African National Congress and Another v Lombo

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 187 (A)

African National Congress and Another v Lombo
1997 (3) SA 187 (A)

1997 (3) SA p187

Citation	1997 (3) SA 187 (A)
Case No	149/95
Court	Appellate Division
Judge	Corbett CJ, E M Grosskopf JA, Nienaber JA, Marais JA and Scott JA
Heard	November 12, 1996
Judgment	February 18, 1997
Counsel	Penzhorn (for the first appellant) in reply; Moerane (for the second appellant) in reply

Flynote : Sleutelwoorde B

Internal security — Unlawful organisations — Unlawful organisation as defined in s 1 of Internal Security Act 74 of 1982 as read with s 73 of Act — Effect of declaration of organisation as being unlawful — Not depriving organisation of C legal personality, even though it resulted in liquidation of its assets — Special plea in action for damages against unlawful organisation that no act lay against it as it did not exist in law and could not commit any delicts as result of its having been declared unlawful dismissed.

Headnote : Kopnota

The respondent had instituted an action for damages against the two appellants in a Local Division, alleging that he D had suffered pain, physical injury and mental anguish as a result of assaults and torture committed on him while he had been incarcerated by the appellants in certain prisons in foreign countries. The appellants had raised certain E special pleas to the action, one of which was that the appellants had at all material times been unlawful organisations in terms of the laws of the Republic of South Africa, that in the premises the appellants did not exist in law and could accordingly not commit any of the delicts alleged and accordingly that no action in law lay against the appellants. The special plea had been dismissed by the Local Division. In an appeal it appeared that the first appellant had on 8 April 1960 been declared an unlawful F organisation in terms of s 1(1) of the Unlawful Organisations Act 34 of 1960 and the second appellant was on 4 February 1966 declared an unlawful organisation in terms of s 2(2) of the Suppression of Communism Act 44 of 1950. On repeal of these provisions by the Internal Security Act 74 of 1982 the declarations of the two appellants as unlawful organisations were extended by means of the definition of 'unlawful organisation' in s 1, read with s 73, of the Act. G

Held, that, although the banning or declaration of an organisation as unlawful resulted in the liquidation of its assets, it did not follow from this that it was deprived of legal personality: such an organisation was, if regard was had to the definition of 'unlawful organisation' in s 1 of Act 74 of 1982 (prior to the amendment of the definition in H 1991), the provisions of s 4(2) and s 13(1) and (4), not deprived of legal personality by its banning. (At 203G, read with 199H/I-J and 197D-E/F.) Appeal dismissed.

The decision in the Durban and Coast Local Division in Lombo v African National Congress and Another confirmed.

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Eaton Robins & Co v Nel (1909) 26 SC 365 I

Kahn v Louw NO and Another 1951 (2) SA 194 (C)

Magnum Financial Holdings (Pty) Ltd (in Liquidation) v Summerly and Another NNO 1984 (1) SA 160 (W)

R v Twala 1952 (2) SA 599 (A)

S v Arenstein 1967 (3) SA 366 (A)

South African Flour Millers' Mutual Association v Rutowitz Flour Mills Ltd 1938 CPD 199 J

1997 (3) SA p188

Swart v Smuts 1971 (1) SA 819 (A) A

United Methodist Church of Southern Africa and Others v Methodist Church of Southern Africa and Others 1991 (2) SA 138 (TkA)

Wakefield v ASA Seeds (Pvt) Ltd 1976 (4) SA 806 (R)

Webb & Co Ltd v Northern Rifles; Hobson & Sons v Northern Rifles 1908 TS 462.

Statutes Considered

Statutes

The following statutes were considered by the Court:

The Internal Security Act 74 of 1982, ss 1, 4(2), 13(1), (4), 73: see Juta's Statutes of South Africa 1990 vol 1 at 3-269, 3-270, 3-274, 3-294

The Suppression of Communism Act 44 of 1950, s 2(2)

The Unlawful Organisations Act 34 of 1960, s 1(1). C

Case Information

Appeal from a decision in the Durban and Coast Local Division (Broome DJP). The facts appear from the judgment of Corbett CJ.

