S v Melk (234/85) [1987] ZASCA 148 (30 November 1987)

S v Melk (234/85) [1987] ZASCA 148 (30 November 1987)

The court held that section 56(1)(c) of the Internal Security Act does not impose strict liability and requires mens rea. After considering the complexity of identifying prohibited publications and the inequitable results of applying an objective negligence standard, the court concluded that the legislature did not intend to penalize negligent violations of the prohibition. Knowledge that the publication is prohibited is required for conviction. The appellant's lack of knowledge or foresight that possession was unlawful meant that the conviction could not be sustained. The appeal was upheld and the conviction and sentence were set aside.

Citation
[1987] ZASCA 148
Parties
Appellant: Emily Elizabeth Melk; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 1987
Case Number
234/85
Procedural Posture
Criminal Appeal / Final Appellate Judgment
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
Rabie, Joubert, Hefer, Boshoff, Steyn
Legal Topics
Mens Rea, Statutory Interpretation, Unlawful Organizations, Internal Security Act, Possession of Prohibited Publications
Criminal Law Mens Rea Statutory Interpretation Unlawful Organizations Internal Security Act Possession of Prohibited Publications

Case Brief

Summary, issues, holding and outcome

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Parties

Emily Elizabeth Melk

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether possession of a publication published or disseminated on behalf of an unlawful organization under section 56(1)(c) of the Internal Security Act requires knowledge or whether negligence (culpa) suffices.
  2. 2 How the phrase 'on behalf of' in section 56(1)(c) should be interpreted.
  3. 3 Whether the appellant's possession of the book 'Island in Chains' constituted an offence under the Act.

Ratio Decidendi

The court held that section 56(1)(c) of the Internal Security Act does not impose strict liability and requires mens rea. After considering the complexity of identifying prohibited publications and the inequitable results of applying an objective negligence standard, the court concluded that the legislature did not intend to penalize negligent violations of the prohibition. Knowledge that the publication is prohibited is required for conviction. The appellant's lack of knowledge or foresight that possession was unlawful meant that the conviction could not be sustained. The appeal was upheld and the conviction and sentence were set aside.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.