Madikizela v State President, Republic of Transkei and Another

• Jurisdiction: South Africa
• Citation: 1986 (2) SA 180 (TkS)

Madikizela v State President, Republic of Transkei and Another
1986 (2) SA 180 (TkS)

1986 (2) SA p180

Citation	1986 (2) SA 180 (TkS)
Court	Transkei Supreme Court
Judge	Davies J
Heard	December 6, 1984; December 7, 1984; May 9, 1985
Judgment	June 21, 1985

Flynote : Sleutelwoorde

B Internal security — Banishment order in terms of s 41 (1) of Public Security Act 30 of 1977 (Tk) — Order requiring applicant to leave X area and to take up residence at his home C in Y area — Contention that order ultra vires as President required to deem it expedient in the public interest both that person should withdraw from an area and that he should proceed to another area whereas President had only deemed it expedient that applicant should leave X — Contention rejected as being technical and without real D substance, it being implicit that the President had considered both requirements at the same time — Neither was it ultra vires that applicant directed to take up residence at Y as this was merely a condition attached to the order — Not a misdirection that applicant in fact had no home at Y as this was not an assumption on which order was based but merely a condition attached thereto.

Transkei — Constitution Act 15 of 1976 — Official E language of country in terms of s 1 — Phrase "Sesotho, English and Afrikaans may also be used" meaning that the use of those languages permitted in like manner to use of Xhosa — Sufficient therefore if official document in one of those languages alone.

Transkei — Constitution Act 15 of 1976 — Section 17 (3) F requiring official documents to be countersigned by member of Executive Council — Document in question signed by Prime Minister — Not required that Prime Minister designate that he signed document in his capacity as a member of the Executive Council.

Headnote : Kopnota

The applicant had been ordered in terms of s 41 (1) of the G Public Security Act 30 of 1977 (Tk) "to withdraw from... (Umtata)... and proceed to Mbongweni administrative area in the district of Bizana and to no other place, and there to take up residence at your home which is situate in the said Mbongweni administrative area." The applicant thereupon sought a declaration that the order was null and void and of no force or effect but before argument for the applicant was completed a further order was issued directing the applicant to leave the H Mbongweni area and to proceed to the Sifonondili area. As the applicant still sought an order for costs, argument was completed. In contending that the notice was invalid, the applicant argued, inter alia: (1) that the order was ultra vires s 41 (1) of the Act as the President was required to deem it expedient in the public interest both that the person should withdraw from one place and proceed to the other place whereas ex facie the order it appeared that he had only deemed it I expedient that he withdraw from Umtata. The notice was furthermore ultra vires as s 41 (1) did not give the President the power to order a person to "take up residence" anywhere; (2) that the order was invalid as it was not in the Xhosa language, being only in English: (3) that the order was vitiated by a serious misdirection as the applicant had no home in the Mbongweni area; (4) that the order was invalid because it was on the face of it not countersigned by a member of the Executive Council as required by s 17 (3) of the Republic of Transkei Constitution Act 15 of 1976; (5) that the President J had not acted on the advice of the Executive Council in making the order as required by

1986 (2) SA p181

s 17 (1) of the Constitution; (6) that on the evidence no A reasonable person could have come to the conclusion that the applicant was a person whom it was expedient in the public interest to banish to Bizana.

Held, as regards (1), that it was implicit that both the withdrawal from Umtata and the proceeding to Mbongweni must have been considered at one and the same time as being expedient in the public interest and the point was purely B technical and without real substance.

Held, further, that, in terms of s 41 (1), the President was empowered to make an order "subject to such conditions as he may determine" and the requirement that he take up residence at his home was no more than a condition attached to such order and was accordingly not ultra vires the section.

Held, as regards (2), that s 16 of the Constitution Act provided that "Sesotho, English and Afrikaans may also be used C for legislative, judicial and administrative purposes" and on the ordinary, literal, grammatical meaning of the word "also", the section permitted the use of Sesotho, English or Afrikaans in like manner to the use of Xhosa for official purposes.

