Government of the Republic of Bophuthatswana and Others v Segale

• Jurisdiction: South Africa
• Judge: Theal Stewart JP, Kotzé JA and Galgut AJA
• Judgment Date: 01 December 1988
• Citation: 1990 (1) SA 434 (BA)
• Hearing Date: 26 September 1988
• Court: Bophuthatswana Appellate Division

Galgut AJA:

The National Seoposengwe Party (the Party) is a registered political party in the Republic of Bophuthatswana (the Republic). The Party wished to hold a series of political meetings at which, so it was expected, more than 20 persons would be present. Section 31 of the E Internal Security Act 32 of 1979 (B) (the Act) lays down that such a meeting is unlawful unless the holding thereof has been authorised by the Minister of Law and Order of the Republic (the Minister). More as to this aspect later. The leader of the Party, in his capacity as such, and having complied with the required preliminary procedures, on 24 November 1986 addressed a letter to the Minister asking for his authority to hold F the said meetings. The reply dated 29 December 1986 simply stated:

'The Honourable Minister has refused your application.'

An application to the Supreme Court (General Division) was then launched by the applicant who is a member and the chairman of the Party. Several forms of relief were sought.

G These included a prayer for an order declaring that s 31

'is null and void and constitutes an infringement of the declaration of fundamental rights contained in the Republic of Bophuthatswana Constitution Act 18 of 1977 (B) (the Constitution) and in particular ss 15 and 16 thereof'.

H The matter came before two Judges of the General Division. They made an order declaring that s 31 'is null and void and of no force'. The appeal is against that decision. That judgment is reported as Segale v Government of Bophuthatswana and Others 1987 (3) SA 237 (B).

As already stated several forms of relief were sought in the Court a quo. The appeal is, however, confined to the issue of whether or not s I 31 is null and void in that it is ultra vires the Bophuthatswana Parliament to enact.

For the appellants it was urged that the Court a quo had erred in that it had not had sufficient regard to the fact that the Act was passed to provide for the safety of the State, to maintain public order and to safeguard sound social and economic life; that s 31 was one of the sections enacted to achieve that object and as such was not ultra vires J the Constitution.

Galgut AJA

A Counsel for the respondent supported the judgment a quo. He relied on the reasons therein and submitted that s 31 was in conflict with the Constitution. It was also stressed that s 31 aimed in the main at political parties; that the Minister of Law and Order was a member of the political party in power; that to give such a Minister the power to restrict a political meeting of an opposing party was for all practical B purposes an interference with the right of freedom of assembly and was a factor which had to be taken into account in deciding whether s 31 was ultra vires the Constitution.

In order to resolve these issues it is necessary, as was done in the Court a quo, to examine not only s 31 and certain sections in the C Constitution, but also the relevant principles of interpretation of statutes and in particular a statute, such as the Constitution, which has been described as containing a 'Declaration of Rights and Freedoms' or a 'Bill of Rights'.

The importance of a judgment relating to the Constitution is self-evident. I will, therefore, set out the relevant statutory provisions and, in some detail, passages from previous judgments dealing D with the interpretation of a Constitution.

The relevant provisions of the Constitution

The 'Preamble' thereto reads:

'Whereas we the representatives of the people... have resolved... E to frame a constitution...;

Wherein the State should exercise its powers and authority through the chosen representatives of the people;

Wherein should be secured to all people their fundamental rights;'

Chapter 2 of the Constitution is headed 'Declaration of Fundamental F Rights'. This is commonly referred to as the Bill of Rights. Sections 8 - 18 are in chap 2. Sections 7 and 8 read:

'7(1) This Constitution shall be the supreme law of Bophuthatswana.

(2) Any law, passed before or after the commencement of this Constitution, which is inconsistent with the provisions of this Constitution, shall, to the extent in which such an inconsistency exists, be void.

G 8(1) The following fundamental rights are binding on the Legislature, the Executive and the Judiciary, and are directly enforceable by law.

(2) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Declaration.

(3) The Supreme Court shall have the power to make all such orders as may be necessary and appropriate to secure to the applicant the H enjoyment of any of the rights conferred under the provisions of this Declaration.'

Section 12(3)(g) reads:

'Everyone has the right to liberty and security of person and no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

I ...

(g)

lawful detention in the interests of national security or public safety.'

Sections 15, 16 and 18 read:

'15 Freedom of expression

(1) Everyone has the right to freedom of expression; this right shall include freedom to hold opinions and to receive and impart information J and ideas without

Galgut AJA

A interference by public authorities and regardless of frontier but this provision shall be subject to the requirements for the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of the right of expression, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, B territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

16 Freedom of assembly

(1) Everyone has the right to freedom of peaceful assembly and to C freedom of association with others.

(2) No restriction shall be placed on the exercise of such rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others and the provisions of this section shall not prevent the D imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of Bophuthatswana.

...

18 Restrictions of fundamental rights

E (1) The rights and freedom referred to in ss 9 to 17 may be restricted only by a law of Parliament and such a law shall have a general application.

(2) Except for the circumstances provided for in this Declaration, a fundamental right and freedom shall not be totally abolished or in its essence be encroached upon.'

Section 38 reads: F

38(1) The legislative power of Bophuthatswana shall vest in Parliament consisting of the President and the National Assembly.

(2) Parliament shall, subject to the provisions of s 7, have full power to make laws for the peace, order and good government of Bophuthatswana.

(3)....' G

The italicising in ss 15, 16, 18 and 38 is mine. I will hereafter use 'public safety' to cover all the words italicised.

A summary of all the above is to the effect that Parliament is the legislating authority (the preamble and s 38); that the Constitution, which protects the fundamental rights, is binding on Parliament and that the Supreme Court may enforce those rights (ss 7 and 8); that those H rights are not absolute in that if, inter alia, public safety so requires they can be subjected to certain formalities and restrictions (ss 15 and 16); that such a restraint or restriction may only be imposed by a law of Parliament and must be of general application (s 18).

The relevant provisions of s 31 and the Internal Security Act 32 of 1979

I The validity of s 31 has to be considered against the background of the Constitution. The preamble to the Act states that it is

'(t)o provide for the safety of the State, the maintenance of public order, the prevention of terrorism, the safeguarding of sound social and J economic life and the regulation of related matters'.

Galgut AJA

A I pause to stress that in several sections of the Act the Minister is given powers affecting public safety. See, for example, ss 2, 6, 7 and 9. These sections provide that the Minister may declare certain organisations unlawful; may prohibit certain publications; may investigate suspected organisations. These powers are to be exercised by B the Minister in certain circumstances. These circumstances are such as would fall within the purposes set out in the preamble.

The relevant portions of ss (1) of 31 read:

'(1)(a) Any meeting at which more than 20 persons are at any one time present, shall be unlawful unless -

(i)

the holding thereof has been authorised in writing by the C Minister; and

(ii)

it is held on the date and at the time and place in accordance with such conditions as the Minister may determine, which he is hereby authorised to do.

(aA)... (hereinafter follow provisions relating to the formalities required when an application is submitted to the Minister).

(b)(i) D The Minister shall grant an application under para (a A) unless he is on reasonable grounds satisfied that it is necessary in a democratic society in the interest of national or public safety, the prevention of crime or unrest, or for the protection of health or morals or the rights of others that the meeting in question should not be held, in which event he shall...