Minister of the Interior v Bechler and Others; Beier v Minister of the Interior and Others

• Jurisdiction: South Africa
• Citation: 1948 (3) SA 409 (A)

Minister of the Interior v Bechler and Others; Beier v Minister of the Interior and Others
1948 (3) SA 409 (A)

1948 (3) SA p409

Citation	1948 (3) SA 409 (A)
Court	Appellate Division
Judge	Tindall ACJ, Centlivres JA, Greenberg JA, Schreiner JA and Davis AJA
Heard	April 5-7, 1948; April 8, 1948
Judgment	May 28, 1948

Flynote : Sleutelwoorde

Crown — Executive Government — Power to deport — Appointment by Parliament of Commission to recommend deportation of enemy aliens — Procedure not prescribed — Commission not hearing persons recommended for deportation — Whether ground for interfering with its decision — Finding by Commission — Right of Court of Law to interfere with recommendations made — International law — German nationals in South-West Africa — Passing of Act 35 of 1942 — Effect on Acts previously conferring automatic naturalisation of such subjects — Appeal — To Privy Council — Court's order suspended conditionally.

Headnote : Kopnota

The Executive Government of the Union is entitled, provided there be no statutory provision to the contrary, in the exercise of a prerogative of the Crown, to deport an enemy alien (i.e. a subject of a State at war with the Union) without giving him an opportunity of making representations against his deportation.

The Union Government appointed, as notified in a Government Notice on 1st March, 1946, a Commission to recommend for deportation any person

1948 (3) SA p410

who, being an enemy alien, had done any of the acts or conducted himself in the manner mentioned in the terms of reference and whose continued presence in the Union was in the opinion of the Commission, incompatible with the purpose of the Government to prevent the resurgence of the N.A.Z.I. and the Fascist ideologies in the Union. The Commission having recommended certain persons for deportation,

Held, that the question whether they were in fact enemy aliens, going as it did to the jurisdiction of the Commission, was justiciable in a court of law, but that the question whether they had done any of the acts or conducted themselves in the manner mentioned was not so justiciable.

Certain German nationals of the mandated territory of South-West Africa, who became British subjects by automatic naturalization under Act 30 of 1924, or Act 27 of 1928, were declared by Act 35 of 1942 to be aliens for the purposes of all laws in the Union and the mandated territory.

Held, rejecting arguments to the contrary based respectively on section 2 of Act 27 of 1928, read with section 6 of Act 18 of 1926 and on article 278 of the Treaty of Versailles, that their German nationality survived and that they were not stateless persons as a result of Act 35 of 1942. Accordingly the Commission had jurisdiction to recommend them for deportation.

Act 52 of 1946, which took effect on 12th July, 1946, enacted that if the Commission recommended that any alien be deported from the Union, such alien might be arrested without a warrant and removed by warrant from the Union.

Held, that while the effect of the Act was to prevent the Executive Government from deporting a person not recommended for deportation by the Commission, it did not have the effect of making the Commission a statutory one or of requiring it to observe any particular procedure, but implied that the Government should be entitled to accept and act on the recommendation of the Commission irrespective of the procedure it adopted.

Held, accordingly, that the fact that the Commission had not disclosed to an enemy alien recommended by it for deportation the substance of the prejudicial allegations against him, so as to give him sufficient opportunity of controverting them, was not a good ground for interdicting the deportation of the alien.

On application being made to suspend the orders of deportation pending an application to be made for leave to appeal to the Privy Council,

Held, that the application be granted conditional upon the application being filed within two weeks.

The decision of Bechler and Others v Minister of Interior in the Transvaal Provincial Division reversed; the decision of Beier v Minister of Interior and Others in the Natal Provincial Division confirmed.

Case Information

Appeals from judgments of the Transvaal Provincial Division (MARITZ, J.P., DE VILLIERS, J., ROPER, J.), and the Natal Provincial Division (HATHORN, J.P.).

The facts in each appeal appear from the judgment of TINDALL, A.C.J.

