Haak and Others v Minister of External Affairs

• Jurisdiction: South Africa
• Citation: 1942 AD 318

Haak and Others Appellants v Minister of External Affairs Respondent
1942 AD 318

1942 AD p318

Citation	1942 AD 318
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
Heard	May 15, 1942
Judgment	May 22, 1942

Flynote : Sleutelwoorde

War — Validity of War Measure No. 1 of 1942 — Act 13 of 1940, section 1 bis — Effect of sub-section 3 of section — Power of Minister under War Measure.

Headnote : Kopnota

War Measure No. 1 of 1942, under which the Minister of External Affairs, upon certain information being furnished by any representative of any State which is associated with the Union in any war, may order any national of the said State to be arrested and brought to a place mentioned in the order, is intra vires Act 13 of 1940 section 1 bis as amended notwithstanding the provisions of sub-section (3) of section 1 bis.

In acting under War Measure No. 1 of 1942 the Minister is entitled to act upon information given to him by the representative of any State referred to and there is no obligation on him to enquire into the correctness of that information.

The decision of the Cape Provincial Division in Haak and Others v Minister of External Affairs, confirmed.

Case Information

Appeal from a decision of the Cape Provincial Division (JONES, J., and DE VILLIERS, J.).

The facts appear from the judgment of DE WET, C.J.

H. A. Fagan, K.C. (with him H de Villiers, K.C., and H. Snitcher), for the appellants: When the Crown is empowered to

1942 AD p319

do by statute what it might previously have done under the prerogative, it can no longer rely on the prerogative. See Halsbury's Laws of England (Hailsham ed., vol. 6, p. 445, para. 513) and Attorney-General v De Keyser's Royal Hotel Ltd. (1920, A.C. 508 at pp. 526, 538, 539, 552).

The Netherlands Koninklyke Besluit No. 9 (even if valid according to Netherlands law) is unenforceable in the Union. It is clearly penal - in its nature. See Halsbury's Laws of England (Hailsham ed., Vol. 14, p. 531, para. 1001 and p. 532, para. 1005); Huntingdon v Attril (1893, A.C. 150 at pp. 155, 156); Municipal Council of Sydney v Bull (1909, 1 K.B. 7), and Banco de Vizcaya v Don Alfonso de Bordon y Austria (1935, 1 K.B. 140).

There is therefore no legal liability on Hollanders in the Union to render military service in the Netherlands army. Failure to obey the decree does not expose them to any sanction. Enforceability and sanction are essential ingredients of legal liability. See Wessels on Contract, vol. I, pp. 3-6, and Gardiner and Lansdown on S.A. Criminal Law (4th ed., vol. I, pp. 1 and 2).

The use of War Measure No. 1 of 1942 to impose liability to render compulsory military service is not ultra vires sec. 1bis of Act 13 of 1940 as substituted by Act 32 of 1940, apart from sub-sec. (3) (a), and it must be restrictively interpreted especially in view of the fact that the Governor-General's powers are curtailed by sub-sec. (3) (a), which must itself be liberally interpreted. See Craies on Statute Law (4th ed., pp. 110, 111) and Maxwell on Interpretation of Statutes (8th ed., p. 250).

The exception to the prohibition cannot enlarge the powers of the Governor-General. It is incorrect to say that, because the exception to the prohibition refers to Union nationals only, the prohibition refers to Union nationals only. See West Derby Union v Metropolitan Life Assurance Society and Others (1897, A.C. 647 at pp. 652-3, 655, 657); Duncan v Dixon (44 Ch. 211 at pp. 215-6); Rex v Dibdin (1910, P. 57 at p. 125).

The words "whereby is imposed any liability to render compulsory military service" should be construed in favorem libertatis.

The War Measure presumes that the Minister should only act if the information given him is correct. Any other construction would be unreasonable. See Maxwell on Interpretation of Statutes (p. 169) and Kruse v Johnson (1898, 2 Q.B. 91).

1942 AD p320

The order can only be lawful if the decree of the Dutch Government, on which it is founded, has legal validity, and that is a question of fact. See Amand's case (1941, K.B. May 23rd).

The contention that the Dutch decree is valid is based entirely on the principle of emergency; but the Dutch Emergency Law is regulated by the Constitution and the statute law. Cf. Dicey, Conflict of Laws (9th ed., pp. 291-4).

Broad principles of jurisprudence are presumed to be the same in foreign law as in ours. - See Schnaider v Jaffe (1916 CPD 696 at p. 699) and cf. Halsbury's Laws of England (Hailsham ed., vol. 6, p. 364, para. 421).

We submit that a state of emergency gives no legislative power and does not even make acts of the military lawful, but simply recognises a situation of de facto and necessary military control, which is temporarily beyond the Court's jurisdiction. That is why an Indemnity Act is necessary. See In re Marais (1902, A.C. 109, and 71 L.J.P.C. 42 at p. 46); Attorney-General v van Reenen (1904, A.C. 114, and 73 L.J.P.C. 13 at p. 16); Krohn v Minister of Defence and Others (1915 AD 191 at pp. 197, 202, 212); du Toit v Ministers of Justice and Defence (1940 TPD 242 at p. 250); Halsbury's Laws of England (Hailsham ed., vol. 6, pp. 499-500, para. 619).

Act 4 of 1902 (Cape) and Acts 1 of 1914, 11 of 1915, 13 of 1940, sec. 3, are examples of Acts of Indemnity.

F. Reid, K.C. (with him W. F. R. Schreiner), for the respondent: For construction of War Measure No. 1 of 1942 as intra vires see Bysters and Another v Minister of Exterior and Others (1942 TPD January 29th and April 8th) and Assendelft v Minister of Exterior (1942 TPD February 26th).

Sec. 1bis of Act 13 of 1940 (as added by Act 32 of 1940) is a war emergency provision deliberately giving extremely wide powers. See Rex v Scheepers (1942 TPD January 9th); Rex v McGregor (1941 AD 493); cases cited in previous paragraph hereof and Liversidge v Anderson and Another (1941, 3 A.E.R. 338 at pp. 344, 345, 361, 366, 370, 372, 374, 385). Sub-sec. (3) entrenches two aspects of the Union domestic law. Sub-sec. (3) (a) has no bearing on the situation envisaged by War Measure No. I of 1942. See Assendelft's case (supra). Sub-sec. (3) (a) merely entrenches the position of Union nationals under...