R v Ngwevela

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Hoexter JA and De Beer AJA
• Judgment Date: 25 November 1953
• Citation: 1954 (1) SA 123 (A)
• Hearing Date: 09 November 1953
• Court: Appellate Division

Centlivres, C.J.:

On May 12th, 1952 the following notice was served on the appellant: -

'The Suppression of Communism Act 44 of 1950, as amended.

Whereas your name appears on the list in the custody of the officer referred to in sec. 8, please take notice that:

1.

Under the powers vested in me by sec. 5 of the Suppression of Communism Act (Act 44 of 1950 as amended), you are hereby D requested:

(a)

to resign within a period of 30 days from date hereof as an office-bearer, officer or member of the following organisations and not again to become an office-bearer, officer or member thereof and not to take part in their activities;

Franchise Action Council

Cape Town Peace Council

(b)

not to become an office-bearer, officer or member and not to take part in the activities of E the organisation called African National Congress.

2.

Under the powers vested in me by sec. 9 of the Suppression of Communism Act (Act 44 of 1950 as amended), you are hereby prohibited from attending any gathering whatever within the Union of South Africa and the Territory of South-West Africa for a period of two years from date hereof other than gatherings of a bona fide religious, recreational or social nature.

3.

Under the powers vested in me by sec. 10 of the Act and after 30 days from date hereof you are hereby prohibited for a period of F two years from being within any province in the Union of South Africa, or the Territory of South-West Africa, other than the province of the Cape of Good Hope.

Given under my hand at Cape Town this 28th day of April, 1952.

(Sgd.) C. R. Swart,

Minister of Justice.'

G Para. 3 of the above notice was withdrawn by a notice issued by the Minister on June 30th, 1952. The reason for the withdrawal was apparently due to the fact that sec. 17 of the Act had not been complied with.

Appellant was convicted in a magistrate's court of contravening sec. 11 (h) read with sec. 9 of Act 44 of 1950, as amended, in that he, in H contravention of the above notice, attended, on June 23rd, 1952, a gathering which was not of a bona fide religious, recreational or social nature. He appealed unsuccessfully to the Cape Provincial Division which granted him leave to appeal to this Court.

The conviction of the appellant was attacked on two grounds. The first ground was that the notice was invalid in that the Minister, before exercising his powers under sec. 9 of the Act, had (as was admitted by

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the Crown) failed to give the appellant an opportunity of defending himself. The second ground was that the preamble to the notice governed both paras. 1 and 2 and that it must therefore be taken that the only reason why the Minister caused the notice under sec. 9 to be served on the appellant was because his name was on the list referred to in the preamble. This reason it was contended was not justified by sec. 9.

A I shall now deal with the first of the grounds mentioned above. Sec. 9 of the Act is as follows: -

'9. Whenever in the opinion of the Minister there is reason to believe that the achievement of any of the objects of communism would be furthered -

(a)

by the assembly of a particular gathering in any place; or

(b)

if a particular person were to attend any gathering in any place,

the Minister may, in the manner provided in sub-sec. (1) of sec. 1 of the Riotous Assemblies and Criminal Law Amendment Act, 1914 (Act 27 of 1914), prohibit the assembly of that gathering in any place within the B Union, or he may by notice under his hand addressed and delivered or tendered to that particular person, prohibit him from attending any gathering in any place within an area and during a period specified in such notice.'

Sec. 9 of the Act necessarily implies that in order to form the opinion requisite for action under the section the Minister must have in his possession information enabling him to form that opinion. Mr. Molteno, C who appeared for the appellant, relying on a number of decided cases, contended that, in the absence of an expressed or implied statutory provision to the contrary, there was a duty resting on the Minister, before arriving at his opinion, to make some enquiry which involves notification to the person likely to be prejudicially affected by the proposal to take action against him, and an opportunity to defend himself and to controvert any information upon which the Minister D proposes to act. In effect counsel relied on the well known and frequently invoked maxim audi alteram partem. In Sachs v Minister of Justice, 1934 AD 11 at p. 38, STRATFORD, A.C.J., said:

'Sacred though the maxim is held to be, Parliament is free to violate it. In all cases where by judicial interpretation it has been invoked, this has been justified on the ground that the enactment impliedly incorporated it. When on the true interpretation of the Act, the E implication is excluded, there is an end of the matter.'

In referring to the implied incorporation of the maxim STRATFORD, A.C.J., must have had in mind the numerous judicial decisions in which it has been held that, when a statute empowers a public official to give a decision prejudicially affecting the property or liberty of an individual, that individual has a right to be heard before action is F taken against him, (cf. the remarks of TINDALL, J. in the Court below reported at p. 22) unless the statute expressly or by necessary implication indicates the contrary.

In Sachs' case, supra - at pp. 22 - 24 - TINDALL, J., held that the Minister is not bound to give a person against whom he proposes to issue a prohibition under sec. 1 (12) of Act 27 of 1914 an opportunity G of defending himself. The only ground of the decision of the Provincial Division in that case was that it was clear from the provisions of sub-secs. (12) and (13) of sec. 1 of the Act that the Legislature did not intend that the person affected should have an opportunity of being heard before the Minister issued a notice under sub-sec. (12); but after the order had been made the Minister was bound under sub-sec. (13) to consider any representations which the person wished to make. On appeal H the ratio decidendi of TINDALL, J. was approved. (See p. 38). This ratio decidendi is of no application to the present appeal, for there is no provision in Act 44 of 1950 which corresponds to sec. 1 (13) of Act 27 of 1914.

This Court, however, supported the decision of the Provincial Division on an additional ground. On p. 36 STRATFORD, A.C.J., said -

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'Mr. Murray, I think, is correct in saying that its (i.e. the Act's) provisions constitute a measure of 'preventive justice' - that is to say they are not directed towards punishment for offences committed but towards 'restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done.' (Per LORD ATKINSON in Rex v...