Publications Control Board v Central News Agency Ltd

• Jurisdiction: South Africa
• Judge: Steyn CJ, Rumpff JA, Botha JA, Trollip JA and Rabie AJA
• Judgment Date: 21 May 1970
• Hearing Date: 08 May 1970
• Court: Appellate Division

Publications Control Board v Central News Agency Ltd
1970 (3) SA 479 (A)

1970 (3) SA p479

Citation	1970 (3) SA 479 (A)
Court	Appellate Division
Judge	Steyn CJ, Rumpff JA, Botha JA, Trollip JA and Rabie AJA
Heard	May 8, 1970
Judgment	May 21, 1970

Flynote : Sleutelwoorde A

Publications and entertainment — Objectionable matter — Dealing with by Publications Control Board under sec. 3 (a) of Act 26 of 1963 B — Board to operate without application of maxim audi alteram partem — Intention of Legislature under Act 26 of 1963 and Customs Act, 91 of 1964 — Appeal under sec. 14 of Act 26 of 1963 — Right of review not excluded — 'Appeal' — Meaning of.

Headnote : Kopnota

The manner in which the Publications and Entertainments Act, 26 of 1963, and those provisions of the Customs Act, 91 of 1964, that deal with C objectionable matter have mutually been integrated, indicates that the Publications Control Board, functioning under section 3 (a) of the Publications and Entertainments Act, and the Board's procedure in arriving at a decision on any question put before it or on the issue of any permit, have been adopted by Parliament for the purpose of dealing with objectionable goods in terms of the Customs Act.

If Parliament had intended to limit the jurisdiction of the Court to an appeal under section 14 of Act 26 of 1963, and to exclude the right of D review, it would have said so in express terms.

The appeal afforded by section 14 of Act 26 of 1963 is not an appeal in the legal sense but a hearing, if necessary, by way of permissible viva voce evidence and cross-examination.

Act 26 of 1963 discloses a clear intention by Parliament that the Publications Control Board, in exercising its functions under section 3 (a) of the Act, is not required to afford a hearing to a person affected E by its decision, i.e. the Board operates without the application of the maxim audi alteram partem.

The decision in the Cape Provincial Division in Central News Agency Ltd v Publications Control Board, reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (BEYERS, J.P., F BANKS, J., and VAN HEERDEN, J.). The facts appear from the judgment of RUMPFF, J.A.

L. Kooy, S.C. (with him T. E. Kleynhans), for the appellant: The Court below misconstrued Act 26 of 1963 which, by clear implication, excludes application of the audi alteram partem rule by the Board, and also G precludes any review by the Court, whether under sec. 14 or at common law. The purpose of the Act is to provide for a speedy preliminary censorship decision (based simply on an examination of the subject matter by a chosen panel of experts) which is published for general information to enable any aggrieved person to set in motion a full-scale H inquiry by a court of law. The procedure is convenient, enabling the Board to deal with many more matters than would be possible if it afforded a hearing in each case while yet providing maximum protection to interested parties in the rare case where the Board's preliminary decision is disputed.

Although the 'banning' was published in the Gazette in terms of sec. 113 of the Customs Act, 91 of 1964, the Board's decision was made in accordance with its powers and duties as set out in Act 26 of 1963, which by clear implication excludes the operation of the audi alteram

