ANNEX 8.

H. Hess v. The State.

(Reprinted from Vol. II of the Official Reports of the High Court of the South African Republic. London: Stevens and Haynes, 1903.)

CRIMINAL LIBEL-LAW 11 OF 1893, SECT. 3-GRONDWET, SECTS. 12 & 19-Trias Politica-URGENT LEGISLATION-JUDICIARY -PENAL PROVISION-INTERPRETATION.

(Per Kotzé, C. J.) The sovereign power which resides in the people is entrusted by them in the Grondwet to the Volksraad, the Executive, and the Judiciary. The Grondwet is not a pact between the Government and the people, but a declaration by the people serving as a basis on which the State is founded. The Court is competent to inquire whether a law has been passed in proper form; or whether it has been duly promulgated; and whether it is in conflict with the Grondwet. The Court is not competent to inquire into the internal value of a law, or into the question of its urgent necessity, and whether it could not brook delay.

(Per Kotzé, C. J., Ameshoff and Jorissen, JJ.) The intention of the Legislature must be gathered from the words actually used, not from the words which were intended to be, but have not been, used. Law 11 of 1893, sect. 3. creates no crime.

The

THIS was an appeal against the decision of Judge Morice on the exceptions to the indictment raised by the appellant, Henry Hess, editor of the newspaper The Critic. accused was charged with contravention of sect. 3 of Law 11 of 1893, before the Circuit Court, held at Johannesburg on the 4th, 5th and 6th of March, 1885. The indictment read :

'In that on or about the 18th day of January, in the year of our Lord One thousand eight hundred and ninety-five, at Johannesburg, Witwatersrand Gold Fields, South African Republic, he, the said Henry Hess, being the responsible publisher of the news. paper The Critic, there appearing, and being as such responsible, under the said section of the said law, for matter containing libel, defamation, or attack on any one's character appearing in the newspaper published by him, did then and there publish the said newspaper containing an article entitled The Modderfontein Scandal,' written in the English language, which article contains inter alia the following

words, containing libel, defamation, and attack on the character of B. de Korte, Judge of the High Court of the South African Republic."

Then followed the extracts from the article which had appeared in The Critic and contained the libellous and defamatory words complained of.

Before pleading, the accused raised the following exceptions to the indictment :

1. Law 11 of 1893, with the contravention of sect. 3 of which the accused is charged, has not force of law, as it was passed by the Volksraad without having been first published for three months, as provided by article 12 of the Grondwet in respect of all laws, except such as can admit of no delay, and that there existed no pressing necessity for the passing of this law.

This exception was reserved by Morice, J.

2. That the allegations contained in the indictment constitute no crime.

3. That the indictment served on him contains but two extracts, arbitrarily chosen from a long article in which they appeared in conjunction with further references to the character of B. de Korte, Judge of the High Court of the South African Republic, the exclusion of which from the indictment hampers and prejudices the accused in his defence.

The last two exceptions were overruled, with leave to the accused to bring the decision of the Circuit Court in review before the full Court at Pretoria.

The accused then pleaded justification.

Shortly after the hearing of the evidence was begun, Advocate Leonard, who appeared for the State, asked leave to erase from the indictment certain words forming portion of the alleged libellous and defamatory words in the article.

The request was granted. The question of law, whether this erasure could be made after a plea of justification had been noted, was, on request of the accused, recorded by Morice, J., for review by the full Court.

The appellant conducted his own case. The chief points in support of his appeal are set forth in the judgments of the Court,

Postea, 2nd May.

KOTZÉ, C. J. In this appeal from the decision of the Circuit Court at Johannesburg, in the case of The State v. Hess, the appellant complains that he has been wrongly convicted, and chiefly on the three following points Firstly, he contends that Law 11 of 1893, under which he was indicted, is really no law, inasmuch as (a) it was not passed by the Volksraad with a due observance of the required formalities, and (b) because there existed no pressing necessity for the passing of this law; in other words, it is not a law which, in the words of sect. 12 of the Grondwet, admits of no delay. Secondly, that sect. 3 of Law 11 of 1893, for the contravention of which the appellant was more particularly charged, creates no offence. And, thirdly, that after the plea of justification the indictment was improperly amended. Sect. 12 of the Grondwet reads as follows:

"The people entrust the legislative power to a Volksraad, the highest authority in the land, consisting of representatives or delegates of the people elected by the enfranchised burghers, but only to this extent, that the people shall have three months within which to send in to the Volksraad their opinion, if they so desire, with respect to any proposed law, except such laws as admit of no delay."

