Ismail and Others v Additional Magistrate, Wynberg and Another

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Rumpff JA, Holmes JA and Williamson JA
• Judgment Date: 27 September 1962
• Citation: 1963 (1) SA 1 (A)
• Hearing Date: 21 September 1962
• Court: Appellate Division

Steyn, C.J.:

This matter came before the Court a quo under sec. 24 (1) (c)of the Supreme Court Act, 59 of 1959, by way of review of proceedings A before a magistrate, on the ground of 'gross irregularity in the proceedings'. It arose in this way: By Proc. 190, issued under the Group Areas Act, 1950, and published in the Government Gazette of 5th July, 1957, an area was declared to be an area for occupation by members of the Coloured group, on the expiration of a period of three years as from that date. On 26th January, 1962, after a remand, the appellants, who B are members of the Indian group, appeared before the magistrate on a charge of having contravened sec. 23 (1) read with sec. 20(6) (a) of the Group Areas Act, 77 of 1957, by unlawfully occupying premises in that area without the authority of a permit, during a period after the expiration of the three years. They were represented by counsel, who C applied for a stay of the proceedings pending the decision in an action instituted against the Minister of the Interior by one Abdul Harnaker on 23rd June, 1960, by way of a test case, for an order declaring the Proclamation null and void. The appellants were not parties to that D action, but have, together with others in the same position, associated themselves with it. The order sought in the action was, of course, beyond the jurisdiction of the magistrate's court. In dealing with the charge, the magistrate was bound to assume the validity of the Proclamation. He nevertheless refused to postpone the proceedings and the appellants thereupon applied in the Court below for an order as prayed before the magistrate or directing him to grant such an order. E The Court dismissed the application and granted leave to appeal.

The contention on behalf of the appellants is that the magistrate, in refusing a postponement of the proceedings pending the decision of the test case, exercised his discretion in a grossly irregular manner. This F contention is based on two grounds. The first is that the magistrate, in coming to a decision, paid no heed at all to the consideration that the appellants, who had no other defence than the alleged invalidity of the Proclamation, would suffer prejudice by their conviction if the action should succeed and that, in effect, therefore, the magistrate failed to exercise his discretion. The second is that a refusal of a stay may well result in a miscarriage of justice, in that a conviction, with ...