G H Penzhorn SC (with him M T K Moerane SC and C N Patel) for the first appellant (Moerane SC and Patel also appearing for the second appellant): Legal personality means the capacity for legal rights and duties. Besides human beings, legal D personality has been ascribed by many legal systems to other entities like a 'corporation aggregate' or the universitates personarum: Grotius 1.4.1 and 1.5.23; Bamford The Law of Partnership and Voluntary Associations in South Africa 3rd ed at 126; Duff Personality in Roman Private Law 1st ed at 1. Universitates E personarum have a persona separate from their membership and have a capacity of acquiring rights and obligations distinct from that of their members: Webb & Co Ltd v Northern Rifles; Hobson & Sons v Northern Rifles 1908 TS 462 at 464. Universitates personarum are capable of suing and being sued in their own name, both in terms of the common law and in terms of the Rules of the Supreme Court: Wilken v Brebner and Others 1935 AD 175 at 190. Since fictional legal personality F is ascribed to a legal entity, the Legislature, alternatively, the legal system, can strip a legal entity of its legal personality. By Proc 119 of 1960, an organisation called the African National Congress, including all the branches, sections or committees thereof and all local, regional or subsidiary bodies of the African National Congress, were G declared to be an unlawful organisation. By Proc R38 of 1966 the South African Communist Party was declared to be an unlawful organisation. The aforesaid bannings were further extended by the Internal Security Act 74 of 1982. At all times material, and prior to 3 February 1990, the aforesaid organisations were banned organisations. The drastic consequences of being 'an unlawful organisation' provided for in s 13 of the H Internal Security Act 74 of 1982, include: (1) the prohibition against membership or the taking part in any activities of such organisation or promoting its interests (s 13(1)(a)(i) and (iv)); (2) the vesting of all its property in the hands of a liquidator (s 13(1)(b)), the said liquidator in terms of s 14 having wide powers similar to those of a I liquidator in the winding-up of a company; (3) the net effect was to strip the aforesaid unlawful organisation of its legal personality. Although s 4(1) of the Internal Security Act 74 of 1982 does not give any indication as to the effect of the declaration of the aforesaid organisations as unlawful, s 4(2) specifically deems the unlawful organisations to exist for the purposes of criminal proceedings only. There is no ambiguity or anomaly in s 4(2) of the Internal Security Act. Accordingly, J

1997 (3) SA p189

the words used must be given their ordinary grammatical meaning. Departure from the A literal meaning is only justified if an anomaly not contemplated by the Legislature would result: Constantia Insurance Company Ltd v Hearne 1986 (3) SA 60 (A) at 69F-G; Ebrahim v Minister of Interior 1977 (1) SA 665 (A) at 678A-G. The Legislature, in deeming the existence of an unlawful organisation for criminal B proceedings only, clearly did not intend an unlawful organisation to exist for the purpose of civil proceedings: Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 at 722. Accordingly, this is an appropriate case in which this Court should invoke the aid of the maxim expressio unius est exclusio alterius: Steyn Die Uitleg van Wette 3rd ed at 50; Kellaway Principles of Legal C Interpretation 1st ed (1995) at 153; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 602D-F. The intention of the Legislature furthermore appears clear, namely to prevent persons prosecuted for offences relating to such banned organisation to escape conviction precisely because of the non-existence of such organisation in the eyes of the law. Accordingly the learned Judge a quo erred in D coming to the conclusion that s 4(2) 'clearly contemplated the continued existence' of an 'unlawful organisation' (pp 8 and 9 of the judgment). The effect of the prohibition as mentioned herein before was to render the aforesaid associations to be 'phantom' organisations having no legal existence and therefore incapable of committing any E delicts as such. United Methodist Church of Southern Africa and Others v Methodist Church of Southern Africa and Others 1991 (2) SA 138 (TkA) at 141H; Morrison v Standard Building Society 1932 AD 229 at 236-9. Also the old writers have been consistent in not visiting any personality on partnerships which are formed for illegal purposes: Van der Linden 4.1.11; Pothier 1.14 and 17.2.7. F Accordingly, the aforesaid organisations did not have any locus standi to sue in their own name after they were banned, and accordingly they could not be sued. It must be emphasised that this was so because they were stripped of their legal personalities. Accordingly, it was incumbent upon His Lordship to decide whether the aforesaid organisations could have been sued during the period when they were unlawful G organisations. In fact, during the relevant period and up to February 1990 the aforesaid organisations in terms of South African law did not exist. The removal of the names of the African National Congress and the South African Communist Party from the list of banned organisations on that date did not have the effect of reviving the African National Congress and the South African Communist Party which had existed H prior to their being banned, and what was created after 3 February 1990, even though the membership and objects and names may have been the same, were, in law, new organisations: South African Flour Millers'...