Laubscher v Native Commissioner, Piet Retief

• Jurisdiction: South Africa
• Citation: 1958 (1) SA 546 (A)

Laubscher v Native Commissioner, Piet Retief
1958 (1) SA 546 (A)

1958 (1) SA p546

Citation	1958 (1) SA 546 (A)
Court	Appellate Division
Judge	Fagan CJ, Schreiner JA, Steyn JA, Reynolds AJA and Hall AJA
Heard	November 28, 1957
Judgment	December 9, 1957

Flynote : Sleutelwoorde A

Native — Land — Native Trust Land — Act 18 of 1936, sec 24 (1) — Permission to go on such lands — Native Commissioner not bound to hold B enquiry — Act of official purely administrative — No obligation upon official to acquaint applicant for permit of information upon which decision based.

Headnote : Kopnota

Per SCHREINER, J.A. (FAGAN, C.J., and STEYN, J.A., concurring): Act 18 of 1936 does not make provision for any enquiry by a native commissioner before issuing a permit in terms of section 24 (1) of the Act, and he is not obliged to hold any. If he has anything against the applicant, or if C he has nothing, he is equally empowered, having duly considered what was put before him, to refuse the permit in his discretion.

Per HALL, A.J.A. (REYNOLDS, A.J.A., concurring): The granting of permission in terms of section 24 (1) of Act 18 of 1936 by an official in whom the discretion of issuing permits is vested, is a purely administrative act, in the performance of which he is free to exercise an absolute discretion.

Where an official is required by statute to exercise a purely administrative discretion, he is under no obligation whatsoever to D acquaint an applicant for permission with any information upon which that decision may have been based.

The decision in the Transvaal Provincial Division in Laubscher v Reichardt and Another confirmed. E

Case Information

Appeal from a decision in the Transvaal Provincial Division (RUMPFF, J., and HIEMSTRA, J.). The facts appear from the judgment of HALL, A.J.A.

L. Lazar, for the appellant: On a proper interpretation of sec. 24 (1) of Act 18 of 1936, the powers conferred upon respondent are administrative with quasi-judicial functions, and not 'purely administrative'. In determining whether an application for written F permission be granted or refused, he is obliged to exercise such powers 'according to the rules of reason and justice'. He must afford appellant an opportunity to defend himself and to controvert any information upon which he proposes to act; see Pretoria North Town Council v A.1. Electric Ice-Cream Factory (Pty.), Ltd., 1953 (3) SA at pp. 11 - 12. G The matter must be approached on the basis that respondent's powers and functions are statutory and must be ascertained from the express and implied provisions of the Act; see Pretoria North Town Council case, ibid.; Builders Ltd v Union Government, 1928 AD at pp. 55, 59 - 61, 65. Appellant is entitled to a fair opportunity to submit any statements H in his favour and to controvert any prejudicial allegations made against him when respondent has to make a decision upon an application for permission under sec. 24 (1) and the Act does not expressly or by necessary implication exclude such right; see R v Ngwevela, 1954 (1) SA 123; Minister of the Interior v Bechler & Others, 1948 (3) SA at pp. 451 - 2. Respondent, as 'a person acting under the authority of the trustee', in terms of sec. 24 (1) is a public official charged with a duty of administering a public body, the SA Native Trust, in accordance

