Minister of Law and Order, Bophuthatswana, and Another v Committee of the Church Summit of Bophuthatswana and Others

• Jurisdiction: South Africa
• Citation: 1994 (3) SA 89 (BG)

Minister of Law and Order, Bophuthatswana, and Another v Committee of the Church Summit of Bophuthatswana and Others
1994 (3) SA 89 (BG)

1994 (3) SA p89

Citation	1994 (3) SA 89 (BG)
Case No	A346/92
Court	Bophuthatswana General Division
Judge	Friedman AJP
Heard	August 19, 1993
Judgment	October 28, 1993

Flynote : Sleutelwoorde

Internal security — Internal Security Act 32 of 1979 (B) — Prohibition of C gatherings in terms of s 31(1)(a) of Act — Exemption from provisions of ss (1) in terms of s 31(5) — 'Bona fide church service' exempted in terms of s 31(5)(a) — Open-air service at shopping centre attended by ministers of religion only not a 'bona fide church service' within the meanings of dictionary definitions and of provisions of s 31(5)(a) of Act — Section D 31(5)(a) also not exempting a religious procession from provisions of s 31(1).

Internal security — Prevention and Control of Mass Action Act 59 of 1992 (B) — Prohibition of demonstrations, marches, sit-ins, gatherings, processions etc in terms of s 3(2) of Act — Procession of ministers of E religion from shopping centre, where open-air service held, to church — Open-air church service and procession unlawful where permission of Minister of Law and Order not obtained.

Interdict — Final interdict — Requirements for discussed and reiterated — Requirement that there be no other adequate or satisfactory remedy — Final interdict sought to prevent holding of open-air service in shopping centre F and procession therefrom to a church in contravention of s 31(1)(a) of Internal Security Act 32 of 1979 (B) and s 3(2) of Prevention and Control of Mass Action Act 59 of 1992 (B) — Necessary permission in terms of such Acts not obtained — Minister cannot wait and approach Court every time G there is a threat of such open-air service or procession in contravention of legislation or send police in after it has occurred in order to arrest those contravening the law — Final interdict far more suitable protection of Minister's rights.

Headnote : Kopnota

An open-air church service at a shopping centre, attended by ministers of H religion only, members of the public having been dissuaded from attending, is not a 'bona fide church service' within the meanings of the dictionary definitions of 'church' and 'church service' and of the words 'bona fide church service' in s 31(5)(a) of the Internal Security Act 32 of 1979 (B), which exempts such a church service from the provisions of s 31(1)(a) of that Act, providing that '. . . a gathering shall be unlawful unless: (i) the holding thereof has been authorised in writing by the Minister; . . .'. (At 97A/B-B/C.) Furthermore, no exemption exists for a religious I procession (in casu a procession from the open-air service at the shopping centre to a church) in terms of the exempting clauses in s 31(5) of the Act. (At 97D.)

The Court accordingly held that, as the respondents had not, as required by s 31(1) of the Internal Security Act, obtained the required ministerial permission to hold the open-air service and procession, they were not entitled to hold them. (At 97D/E.) The Court went on to hold that the open-air service and procession were also unlawful as the respondents had J not obtained written permission therefor from the Minister in

1994 (3) SA p90

A terms of s 3(2) of the Prevention and Control of Mass Action Act 59 of 1992 (B). (At 97G.)

After discussing and reiterating the requirements for a final interdict, the Court held that the applicants had shown that such requirements had been satisfied, in particular that there was no other adequate or satisfactory remedy. The Court held that the applicants would be failing in their duty if they did not approach the Court to obviate an infraction B of the law (at 100F-H) and that there existed no other suitable remedy for the applicants. The applicants could not wait and approach the Court every time there was the threat of a procession or the organising of a church service at a shopping centre by the respondents, nor could they send the police in after such procession or open-air service had occurred in order to arrest those contravening the law. It was held that a final interdict afforded a far more suitable protection of the applicants' rights in terms of the law and would cause the respondents, should they desire to arrange C processions or church services in places other than churches, to take the appropriate steps according to the law. (At 101B-C/D). The rule nisi which had been issued as a matter of urgency against the respondents was accordingly confirmed.