1970 (3) SA p480

partem rule. Thus (a) the board forms its opinion simply by 'examining' the publications in question upon request, secs. 3 (a) and 8 (a); (b) there is no provision for prior notice to any person, no machinery for A hearing evidence or argument, for keeping a record or for furnishing reasons. Cf. Publications Control Board v William Heinemann Ltd., 1965 (4) SA at pp. 147E, 162A; (c) the board publishes its decision in the Gazette 'without delay' without prior notice to any person, see sec. 8 (5); (d) the Board does not decide a dispute. A dispute arises only when and if the 'banning order', published in the Gazette, is objected to, B and this dispute is then resolved in the 'appeal' under sec. 14; (e) the preliminary decision by the Board may affect, not only the importer, but other persons whose identity is unknown to the Board and to whom it cannot, therefore, give notice or a hearing. The purpose of publishing the Board's decision in the Gazette is to inform such persons C of the decision so as to enable them to make representations, not to the Board, but to the Court in terms of sec. 14, which gives this right, not only to the importer, but also to any person who is aggrieved by a decision of the Board in terms of sec. 8 (1) (a) or (e); (f) the full and unrestricted inquiry which is obligatory in an 'appeal' under sec. 14 ensures the removal of any prejudice suffered by non-observance of the audi alteram partem rule (or by any irregularity, illegality or D error of fact or law). The Court a quo erred in relying on the decision in Commissioner of Customs & Excise v Watch-Tower Bible and Tract Society, 1941 CPD 438, since the present censorship machinery differs toto coelo from that which fell to be considered in the Watch-Tower E case. In an appeal under sec. 14, (a) the Court is obliged 'to enquire into and consider the matter', i.e. to deal with the merits; (b) it is obliged to make a decision on the merits; (c) it has no power of remittal, indeed no power to make any orde other than an order on the merits; (d) the Court functions as a superior 'administrative body', see Publications Control Board v William Heinemann Ltd., supra at p. 156G; F (e) the Court was not intended to function as a review tribunal, Heinemann case, supra; S. A. Magazine Co v Publications Control Board, 1966 (2) SA at p. 150F; (f) the draftsman was alive to the difference between an appeal and a review (see sec. 11 (3) of Act 26 of 1963) yet provided only for an appeal in sec. 14; (g) there is no hardship in this G interpretation since any prejudice flowing from any irregularity or illegality must necessarily be cured by the 'appeal', the Court having the widest powers of hearing evidence and argument and being in no wise restricted to matters considered by the Board. See Heinemann case, supra at p. 147D-G, 156G-H, 162A-G; Lindberg v Publications Control Board, 1968 (4) SA at pp. 312H-313C.

J. van Zyl Steyn, S.C. (with him R. G. Comrie), for the respondent: The appellant has attacked the correctness of the judgment in the Court a quo on two grounds, namely: (a) that the review jurisdiction of the Supreme Court has been excluded; and (b) that the audi alteram partem rule has been excluded. H

As to (a) If this contention were to prevail, it would follow that even where the complaint is that the purported decision is, by reason of some fundamental irregularity, not a decision at all, the Court has no corrective jurisdiction. It would, for example, exclude a review if the

1970 (3) SA p481

purported decision exceeded the Board's powers; if it was arrived at without the necessary quorum; if the Board entirely failed to consider the matter, etc. Since Parliament is supreme it can, of course, by express enactment achieve such a result. It is, however, a course which Parliament has only adopted in rare cases and for very special reasons. A See sec. 3 (2) of the Suppression of Communism Act, 44 of 1950. There is a strong presumption against legislative interference with the ordinary jurisdiction of the Courts. See Lenz Township Co v Lorentz, N.O. en Andere, 1961 (2) SA at p. 455B. While the review jurisdiction of the Supreme Court may be excluded by implication, it is clear that only a necessary implication would achieve such a drastic result. See B Welkom Village Management Board v Leteno, 1958 (1) SA at pp. 502D to 503H.

As to (b): It is a fundamental principle of our system of administrative law that, wherever a statute empowers an official or body to give a decision C prejudicially affecting the rights of an individual, that individual has the right to be heard before the decision is taken, unless the statute expressly or by necessary or clear implication indicates the contrary. See R v Ngwevela, 1954 (1) SA 123; Minister van Naturellesake v Monnakgotla, 1959 (3) SA 517; Cassem en 'n Ander v Oos-Kaapse Komitee van die Groepsgebiederaad en Andere, 1959 (3) SA D 651; Minister of Interior and Another v Mariam, 1961 (4) SA 740; S.A. Defence & Aid Fund and Another v Minister of Justice, 1967 (1) SA 263. It is true that the statute nowhere expressly directs appellant to hold an enquiry, give respondent a hearing, keep a record of its proceedings, or furnish reasons for its decision. But this is unnecessary. The operation of the audi alteram partem rule (whatever its E content in a given case) is legally implied by the nature of the decision which may be taken, unless excluded expressly or by necessary or clear implication. In the present case there is no express exclusion. The only issue is accordingly whether there is an exclusion by necessary or clear implication. There is nothing in the statute to support an implied exclusion of the principles of natural justice. On the contrary, F the nature of the Board's duties are such that it appears most unlikely that Parliament could have intended to exclude the audi alteram partem rule. It is significant that the Board is not vested with an administrative discretion to decide whether a publication should be distributed or not. The Board, which does not act mero motu but only G when a matter is referred to it, must decide the 'question' before it in the light of the provisions of the Act. See sec. 113 (3) of the Customs Act, 91 of 1964; secs. 5 (2) and 6 of the Publications and Entertainments Act, 26 of 1963; Publications Control Board v William Heinemann Ltd., 1965 (4) SA at p. 146H; Marshall Cavendish Ltd. and Another v Publications Control Board, 1969 (4) SA at pp. 9C-10A. H ...