Minister of the Interior v Lockhat and Others

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Botha JA, Holmes JA and Van Winsen AJA
• Judgment Date: 16 March 1961
• Citation: 1961 (2) SA 587 (A)
• Hearing Date: 06 March 1961
• Court: Appellate Division

Holmes, J.A.:

This is an appeal against a decision of the Durban and C Coast Local Division dismissing certain exceptions to a declaration which claimed an order setting aside Proc. 152 of 1958 issued under sec. 20 (1) the Group Areas Act, 77 of 1957 and published in the Government Gazette Extraordinary 6068 of 6 June, 1958.

The 19 respondents are all members of the Indian Group in terms of the D Group Areas Act, and they are owners or occupiers of properties described within paras. (a) to (l) of Schedule 1 to the Proclamation.

The gist of the Proclamation, in so far as here relevant, is that it declares:

1.

That the areas defined in paras. (a) to (l) of Schedule 1 thereto E shall be areas for occupation by members of the White Group, as from the date of publication of the Proclamation.

2.

That the areas defined in paras. (m) to (q) shall be areas for occupation by members of the Indian Group, as from the date of publication of the Proclamation;

3.

F That the provisions of sec. 23 of the Group Areas Act shall apply to all the aforesaid areas on the expiration of a period of one year from the date of publication of the Proclamation. (Sec. 23 prohibits the occupation by disqualified persons of land or premises in any group area to which the Proclamation relates).

All the areas defined in the Schedule are situated in the municipal area of Durban.

G The respondents attacked the validity of the Proclamation upon four grounds. The first was that the Group Areas Board had failed to make a proper report to the appellant in terms of sec. 5 of the Act. That section defines the functions of the Board. It shall enquire into and, H by means of a written report, advise the Minister in regard to certain matters. Sub-sec. (7) is in the following terms:

'The board shall not advise the Minister in regard to the issue of any proclamation under sub-sec. (1) of sec. 20, without taking into consideration whether or not suitable accommodation will be available outside the area affected for persons whose occupation of land or premises in that area would be rendered unlawful by such proclamation.'

In this connection, paras. 24 and 25 of the declaration read as follows:

Holmes JA

'24. Before making its report the said Board was bound, in terms of sec. 5 of the said Act, to enquire into and advise defendant upon the desirability or otherwise of setting up Group Areas in the district of Durban and its environs and for that purpose to consider, inter alia, whether or not suitable accommodation would be available outside the areas affected for persons whose occupation of land or premises in such areas would be rendered unlawful by the issue of a proclamation under sub-sec. (1) of sec. 20 of the said Act.

A 25. The said Board purported to hold an enquiry into the said issues and made a report thereon to defendant, but the said report was not a proper report in terms of the said Act by reason of the fact that the enquiry held by the said Board was not a proper enquiry as contemplated by the said Act, in that -

(a)

the said Board failed to give any or any bona fide consideration to the availability of suitable accommodation for members of the B non-White Groups outside the areas which have, in terms of the aforesaid Proclamation, been declared group areas for the occupation of members of the White Group;

(b)

the said Board, before commencing the said enquiry, or, alternatively, before completing it, had already made a decision as to the group areas which it was going to recommend in its report and failed to give due or sufficiently unbiassed or bona fide consideration to the representations made to it by interested parties at the said enquiry; and

(c)

C the chairman of the said Board was prejudiced against members of the Indian Group, and such prejudice improperly influenced his mind and the minds of the other members of the said Board in the conduct of the said enquiry.'

In respect of para. 25, the appellant requested further particulars, and I set out the request made and the particulars supplied.

D 'Request:

1. (a)

Of the allegation that the said Board purported to hold an enquiry:

(i)

Why is it alleged that the Board only purported to hold the enquiry and not that it held the enquiry?

(ii)

In what way is it claimed that the enquiry held was not an enquiry?

Particulars:

1. (a) (i)

Because the enquiry was not a proper enquiry.

(ii)

E See (i) supra.

Request:

1. (a)

Of the allegation that the said Board purported to hold an enquiry:

(i)

Of the alleged failure by the Board to give any bona fide consideration of the matters referred to in sub-para. (a):

(1)

How exactly did the consideration given lack bona fides?

