Castel NO v Metal & Allied Workers Union

• Jurisdiction: South Africa
• Judge: Jansen JA, Viljoen JA, Hefer JA, Smalberger JA and Vivier JA
• Judgment Date: 25 August 1987
• Citation: 1987 (4) SA 795 (A)
• Hearing Date: 18 May 1987
• Court: Appellate Division

Hefer JA:

I shall refer to the parties to this appeal by their titles in the Court a quo. What gave rise to the litigation between them was a prohibition in terms of s 46(3) of the Internal Security Act 74 of 1982 ('the Act') by the Minister of Law and Order ('the Minister') of all open-air gatherings which were not of a bona fide sporting nature. Since 1 April 1984 such gatherings could only be held with the express permission E of the Minister or of the magistrate of the district concerned.

The applicant is a registered trade union. It has a branch in Natal. On 26 April 1984, Schreiner, the secretary of the Natal branch, applied to the chief magistrate of Durban for permission to hold the annual general meeting of the branch in F the open air at Curries Fountain on 12 May 1984. On 4 May 1984 the respondent, who was the acting chief magistrate at the time, telephoned Schreiner and, after a brief discussion, refused permission for the meeting. This led to an urgent application to the Court a quo to set aside the respondent's refusal and to direct him to authorise the meeting. Despite opposition, Wilson J granted an order as prayed. The learned Judge undertook to file his reasons for the order later. In the G event more than seven months passed before he finally did so. Thereafter he dismissed an application by the respondent for leave to appeal and the present appeal, which is directed at the whole order, was noted with the leave of this Court.

Before I turn to the appeal itself I wish to deal briefly with H the refusal of the application for leave to appeal by the Court a quo. The learned Judge refused leave to appeal for no other reason than that the matter had become 'totally academic, the meeting having been held'. This approach is patently wrong. The fact that the meeting had already been held and that the effect of the order could accordingly no longer be undone did not bring about that the matter had become academic.

I Pronouncements to the effect that a Court of appeal will not enquire into matters which are of intellectual or academic interest only (cf African Guarantee and Indemnity Co Ltd v Van Schalkwyk and Others 1956 (1) SA 326 (A) at 329) are not to be misconstrued. As appears from the judgment of this Court in J Lendalease Finance (Pty) Ltd v Corporation De Mercadeo Agricola and Others 1976 (4) SA 464 (A) at 486H, they

Hefer JA

'all deal with the situation where the issue presented for A decision to the Court of first instance was at that stage of abstract or intellectual interest only'.

When the urgent application was presented to the Court a quo in the instant case there was 'a very real, live issue' (as Corbett JA fittingly described it in the Lendalease case) and what happened subsequently was of no importance. Leave to B appeal ought not to have been refused merely because the meeting had already been held by the time that the application for leave was heard.

The reasons for Wilson J's order were reported in Metal & Allied Workers Union v Castell NO 1985 (2) SA 280 (D). Briefly stated, the Court's main findings were:

(a)

C that the applicant had not been given a hearing;

(b)

that the respondent had erred in his consideration of the application for authority by adopting an incorrect approach and by taking irrelevant matters into account; and

(c)

that the respondent had refused the application mala D fide and in fraudem legis.

If the first finding is correct, it will dispose of the appeal. I shall accordingly deal with it first. The learned Judge did not elaborate on the cryptic statement at 287A of the report that the applicant had not been afforded a hearing, and the reader has been left in the dark as to the facts and grounds upon which such an important finding came to be made. It emerged in this Court that the applicant's case was that E potentially prejudicial information or private knowledge which the respondent had had not been disclosed to the applicant and that it had not been given an opportunity to refute it before the decision to refuse authority was taken. We were referred in this regard to the factors listed at 287I - 288F as the ones F which the respondent said had weighed with him in coming to the conclusion that the proposed meeting might lead to a breach of the public peace and should accordingly not be authorised. None of them had been disclosed to Schreiner before permission for the meeting was refused. They came to light for the first time when respondent's opposing affidavit was filed. On the authority of Pretoria Town Council v A1 Electric Ice-Cream Factory (Pty) Ltd 1953 (3) SA 1 (A) at 13G - H and other G similar cases it was submitted that the applicant had not been given a proper hearing.

