the future.'
Mr. Beyers,
relying on the above and other passages which he quoted from 'Put an
end to Poverty' and 'South Africa As She Might Be' - a book C
which was published about four years before the learned Judge presided
at the trial of the two accused - contended that in that book the
learned Judge displayed so pronounced a bias against financiers,
capitalists, land-owners and persons who made money by buying and D
selling shares that it was impossible for him to try the second accused
fairly, as that accused was a financier, capitalist and land-owner and
made money by buying and selling shares; in other words he fell within
the category of those persons against whom the learned Judge was
biassed. In support of his contention Mr. Beyers referred to certain passages in the judgment among which were the following:
E 1.
'Anything that could be done to
boost the price of Bloemfontein Consolidated Investment Corporation
shares would immediately give them (the two accused) an enormous profit
at no cost or risk at all to themselves.
F 2.
Obviously trivial matters or matters
which may be considered to be within the judgment or discretion of an
independent board will fall on the non-criminal side of that line. But
when the managing director, who is responsible for attending to those
interests, completely ignores them in a way that might be called
unconscionable, then clearly the Court will use its power to deal with
the matter and treat such unconscionable action as criminal. In any
event it will be a circumstance from which a G guilty intent may be inferred on a charge of theft or fraud.
3.
The promoters of companies have not
been slow to provide in the Articles as far as the Companies Act
permits, that there shall be no restriction upon the powers of
directors. As a result of this, some directors, because of their inside
knowledge of the position of the H company,
feather their own nests at the expense of the company, and, therefore,
of the shareholders. Directors have come, in many cases, to look upon
the company as their own private concern. Once a year when a meeting
must, in terms of the Companies Act, be held, the shareholders are
given, in a chairman's speech or a director's report some facts about
the position of the company, but such report is made as uninformative as
possible.'
4. Page 58:
'In these circumstances it is
obvious that very great, almost unlimited powers may be, and sometimes
are, usurped by directors. It is probable
1951 (1) SA p10
CENTLIVRES JA
that, in most cases, those powers
are used honestly in the interests of the company. It is, however,
possible in practice for such powers to be exercised largely, if not
wholly, in the interests of the directors themselves, with a complete
disregard of the interests and rights of the shareholders whose money
has given them the power which they thus exercise for their own gain.'
5. Page 59:
A 'The Companies Act, however, by creating this separate persona, did, in fact, because of the ignorance of the public of what is implied in that conception of a separate persona,
make it possible for unscrupulous individuals to abuse their power, as
directors, so as to enrich themselves unjustly at the expense of the
company over which they had been able to acquire control.
B 6.
The share pushing it (i.e. New Union
Goldfields) engaged in was as valuable to the public as the three card
trick and as moral and as productive.'
7. Page 183:
'From their (i.e. the two accuseds')
point of view nothing must be allowed to happen that would jeopardise
their chances of inducing a C gullible public
to continue to gamble in those shares, and push up the prices for them
far above any real value they might possibly have had.'
8.
'Had Erleigh and Milne gone into the
witness box and asserted that such a board' (i.e. an independent board)
'would have done so, his evidence or opinion would have been rejected
without hesitation.'
D Mr. Beyers'
contention rests upon a misconception of what the learned author of
'South Africa As She Might Be' had in mind. He was attacking the then
existing economic system of South Africa and pointed out what in his
view were the evils of that system. There is no doubt that he was E
an ardent reformer but it is clear from the passage in his Foreword,
which I have quoted above, that he realised that legislation would be
required to achieve his object. He attacked what he regarded as the
'exploiting' of low paid workers under the existing system: he did not
say that the 'exploiters' were responsible for that system or that they F
were guilty of a criminal offence under that system. What he desired
was a complete alteration of that system by legislation under which
there would no longer be 'exploiters' or 'exploited'. The mere fact that
the learned Judge, before he became a Judge, held strong views about
what he regarded as evils in our existing economic system, does not, in G
my view, disqualify him from sitting even in a case where a financier,
or capitalist, land-owner or dealer in shares is being tried in
connection with his actions in company matters. His views, expressed
previously to his taking a seat on the Bench, are in relation to any
such case academic. It is clear the learned Judge himself realised that
he was bound to apply the existing law for in his judgment he says that
H 'the
Court has to consider in this case whether the law as it exists at
present does afford that protection (i.e. the protection of shareholders
in a company) and whether acts such as have been shown to have been
committed by the accused are criminal in terms of the common law or the
company law or both.'
