Attorney-General, Eastern Cape v Blom and Others

• Jurisdiction: South Africa

Attorney-General, Eastern Cape v Blom and Others
1988 (4) SA 645 (A)

1988 (4) SA p645

Citation	1988 (4) SA 645 (A)
Court	Appellate Division
Judge	Corbett JA, Hefer JA, Grosskopf JA, Vivier JA and Viljoen AJA
Heard	March 17, 1988
Judgment	August 30, 1988

Flynote : Sleutelwoorde B

Internal security — Internal Security Act 74 of 1982 — Order by Attorney-General under s 30(1) prohibiting granting of bail — Audi alteram partem rule applicable unless the Act, either expressly or by C implication, excludes it — No indication that Parliament intended to exclude the right of an arrested person to be heard before Attorney-General makes an order in terms of s 30(1) — 'All-or-nothing' approach whereby no right to a hearing intended because circumstances might prevent it being fully accorded rejected as unsound — Although D right to a hearing might have to be more attenuated in individual cases than normally the case, the residual right remains and has to be respected.

Statute — Interpretation of — Report of judicial commission of enquiry shortly preceding passing of statute — Court can have regard thereto to E ascertain mischief aimed at — But Court cannot use such report to determine the meaning attached by the commission to any draft legislation recommended in report which forms the basis of statute passed by Parliament.

Maxims — Audi alteram partem — Formulation of — Preferable formulation is that there is a right to be heard where a statute empowers a public official to give a decision which may prejudicially F affect a person's property or liberty unless statute, either expressly or by implication, excludes such right — The 'implied incorporation' formulation (ie the incorporation in the statute of the right by implication followed by the possibility of the exclusion thereof by G implication) is logically less satisfactory.

1988 (4) SA p646

A Public officer — Costs order against — Rule that public officer should not be mulcted in costs where he acted mistakenly but in good faith — Rule should not be elevated to a rigid one of universal application which fetters judicial discretion — Doubtful whether the rule is applicable to a case in which an order is sought against an B Attorney-General that audi alteram partem principle applies when he makes an order prohibiting bail in terms of s 30(1) of the Internal Security Act 74 of 1982.

Headnote : Kopnota

A decision by the Attorney-General in terms of s 30(1) of the Internal Security Act 74 of 1982 to make an order prohibiting an arrested person from obtaining bail is one which prejudicially affects the liberty of an C individual and, therefore, the audi alteram partem principle applies unless the Act shows, either expressly or by implication, a clear intention that the individual's right to be heard is excluded. Having regard to all the factors applicable in determining whether there is such a clear intention to exclude the individual's right to be heard, taken either individually or collectively, no clear indication can be found that Parliament intended to exclude the right of an arrested person to be heard before the Attorney-General makes an order in terms D of s 30(1) of the Act denying him the grant of bail. The audi alteram partem principle therefore applies to s 30(1) of the Act.

It may well be that in individual cases constraints imposed by the time factor and/or the sensitive nature of the information, prejudicial to the arrested person, which is in the possession of the Attorney-General will result in the arrested person's right to be heard being more attenuated than is normally the case where the audi alteram partem principle applies, but the residual right remains and must be respected.

E Buthelezi and Others v Attorney-General, Natal 1986 (4) SA 377 (D) approved and applied.

S v Baleka and Others 1986 (1) SA 361 (T) overruled.

It is clear that the Appellate Division, in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A), approved of reference to the report of a judicial commission of enquiry, F in the circumstances there postulated, only in order to ascertain the mischief aimed at by the statutory enactment in question. It did not approve of such a report being used in order to determine the meaning attached by the commission to any draft legislation recommended in the report, which formed the basis of the statute passed by Parliament. The approach of English authorities expressly disapproving a report being used for this latter purpose was approved.

