Government of the Republic of Bophuthatswana and Others v Segale

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 434 (BA)

Government of the Republic of Bophuthatswana and Others v Segale
1990 (1) SA 434 (BA)

1990 (1) SA p434

Citation	1990 (1) SA 434 (BA)
Court	Bophuthatswana Appellate Division
Judge	Theal Stewart JP, Kotzé JA and Galgut AJA
Heard	September 26, 1988
Judgment	December 1, 1988

Flynote : Sleutelwoorde B

Internal security — Internal Security Act 32 of 1979 (B) — Section 31 prohibiting gatherings and meetings of more than 20 persons which have a C political character unless prior application made and permission granted by Minister of Law and Order — Validity of — Section 31 not in conflict with Constitution of Bophuthatswana as contained in Republic of Bophuthatswana Constitution Act 18 of 1977 (B) — Relevant sections of Constitution (particularly ss 15 and 16) authorising the restriction of D rights of freedom of expression and of assembly where required in interests of public safety — Ban on meetings in terms of s 31 cannot be said to be permanent and therefore ultra vires the Constitution as it is for Parliament to decide when the present provisions of s 31 should be relaxed — Court not in position to decide that it will remain in its present form permanently — Section 31 not ultra vires the Constitution. E

Headnote : Kopnota

Section 31 of the Internal Security Act 32 of 1979 (B), which prohibits gatherings and meetings of more than 20 persons which have a political character unless prior application is made and permission is granted by the Minister of Law and Order for the holding of such meetings, is not in conflict with, or ultra vires the Republic of Bophuthatswana F Constitution Act 18 of 1977 (B), in that in the relevant sections of the latter (specifically ss 15 and 16) the restriction of the rights of freedom of expression and of assembly are authorised by the Constitution where this is necessary in the interests of public safety. The duty has been imposed on the Minister of Law and Order to take the decision as to whether it is necessary to restrict a gathering on these grounds. When making his decision he will be acting in an administrative capacity and as such will be obliged to act within the confines of his mandate. If he fails to do so, his conduct, not s 31, will be ultra vires the G Constitution. Furthermore, the reasoning of the Court a quo that s 31 was ultra vires the Constitution as it contained a permanent ban on meetings of this kind, is not sound: it is for Parliament to decide when the present provisions of s 31 should be relaxed and the Court is not in a position to decide that it will remain in its present form permanently.

The decision in Segale v Government of Bophuthatswana and Others 1987 (3) SA 237 (B) reversed. H

Case Information

Appeal from a decision in the Bophuthatswana General Division (Waddington J and Khumalo J). The facts appear from the judgment of Galgut AJA.

J D van der Vyver (with him H Lever) for the appellants: 1. The rules I of interpretation where a Bill of Rights applies: It has often been said that the rules of statutory interpretation that apply in a system of law founded on a Bill of Rights are unique. See Minister of Home Affairs and Another v Fisher [1980] AC 319 (PC) at 329 ([1979] 3 All ER 21 of 26), where the Privy Council expressed its preference for treating a constitutional Bill of Rights as 'sui generis, calling for principles of J interpretation of its own,

