Cabinet for the Territory of South West Africa v Chikane and Another

• Jurisdiction: South Africa

Cabinet for the Territory of South West Africa v Chikane and Another
1989 (1) SA 349 (A)

1989 (1) SA p349

Citation	1989 (1) SA 349 (A)
Court	Appellate Division
Judge	Rabie ACJ, Jansen JA, Van Heerden JA, Hefer JA, Grosskopf JA
Heard	March 1, 1988
Judgment	September 16, 1988

Flynote : Sleutelwoorde B

South West Africa/Namibia — Bill of Fundamental Rights contained in Annexure A to South West Africa Legislative and Executive C Authority Establishment Proclamation R101 of 1985 — Proclamation R101 not according any effect to Bill outside field of legislation — Nothing in proclamation suggesting that Bill, as such, having any bearing upon validity of administrative actions — Thus, although rights enshrined in Bill should be borne in mind by authorities exercising delegated powers, that not meaning that administrative action necessarily invalid if D such action conflicting with provisions of Bill — Rights enshrined in Bill accordingly not serving to limit governmental powers outside legislative activities of National Assembly for territory.

South West Africa/Namibia — Bill of Fundamental Rights contained in Annexure A to South West Africa Legislative and Executive E Authority Establishment Proclamation R101 of 1985 — Articles 3 and 10 of Bill including general prohibition against discrimination or arbitrary conduct — Such general prohibition not forbidding reasonable classifications or distinctions for purposes of legislation — F Distinctions regarded as reasonable if they are founded upon intelligible differentiae and if differentiae bear rational relation to object sought to be achieved by statute in question — Semble: Where matter such as reasonableness or intelligibility of distinctions in Act, and rationality of their relation to object sought to be achieved by Act have to be considered, these are matters of fact depending G upon circumstances to which Act applies — Where facts

1989 (1) SA p350

A not such that Court can take judicial notice of them, difficult to see how conclusion can be reached without hearing evidence — Allowing evidence having possible disadvantages — Validity of legislation being matter of general importance, but decision on validity would depend on evidence placed before Court — Parties might not be able to B present complete evidence, or it may not suit their interests to do so — Court thus having to decide matter on incomplete evidence — Further disadvantage would be that different Court might come to different conclusion in light of further evidence produced in another matter — Chaos would result if different Courts reaching different conclusions C on validity of same statute — Approach whereby Court deciding on validity of statutes without evidence not satisfactory either — Such would involve process of conjecture which could turn out to be wide of mark.

South West Africa/Namibia — Bill of Fundamental Rights contained in Annexure A to South West Africa Legislative and Executive D Authority Establishment Proclamation R101 of 1985 — Notice issued in terms of s 9(1) of Residence of Certain Persons in South West Africa Regulation Act 33 of 1985 (SWA) prohibiting presence of South African citizen (first respondent) in territory — Validity of s 9 attacked as one of arguments in support of conclusion that notice issued in terms of E s 9 of Act invalid - Court on appeal holding that it would not avail respondent to show that parts of s 9 invalid unless invalidity of those parts tainting provisions under which notice issued — Parties not tendering evidence — Matter thus decided as on exception — Validity of s 9 attacked inter alia on grounds that (a) distinction between those persons subject to s 9 and those not so subject arbitrary and in F conflict with arts 3 and 10 of Bill — (b) That s 9(3), ousting Court from deciding validity of notice issued under s 9(1), insulating arbitrary conduct from judicial scrutiny and potentially infringing art 4 by excluding right to fair hearing in determination of rights - (c) If audi alteram partem rule excluded both before and after issue of notice, G s 9(1) arbitrary and unconstitutional — As to (a), Court holding that there might well be circumstances in which one or more possible explanations for distinctions drawn in s 9 might constitute reasonable basis for such distinctions — Thus not contravening prohibition against discrimination in arts 10 and 3 of Bill — As to (b), even if s 9(3) H invalid, such not affecting validity of s 9(1) under which notice issued — In any event, s 9(3), as ancillary provision, clearly severable from substantive provisions of s 9(1) — As to (c), while s 9 containing no express indication as to applicability of audi alteram partem rule, principle ut res magis valeat quam pereat decisive of matter — If I exclusion of audi alteram partem rule were to offend against Bill and thus render section invalid, Court would inevitably decide that rule not intended to be excluded — In any event, notice issued under such urgent circumstances that respondent had not been able to invoke rule prior to issue of notice — Respondent failing to show that notice should be set aside either on grounds that s 9 violating Bill or on ground that J notice itself invalid.

