R v Ngwevela

• Jurisdiction: South Africa
• Citation: 1954 (1) SA 123 (A)

R v Ngwevela
1954 (1) SA 123 (A)

1954 (1) SA p123

Citation	1954 (1) SA 123 (A)
Court	Appellate Division
Judge	Centlivres CJ, Greenberg JA, Schreiner JA, Hoexter JA and De Beer AJA
Heard	November 9, 1953
Judgment	November 25, 1953

Flynote : Sleutelwoorde C

Communism — Suppression of Communism Act, 44 of 1950, as amended — Minister exercising powers under sec. 9 — Person affected entitled to be heard — Maxims — Audi alteram partem — When to be enforced.

Headnote : Kopnota

Before the Minister of Justice exercises his powers under section 9 of D the Suppression of Communism Act, 44 of 1950, as amended, the person affected is entitled to be given an opportunity of being heard.

The maxim audi alteram partem should be enforced unless it is clear that Parliament has expressly or by necessary implication enacted that it should not apply or that there are exceptional circumstances which would justify the Court's not giving effect to it. E

Case Information

Appeal from a decision in the Cape Provincial Division (NEWTON THOMPSON, J. and STEYN, J.), dismissing an appeal from a conviction in a magistrate's court. The facts appear from the judgment of CENTLIVRES, C.J.

D. B. Molteno, Q.C., for the appellant: Whether or not there is, in terms of sec. 9 of Act 44 of 1950, reason to believe in any particular F case that the achievement of any of the objects of Communism would be furthered, raises a question of fact as to the existence of which the Minister's opinion is decisive. It follows, as a matter of necessary implication that, in order to form such an opinion, the Minister must make some enquiry into the associations, antecedents, activities, etc. of the individual concerned; cf. de Verteuil v Knaggs, 1918 A.C. at p. G 560. In view of the very wide definition of 'gathering' in sec. 1, sec. 9 empowers the Minister to make decisions, not in his arbitrary discretion, but after enquiry into matters of fact which may affect, in a grave degree, the rights of individuals. Powers of this nature must be exercised in a judicial or quasi-judicial manner; see Hack v Venterspost Municipality and Others, 1950 (1) SA at pp. 189 - 90; Pretoria North Town Council v A.1 Electric Ice Cream Factory (Pty.) H Ltd., 1953 (3) SA at pp. 11 - 12; Local Government Board v Arlidge, 111 L.T. at p. 913. The due exercise of such powers involves notification to the individual likely to be prejudicially affected, of the proposal to take action against himself and his being afforded an opportunity to defend himself and to correct or controvert the information upon which the public authority possessing the

1954 (1) SA p124

power proposes to act, except where the empowering statute, expressly or by necessary implication, provides to the contrary; see Sachs v Minister of Justice, 1934 AD at pp. 22, 38 - 9; Board of Education v Rice, 104 L.T. at p. 691; Local Government Board v Arlidge, supra, at pp. 908 - 9, 914; Spackman v Plumstead District Board of Works, 10 A A.C. at p. 240; General Medical Council v Spackman, 1943 (2) A.E.R. at p. 343; Sullivan v Wheat Industry Control Board, 1946 T.P.D. at pp. 203, 207; Mofokeng v Minister of Native Affairs and Others, 1949 (3) SA at pp. 790 - 3. The principle is founded on conceptions such as those of reason and justice, fairness and fair play; see Pretoria North Town Council case, supra at p. 12; Board of Education case, supra at p. 691; Marlin v Durban Turf Club, 1942 AD at pp. 125 - 6, 127 - 8. B There is no provision of Act 44 of 1950 embodying a necessary implication that the foregoing principle is not to be applicable to the exercise by the Minister of the power conferred by sec. 9 to prohibit a person 'from attending any gathering in any place within an area and during a period specified'. There is no provision in Act 44 of 1950 similar to that dealt with in Sachs' case, supra. In Sachs v Swart, N.O., 1952 (4) SA 417, it was held, that Act 44 of 1950 authorised C prompt preventative action, but only where such action was urgent, as an inquiry would 'defeat the cardinal purpose of prompt and preventive action'; cf. Sachs' case, supra at p. 38. Apart from sec. 9, it is clear from the Act that where discretionary powers are conferred which may prejudicially affect individuals, such powers are not to be exercised without previous inquiry; cf. the powers of the Governor-General under D secs. 2 (2), 6, 14 and of the Minister under sec. 10 (1). Sec. 10 (1) is closely analogous to sec. 1 (12) of Act 27 of 1914 which was dealt with in Sachs' case. supra. Hence, if any necessary implication, excluding an inquiry, is to be gathered from the Act, it must be gathered from sec. 9 alone. There is no room for such implication, especially as the conduct of persons and organisations dealt with in E secs. 2 (2), 6, 14 and 10 (1) would appear to be potentially more effective in spreading the doctrine of Communism than the mere attendance of an individual at gatherings. The express provisions in the Act, regarding inquiry, do not displace the principle audi alteram partem in relation to sec. 9. The maxim expressio unius est exclusio alterius is not a rigid rule, but merely a guide, which is to be applied F with caution; see Chotabhai v Union Government and Another, 1911 AD at p. 28; S.A. Estates & Finance Corp. Ltd v C.I.R., 1927 AD at p. 236. Express provisions in a statute for the observance of the requisites of a fair hearing do not, in general, exclude their general application to the exercise of quasi-judicial powers conferred by that statute in relation to which no such express provision is made; see G Loxton v Kenhardt Liquor Licensing Board, 1942 AD at pp. 315 - 6. In any event, the express provisions for inquiry contained in Act 44 of 1950 are explicable on a basis entirely consistent with an intention on the part of the Legislature not to exclude the audi alteram partem principle in relation to sec. 9. If it were not for sec. 17, the necessary enquiries implicit in secs. 2 (1), 6, 14 and 10 (1) would have to be made by the Minister through his ordinary officials; cf. Local Government Board v Arlidge, supra at p. 908. With reference to secs. 4 H (10) and 7 (2), the liquidator and authorised officer, respectively, do not exercise quasi-judicial powers at all, and these provisions were merely inserted as incidents of their respective administrative duties of investigation in the compilation of lists; see Tefu v Minister of Justice and Another, 1953 (2) SA at pp. 65, 68 - 9. The consultation between the Minister of Justice and the Minister of Labour prescribed by sec. 5 (3) is based on