1990 (1) SA p435

A suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law'. See also S v Marwane 1982 (3) SA 717 (A) at 748 - 9; Smith v Attorney-General, Bophuthatswana 1984 (1) SA 196 (B) at 199ff; R v Southam Inc [1983] 33 RFL (2d) 279 at 296 - 7. The 'unique approach' to the rules of interpretation in a Bill of Rights regime amounts to no B more than the following general propositions: (a) Whereas in a Westminster-based legal system the will of Parliament reigns supreme, a Bill of Rights renders the Constitution 'the supreme law' of the land. See s 7(1) of the Republic of Bophuthatswana Constitution Act 18 of 1977. (b) In interpreting the Constitution, '(r)espect must be paid to the language which has been used and to the traditions and usages which C have given meaning to that language' (Minister of Home Affairs v Fisher (supra); S v Marwane (supra at 749)). (c) In determining the meaning of any of the Bill of Rights provisions, 'some help may be derived from considering the legislative approaches taken in similar fields by other acknowledged free and democratic societies' (R v Southam Inc (supra at D 296)), but the Court should remain mindful of the fact that 'the Bill of Rights is a declaration of values and a statement of the (Bophuthatswana) nation's concept of the society it hopes to achieve' (Smith v Attorney-General, Bophuthatswana (supra at 199)). (d) At this stage of the country's development, the Court should particularly guard against extending, through individual activism, the meaning and scope of E the Bill of Rights provisions, and, on the contrary, 'it would be wiser to limit itself to interpretation, which nevertheless is imaginative and designed to keep open the horizon of individual liberty' (Smith v Attorney-General, Bophuthatswana (supra at 200)). (e) When considering the constitutionality of legislation, 'the Court has a particular duty F as guardian of liberty, but it has to exercise its power of controlling legislation with a scalpel and not with a sledge-hammer' (Smith v Attorney-General, Bophuthatswana (supra at 200)). (f) The Court should at all times and as far as the words of an Act would permit, reconcile the provisions of that Act with the dictates of the fundamental law. (See Smith's case supra at 202.) (g) The basic principle of the law that G statutes must be interpreted in favorem libertatis must therefore be applied meticulously; and the norms of liberty which should guide the Court in this regard are those enunciated in the Declaration of Fundamental Rights in the Constitution - but also subject to the limitations of these rights and freedoms as provided for in that Declaration.

2. Relationship between the Declaration of Fundamental Rights and H other legislation: In terms of s 8(1) of the Republic of Bophuthatswana Constitution Act 18 of 1977 the fundamental rights enunciated in the Declaration of Fundamental Rights 'are binding on the Legislature, the Executive and the Judiciary', and in terms of s 8(3) the Supreme Court has the power of substantive review in respect of parliamentary legislation. The relationship between the Declaration of Fundamental I Rights and other legislation may be likened to that of an empowering Act and subordinate legislation. Whereas in the Republic of South Africa parliamentary legislation can be tested with a view to the procedural provisions contained in the Constitution only (see J D van der Vyver J 'Judicial Review under the New Constitution' (1986) 103 SALJ 236), the

1990 (1) SA p436

A legality of parliamentary legislation - like subordinate legislation in South Africa - can also be questioned with a view to its contents. All legislation of the Bophuthatswana Parliament must be reasonable, subject to the following important provisos: (a) the meaning of 'reasonableness' must be derived from the provisions of the Declaration of Fundamental Rights; and (b) the Declaration of Fundamental Rights may stipulate the B circumstances in which, the conditions under which and the extent to which legislation may deviate from the general norms of reasonableness as enunciated in its main provisions. See R v Southam Inc (supra at 296 - 7).

3. The law and its implementation: A clear distinction should be made between the law as it stands and the implementation of the law in a C given situation. In the United States, if a law as it stands does not offend against the provisions of the Bill of Rights but it is implemented in an unconstitutional manner, such practical application of the law would render that law unconstitutional (ie the tree is known by its fruits). See Yick Wo v Hopkins 118 US 356 at 373 - 4: 'Though the law D itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.' See also Williams v Mississippi 170 US 213 at 225. As far as subordinate legislation is concerned, this is not E the case in South African law. See George and Others v Pretoria Municipality 1916 TPD 501. In that case the provision of trams for White passengers only by a local authority was contested in view of the fact that trams were not provided for non-White passengers at all. The Court held that the by-law in question was not invalid, because it did make F provision for separate facilities for non-White passengers travelling on the same trams as White passengers. The problem was said to be not inherent in the by-law as such, but resulted from an erroneous application of the by-law in question. In respect of legislation tested against the demands of the Dec- laration of Fundamental Rights the South African rather than the American approach should be followed. This G implies that s 31 of the Internal Security Act 32 of 1979 should be taken on its face value and the Court should simply enquire whether or not that Act, as it stands, is compatible with the provisions of the Declaration of Fundamental Rights.

4. The Constitutional Yardstick: Section 15 of the Republic of H Bophuthatswana Constitution Act of 1977 guarantees freedom of expression subject to the following conditions: (a) Its exercise may be subjected to...