During NO v Boesak and Another

• Jurisdiction: South Africa
• Judge: Joubert JA, Botha JA, E M Grosskopf JA, Nestadt JA and Milne JA
• Judgment Date: 23 May 1990
• Citation: 1990 (3) SA 661 (A)
• Hearing Date: 20 March 1990
• Court: Appellate Division

Nestadt JA:

I agree with Grosskopf JA [*] that in a case such as Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A), where the lawfulness of an arrest is in issue, the onus is on the functionary to prove not only that he held the requisite opinion but also that it was G properly formed. It follows that I share my Brother's view that the decision to the contrary in Dempsey's case was clearly wrong and should not be followed. Whether, however, as Grosskopf JA goes on to hold, the same applies to a case such as the present where a public gathering has been prohibited, is a matter which I find unnecessary to decide. I prefer instead simply to assume, in favour of respondents, that the onus H was on appellant to establish that he properly exercised his discretion in terms of reg 10(1)(c).

Van der Westhuizen NO v United Democratic Front 1989 (2) SA 242 (A) is authority for the proposition that such discretion is not an objectively justiciable one. However, as Grosskopf JA points out, the correctness of I this case too was attacked on behalf of respondents. I do not propose to detail the argument advanced. Suffice it to say that I remain unpersuaded that the legislative history of the regulation there in issue, and more particularly the way in which it was amended, should have been held to

Nestadt JA

A justify the conclusion that an objectively justiciable discretion was intended. Nor am I prepared to say that the Court erred in taking the factors referred to at 251B - C into account. I accordingly cannot agree that Van der Westhuizen's case should be regarded as clearly wrong. It follows that the discretion conferred on appellant by reg 10(1)(c) was, B contrary to what the Court a quo held, not objectively justiciable.

The remaining issue is the factual one of whether appellant established that he properly exercised his discretion. The argument on behalf of respondents that he did not was, despite the wide allegations contained in paras 14 - 17 of the founding affidavit, confined to the contention that appellant failed properly to apply his mind to the C matter, viz whether the safety of the public or the maintenance of public order rendered it necessary or expedient to prohibit the concert. This, so it was said, was to be inferred from the alleged grossly unreasonable nature of the prohibition and from it allegedly being based on irrelevant or extraneous considerations.

D It is necessary to analyse what appellant's state of mind was when he decided to prohibit the concert. His allegations in this regard are fully set out in the judgment of Grosskopf JA. I agree that they reveal that it was the information he received on Saturday, 16 July 1988 (the day before the concert), which in the last resort caused appellant to E order the prohibition. It was this information which made his decision 'onvermydelik'. I am not sure that it is a fair inference that, but for this information, appellant would not have prohibited the concert. But I shall assume this to be the case.

It will be remembered that the information was that Black youths had F decided 'om tydens die viering van Mandela se verjaarsdag klippe te gooi na Staatsvoertuie en busse'. Certainly the information is vague. It is not said how many Black youths were involved or who they were; one does not know which State vehicles or buses were earmarked for stoning or where or when (during the celebrations of Mr Mandela's birthday) such stoning would take place. In particular it is not said that it was G feared that the Black youths would or might attend the concert. In these circumstances it is difficult to see what the nexus is between the anticipated activities of the Black youths and the banning of the concert; how the former could supposedly serve as a justification or reason for the latter.

Were appellant's case to be judged on this basis alone, it may be that H he did not show that he properly exercised his discretion. But I do not think it is to be so judged. As I read appellant's affidavit there is, in relation to the contemplated consequences of the concert, a distinction between (i) what the chances were of them eventuating and (ii) their actual nature. The information which appellant received on 16 I July 1988 was relevant to (i). It caused him at the eleventh hour to invoke reg 10(1)(c). As Mr Hodes for appellant put it, such information was 'the last straw'. It provided the spur to his decision. It strengthened his pre-existing apprehension and convinced him that the concert should be prohibited. It did not, however, detail what he feared might occur were the concert to proceed ((ii) above). Appellant's state J of mind in this regard appears from the earlier allegations

Nestadt JA

A in his affidavit. They reveal that, based on his previous experience and the information obtained from Lieutenant Godfree-Thom, he believed the following:

(i)

Scholars (ie Black youths) would attend the concert. Thus appellant says: 'Ek het geen rede om te glo dat die byeenkoms te Weskaap Universiteit op 17 Julie 1988 nie deur Swart B jeudiges bygewoon sou word nie en dit is dus meer as waarskynlik dat daar wel 'n klipgooiery sou plaasvind.' Mr Gauntlett, who appeared for respondents, criticised the (double) negative form in which this allegation is couched, but in my opinion there is nothing in the point. In the context of the affidavit as a whole, what appellant is saying C is that he believed that Black youths would indeed attend the concert.

