Natal Newspapers (Pty) Ltd and Others v State President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Leon J, Kumleben J and Nienaber J
• Judgment Date: 04 September 1986
• Court: Natal Provincial Division

Leon, Kumleben et Nienaber JJ:

On 12 June 1986 the State President declared, in terms of s 2 of the Public Safety Act 3 of 1953, that a state of emergency existed within the Republic of South Africa as from that day. He Did so by Proc 108 published in Government Gazette 10279 of 12 June 1986. On the same day the State President made regulations, in terms of s 3 of the Act, which were promulgated by Proc R109 published in Government Gazette 10280 of 12 June 1986. These have since been amended. We shall refer to these amendments when the regulations, which are the subject of this application, are discussed.

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A The first applicant is a duly incorporated limited liability company carrying on business as a proprietor, printer and publisher of newspapers, as is the second applicant. The third and fourth applicants are public companies listed on the Johannesburg Stock Exchange, each carrying on business as a B proprietor, printer and publisher of newspapers. The first applicant is a subsidiary of, and controlled by, the third applicant and is the proprietor and publisher of the following newspapers, all of which are printed and published in Durban and distributed in Durban, Pietermaritzburg and other main centres in Natal: The Daily News, The Mercury, Sunday Times, C Ilanga, Post Natal. The second applicant is the proprietor and publisher of the Natal Witness, a newspaper which is printed and published in Pietermaritzburg and circulated mainly in Pietermaritzburg and the Natal Midlands. The third applicant is the proprietor and publisher of the following newspapers, namely The Star, The Sunday Star, Sowetan Daily Mirror, The D Argus, Weekend Argus and Diamond Fields Advertiser. The fourth applicant is the proprietor and publisher of the following newspapers: Sunday Times, Business Day, Financial Mail, Eastern Province Herald, Cape Times, Evening Post and Weekend Post. Of these newspapers the Sunday Times, Business Day and the Financial Mail are sold throughout the Republic.

E The first respondent is the State President of the Republic of South Africa who has been cited by virtue of the fact that he is the person who declared the state of emergency and who promulgated the emergency regulations. The second respondent is the Government of the Republic of South Africa and is cited by F virtue of the fact that the first respondent is its principal in terms of s 6 of the Republic of South Africa Constitution Act 110 of 1983. The third respondent is the Minister of Law and Order who in terms of reg 1 of the emergency regulations is the responsible Minister entrusted with the enforcement of those regulations. The fourth respondent is the Commissioner of G the South African Police who is cited by virtue of the fact that he has promulgated certain orders under reg 7 of the emergency regulations.

In this application the applicants seek the following order:

Declaring regs 7, 8, 9, 10, 11 and 12 of the regulations promulgated in Government Notice 109 and Government Gazette 10280 on 12 June 1986 as amended by Government Notice 140 H and Government Gazette 10382 on 1 August 1986, to be of no force and effect in law.

Declaring reg 10 of the regulations promulgated in Government Notice R149 and Government Gazette 10382 on 1 August 1986 to be void and of no force and effect in law.

Declaring the orders issued in terms of reg 7 (1) (c) and 7 (1) I (d) on 16 June 1986 and 21 June 1986 respectively, to be void and of no force and effect in law.

Directing that those of the respondents who might oppose this application pay the costs of this application jointly and severally including the costs occasioned by the employment of two counsel.

(It should be mentioned that at the start of the hearing an J order to have the application heard as a matter of urgency was sought, and granted,

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counsel for the respondents having agreed that the issues to be A decided were of vital importance to the applicants and that the matter was urgent.)

The State President's powers to make regulations are to be found in s 3 (1) (a) of the Act. It empowers him to make such regulations

"as appear to him to be necessary or expedient for the safety B of the public or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency".

