Catholic Bishops Publishing Co v State President and Another

• Jurisdiction: South Africa

Catholic Bishops Publishing Co v State President and Another
1990 (1) SA 849 (A)

1990 (1) SA p849

Citation	1990 (1) SA 849 (A)
Court	Appellate Division
Judge	Corbett CJ, Hoexter JA, Nestadt JA, M T Steyn JA and F H Grosskopf JA
Heard	August 29, 1989
Judgment	December 1, 1989

Flynote : Sleutelwoorde

F Internal security — Media emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as promulgated in Proc R97 of 11 June 1987 as amended by Proc R123 of 28 August 1987 — Regulation 7A authorising Minister to take action against media — Validity of — G Doubtful whether the temporary appointment of a censor for a periodical in terms of reg 7A a 'punishment' as intended by s 3(2)(b) of the Act and reg 7A(2) not in conflict with that section — Delegation by State President of his powers to Minister not an improper delegation — Those delegated powers not the delegation of unfettered powers without any H guidelines as to how they were to be exercised — Minister not required to shut his eyes to relevant facts and surrounding circumstances when evaluating matter — Sub-delegation of some of Minister's powers to the censor not improper as censor's powers not legislative in character — Implicit in reg 7A(3) that censor to be guided by criteria laid down in I reg 7A — Requirement in reg 7A(4)(a) that Minister state grounds for action not as extensive as duty to give reasons and, where original notice might have suffered from defects, this held to have been cured by supplementary notice which resulted in publisher making further representations — Audi alteram partem principle not requiring Minister J to give personal interview where

1990 (1) SA p850

A elaborate procedure for hearing party by way of written representations provided for by regulations adhered to.

Headnote : Kopnota

The appellant was the publisher of a weekly newspaper, New Nation. In October 1987 the Minister of Home Affairs and Communications (second respondent) addressed a letter to the appellant informing it that he had examined a series of three issues of the newspaper dated 27 August, 3 B September and 17 September 1987, and was of the opinion that there was a systematic and repeated publishing of matter referred to in reg 7A(1) of the regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as promulgated in Proc R97 of 11 June 1987 ('the media regulations') and as amended by Proc R123 of 28 August 1987. The Minister informed the appellant that he was considering issuing a warning under subreg (1) and invited it to make representations in connection with the proposed C action. The appellant responded to the invitation and submitted representations and in addition requested an opportunity of debating the issue with the Minister. The Minister was of the opinion that the appellant had not dealt with the aspects as set out in his letter and in a supplementary notice invited the appellant to make further representations, which the appellant then did. These supplementary representations also contained a request for an interview with the D Minister. The Minister declined the interview and on 27 November 1987 published a notice in the Government Gazette giving the formal warning prescribed in reg 7A(1). On 5 December the Minister addressed a letter to appellant stating that he had examined the issue of the newspaper dated 3 December and that he was considering issuing an order under reg 7A(3)(a) or (b) and called for representations. The appellant again responded by submitting representations and requesting an interview. In addition the appellant instituted proceedings on notice of motion in a Local Division claiming an interdict restraining the Minister from E issuing an order under reg 7A(3); an order declaring various provisions in reg 7A invalid; and orders declaring invalid certain of the actions taken by the Minister under reg 7A. The application was dismissed in its entirety. On appeal, the appellant contended that reg 7A or portions thereof were invalid and therefore the action taken by the Minister pursuant thereto was invalid and, alternatively, even if the regulation was valid, the action taken by the Minister was invalid upon other F grounds. In elaboration hereof the appellant made inter alia the following contentions: (1) Subregulation (2) offended against the proviso to s 3(2)(b) of the Act which provided for retrospective effect of the regulations provided that 'no such regulation shall make punishable an act or omission which was not punishable at the time when it was committed'. An order made by the Minister in terms of reg 7A(3) amounted to a punishment and, as subreg (2) empowered the Minister to have regard to an issue of a publication which antedated the date of commencement of the amending proclamation which introduced reg 7A (28 G August), it was ultra vires the proviso and therefore invalid. (2) Subregulation (1) purported to vest discretionary powers in the Minister greater than the powers which the State President enjoyed under the Act and the delegation of powers by the State President to the Minister under the subregulation offended against the rule that, save in exceptional circumstances, a subordinate authority was not permitted to confer an unfettered discretion on a public officer in a manner which affected the ordinary common law rights of the citizen and furthermore it offended against the rule that the repository of a power to make H delegated legislation was not allowed to sub-delegate that power to another. (3) As the Minister was required in terms of reg 7A(1) to form an opinion 'solely on examination of any series of issues of a periodical' a manifestly unfair and grossly unreasonable situation arose since it was trite that a person vested with a discretion was obliged to base his decision on all relevant considerations. Because of this the regulation was invalid. (4) The vagueness and uncertainty of meaning of various words and phrases in reg 7A(1) invalidated the subregulation. I (5) As subreg (3)(a) empowered the Minister to make an order prohibiting publication unless the matter therein had been approved by a censor who was 'a person specified in the order', the choice and appointment of the censor was left in the hands of the Minister. This amounted to an improper subdelegation to an unnamed person and the person so specified was given an entirely free hand without any guidelines. (6) The first J notice of the Minister was