1958 (1) SA p547

with the provisions of the Act. His decision is that of the trustee. Accordingly, when an application is made to him under sec. 24 (1) for written permission to be upon land which is vested in the Trust, he has to decide whether to grant such application, and, if granted, to decide upon what conditions, depending upon the circumstances. In making his decision, respondent is limited by certain provisions in the Act, so A that his discretion is not absolute. His decision must be in conformity with sec. 4 (2). Also, since the Act specifically provides in terms of the proviso to sec. 24 (1) for the protection of certain persons in the vested rights specified, respondent cannot prohibit such persons under sec. 24 (1); cf. G.N. 1467 of Sep. 13, 1940, as amended by Proc. 383 of March 5, 1954, in which regulations B the classes of persons exempted by the Minister under sec. 24 (3) are set out. In view of the proviso to sec. 24 (1), the provisions of sec. 24 (3) and the statutory regulations, the Act in its terms contemplates that attorneys other than native attorneys, may practise within the Trust area; cf. sec. 24 (1). Apart from the personal character of any particular attorney who applies C for the necessary permission under sec. 24 (1), in the present circumstances respondent is precluded from deciding that it is not for the benefit of the moral or material welfare of the natives that an attorney be within the Trust area for any professional purpose. The fundamental right of the citizen to consult with an attorney whenever D and wherever he may so desire, is not touched by sec. 24 (1); see R v Slabbert and Botha, 1956 (4) SA 18; sec. 218 of Act 31 of 1917; sec. 158 of Act 56 of 1955; Li Kui Yu v Superintendent of Labourers, 1906 T.S. 181; see also regs. in Proc. 13 of 1945. The function of respondent, therefore, in terms of sec. 24 (1) is to decide whether an applicant for written permission is a fit and proper person, other than E in his professional or other exempted capacity, to be within the Trust area. Respondent must make a decision even though he has difficulty in ascertaining precisely what personal factors determine his grant or refusal of permission. The sole criterion is applicant's fitness in relation to sec. 4 (2). Furthermore, certain factors relating to applicant may be relevant or not, depending upon the circumstances, F including his purpose in entering the Trust area; see Molife v Potchefstroom Municipality, 1930 T.P.D. at p. 203; Johannesburg City Council v Makaya, 1948 (3) SA at p. 478; R v Mertz, 1930 E.D.L. 311; Bowker v Registrar of Deeds, 1939 AD 401; R v Lionda, 1944 AD 348. Respondent may, therefore, have to decide matters of law and G of fact; see Board of Education v Rice, 1911 A.C. at p. 182, and cf. Builders, Ltd. case, supra at pp. 55, 59 - 61, 65. If respondent has to enquire into applicant's character, and to decide whether any good grounds exist for refusing the application for a right or privilege, applicant is entitled to a fair opportunity to submit any statements in his favour and to controvert any prejudicial allegations against H himself; see Beier's case, supra at pp. 451 - 2; Chief Pass Officer v Mashamba, 1917 T.P.D. at p. 408; Kadalie v Hemsworth, 1928 T.P.D. at p. 510; Hack v Venterspost Municipality, 1950 (1) SA at p. 190; A1 Ice-Cream case, supra at pp. 10, 11 - 12; Jockey Club of S.A v Feldman, 1942 AD at pp. 348 - 9; Tayob v Ermelo Local Transportation Board, 1951 (4) SA at p. 449. See also Schoonwinkel

1958 (1) SA p548

v. Fouche, N.O., 1954 (4) SA 92; Mofokeng v Minister of Native Affairs, 1949 (3) SA at pp. 790 - 3; Sullivan v Wheat Industry Control Board, 1946 T.P.D. at pp. 194, 203 - 4; Silbert v City of Cape Town, 1952 (2) SA 113; In re Mahomed, 1950 (3) SA 698. Accordingly, A it would not be conclusive if the discretion vested in respondent were absolute. Nor is it correct to say that sec. 24 (1) does not contain any of the limitations on respondent's discretion. Furthermore, there is no difference in principle if applicant seeks a privilege, as against a right. It is significant that the Act does not contain provisions whereby an appeal lies to some official or tribunal. Also, that no B opportunity is given to make representations subsequent to the refusal of an application. These omissions indicate that the Legislature did not intend to exclude the operation of the maxim audi alterem partem in the present case; see Ngwevela's case, supra; Sacks v Minister of Justice, 1934 AD 13; Loxton v Kenhardt Liquor Licensing Board, 1942 C A.D. 275. There are no reasons of public policy nor need for haste in enforcing a decision of respondent which lead to an inference that the maxim is excluded from sec. 24 (1); see Ngwevela's case, supra.

J. Barnard, for the respondent: By die uitoefening van sy magte onder art. 24 (1) tree respondent op in 'n suiwer administratiewe hoedanigheid en is sy diskressie absoluut. Vir die vasstelling van die vraag of 'n D suiwer administratiewe of dan wel 'n quasi-judisiële diskressie volgens statuut verleen is, is die bedoeling van die Wetgewer van primêre belang; sien Pretoria...