(ii)

The concert audience, and in particular that part of it consisting of Black youths, would by means of political speeches be incited ('opgesweep') to violence ('geweld') and action ('aksie'). That it was thought that such speeches D would take place at the concert appears from para 7 of Godfree-Thom's affidavit. Dealing with what form it was expected the concert would take he stated: ''n Sogenaamde kultuurdag wat weer eens as rookskerm gebruik sal word vir die hou van radikale politieke toesprake met 'n emosionele inslag.' I refer also to appellant's allegation that the E concert was to be used 'om skoliere op te sweep'.

(iii)

Such violence and action would take place at the end of the concert and would consist of the stoning of persons and motor vehicles in the vicinity. Thus appellant states: '(M)y persoonlike ondervinding (het) my geleer dat byeenkomste by die Universiteit Weskaap waar opsweping en oproepe tot aksie F plaasgevind het, gewoonlik aan die einde daarvan lei tot klipgooiery na persone en voertuie in die nabyheid deur persone wat hierdie byeenkomste bygewoon het.' Clearly the last-mentioned persons would include Black youths. By implication, their number was likely to be substantial because 10000 people (being conveyed in 40 - 60 buses) were G expected to attend the concert.

In the result, therefore, I do not think that on a proper construction of the affidavit as a whole it is right to confine appellant's fear to a group of Black youths unconnected with the concert stoning State vehicles and buses at unspecified places and times. Giving due weight to H the passages of appellant's affidavit which I have cited, it seems to me that what appellant feared, more particularly when received the additional information on 16 July 1988, was that Black youths would attend the concert, that they would there be incited to violence and that as a result they would or might at the end of the concert stone persons and vehicles in the vicinity. Whether appellant's fear was well-founded is beside the point. It is not our task to weigh the I evidence on its merits as we would were this an appeal or had appellant's discretion been objectively justiciable. Appellant having had the indicated state of mind, there was clearly a basis on which he could and did believe that it was necessary or expedient that the concert be prohibited. In my view, therefore, appellant proved that he properly applied his mind to the matter, that he properly exercised his J discretion

E M Grosskopf AR

A under reg 10(1)(c) and that his order prohibiting the concert was justified. The application for an order setting aside the prohibition should not have been granted.

I make the following order:

(1)

The appeal is upheld with costs, including the costs of two counsel.

(2)

B The order of the Court a quo is set aside. In its stead the following order is made: 'The application is dismissed with costs including the costs of two counsel.'

Joubert JA and Botha JA concurred in the judgment of Nestadt JA.

Judgment

E M Grosskopf AR:

Op 18 Julie 1988 het mnr Nelson Mandela sy sewentigste C verjaarsdag herdenk. Destyds was hy 'n gevangene in die Pollsmoor-gevangenis naby Kaapstad. Gedurende Junie 1988 is 'n komitee geskep bekend as die Mandela Birthday Committee (hierna genoem 'die Komitee'). Die doel van die Komitee was om verskeie funksies te reël en te koördineer om die gemelde verjaarsdag te vier. Onder meer het die Komitee 'n Mandela Verjaarsdagkonsert gereël vir Sondag 17 Julie 1988 D tussen 10 vm en 7 nm in die hoofsaal van die Universiteit van Wes-Kaapland. Twaalf verskillende orkeste sou optree, asook soliste, poësie-groepe en ander artieste. Op Saterdag 16 Julie 1988 om ongeveer 5 nm (dws die aand voor die konsert sou plaasvind) het lede van die Suid-Afrikaanse polisie 'n verbodsbevel aan die Rektor van die E Universiteit van Wes-Kaapland, wat ook 'n lid van die Komitee was, beteken. Die bevel is uitgereik deur die appellant, brigadier R P During, die Afdelingskommissaris van die Suid-Afrikaanse Polisie in die Westelike Provinsie. Dit het as volg gelui:

'BEVEL KRAGTENS DIE VEILIGHEIDSNOODREGULASIES, 1988

F Kragtens die bevoegdheid my verleen by reg 10(1)(c) van die Veiligheidsnoodregulasies, 1988, verbied ek, brigadier Roy Peter During, Afdelingskommissaris van die Suid-Afrikaanse Polisie vir die Afdeling...