(2)

Is the availability mentioned limited to then existing F availability? If not, what availability is it intended to be indicated was not considered?

(3)

What precisely is intended to be indicated by the use of the word accommodation? Is it contended that the Board had to consider:

(a)

Existing residential accommodation; or

(b)

Future residential accommodation; or

(c)

G Existing sub-divisions of land available for the erection of residences to accommodate persons?

(d)

Future sub-divisions or land available for the erection of residences to accommodate persons?

If any other meaning of the word is intended, precisely what meaning is intended to be conveyed?

Particulars:

1. (b) (i)

—

(1)

H The grounds to be relied on in support of this allegation are a matter of evidence and are not reasonably required to enable defendant to plead.

(2)

and (3) The Board failed to give any or any bona fide consideration to the question 'whether or not suitable accommodation would be available outside the areas affected for persons whose occupation of land or premises in such areas would be rendered unlawful by the issue of a proclamation under sub-sec. (1) of sec. 20 of the Act' within the meaning of sec. 5 of Act 77 of 1957.

Holmes JA

Request:

1. (b) (ii)

of the allegations in sub-para. (b):

(1)

What is intended to be conveyed by the use of the words 'before completing it (the said enquiry)'? In particular when is it intended to be alleged that the enquiry was completed?

(a)

When representations or proposals were lodged in terms of sec. 5 (2) and 5 (3) of the Act.

(b)

A When any hearing in terms of sec. 5 (4) of the Act was concluded.

(c)

When the Board considered the above.

(d)

When the Board prepared its report; or

(e)

When the Board presented its report to the Minister?

(2)

Of the alleged decision of the Board.

(a)

What are the details of the alleged decision?

(b)

B Is it alleged that the said decision corresponded exactly in regard to areas with the areas described in the said Proclamation? If not, how did it differ?

(3)

Of the alleged failure to give due or sufficiently unbiassed or bona fide consideration.

(a)

Is it conceded that the Board gave some consideration? If so, what consideration?

(b)

What consideration is it contended was due?

(c)

C What is intended to be conveyed by the word 'sufficiently'? Is it contended that the Board could be biassed at all? If so, to what degree?

(d)

How exactly did the consideration given lack bona fides?

Particulars:

1. (b) (ii) (1)

Before it had completed its investigations, and, before it had heard all representations made to it on behalf of interested parties, particularly the representations made to it by or on behalf of or in the interests of the Indian D Group. The precise date on which the enquiry was completed is unknown to the plaintiffs and is, in any event irrelevant.

(2)

(a)

The terms of the said decision are sufficiently set forth in para. 25 (b) of the declaration.

(b)

The plaintiffs make no allegation in this regard.

(3)

(a)

Plaintiffs make no such concession.

(b)

A fair, honest and unbiassed consideration.

(c)

E Sufficiently to enable the enquiry to be a proper enquiry as contemplated by the said Act.

(d)

The grounds to be relied on in support of this allegation are a matter of evidence and are not reasonably required to enable the defendant to plead.

Request:

1. (b) (iii)

Of the allegations in sub-para. (c).

(a)

F What exact prejudice is it alleged was entertained by the said Chairman?

(b)

How exactly is it alleged that the said prejudice influenced the minds of the other members of the Board?

Particulars:

1. (b) (iii) (a)

and (b): The grounds to be relied on in support of these allegations are a matter of evidence and are not reasonably required to enable the defendant to plead.'

G I pause here to observe that the procedure of calling for further particulars must not be confused with interrogatories or cross-examination. The relentless quest for particularity in pleading, unhappily somewhat prevalent in recent years, usually befogs the issues instead of defining them. In Purdon v Muller, in a judgment of this H Court delivered on 13 February, 1961, [*] OGILVIE THOMPSON, J.A., rightly condemned the practice of over-elaboration in requests for further particulars.

The appellant's first exception was to para. 25 of the declaration as amplified and was as follows:

'1.

Defendant excepts to para. 25 of the declaration as being bad in law, irrelevant

Holmes JA

and so vague and embarrassing as to be bad in law in that:

(a)

The lack of particularity regarding the alleged failure by the Board to give any bona fide consideration to the matters referred to in para. 25 (a) is vague and embarrassing.

(b)

In the absence of an allegation that the 'decision' mentioned in para. 25 (b)...