Gool v Minister of Justice and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP, Ogilvie Thompson J and Watermeyer AJ
• Judgment Date: 31 March 1955
• Citation: 1955 (2) SA 682 (C)
• Hearing Date: 28 February 1955
• Court: Cape Provincial Division

Gool v Minister of Justice and Another
1955 (2) SA 682 (C)

1955 (2) SA p682

Citation	1955 (2) SA 682 (C)
Court	Cape Provincial Division
Judge	De Villiers JP, Ogilvie Thompson J and Watermeyer AJ
Heard	February 28, 1955
Judgment	March 31, 1955

Flynote : Sleutelwoorde C

Communism — Suppression of Communism Act 44 of 1950 — Interdict applied for by person whose name placed on list, pending an action for its removal, restraining Minister from exercising powers under sec. 5 — Court has jurisdiction but will only be exercised in exceptional D circumstances — Interdict — Pendente lite — When to be granted — Criterion is could applicant obtain final relief at trial.

Headnote : Kopnota

The provisions of the Suppression of Communism Act, 44 of 1950, as amended, do not wholly preclude the Court from granting, in a proper case, at the instance of a person whose name appears on a list compiled pursuant to sections 4 (10) or 7 (2) of the Act and who has already E instituted an action for removal of his name from such list, an interdict restraining the Minister pendente lite from exercising the powers vested in him by section 5 of the Act against such person, but that jurisdiction will only be exercised in exceptional circumstances and when a strong case is made out for relief.

In an ordinary application for an interdict the approach outlined in Webster v Mitchell, 1948 (1) SA 1186 (W), is the correct approach, save that the criterion on an applicant's own averred or admitted facts F is: should (not could) the applicant on those facts obtain final relief at the trial.

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

R. E. G. Rosenow, Q.C., for the respondents: It is not true to say that G a person whose name is wrongly placed on the list has no remedy until the action to remove his name is heard. The only sanction, if he disregards the Minister's notice, is a criminal prosecution in which it must be proved that his name was correctly on the list. A person named may therefore disregard the Minister's notice and upon prosecution prove that he was wrongly on the list.

H A person whose name has been placed on the list also has a civil remedy viz. he can take the Minister's decision on review. A delegate of the Legislature is always limited in that he must act bona fide and without negligence: see Steyn Uitleg van Wette, p. 227; Rex v Hodos, 1927 T.P.D. 101; Rex v Kostas, 1932 AD 140; Molteno Brothers v S.A.R., 1936 AD 321. The Minister cannot, however, be interdicted in advance: Jivan v Louw, 1950 (4) SA 129.

1955 (2) SA p683

Sec. 8 bis (3) excludes any proceedings apart from action. The effect of an interdict would be to take the applicant's name off the list, which is what the Act sought to avoid.

In any case, even if the question whether a name is correctly on the list can be brought in issue in interdict proceedings, there is a presumption that the name is correctly on the list (see sec. 8 bis (1)) A and there can be no question of applicant merely having to show a prima facie case. As to the degree of proof required in an ordinary application for an interdict see Alison v Mears, 1946 W.L.D. 267.

As to the circumstances in which the Court will rule that the successful B party should not be awarded costs, see Segall v du Plessis, 1921 OPD 181.

D. B. Molteno, Q.C., for the applicant: The sole issue is as to costs. These proceedings are not excluded by sec. 8 bis (3), since they are not proceedings for the removal of a name from the list. Moreover the C Court has power to entertain proceedings ancillary to an action in order to prevent its ultimate judgment being rendered nugatory.

As to the presumption in sec. 8 bis (1), the words 'until the contrary is proved' refer to the standard of proof appropriate to the type of proceedings instituted. In the case of an application for an interim interdict prima facie proof is sufficient: Webster v Mitchell, 1948 (1) SA 1186 at pp. 1187 - 9.

D Even if the judgment is incorrect the Court will make no order as to costs since applicant was misled by respondent into taking these proceedings. See Pretoria City Council v Lombard, N.O., 1949 (1) SA at p. 179 and the authorities there quoted. See also Brice v Zurcher, E 1908 T.S. 1082 at pp. 1085 - 6; Scheepers v Pate, 1909 T.S. at p. 359.