This argument brought to the fore the real question which calls for decision. It is whether the audi alteram partem rule had to be observed by the respondent in dealing with the application H for authority. His counsel submitted that there was no need for its observance since, according to the majority judgment in Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) and subsequent decisions of this Court, a public official performing an administrative function need not observe the rule if the performance of the function does not affect the rights of or will not entail legal consequences to another. In the I present case, respondent's counsel argued, the refusal of authority for the meeting did not affect any right of, and did not involve legal consequences to, the applicant; a gathering of the proposed kind had been prohibited and could not validly be held without authority, and the Court a quo erred in distinguishing Laubscher's case (at 286G of the report) by J finding that

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A 'the applicant, in applying for authority to hold a meeting, was not applying for permission to do something it was not otherwise entitled to do'.

Applicant's counsel supported the Court a quo's ruling that Laubscher's case is distinguishable - although he did so on grounds which do not seem to have been considered by the Court. B The dispute in this Court thus centred on the applicability of the principle in Laubscher's case.

Respondent's counsel received full support for his argument from the decision in Congress of South African Trade Unions v District Magistrate of Uitenhage and Another 1987 (2) SA 102 (SE) which appeared in the Law Reports not long before the hearing of the appeal. In that case Kroon J came to the C conclusion on the authority of Laubscher's case that the audi alteram partem rule need not be observed by a magistrate in an application for authority to hold a gathering prohibited in terms of s 46(3), and expressly dissented from the Court a quo's reasoning in the present case. I may say at the outset that I am generally in agreement with what Kroon J stated at D 107F - 108C. Points were, however, raised in the appeal which Kroon J did not consider. This judgment will therefore have to be somewhat more elaborate than his.

Appellant's counsel, correctly, did not contend that the applicant had a right to hold the gathering for which respondent's authority was sought. Section 46(3) of the Act provides that

E '(t)he Minister may, if he deems it necessary or expedient in the interests of the State or for the maintenance of the public peace or in order to prevent the causing, encouraging or tormenting of feelings of hostility between different population groups or parts of population groups of the Republic, prohibit in a manner determined in ss (2)(a) -

(a)

any gathering in any area; or

(b)

F any particular gathering or any gathering of a particular nature, class or kind at a particular place or in a particular area or wheresoever in the Republic,

during any period or on any day or during specified times or periods within any period, except in those cases determined in the prohibition in question by the Minister or which the Minister or a magistrate acting in pursuance of the Minister's general or special instructions may at any time expressly authorise'.

G These words leave no doubt as to the underlying intention.

The section clearly confers upon the Minister the power to prohibit any gathering or any kind of gathering or all gatherings if he deems it necessary or expedient for any of the stated purposes. Provided that it is exercised for no other H purpose, there are no bounds to his power. I say this despite the form in which the provision has been couched. Its last three lines may suggest to the reader - and apparently suggested to the Court a quo as appears from 285I and 286F - G of the report - that the power to prohibit does not extend to the cases mentioned after the word 'except', ie that the Minister may not prohibit gatherings 'in those cases determined in the prohibition in question by the Minister or which the I Minister or a magistrate... may expressly authorise'. Any impression of such a limitation of power must, however, be dispelled. It is entirely illogical to say that the Minister may not prohibit a gathering which he himself may decide not to prohibit, or which he or a magistrate may authorise. Such a construction would, moreover, render the power to prohibit J entirely nugatory: bearing in mind that the section contains no limitation of the

Hefer JA

A gatherings which may be excluded by way of a determination in a prohibition or which the Minister or a magistrate may authorise, the Minister would, on that construction, have no power to prohibit any gathering. It is clear that the words in question were not intended as a curtailment of the power granted earlier in the section. If, by reference to what happened in the present case, one were to ask, for instance, B whether the Minister had the power to prohibit gatherings of a bona fide sporting nature, the answer is plainly in the...