Metal & Allied Workers Union v Castell NO

• Jurisdiction: South Africa
• Judge: Wilson J
• Judgment Date: 21 December 1984
• Citation: 1985 (2) SA 280 (D)
• Court: Durban and Coast Local Division

Wilson J:

This matter came before me as an urgent application on 9 May 1984 when I granted a rule nisi returnable on 11 May 1984. On that day, both applicant and respondent appeared before me, the respondent having filed answering affidavits. Mr C Gordon, who appeared for the respondent, as a preliminary point took the point that the Minister ofLaw and Order should have been joined as a-respondent. Having heard argument on this point and having been referred to the case of Natal Organic Industries (Pty) Ltd v Union Government 1935 NPD 701 at 706 - 7, I found against Mr Gordon on this point. Having heard D argument I, thereafter, made an order setting aside the decision of the respondent not to authorise the applicant to hold its annual general meeting at Curries Fountain Soccer Stadium and directing the respondent to authorise the applicant to hold that meeting. The matter was one of great urgency and at the time the order was made I indicated that I would file my E reasons later.

These are they.

On 26 April 1984 the branch secretary of the applicant made application in writing to the respondent for permission to hold the meeting. The body of the letter read:

"Dear Sirs,
re: Open-air meeting for annual general meeting at Curries Fountain on Saturday 12 May 1984
The Metal and Allied Workers Union is a registered union. We hereby request authorisation for an open-air meeting to be held at Curries Fountain on Saturday 12 May 1984. Further details are as follows:
Time: 10 am 3 pm
Agenda:	G The meeting is the annual general meeting (AGM) of the Natal branch. Items to be covered are: branch secretary's report, general secretary's report, finance, Industrial Council negotiations, general.
Participants: Members of MAWU.; We would be grateful for your urgent response on this request."

On 4 May 1984 the respondent telephoned the applicant's H secretary in connection with the application for permission to hold an open-air meeting. The respondent informed him that he had just received the necessary reports and that according to these reports the applicant had not grown much during the year and it was, therefore, not necessary for it to hold an open-air I meeting. He enquired of the applicant's secretary why the meeting could not be held indoors as had been done previously. The secretary explained to him that the Natal branch of the applicant had grown significantly over the past year to well over 7000 members and that 1500 to 2000 members were expected to attend the annual general meeting. The secretary further informed the respondent that there was no hall in Durban available and big enough to seat so many people. The respondent J thereupon informed the secretary that he had telephoned him as soon as possible to enable the applicant to look for another venue

Wilson J

because he was refusing the applicant permission to hold the A meeting in the open. He declined to discuss his reasons for coming to this decision with the applicant's secretary.

The reason why it was necessary for the applicant to seek permission in the first place was that, on 30 March 1984, the B Minister of Law and Order issued Proc 579, which read:

"Prohibition of gatherings in terms of s 46 (3) of the Internal Security Act 1982.

Whereas I, Louis le Grange, Minister of Law and Order, deem it expedient for the maintenance of the public peace, I hereby prohibit, in terms of s 46 (3) of the Internal Security Act 74 of 1982, any gathering in the Republic of South Africa from 1 April 1984 up to and including 31 March 1985, except in the C case of gatherings -

(1)

of a bona fide sporting nature; or

(2)

taking place wholly or for as long as they last within the walls of a building; or

(3)

at any time expressly authorised by me or the magistrate of the district concerned.

D Dated at Cape Town this 5th day of March 1984."

Similar notices have been published annually since March 1977, firstly under the provisions of the Riotous Assemblies Act and thereafter under the provisions of the Internal Security Act. The relevant section of the Act is s 46 (3), which reads:

"The Minister may, if he deems it necessary or expedient in the E interests of the security of the State, or for the maintenance of the public peace or to prevent the causing, encouraging or fomenting of feelings of hostility between different population groups or parts of population groups of the Republic, prohibit in a manner determined in ss (2) (A) -

(a)

any gathering in any area; or

(b)

any particular gathering or any gathering of a particular nature, class or kind at a particular place or in a F particular area or wheresoever in the Republic, during any period or on any day or during specified times or periods within any period, except in those cases determined in the prohibition in question by the Minister or which the Minister or a magistrate acting in pursuance of the Minister's general or special instructions may at any time expressly authorise."

The circumstances in which the Minister can exercise his powers G of prohibition are extremely wide. He may do so

"if he deems it necessary or expedient in the interests of the security of the State or for the maintenance of the public peace or in order to prevent causing, encouraging or fomenting feelings of hostility".

The discretion invested in the Minister in this regard is an H extremely wide one; it means, in effect, that where he thinks it necessary, he may prohibit meetings as laid down in the section. In my view, the discretion invested in the Minister in these circumstances is a wider discretion than that conferred by the use of words such as "where the Minister has reason to believe" or "whenever a magistrate has reason to apprehend" as provided in s 46 (1) of the Act. The powers vested in the I Minister are similar to those referred to in the words of STRATFORD ACJ in Sachs v Minister of Justice; Diamond v Minister of Justice1934 AD 11 at 36:

"Parliament has thought fit to confer upon the Minister the power to act in the public interest so soon as he is satisfied that certain conditions exist."

It was decided in that case that where, on a construction of the Act, it gives to a Minister an unfettered discretion, it is J no function of a Court of

Wilson J

A law to curtail its scope in the least degree. In South African Defence and Aid Fund and Another v Minister of Justice1967 (1) SA 31 (C) at 34 CORBETT J held:

"Upon a proper construction of the legislation concerned, a jurisdictional fact may fall into one or other of two broad categories. It may consist of a fact, or state of affairs which, objectively speaking, must have existed before the B statutory power could validly be exercised. In such a case, the objective existence of the jurisdictional fact as a prelude to the exercise of...