Minister of the Interior v Bechler and Others; Beier v Minister of the Interior and Others

• Jurisdiction: South Africa
• Judge: Tindall ACJ, Centlivres JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 28 May 1948
• Court: Appellate Division
• Date: 28 May 1948
• Docket Number: Case No. 67
• Citation: 1948 (3) SA 409 (A)

Tindall, A.C.J.:

The proceedings in the Provincial Divisions in these cases arose out of a notice sent to each of seven persons (whom I shall call the applicants) in July, 1947, intimating that the Commission mentioned in Government Notice 465 of 1st March, 1946, had recommended that he be deported from the Union and that the Government had decided to act on the recommendation in terms of sec. 1 of Act 52 of 1946. In the cases of the first six applicants the Transvaal Provincial Division granted interdicts restraining the Minister from deporting the applicants. The ground of the decision in each case was that the Commission had failed to give the applicants a sufficient hearing in compliance with the requisites of natural justice. In the seventh application, which was brought in the Natal Provincial Division, HATHORN, J.P., dismissed the application with costs, holding, in effect, that the Commission had given the applicant Beier as fair a hearing as was reasonably practicable having regard to the particular circumstances bearing on the enquiry entrusted to it.

Tindall ACJ

The seven applicants were at birth German nationals, five of them having been born in Germany, and the remaining two in South-West Africa before the conquest of this territory and the Mandate issued in respect of it to the Union of South Africa in 1919. It is common cause that three of them, namely Bechler, Beier and Rumpelt were enemy aliens when the Commission made its recommendations and still are such.

In regard to the remaining four it was admitted that they are aliens inasmuch as they are not British subjects, but it was contended that, for reasons which will be discussed later, they had ceased to be German nationals and were and are stateless persons and therefore not enemy aliens. It appears that by reason of the provisions of Act 30 of 1924 in the case of the applicant Werner, and the provisions of Act 27 of 1928 in the case of Blohm, Kronsbein and Steinbach, these four men were deemed to have become British subjects naturalised under Act 4 of 1910, each of them having failed to make a declaration that he was not desirous of becoming so naturalised. For the sake of brevity I shall refer to this kind of naturalisation as automatic naturalisation. This kind of naturalisation, by reason of the provisions of sec. 2 (2) of Act 30 of 1924, entitled Werner to all the rights, powers and privileges, and made him subject to all the obligations, to which a British subject was entitled or subject within the Union and the Mandated Territory. In the case of the three younger men, who fell under the 1928 Act, and also in the case of Werner, it was contended on their behalf that, by reason of the provisions of Act 18 of 1926, they were entitled to such rights, powers and privileges not only in the Union and the Mandated Territory but also in the whole of the British Commonwealth.

When the war broke out in 1939 the applicants, among other persons, were interned. Among the interned persons many were Germans who had been automatically naturalised under the Acts of 1924 and 1928. Thereafter in 1942, the Union Parliament passed Act 35 of 1942, sec. 1 of which enacted, inter alia, that every person, who at the commencement of that Act was a British subject exclusively by virtue of the provisions of the Act of 1924, or of this Act read in conjunction with sec. 10 (2) of Act 4 of 1910, or of the 1928 Act,

'shall for the purposes of all laws in the Union, the mandated territory of South-West Africa and the port and settlement of Walvis Bay, be an alien'.

Tindall ACJ

After fighting ceased in 1945 the Government, being faced with the problem of dealing with enemy aliens, appointed under Government Notice 465 of 1st March, 1946, a Commission consisting of a Judge of the Supreme Court and two magistrates to make recommendations on the subject. The terms of reference, as quoted in the papers before the Court, are the following:

'It is hereby notified that, whereas it is the purpose of the Union Government to prevent, as far as practicable, the resurgence of the National Socialistic (N.A.Z.I.) and Fascist ideologies in the Union and Mandated Territory of South-West Africa, His Excellency the Governor-General has been pleased to appoint a Commission to recommend for deportation any person, together with his dependants, who, being an enemy alien, has at any time -

(a)

been actively associated, particularly in any position of leadership however subordinate, with any National Socialist (N.A.Z.I.) or Fascist organisation, association or other body; or