1989 (1) SA p351

Headnote : Kopnota

Annexure A to the South West Africa Legislative and Executive Authority Establishment Proclamation R101 A contains a Bill of Fundamental Rights and Objectives ('the Bill'), which rights are stated, in the preamble thereto, to have been claimed to themselves by 'we, the people of South West Africa/Namibia'. The proclamation does not accord any effect to the Bill outside the field of legislation. In particular, there is nothing in the proclamation to suggest that the Bill, as such, would have any bearing upon the validity of administrative actions (as opposed B to legislative actions). The rights enshrined in the Bill are, generally speaking, recognised by South African common law, and should be suitably borne in mind by authorities exercising delegated powers; but that does not mean that any administrative action would necessarily be invalid if it conflicted with the provisions of the Bill. In short, the rights enshrined in the Bill are, under the proclamation, available only to challenge the validity of Acts of the National Assembly for C the territory, and do not serve to limit governmental powers in other respects.

Article 3 of the Bill provides, inter alia, that 'everyone shall be equal before the law'. Those words establish a general rule against discrimination. Substantially the same concept is included in the prohibition against 'arbitrary' conduct in art 10, which provides, inter alia, that 'no citizen shall be arbitrarily deprived of the right to enter the country'. Such a general rule does not, however, forbid reasonable classifications or distinctions for the purposes D of legislation (this follows the practice in the United States of America, the Federal Republic of Germany and India, where similar rules against discrimination have been established). Distinctions would be regarded as reasonable if they are founded upon intelligible differentiae, and if the differentiae bear a rational relation to the object sought to be achieved by the statute in question.

Semble: Where matters such as the reasonableness or intelligibility of the distinctions in an Act, and the rationality of their relation to E the object sought to be achieved by the Act, have to be considered, these are largely matters of fact depending upon the circumstances to which the Act applies. Whether a distinction is a reasonable one must, in the final analysis, depend upon the facts to which it relates and, where the facts are not such that a Court can take judicial notice of them, it is difficult to see how a Court can reach a conclusion without hearing evidence.

There are, however, certain possible disadvantages in allowing F evidence. In particular, the admission of evidence would make a decision on the validity of legislation, which is a matter of general importance, depend upon the evidence which the parties place before the Court. Questions of the validity of legislation may presumably arise in different types of proceedings, and the parties to such proceedings may not always be able to present complete evidence on all relevant aspects of the case before the Court; or it may not suit their interests to do G so. In the result the Court may still be compelled to decide the matter on incomplete information, even though evidence was admissible and was in fact admitted. That, by itself, is undesirable in a matter as important as the validity of a statute. In addition, it raises the question whether another Court, in the light of further evidence adduced in another matter, would be entitled to reach a different conclusion. If different Courts were to reach different conclusions about the validity of a statute, chaos would result.

H Nor is an approach whereby the Court decided constitutional matters without evidence and purely on the basis that it will not rule a measure invalid if it can reasonably conceive of a state of facts which would justify the distinction the measure introduces, be more satisfactory since it would involve a process of conjecture which could turn out to be wide of the mark.

I Section 9 of the Residence of Certain Persons in South West Africa Act 33 of 1985 (SWA) provides that the Cabinet for the Territory of South West Africa ('the Cabinet') may issue an order prohibiting any person from being in the territory if it has reason to believe that such person is, inter alia, likely to endanger the security of the territory or is likely to engender hostility between members of different population groups in the territory. The persons not subject to s 9 are persons born in the territory, persons serving there...