Case Information

Return day of rule nisi granted as a matter of urgency. The facts appear from the reasons for judgment. D

P C van der Byl SC (with him L C J Maree) for the applicants.

R L Selvan SC (with him E Patel) for the respondents.

Cur adv vult.

Postea (October 28). E

Judgment

Friedman AJP:

A. The issues

On 26 November 1992, a rule nisi was issued by this Court:

1.

Calling upon the first respondent to show cause why it should not be F prohibited and interdicted from convening, organising, executing or participating in any gathering, march, protest, demonstration until such time as the permission contemplated in:

(a)

s 31 of the Internal Security Act 32 of 1979 (B);

(b)

s 3 of the Prevention and Control of Mass Action Act 59 of 1992 (B);

(c)

G bylaw 35 of the Mmabatho Town Council Bylaws contained in Administrator's Notice 710 of 1950;

be obtained.

2.

That the relief referred to in the aforegoing paragraph operate forthwith as an interim interdict pending the outcome of the application. H

3.

That the respondent be ordered to furnish the applicant with the names and addresses of its members.

4.

Other ancillary relief, inter alia costs of this application.

The said rule nisi was returnable on 3 December 1992.

I On 3 December 1992 the order granted on 26 November 1992 was extended to 25 March 1993 together with other supplementary matters.

On 25 March 1993 the rule nisi was extended to 19 August 1993 and the matter was accordingly postponed to that date. There was an application by the second applicant, namely the City Council of Mmabatho, for joinder in terms of application M34/93 and this was granted by agreement in terms of J paras 1 and 2 of the notice of motion, dated 3 February 1993.

1994 (3) SA p91

Friedman AJP

A The notice of motion by the City Council of Mmabatho contained a prayer for an order that it be joined in the matter between the Minister of Law and Order and the respondent in case No M346/92, that is the present application, as the second applicant.

I may mention that a list of names and addresses of the members of the B first respondent in terms of para 4 of the order dated 26 December 1992 was furnished by the first respondent's attorney to the applicant. The persons referred to therein have accordingly been joined as the second to the tenth respondents.

On 19 August 1993, application was made by the applicants that the rule C nisi issued on 26 November 1992 be confirmed in respect of the first respondent and that the second to the tenth respondents be prohibited and interdicted from convening, organising, executing or participating in any gathering, march, protest or demonstration until such time as they have obtained the permission contemplated in

(i)

D s 31 of the Internal Security Act 32 of 1979;

(ii)

s 3 of the Prevention and Control of Mass Action Act 59 of 1992;

(iii)

reg 35 of the Mmabatho Town Council By-laws contained in Administrator's Notice 710 of 1957, read with Administrator's Notice 663 of 1957;

(iv)

costs of the application.

E There was also an application for joinder of the second applicant in this matter, as well as for an amendment of the notice of motion in order to give effect to the joining of the second applicant, and to the notice in terms of Rule 13, pursuant to which the persons cited as the second to tenth respondents have been joined as respondents in this matter.

F The effect therefore of the application made on behalf of the first and second applicants on 19 August 1993 against the first to the tenth respondents was for a permanent interdict. In other words that the rule nisi granted on 26 November 1992 containing the relief sought against the first respondent be extended to the second to the tenth respondents and that the same be confirmed on behalf of the first and second applicants. G

B. Events leading up to the granting of the rule nisi

From the oral evidence given in this matter by Mr R C Kieck, the State Attorney, it appears that on the afternoon of 25 November 1992 the first applicant received a letter, exh A, from the first respondent's attorney. H The first respondent informed the first applicant that it intended to hold on the next morning, that is 26 November 1992, an 'open-air church service' at Mega City and to proceed therefrom in a procession to the Lutheran church in Montshiwa, where a further church service (not specifying within or outside the church) would be held and pointing out that members of the public have been and will be dissuaded from attending I the services and procession in question.

The letter further pointed out that at this service no placards, flags, banners or T-shirts with slogans would be allowed and that it would be a peaceful, dignified and religious service held within the confines of the law.

J The letter states that the intentions and reasons of the first respondent

1994 (3) SA p92

Friedman AJP

A had been communicated to the first applicant but up to that time no response had been received.

An undertaking was requested by the first respondent that 'the authorities will not interfere with the rights' of the first respondent and specifically that they will not...