The

The trias politica, known to Aristotle, and at a later period so greatly eulogised by Montesquieu as desirable and necessary for the good government and existence of a State, is, even as in other civilized countries, also adopted by our constitution, or Grondwet; and it is my duty as Judge, above all, to respect and maintain the Grondwet. sovereign power, residing in the people, has, through the medium of the Grondwet, been entrusted by the people in various measure to the Volksraad, Executive, and Judiciary. The Grondwet ordains that, through the proper action of these three institutions, each within its own scope and sphere, the State shall be governed. It entrusts to the Volksraad, consisting of representatives or delegates of the people, the task of making the laws of the country, subject to certain limitations. Such a provision is not contrary to the notion of sovereignty, sovereign power, or, as Grotius calls it, Highest Power (summa potestas). Huber, who was

Hodiernum (book 4, chap. 7), rightly observed that the sovereign power in the State may be limited by fundamental laws; and even Austin-the great advocate of the position that sovereign power, or a sovereign legislature, which he considers as synonymous, is not subject to any legal limitation-does not deny the possibility that the exercise of this power may in some way or other be regulated by a constitution (Lecture 6, pp. 241, 242), which seems to follow from the very nature of the case. It is not necessary to have recourse to the supposition that the Grondwet or constitution is to be regarded as a covenant or pact between the governors and governed, for such indeed it is not. is simply a declaration by the people, serving as a basis of the government of the State, under which the different powers in the State are to exercise the several portions of the sovereign power entrusted to them.

It

Each of the three powers named can consequently exercise its functions only in accordance with the Grondwet. It is likewise a mistaken notion, as some still seem to think, that the testing right, which is accepted as an axiom in the great Republic of North America, owes its existence to any direct provision in the constitution of the United States. The constitution nowhere expressly mentions it. This testing right is a tacit and necessary outcome of a popular Government under a constitution. It is surely

open to a people to protect itself in the constitution against sudden alteration of the laws, more especially of the constitution. This has in fact been done under section 12 of our Grondwet.

The appellant has traced the history of Law 11 of 1893 through the First Volksraad, and has endeavoured to show from that that no necessity whatever existed for the passing of this penal statute against the press, according to the letter and spirit of section 12 of the Grondwet. He has also argued that no proper resolution was taken by the Volksraad, nor published, setting forth the pressing necessity for such a law, nor is there any clause or section in the law itself stating that it has been passed in accordance with article 12 of the Grondwet. This embraces a very important constitutional question. The duly expressed will of the Volksraad is law. This will must be declared in due form, and the law duly promulgated. Of this matter, and of the question whether the law is in conflict with the Grondwet, the Court must judge, but it is not competent to decide upon the internal value and policy of the law. Whether a law is in the interest of society,

whether it be necessary or cannot brook delay, is not for the Court to determine. If it does so, it encroaches on the province of the legislature. "An enactment," says Op

zoomer, "is no law so long as it does not conform to all the requisites prescribed by the constitution for the existence of a law. These requisites are twofold-firstly, the law must proceed from the competent authority; secondly, it must proceed from that authority in the prescribed form. If, however, the legislative power exceed the limits set by the constitution, it ceases to be the competent authority, for its competency extends no further than just to those limits. The Judge, therefore, who tests any enactment which comes before him as law by reference to the constitution, merely inquires whether it be in reality a law, and acts in accordance with his right and duty.

If his inquiry once leads him to conclude that the enactment is indeed a law, he cannot go further and decide upon its merits, nor is it competent for him to inquire whether the law is not contrary to the public interest or his notions of equity. (Aanteek. op de Wet, H. Algemeen Bepalingen, editie 1884, pp. 193-4. See also Winscheid, Pandect. sect. 14; Huber, Dict. chap. 7; Blockland, De Onschendbaarheid der Wet, pp. 52, 53, 215; Du Quesne, de Bevoegdheid der Rechterlyke Magt; Van Sonsbeeck, de Zelfst. en onafh. de Recht. Macht. pars I.) I think this view of our constitution, although in conflict with some of the dicta expressed in the McCorkindale case, decided in 1884, is correct. Further consideration and study have induced me to alter my previous view on this point and to adopt that of Professor Opzoomer. The ratio decidendi, however, of my judgment in the present case will rest on the second objection raised by the appellant, viz., that section 3 of Law 11 of 1893, under which he was charged and convicted, creates no offence.

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The remainder of the judgment of the Chief Justice and the judgments of Justices Ameshoff and Jorissen dealt with the question whether section 3 of Law 11 of 1893 created an offence.