If in the course of his reasons for judgment the
learned Judge has stated the law wrongly the accused have their remedy
in their appeal which they are now prosecuting,
Mr. Beyers was unable to quote any authority which shows that
1951 (1) SA p11
CENTLIVRES JA
a Judge, in circumstances similar to the present case,
is disqualified from sitting. There is, however, authority for the
proposition that the bias complained of must be in connection with the
litigation in question. In the present case the alleged bias has no such
connection. In Rex v The London County Council; re The Empire Theatre, 71 L.T. 638, CHARLES, J., said at p. 639:
A ' One
principle is that anybody is disqualified to act on any judicial matter
in reference to which he has any pecuniary interest or any real bias.
This is undoubtedly the law, but the bias which disqualifies must be in
connection with the litigation in question. For example, preconceived
opinions - though it is unfortunate that a Judge should have any - do
not constitute such a bias, nor even the expression of such opinions,
for it does not follow that the evidence B
will be disregarded. What, then, is the bias which disqualifies? It is
explained in the judgment of BLACKBURN, J., in the case of Reg v Rand,
L. Rep. 1, Q.B. 230; 35 L.J. Mag. Cas. 157 that it must be a real bias.
He said 'wherever there is a real likelihood that a Judge would, from
kindred or any other cause have a bias in favour of one of the parties,
it would be very wrong of him to act; and we are not to C
be understood to say, that where there is a real bias of this sort,
this court would not interfere.' The mere possibility of a bias will not
disqualify.'
There is also the case of M'Geehen v Knox & Others, 50 S.L.R. 463, where LORD MACKENZIE made some instructive remarks at p. 468. He said:
D ' The
averment of the pursuer in cond. 5 is that the defenders were incapable
of exercising an honest judicial discretion in discharging their duty as
members of the Licensing Court, and his reason for making that averment
is also contained in the same article of the condescendence, namely,
that the defenders are members of a body whose principles are total
abstinence, no licences, and absolute prohibition. But when the averment
is examined, it will be found that E it
really comes to no more than this, that the defenders have certain
principles and that they have expressed them. The way in which it is
proposed to carry into execution these principles is 'by the will of the
people expressed in due form of law with the penalties derived for a
crime of such enormity.' It is not difficult to see what was meant to be
expressed by that, although it is not very clearly worded, namely, that
they intend to do all they can to bring about a change in F
the law. If, instead of that, they had announced that their purpose was
to carry out their wishes by voting against every licence that came up
in the Licensing Court, then, of course, the matter would have been
entirely different, and the case for the pursuer would have been plain.
There is no averment that the defenders voted against every licence.'
G There remains to be considered the following allegation made by the second accused in a further affidavit filed by him:
'In connection with the position
held by Mr. F. A. W. Lucas, K.C. (now Mr. JUSTICE LUCAS) of Honorary
Treasurer to The Farmers' and Workers' Party, no notification can be
traced of his resignation and to the best of my knowledge Mr. JUSTICE
LUCAS has during the period of my trial continued to act as Honarary
Treasurer and had not up to or during my trial disassociated himself
from the aims and ideals of the H Party as set out in the publications referred to in this and in my previous affidavit.'
The allegation referred to above does not constitute
proof that the learned trial Judge was still a member of the Farmers'
and Workers' Party at the time he presided at the criminal trial. But
assuming that he was still a member, it does not follow (however
undesirable it may be that a Judge should be a member of a political
party), that he was disqualified from sitting in a case in which
1951 (1) SA p12
CENTLIVRES JA
the party to which he belonged was not one of the
litigants. It goes without saying that if the author of 'South Africa As
She Might Be' and 'Put an end to Poverty' honestly held the views set
forth in those publications - and there is no reason whatsoever to doubt
the A absolute honesty of those views - he
cannot on becoming a Judge be expected to divest himself of those views.
The mere fact that a Judge holds strong views on what he conceives to
be an evil system of society does not, in my view, disqualify him from
sitting in a case in which some of those evils may be brought to light.
His duty is to administer B the law as it exists but he may in administering it express his strong disapproval of it.
I should add it is usual when ordinary review
proceedings are taken to serve the papers on the judicial officer
concerned: in the present case the practice was not followed, for
reasons explained by Mr. Beyers, with C
the result that this Court has not before it any report from the
learned Judge on the issue raised by the second accused and for the
purpose of this judgment we have assumed that the allegations made by
the second accused as to the facts on which he relies are correct.
D The conclusion, therefore,
at which I arrive is that this Court has no jurisdiction to entertain
the application and that in any event there is no substance in it.
The application is struck off the roll.
GREENBERG, J.A., and SCHREINER, J.A., concurred.
E First Appellant's Attorneys: N. Werksman & Partners, Johannesburg; S. Rosendorff, Bloemfontein. Second Appellant's Attorneys: Gordon Tomlinson, Vredefort; Chris. de Wet & Son, Bloemfontein.