Hooper v Superintendent, Johannesburg Gaol and Another (2)

• Jurisdiction: South Africa
• Citation: 1958 (2) SA 157 (W)

Hooper v Superintendent, Johannesburg Gaol and Another (2)
1958 (2) SA 157 (W)

1958 (2) SA p157

Citation	1958 (2) SA 157 (W)
Court	Witwatersrand Local Division
Judge	Cillié J
Heard	May 14-15, 1957; June 21, 1957
Judgment	December 24, 1957

Flynote : Sleutelwoorde A

Immigration — Immigrant granted permission to settle permanently in South Africa — Warrant for her detention thereafter issued pending removal under sec. 22 (3) of Act 22 of 1913 — Rule nisi obtained restraining her removal — Immigrant granted no opportunity of answering allegations against her — Minister affording immigrant B opportunity before final hearing — Such offer not accepted — Effect — Maxims — Audi alteram partem — Whether applicable — Costs.

Headnote : Kopnota

Applicant, a citizen of the United States of America, had been granted permission under the Alien Act, 1937, to reside permanently in the Union of South Africa. In September, 1956, she entered the Union and settled C in Natal where she acquired immovable property. On 10th March, 1957, while on a visit to Johannesburg, she was arrested on a warrant granted under the hand of the Minister of the Interior stating that, whereas she had rendered herself liable to removal from the Union in terms of section 22 (3) of Act 22 of 1913, the warrant authorised her removal under proper escort and, pending removal, her detention in such custody as was prescribed by regulation under the Act. She was detained in gaol pending her removal from the Union. She applied for her release, which D was granted, and obtained a rule nisi calling upon the second respondent, the Union Government to show cause (1) why it should not be interdicted from deporting her on any warrant or order heretofore issued, and (2) why an order should not be granted declaring any warrant heretofore issued for her removal to be invalid, illegal, null and void and of no force and effect. The applicant contended that the order for her removal was illegal because at no time prior to her arrest was she E given any indication that the second respondent was considering the issue of a warrant and because at no time prior to the issue of the warrant was she given an opportunity of being heard in answer to any allegations which might have been made against her. The Minister of the Interior in an opposing affidavit deposed, inter alia, that although he was not required to do so, he was prepared to receive and consider any representations which the applicant wished to make before the final hearing. The applicant did not avail herself of the Minister's offer: she averred that she should have been given this opportunity before the warrant was issued.

F Held, even if the maxim audi alteram partem applied, that the Minister had afforded the applicant an opportunity of answering the allegations against her and therefore the issue of the warrant was valid.

Held, further, that the second respondent should pay all costs up to the time of the filing of the Minister's affidavit and that the applicant should pay all the costs thereafter.

Case Information

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

G. Lowen, Q.C. (with him C. Kentridge), for the applicant: With regard to the application to strike out, the Minister's statement of the grounds on which he acted is irrelevant. His bona fides are not attacked. The sole issue is whether he ought to have given applicant a hearing before issuing his order. It is improper to reply to irrelevant H allegations. See Kent v Beamish, 1912 W.L.D. 129. G

Sec. 22 (3) of the Immigration Act of 1913 as added by sec. 7 of Act 52 of 1956 is in pari materia with the provision of the Native Administration Act to which the maxim audi alteram partem was held to apply. See Saliwa v Minister of Native Affairs, 1956 (2) SA 310 (AD). The

1958 (2) SA p158

latter Act was amended by Act 42 of 1956 so as to exclude the maxim. It is significant that Act 52 of 1956 was not enacted in terms similar to those of Act 42 of 1956. See also Beier v Minister of Interior, 1948 (3) SA 409 (AD); R v Ngwevela, 1954 (1) SA 123 (AD). Taylor v. A Prime Minister of S.R. & Another, 1954 (3) SA 956 (SR), is a case on a Statute which clearly excluded the maxim.

This is not a case in which a hearing may be given afterwards because the Minister's warrant takes immediate effect.

W. S. McEwan, for the respondents: The rule of natural justice embodied B in the maxim audi alteram partem is satisfied if the Minister after issuing a warrant under sec. 22 (3) of Act 22 of 1913 as amended, gives the person affected an opportunity to make representations. It is not necessary for him to do so before issuing the warrant. See Sachs v Minister of the Interior, 1934 AD 11; de Verteuil v Knaggs, 1918 A.C. 557; Jeewa v Dönges, N.O., 1950 (3) SA 414 (AD); Urban v Minister C of the Interior, 1953 (3) SA 544 (C); Kader v Minister of Interior, 1954 (2) SA 516 (C); Taylor v Prime Minister, supra; Mhlengwa v Secretary for Native Affairs, 1952 (1) SA 312 (N).

The Minister has in fact in his answering affidavit disclosed the D information on which he acted (although it is not conceded that he is obliged to do so) and has offered to receive representations from the applicant. That is all he is required to do.

The maxim has never been applied in a case under the Immigrants Regulations Act, 1913. Where it is intended to allow a person to make representations the Act provides for an appeal (cf. sec. 2). In sub-sec. E 22 (5) the Minister is given power to suspend the execution of a warrant. He could do so if asked to receive representations, so that the applicant would not be prejudiced. The cardinal purpose of sub-sec. 22 (3) is to enable the Minister to take prompt and preventive action. (See Sachs' case, supra at p. 36; R v Ngwevela, supra at p. 131 (A - H).)

Lowen, Q.C., in reply. F

Cur adv vult.

Postea (December 24th).

Judgment

G Cillié, J.:

The applicant is a citizen of the United States of America who was given permission in terms of the provisions of the Aliens Act, 1937, to reside permanently in the Union of South Africa. In September, 1956, she entered the Union and settled in Natal where she acquired immovable property.

H On the morning of the 10th March, 1957, while she was on a visit to Johannesburg, she was arrested by two members of the South African Police Force. After a short...