1948 (3) SA p411

D. Gould, K.C. (with him S. Bekker), for the appellant Minister: The question whether the Commission was under a duty to observe the principles of natural justice, depends upon the construction which must be placed on sec. 1, Act 52 of 1946 and on G.N. 465 of 1st March, 1946. In order to construe these enactments regard must be had, (a) to the state of law existing at the respective dates on which the Act was passed and the G.N. was published; see Moller v Keimos School Committee (1911 AD 635 at p. 647); Johannesburg City Council v Vucinovich (1940 AD 365 at p. 384); Craies, Statute Law (4th ed., p. 93); Maxwell, Interpretation of Statutes (8th ed., p. 19); Odgers, Construction of Deeds and Statutes (2nd ed., p. 221); and (b) to the language employed in each case in the light of the surrounding circumstances and the general policy and object of each measure; see Union Government v Tonkin (1918 AD 533 at p. 541); S.A.R. & H v Smith's Coasters (Pty.), Ltd. (1931 AD 113 at p. 125), Liversidge v Anderson, N.O. (1941 (3), A.E.R. 338 at p. 372). At the time the G.N. was published, a state of war existed between the Union and the Axis powers; cf. McNair, Legal Effects of War (pp. 5 - 6); Rex v Bottrill, Ex parte Kuechenmeister (1946 (1), A.E.R. 635); Hirsch v Somervell (1946 (2), A.E.R. 27); Burrows, Words and Phrases judicially interpreted (Vol. 4, S.V. 'Peace'). By virtue of the prerogative the Government had the absolute power, without the authority of Parliament, to expel or deport all enemy aliens from the Union or South-West Africa; see Netz v Ede, N.O. (1946 (1), A.E.R. 628), Hirsch v Somervell (supra); Blackstone's Commentaries (Vol. 1, p. 259). An 'Act of State', referred to in Netz' case (supra), is an act of the Crown done under the prerogative in the sphere of foreign affairs and includes an act performed in relation to the subjects of a foreign state; see Wade and Phillips Constitutional Law (3rd ed., p. 176). The right to expel enemy aliens is also recognized by International Law; see McNair (supra p. 37); Oppenheim, International Law (6th ed., Vol. 1, para. 324; Vol. II, para. 100); Lawrence, Principles of International Law (7th ed., Chap. III, pp. 367, 369); Wheaton, International Law (Vol. II, p. 706); Pitt Cobbett, Leading Cases on International Law (Vol. II, p. 78); Birkenhead, International Law (p. 197); the Government's power to expel enemy aliens was absolute and beyond the range of judicial interference. Had the Government decided to deport all or any enemy aliens, it would have been responsible

1948 (3) SA p412

for its action only to Parliament; see Keith, Constitutional Law (7th ed., pp. 200, 201, 207, 430); Wade and Phillips (supra pp. 124 - 7 and 249); Halsbury's Laws of England (2nd ed., Vol. 6, paras. 511, 512, 513, 518, 536, 547); Ex parte Weber (1916 (1) K.B. 280 at 282); Rex v Vine Street Police Station Superintendent, Ex parte Leibman (1916 (1), K.B. 268 at pp. 277 - 8); Rex v Knoc Kaloe Camp (Commandant) (1918, 87 L.J.K.B. 43 at p. 45); Liversidge v Anderson, N.O. (supra, at p. 345); Annual Digest and Reports of Public International Law (1941 - 2, p. 454); Ex parte Belli (1914 CPD 742). The Government would not have been obliged to hold an inquiry or to observe the principles of natural justice; see Rex v Leman Street Police, Ex parte Venicoff (1920 (3), K.B. 72 at p. 79); Rex v Home Secretary, Ex parte Duc de Chatean Thierry (1917 1 K.B. 922); Rex v Brixton Prison, Ex parte Bloom (1921, 90 L.J. K.B. 574); Rex v Home Secretary, Ex parte Greene (1941 (3), A.E.R. 104 at p. 109). It is clear, that the Government had, before 1st March, 1946, decided not to exercise it prerogative powers, its policy being to deport all enemy aliens whose continued presence in the Union or South-West Africa would be incompatible with its purpose of preventing the resurgence of Nazi or Fascist ideologies in those countries. Having decided on this policy of selective deportation, the Government could itself have made the selection of the enemy aliens whom it desired to deport pursuant thereto, or it could have delegated the duty of making the selection to any of its Ministers or Officials and its selection would have been free from any interference by the Court; cf. Robinson v Minister of Town and Country Planning, 1947 (1), A.E.R. 851); instead of making the selection itself, the Government appointed a Deportation Commission to make its recommendations for the deportation of enemy aliens, see G.N. 465. It is clear from this Notice that the sole purpose for which the Commission was appointed was to make a selection from amongst 'enemy aliens' in the Union and South-West Africa, of those who, in its opinion, should be deported pursuant to the Government's notified policy. The Notice did not expressly prescribe any particular procedure to be followed but it is palpably clear that it was not, and was never intended to function as, a judicial body; see Haelbich v Clarkson, N.O. (C.P.D. 26.2.48, not yet reported) and as to the characteristics of the judicial function, see Robson, Justice and Administrative Law (2nd ed., 1947, p. 13); Port, Administrative

1948 (3) SA p413

Law (p. 88); Keith, Constitutional Law (7th ed., p. 22); Wade and Phillips (supra, p. 250); nor was the Commission a quasi-judicial body, although it considered itself to be such, nor was it ever intended to function as such. Its decisions were incapable of prejudicially affecting the...