1990 (1) SA p851

A invalid as it failed to comply with the requirements of reg 7A(4)(a) in that it did not state the grounds of the proposed action but merely amounted to a recitation of the wording of the regulations and rendered the opportunity to make representations in connection therewith meaningless. (7) The Minister's failure to grant the appellant a personal audience contravened the audi alteram partem principle.

Held, as to (1), that it was doubtful whether an order in terms of reg 7A(3) for the temporary appointment of a censor for a periodical or for B a temporary prohibition on a publication would constitute a punishment, but even if it did, subreg (2) did not conflict with the proviso to s 3(2)(b) of the Act: although the publication of a periodical containing offensive matter which took place prior to the promulgation of Proc R123 was an act which was 'not punishable' when it was committed but it could also not render the publisher liable to a 'punishment' under subreg (3) as it was only in the case of a continuation that the Minister could make an order.

C Held, further, as to (2), that the power conferred on the State President in terms of the Act was of very wide import and it could not be said that the making of regulations restricting publication of periodicals was beyond the competence of the State President and in the circumstances there was no reason why he could not confer powers on the Minister to determine in a particular case whether a periodical published offensive matter or not.

D Held, further, that a distinction had to be drawn between the delegation of legislative powers and the delegation of purely administrative powers: the powers conferred upon the Minister by reg 7A(1) were not legislative in nature but were executive or administrative (perhaps quasi-judicial), to be exercised ad hoc in regard to particular periodicals and the powers and the procedures for their exercise had been specified in detail in reg 7A(1), (2), (3) and (4) and accordingly it could not be said that the State President had conferred unfettered discretionary powers on the Minister with no guidelines as to how he was to act.

E Held, further, as to (3), that the word 'solely' in its context did not mean that the Minister in evaluating the matter was required to close his eyes to relevant facts and surrounding circumstances but that he could come to a decision on the matter by merely looking at a series of issues of the publication.

Held, further, as to (4), that the Court was precluded by s 5B of the F regulations from examining whether the regulation was void for vagueness.

Staatspresident en Andere v United Democratic Front en 'n Ander 1988 (4) SA 830 (A) applied.

Held, further, as to (5), that the subdelegation was not improper: the powers conferred on the censor were not legislative in character and the source thereof was to be found in s 3(1)(a) of the Act. When regard was had to the wide powers of that section the State President could not be G held to have acted ultra vires in providing for a censor to be appointed by the Minister in the circumstances prescribed in the subregulation. As to the argument that no guidelines had been given to the censor, it seemed implicit in reg 7A(3) that in deciding whether or not to approve the publication of matter the censor had to be guided by the criteria laid down in reg...