Kelleher v Minister of Defence

• Jurisdiction: South Africa
• Judge: Cloete JP, Eksteen J and Mullins AJ
• Judgment Date: 27 August 1982
• Citation: 1983 (1) SA 71 (E)
• Hearing Date: 23 August 1982
• Court: Eastern Cape Division

Cloete JP Et Eksteen J Et Mullins AJ:

This Is an Appeal Against an Order Made by Kannemeyer J on Notice of Motion by the Appellant When He Granted Certain Relief to the Appellant But Refused Other Relief Claimed by Him and Ordered the Appellant to Pay the Costs of the Application.

D The notice of motion which was filed in the South Eastern Cape Local Division on 26 October 1981 applied for an order in the following terms:

"(a)

an order permitting this application to be brought as a matter of urgency;

(b)

an order reviewing, correcting and/or setting aside E the decision of the officer of the Department of Defence calling up applicant for military training for a period of 90 days from 13 November 1981 to 2 February 1982;

(c)

an order declaring that the said call-up is invalid and of no force and effect;

(d)

an order declaring that the declaration purportedly F made by applicant at the time of his application for registration was not a voluntary declaration and/or was not a declaration within the meaning of Proc R363 of 1967;

(e)

an order declaring that Proc R363 of 1967 is ultra vires and invalid;

(f)

G an order declaring that the Department of Defence is not entitled to call applicant up for military training for a period in excess of 30 days;

(g)

an order authorising, empowering and directing respondent to substitute the written declaration in the correspondence made on behalf of applicant that he H does not intend to become a South African citizen in place of the declaration purportedly made by applicant at the time of his application for registration, alternatively substituting in its place the declaration in the founding affidavit to this effect;

(h)

an order restraining and interdicting respondent or any officials of the Department of Defence from enforcing the decision to call up applicant for 90 days military service and/or from enforcing the call-up papers sent to him;

Cloete JP et Al

(i)

alternative relief;

(j)

an order directing respondent to pay the costs of this application."

The application was brought as a matter of urgency because the applicant, now the appellant, had been notified to attend a A continuous training camp of his unit for a period of 90 days as from 13 November 1981 in terms of the Defence Act 44 of 1957.

Before the hearing of the case the urgency fell away because apparently the respondent conceded that the call-up for a period of 90 days was invalid. It is not clear from the papers B when this concession was made because the answering affidavit was filed on 19 January 1982.

The concession by the respondent did not dispose of all the issues raised in the notice of motion.

The matter was in due course heard by the learned Judge a quo who made an order in terms of prayers (b), (c), (f) and (h) of the notice of motion which all relate to the call-up for 90 C days which the respondent conceded was invalid. The appellant was ordered to pay the respondent's costs.

In view of the conclusions which we have reached in this case it is unnecessary to deal with all the contentions advanced before us on behalf of the appellant, and more particularly the D submissions that Proc R363 of 1967 is ultra vires and invalid.

The crisp issue for determination is whether a declaration purportedly made by the appellant at the time of his application for registration in compliance with the provisions of the Defence Act 44 of 1957 was a voluntary declaration or whether it was made under duress and therefore not binding upon him.

E The learned Judge a quo held that in the circumstances the appellant had failed to show that the declaration that he intended to become a South African citizen, and which rendered him liable for compulsory military training and service, was made under duress.

It is necessary to set out briefly the relevant facts as they F are recorded in the appellant's founding affidavits. The appellant was born on 9 September 1957 and he emigrated to the Republic of South Africa with his parents in March 1966. He and his parents are not South African citizens and the appellant says he is a British citizen by birth and holds a British passport. His parents hold either British or Irish passports.

G When he was approximately 15 years old he brought from school a...