(b)

though never having been associated with any organisation, association or other body as aforesaid has, by his acts come to be recognised as a protagonist of the National Socialist (N.A.Z.I.) or Fascist ideology; or

(c)

in any way served or promoted, or conducted himself in such a manner that it may reasonably be concluded that he was prepared to serve or promote the interests of a foreign State to the detriment of the interests of the Union; or

(d)

elected to return to Germany or to other territory at the time under the control of any Axis power under any exchange or repatriation scheme agreed upon between any of the Allied and any of the Axis powers during the present war;

and whose continued presence in the Union of the Mandated Territory of South-West Africa is, in its opinion, incompatible with the purpose in view.

His Excellency has further approved that notwithstanding anything to the contrary stated above, the Commission, in its discretion, shall have the right to refrain from reccommending for deportation any person whose wife or husband or whose minor children cannot legally be deported.'

The commission, in the course of its investigations, which commenced on 25th March, 1946, found itself faced with the consideration of the cases of 5,270 persons in respect of whom information contained in official files or cards was placed before it and of whom approximately 4,700 were from South-West Africa and approximately 570 from the Union. A scrutiny of that information led the commission by 12th April, 1946, to eliminate 1,012 persons who, in its opinion, 'could not fairly be regarded as falling within the various categories contained in the terms of reference'. Owing to the illness of the original chairman and

Tindall ACJ

one of the magistrates the investigations were then interrupted for a period and in the following month they were superseded respectively by another Judge and another magistrate. The reconstituted Commission resumed the process of elimination on 13th May and by 20th June all but 2,172 persons had been eliminated.

The Commission, as originally constituted, had come to the conclusion that to frame specific charges against each individual and to give each a separate hearing was impracticable and that, if such a procedure were followed, the inevitable result would be an investigation lasting for a number of years. It decided therefore to invite each person not eliminated to supply evidence and argument, both in writing, relevant to the consideration of the question set out in the terms of reference. The Commission had also decided to draw up a questionnaire 'embracing broadly the field covered by the terms of reference'. The Commission, as reconstituted, confirmed the procedure provisionally laid down, as abovementioned, by the original Commission and it also revised, amended and curtailed the questionnaire which had been provisionally drawn up. The object of the questionnaire - so the Commission stated in its ultimate report - was primarily to assist such persons as might not have the benefit of legal assistance in the preparation of written evidence and argument for submission to it.

Having settled on the above-mentioned procedure the Commission caused a notice, with a copy of the terms of reference and of the questionnaire attached, to be served on 2,139 of the 2,172 of the remaining persons (18 of the balance of 33 having died, 14 of them having been found not to be enemy aliens and one having disappeared). The notice in each case required the person in question to reply in writing within a month. It is unnecessary to quote from the twenty paragraphs of the questionnaire; it is sufficient to say that nearly all of them had a bearing on the question whether the person to whom they were directed had been or was a supporter of Nazi or Fascist doctrine. After considering the replies and submissions of the persons notified as above stated, the Commission reported on 15th November, 1946, recommending the deportation of 254 persons (including the seven persons concerned in these proceedings), of whom 197 were from South-West Africa and 57 from the Union. In the report it was stated that, had it been possible to extend a separate hearing to each individual, the commission

would have preferred to do so. It had critically examined (the report added) the evidence in each case relating to the individual in question, had given full weight to the evidence submitted on his behalf and to his answers to the questionnaire and borne in mind and made full allowance for the fact that he had not had a separate and full hearing. After anxious consideration the Commission had recommended for deportation these persons 'who on the material before it, in its opinion fell fairly and squarely within the terms of reference'.

Now the Executive Government could, in the exercise of one of the prerogatives of the Crown, have deported enemy aliens without giving them any opportunity of making any representations against their deportation. See Netz v Ede (1946 Ch. 224) and Hirsch v Somervell & Others (1946 (2), A.E.R. 27). However, it preferred to get Parliamentary sanction. During the Parliamentary session of 1946, before the Commission had reported, the Government introduced a Bill to provide, inter...