The differences between the various formulations of the audi alteram G partem principle which appear in the decided cases are ones of form rather than substance. Logically and in principle, however, the approach which holds that in the circumstances postulated (viz a statute empowering a public official to give a decision which may prejudicially affect the property or liberty of an individual), there is a right to be heard, unless the statute shows, either expressly or by implication, a clear intention on the part of the Legislature to exclude such a right, is preferable to the 'implied incorporation' formulation (the H formulation adopted in South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A) at 270C - G) which appears to contemplate an incorporation of the right by implication, followed by the possibility of the exclusion thereof by implication. It is true that the incorporation would be based merely on the circumstances postulated above and the exclusion by implication upon a consideration of the statutory enactment as a whole, but nevertheless this formulation is logically less satisfactory.

The thesis that, because circumstances might prevent an arrested person I from being fully accorded his right to a hearing, it must be inferred that no right at all was intended (sometimes referred to as 'the all-or-nothing' argument) is on general principle unsound.

The rule in Coetzeestroom Estate and GM Co v Registrar of Deeds 1902 TS 216 at 223 that a public official should not be mulcted in costs where his action, though mistaken, was bona fide should not be elevated into a rigid rule of universal application which fetters the judicial J discretion.

1988 (4) SA p647

A It is doubtful whether the rule laid down in the Coetzeestroom case in relation to applications against the Registrar of Deeds arising on matters of practice is applicable to a case such as the present where an order is sought against an Attorney-General requiring him to apply the audi alteram partem principle when he makes a decision, in terms of s 30(1) of the Internal Security Act 74 of 1982, whether or not to prohibit the granting of bail to an arrested person.

The decision in the Eastern Cape Division in Blom and Others v Attorney-General, Eastern Cape confirmed. B

Case Information

Appeal from a decision in the Eastern Cape Division (Mullins J, Jones J and Kroon J). The facts appear from the judgment of Corbett JA.

J J Nepgen SC (with him L E Leach) for the appellant: There are conflicting Full Bench decisions regarding the application of the audi alteram partem rule to s 30 of the Internal Security Act 74 of 1982. In C S v Baleka and Others 1986 (1) SA 361 (T) Eloff DJP (Preiss J concurring and Stegmann J dissenting) held that the rule did not apply. In Buthelezi and Others v Attorney-General, Natal 1986 (4) SA 377 (D) it was held that the rule did apply. In the present matter the learned Judges in the Court a quo followed this latter decision. The majority judgment in Baleka's case supra is correct. Reliance in particular is D placed upon the reasoning of Eloff DJP at 404D - 408C of the judgment. It is conceded that the provisions of s 30 of the said Act make drastic inroads upon the liberty of the individual and limit the powers of the Courts. Cf Buthelezi's case supra at 379B - D; S v Ramgobin and Others 1985 (4) SA 130 (N). It is also conceded that the audi alteram partem E rule embodies a fundamental right, and a person cannot be deprived thereof unless such deprivation is either expressly or by necessary implication authorised by the enabling statute. Omar and Others v Minister of Law and Order and Others 1987 (3) SA 859 (A) at 893D - G; Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 959G - H; Strydom v Staatspresident, Republiek van Suid-Afrika, en 'n Ander 1987 (3) SA 74 (A) at 92 - 3. The initial enquiry must always be whether the particular F enactment in issue impliedly incorporates the maxim. Winter and Others v Administrator-in-Executive Committee and Another 1973 (1) SA 873 (A) at 889A; South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A) at 270F. In all cases where the maxim has been invoked, it has been justified on the ground that the enactment G impliedly incorporated it. When on a true interpretation of the Act the implication is excluded, there is an end to the matter. Sachs v Minister of Justice 1934 AD 11 at 38; Pretoria City Council v Modimola 1966 (3) SA 250 (A) at 261B - 262F. For the reasons which follow, the Legislature did not contemplate that the audi alteram partem maxim should be H observed prior to the issue of an order in terms of s 30(1) of the said Act. It is of paramount importance that the basis of the audi alteram partem rule is natural justice or fundamental fairness. Winter's case supra at 890F. A mere pretence of giving a person a hearing will therefore not suffice. The duty to afford a person a hearing before taking a decision prejudicial to him therefore involves: (i) that the I person liable to be affected by the decision be informed of the substance of the prejudicial allegations made against him (Minister of the Interior v Bechler and Others 1948 (3) SA 409 (A) at 451 - 2, approved in R v Ngwevela 1954 (1) SA 123 (A) at 124C...