Matroos and Another v Coetzee NO

• Jurisdiction: South Africa
• Judge: Kannemeyer J
• Judgment Date: 08 June 1984
• Citation: 1985 (3) SA 474 (SE)
• Hearing Date: 07 June 1984
• Court: South Eastern Cape Local Division

Kannemeyer J:

This application came before me yesterday afternoon as a matter of urgency and eventually after the final G affidavit was filed during the course of the proceedings, I reserved judgment.

I would have preferred to have had more time to prepare the judgment I am now to deliver, but in view of the urgency of the matter it is necessary that the decision should be given without delay.

The first applicant is the son of the second applicant who was H the mother of one Vuyisile Gladman Matroos who was born on 5 June 1957.

The first applicant is the older brother of Vuyisile Gladman Matroos and the head of the family in view of the fact that the second applicant's husband has died.

The son, Vuyisile, died on 13 May 1984 in Durban in circumstances which I shall detail later in this judgment. I Arrangements were made by the deceased's family, namely the applicants, to have the body brought to Port Elizabeth and arrangements were put in train for the funeral. The founding affidavit states that there was a meeting of members of the family on 26 May 1984 and eventually it was decided that a suitable date for the funeral of the deceased would be Sunday, 3 June 1984. However, on 28 May 1984 both of the applicants J were served with a notice issued in

Kannemeyer J

A terms of the Internal Security Act 74 of 1982. This notice was issued by the chief magistrate of Port Elizabeth, Mr J A Coetzee, and it is necessary to quote it in full. It reads:

"Whereas I, J A Coetzee, magistrate for the district of Port Elizabeth, have reason to apprehend that the public peace would be seriously endangered by the funeral of Vuyisile Gladman B Matroos in the said district, I, in terms of s 46 of the Internal Security Act 74 of 1982, hereby direct that the said funeral shall be held only in accordance with the following conditions:

1.

That the funeral be held on any day of the week other than a Saturday, Sunday or public holiday.

2.

That the funeral be held between the hours of 08h00 to 14h00.

3.

That the hearse follow the shortest route from the premises C of the undertakers to the church and from there to the cemetery.

4.

That the body of the deceased be conveyed only by means of a mechanically driven vehicle.

5.

That the funeral attendants (sic) be transported solely in a mechanically driven vehicle and there is no procession on foot preceding or following the cortège, and that

6.

No placards or posters be exhibited."

As a result of this notice being served upon the applicants, the proposed funeral on 3 June 1984 was postponed and this application, as a matter of urgency, was then brought for an order declaring the notice issued by the chief magistrate to be invalid.

As I have already mentioned, there is an affidavit filed in E support of this application and opposing affidavits on behalf of the respondent, the chief magistrate, one deposed to by him personally and one deposed to by Captain Vercuil of the Security Police are also before me.

There are certain conflicts concerning alleged conversations between the first applicant and members of the police and the F details of what occurred during these conversations are not common cause, but to my mind these conflicts are irrelevant for present purposes.

The applicant's attack on the order is twofold and both legs of the attack depend on certain legal premises. I shall deal with them in turn.

The first leg of the attack as I understand it is that the onus G is upon the respondent, the chief magistrate, to justify the issue of the order which he made and that his statement in the order that I have already quoted, namely that he has reason to apprehend that the public peace would be seriously endangered, is a statement which I, sitting as a Court of review, am entitled to adjudicate upon objectively. In other words I am entitled to consider whether on the facts before me, viewed H objectively, there is reason to apprehend that the public peace would be disturbed.

So the first point is that the onus is on the respondent to satisfy me objectively that there is reason to apprehend the danger which he says he does in fact apprehend.

The second point is one concerning the publication of the I notice itself with which I shall deal later in this judgment.

The general approach of Courts when asked to review acts of administrative officials, and I think it is not suggested that the magistrate in the present case was acting as a judicial officer, is well known and one of the earlier cases in which it is dealt with in our law is that of Shidiack v Union Government J (Minister of the Interior) 1912 AD 642 where INNES ACJ is reported as saying the following at 651:

Kannemeyer J

"The decision of the Minister being essential, it becomes A necessary to consider the circumstances under which the Courts can properly question his decision. Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Courts will not interfere with the result. Not being a judicial functionary no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the B question which has been left to his discretion, it is impossible for a court of law either to make him change his mind or to substitute its conclusion for his own. This doctrine was recognised in Moll v Civil Commissioner, Paarl 14 SC at 468 and it was acted upon in Judes v Registrar of Mining Rights 1907 TS 1046; and it was expressly affirmed by this Court in Nathalia v Immigration Officer 1912 AD 23. There are circumstances in which interference would be possible and right. If for instance such an officer had acted mala fide or C from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of the statute - in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong."

That, as I say, must be the starting point and that is a D summary of the legal position.

It will be noticed that the learned Chief Justice, in the passage I have read, referred to the administrative officer disregarding the express provisions of a statute as being one of the grounds upon which a Court could interfere with the exercise of his discretion. That, in later cases, has become known as a "jurisdictional" fact. If a statute lays down E certain preliminaries as prerequisites before the administrative officer can exercise a discretion and if he fails to fulfil those preliminary requisites or if they are not fulfilled, any subsequent act of his will clearly be an improper exercise of discretion because he was not entitled to F exercise it in the circumstances.

Now in a case upon which Mr Skweyiya, for the applicants, relied heavily, namely United Democratic Front (Western Cape Region) v Theron NO 1984 (1) SA 315 (C) at 322B - C, ROSE-INNES J is reported as saying with reference to s 46 of Act 74 of 1982:

"The limitations upon the conferring of the power, and upon its G exercise, are (1) that the power vests only in a magistrate, (2) that the magistrate must 'have reason to apprehend', (3) that the apprehension must be that the public peace would be seriously endangered, (4) that the peace must be endangered 'by a gathering' and (5) that the gathering must be 'in his district'. These prerequisites for the exercise of power to prohibit are in my opinion jurisdictional facts and were H clearly so intended by the section."

He goes on to say:

"If anyone other than a magistrate issues the prohibition it is ultra vires. If the magistrate does not apprehend, or does not have reason to apprehend, a state of affairs referred to in the section, he has no power to issue a prohibition. If what he does apprehend...