1954 (1) SA p125

the circumstance that the latter Minister ordinarily administers Act 36 of 1937. Ex facie the notice in the present case, the Minister's reason for issuing it is that appellant's name appears on the list in the custody of the officer referred to in sec. 8; cf. Tefu's case, supra at p. 71. But this circumstance does not exclude appellant's right to a fair hearing since sec. 9 has no necessary relation to such a list. Not only does the section not mention the list, but in terms of secs. 4 (10) A and 7 (2) a person's name must be placed thereon if he has, at any time, joined or supported the former Communist Party or some other unlawful organisation, however remote or hostile his relations therewith may subsequently become. In any event, once the requisites of a fair hearing have been disregarded, it is immaterial that the Minister would, in any event, have arrived at the same conclusion; see General Medical B Council v Spackman, supra at p. 345. Even if it be held, contrary to the foregoing submissions, that there is room for an implication excluding the audi alteram partem principle, sec. 9 is nevertheless capable of being construed so as to embody it. Having regard to the autocratic powers that it confers on the Minister, the Court will construe the section in a manner that least interferes with the liberty C of the individual; see R v Sachs, 1953 (1) SA at p. 399. If the notice in question implies, as it is submitted it does, that the mere fact that appellant's name appears on the list is the sole reason for issuing the notice, then the Minister failed to apply his mind to the question which the section requires him to consider, viz. whether there is reason to believe that appellant's attendance at any gatherings D (other than those excepted by the notice), would further the objects of Communism. In terms of secs. 9 the Minister must apply his mind to all relevant circumstances affecting appellant, including, but not limited to, the fact that his name appears on the list. On the foregoing construction of the notice, the notice is invalid on this ground also; cf. Shidiack v Union Government, 1912 AD at p. 642.

W. M. van den Berg, for the Crown: The question whether the maxim audi E alteram partem applies must be answered by reference to the Act; see Sachs v Minister of Justice, 1934 AD at p. 38. The Act, by necessary implication, indicates that the maxim does not apply where a notice is issued under sec. 9; see Sachs' case, supra at pp. 22, 38; Commissioner of Customs and Excise v Watch-Tower Bible & Tract Society, 1941 CPD at p. 447; Mhlengwa v Secretary for Native Affairs and Another, 1952 F (1) SA at p. 319. Where an inquiry at which the person concerned is given an opportunity of defending himself was intended by Parliament, express provision is made for it. In view of the drastic consequences which follow the inclusion of a person's name in a list compiled under secs. 4 (10) or 7 (2), express provision has been made for an inquiry by the liquidator or authorised officer before he includes a person's name G in such a list; see Tefu v Minister of Justice and Another, 1953 (2) SA at p. 65 and cf. sec. 17 read with secs. 2 (2), 6, 10 (1) and 14. The fact that secs. 5 (1) and 9 (1) are...