REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
1951 (1) SA p1
B
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
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.
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
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.
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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.
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
F
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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).
Judgment
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
B
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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.
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.
C
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.
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:
F
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
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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:
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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.'
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
D
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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.'
There remains to be considered the following allegation made by the second accused in a further
affidavit filed by him:
G
'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
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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.
REX v MILNE AND ERLEIGH (6) 1951 (1) SA 1 (A)
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.
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.
D
The application is struck off the roll.
GREENBERG, J.A., and SCHREINER, J.A., concurred.
First Appellant's Attorneys: N. Werksman & Partners, Johannesburg; S. Rosendorff, Bloemfontein.
Second Appellant's Attorneys: Gordon Tomlinson, Vredefort; Chris. de Wet & Son, Bloemfontein.
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