Held, as regards (3), that the direction in the order that the applicant take up residence at his home was merely a condition attached to the order and was not an assumption on which the order was founded, let alone an assumption relied upon D substantially; and, even if it were not possible therefore to comply with the order, this did not vitiate the whole order but merely provided a defence in the event of non-compliance.

Held, as regards (4), assuming that the order fell in the ambit of s 17 (3) of the Constitution, that the order had been countersigned by the Prime Minister, who was as such a member of the Executive Council, and s 17 (3) did not require that the Minister countersigning should designate the capacity in which E he signed.

Held, as regards (5), that the President had stated in his affidavit that he had in fact acted on the advice of the Executive Council in making the order and the applicant had not made out a case for the referral of the matter for oral evidence.

Held, as regards (6), that the applicant had not shown that, if the matter had been referred for oral evidence, he would have F been able to establish that the President had acted dishonestly or without applying his mind to the matter: although it was perturbing that the Minister had not given reasons for the State President's order as he was required in terms of s 41 (3) to do, this did not cast sufficient doubt on the President's bona fides.

Held, accordingly, that the application had to be dismissed.

Case Information

Application for a declaratory order. The facts appear from the G reasons for judgment.

I Mahomed SC (with him C R Mailer) for the applicant.

J Combrink SC (with him J D Pickering) for the respondents.

Cur adv vult. H

Postea (June 21).

Judgment

Davies J:

On 9 October 1984 the President made an order in terms of s 41 (1) of the Public Security Act 30 of 1977 that I the applicant withdraw from the city of Umtata and proceed to the Mbongweni administrative area in the district of Bizana. This order was superseded by a second order dated 24 October 1984, in the following terms:

"Order

By the President of the Republic of Transkei.

To: General Prince Madikizela a person previously resident in J the City of Umtata in the district of Umtata.

1986 (2) SA p182

Davies J

A Now therefore, under the powers vested in me by s 41 (1) of the Public Security Act 30 of 1977, I order you General Prince Madikizela, upon service of this order on you, immediately to withdraw from the said area in the said district and proceed to Mbongweni Administrative area in the district of Bizana and to no other place, and there to take up residence at your home which is situate in the said Mbongweni administrative area.

And further I order you not at any time to leave the district B of Bizana without the written permission of the Commissioner of the Transkeian Police.

This order is in substitution of a similar order served on you on 10 October 1984.

Given under my hand and the Seal of the Republic of Transkei at Umtata on this 24th day of October 1984

One Thousand Nine Hundred and Eighty Four.

C K D Matanzima (signed)
President

G M M Matanzima (signed)
By order of the President-in-Council"

The applicant thereafter brought these proceedings on notice of motion seeking a declaration that both the above orders are D null and void and of no effect or force in law. At the outset of the hearing, however, Mr Mahomed, who appeared with Mr Mailer for the applicant, stated that since the first order had been superseded by the second order the question of the validity of the first order was now of academic interest only, and no declaratory order was now sought in respect of that order.

E The hearing commenced in November 1984 but was adjourned before Mr Mahomed had completed his argument for applicant and was only resumed on 9 May 1985. On the resumption Mr Mailer, who now appeared on his own for the applicant, informed the Court that on 21 February the President had issued a third F order directing the applicant to withdraw from the Mbongweni administrative area and to proceed to the Sifonondili administrative area and there to take up residence at a place to be pointed out to him by the magistrate of the district of Xalanga. By consent, a copy of this new order was produced to the Court. Mr Mailer stated that in the light of this latest G development the second order had also become of academic interest only and that the applicant no longer sought a declaratory order thereanent. Since, however, the applicant still claimed to be entitled to his costs it was still necessary to determine whether the applicant would have succeeded on the merits.

Since the second order is now the only one in question, I shall henceforth refer to it simply as "the order".

H Mr Mahomed set out eight grounds on which he relied for his contention that the order was invalid. Before I deal with these grounds, however, another consequence of the order of 8 February can conveniently be mentioned. Five of the grounds relied on by Mr Mahomed do not involve any dispute of fact and I are capable...