Section 3 (2) (a) and (b) of the Act provides:

"(2) Without prejudice to the generality of the powers conferred by this section:

(a)

C such regulations may provide for:

(i)

the empowering of such persons or bodies as may be specified therein to make orders, rules and by-laws for any of the purposes for which the Governor-General is by this section authorised to make regulations, and to prescribe penalties for any contravention of or failure to comply with the provisions D of such orders, rules or by-laws;

(ii)

the imposition of penalties specified therein for any contravention of or failure to comply with any provisions of the regulations or any direction issued or conditions prescribed by or under the regulations, which penalties may include the confiscation of any goods, property or instruments by means of which or in connection with which the offence has been committed;

(b)

such regulations may be made with retrospective effect E from the date on which it has been declared that a state of emergency exists... Provided that no such regulation shall make punishable any act or omission which was not punishable at the time when it was committed."

The Commissioner of Police has purported to issue certain orders under reg 7 (1) (c) and 7 (1) (d).

Broadly stated the applicants' attack on the regulations and F orders are that they are void on one or more or all of the following grounds, namely that:

(i)

they exceed the State President's powers under s 3 (1) (a) of the Act;

(ii)

they vest discretionary powers in the State G President's delegates contrary to s 3 (2) (a) (i) read with s 3 (1) (a) of the Act;

(iii)

they are often vague, unclear and lacking in particularity, resulting in considerable uncertainty as to when they apply and precisely what obligations are imposed upon those who are subject to them;

(iv)

they involve such oppressive or gratuitous H interference with the rights of those subjected to them as could find no justification in the minds of reasonable men; Parliament never intended to give authority to make such regulations or orders; they are unreasonable and ultra vires. Unreasonableness in this attack is based upon what was said by Lord RUSSELL OF I KILLOWEN CJ in Kruse v Johnson [1898] 2 QB 91 at 99 - 100.

Before we deal with the regulations and orders in question we propose to make some general observations on the approach which should be adopted in a case such as this and the main legal principles which are involved.

The powers conferred upon the State President by Parliament are very wide indeed but they are nevertheless subordinate J delegated powers

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A which may only be exercised subject to the constraints expressly or impliedly imposed in the enabling Act. There is thus room for judicial scrutiny. In Metal and Allied Workers Union and Another v State President of the Republic of South Africa and Others, J [*] a Full Bench decision of the Durban and B Coast Local Division delivered on 17 July 1986 ("the Mawu case"), DIDCOTT J said at 11:

"I have already said that this Court has no power whatsoever to review the statutes of Parliament. When one is dealing with subordinate legislation, however, the matter is somewhat and significantly different. These regulations amount to subordinate legislation. They are subordinate legislation of a very wide-ranging kind, because of the wide power given to the C State President to make subordinate legislation on such matters."

After referring to, and analysing, many of the cases on the subject, GOLDSTONE J said the following in Momoniat v Minister of Law and Order and Others; Naidoo v Minister of Law and Order and Others 1986 (2) SA 264 (W) at 271, when dealing with the regulations under this Act:

"The wide powers which the form of the words 'as appear to him D to be necessary or expedient' confer has thus been recognised, at least since the 1940's in South Africa. When, in 1953, Parliament used the same form of words in the Act it must be presumed to have known that our highest Court had construed those words in the manner I have described. It must also be deemed to have known that powers exercised under such a delegation were nevertheless subject to scrutiny in the manner to which I have referred..."

E (See also eg Fanie and Others v Minister of Law and Order and Others, a Full Bench decision of the Eastern Cape Division, in case No 1840/85 at 14 - 18; UDF v Staatspresident en Andere, an unreported judgment of the Witwatersrand Local Division in case No 16433/86 at 5 - 6; and United Democratic Front and F Another v State President of the Republic of South Africa and Others, an unreported case of the Eastern Cape Division in case No 1074/86 at 16.) There are numerous other cases in which it has been accepted under the common law that even in the case of the widest discretionary power there is nevertheless room for judicial scrutiny in the case of subordinate legislation. An G example of this is to be found in R v Pretoria Timber Co (Pty) Ltd and Another 1950 (3) SA 163 (A) where VAN DEN HEEVER JA said this at 181 in fine - 182B:

"Where Parliament has conferred vast powers of legislation upon the Executive, the Courts should not in my opinion be astute to divest themselves of their judicial powers and duties, namely to serve as H buttresses between the Executive and the subjects. A point may arise where a regulation made...