Rosenow, Q.C., in reply.

Cur adv vult.

Postea (March 31st).

Judgment

F Ogilvie Thompson, J.:

By letter dated 8th October, 1954, second respondent notified applicant that her name had been included in the list compiled by him, pursuant to the provisions of sec. 4 (10) of Act 44 of 1950 (as amended), of office bearers, officials, members or active G supporters of the Communist Party of South Africa, which latter was declared an unlawful organisation by sec. 2 (1) of that Act. This notification was the culmination of a correspondence between second respondent and applicant which had commenced as far back as February, 1952. A perusal of this correspondence reveals that applicant's replies to second respondent's official intimations and inquiries were both tardy and unconvincing. It is abundantly clear that, prior to the 8th H October, 1954, applicant had, within the meaning of the proviso to sec. 4 (10) of the Act, been afforded ample opportunity of showing that her name should not be included in the list

On 30th October, 1954, applicant issued a summons in this Court against the two present respondents in which she claimed a declaration

1955 (2) SA p684

Ogilvie Thompson J

that the inclusion of her name in the above-mentioned list was wrongful and unlawful. On the same date applicant's attorneys wrote a letter to first respondent which, after alluding to the summons issued that day, concluded in these terms:

'We are writing however in the meantime to point out that our client denies that she has been an active supporter as alleged and that our A client requests you to favour her with an assurance that pending the final outcome of the proceedings she has instituted in the Supreme Court you will not exercise any of the powers in terms of the Suppression of Communism Act which you may have as against her arising out of the fact that her name has been included in the list above referred to.

Kindly let us hear from you at your earliest convenience.'

By letter dated 16th November, 1954, first respondent replied that he was

B 'not prepared to give the assurance sought in the ultimate paragraph of your letter under reply'.

By petition sworn to on 24th November, 1954, applicant thereupon moved this Court for the issue of a rule nisi, operating as an interim interdict, restraining first respondent from issuing, pending the C determination of the action commenced by applicant's summons of 30th October, 1954, any notice against her pursuant to the provisions of sec. 5 of Act 44 of 1950 as amended, as also for alternative relief and costs. A copy of this petition was served upon the Deputy State Attorney at Cape Town, and when the matter - which was heard by HERBSTEIN, J. D - first came before the Court respondents were represented by counsel who - no affidavits having yet been filed on behalf of respondents - on legal grounds opposed the granting of a rule nisi. In the course of the argument applicant's counsel applied for leave to file supplementary affidavits. That application was granted by HERBSTEIN, J., subject to reservation of the right to respondents to ask that the E matter should be set down for further argument. Applicant then filed a supplementary affidavit jurat 27th November, 1954, which, together with its annexures and the affidavit of one Morley-Turner, extends over some 17 pages. This supplementary affidavit was described by HERBSTEIN, J., in his judgment as containing information which, had applicant been at F all reasonable, she would have placed before second respondent as long ago as April, 1953. I share the learned Judge's view in this regard, as also his further observation that 'if applicant's name was wrongly included in the list she has herself to blame.'

After receiving an intimation that respondents did not desire to place G any further argument before the Court, HERBSTEIN, J., on 6th December, 1954, granted a rule nisi, operating as a temporary interdict, in the terms prayed for by applicant. On 10th January, 1955, opposing affidavits by Inspector Rossouw (of the special branch of the South African Police) and by one D. W. G. Roux (a former member of the South African Police) were filed in which the discharge, with costs, of the rule nisi granted on 6th December, 1954, was prayed. In para. 18 of her H petition applicant, who is a member of the City Council of Cape Town, had averred her apprehension that first respondent might at any moment by notice issued under sec. 5 of the Act require her to resign as a member of that Council and to refrain from attending any gatherings - all of which she claimed would cause her irreparable damage and constituted a matter of 'such extreme urgency as not to admit of

1955 (2) SA p685

Ogilvie Thompson J

delay'. In reply to that paragraph, Inspector Rossouw, as well as denying the allegation of urgency and irreparable damage, deposed in para. 14 of his affidavit as follows:

'In reply to para. 18, I would respectfully state that while as now advised, it is not intended that applicant should at the present time be required by notice to resign...