S v Naicker and Another

• Jurisdiction: South Africa
• Judge: Caney J and Harcourt J
• Judgment Date: 05 April 1965
• Citation: 1965 (2) SA 919 (N)
• Hearing Date: 15 March 1965
• Court: Natal Provincial Division

Caney, J.:

The appellants, who according to the record are husband and wife and are Indians, were charged before a magistrate in Durban with H contravening sec. 23 (1), read with other appropriate provisions of the Group Areas Act, 77 of 1957, as amended, and read with other legislation, including certain Proclamations. The basis of the charge against them was that, being members of the Indian Group, they occupied certain premises, their home, which was situate in an area declared by the Governor-General by Proc. 152 of 1958 for occupation and ownership by members of the White Group. Both appellants pleaded not guilty and counsel, who appeared for them, informed the court at

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the outset of the trial that it was the intention to challenge the validity of the Proclamation I have mentioned as being 'ultra vires and void'. Counsel said the defence would lead evidence in support of this contention. The magistrate indicated that he felt that he had no A jurisdiction to pronounce on the validity or otherwise of the Proclamation (as indeed by the provisions of sec. 110 of the Magistrates' Courts Act, 32 of 1944, he had not), and he might not feel disposed to hear evidence on that aspect of the case. Evidence was led for the prosecution and for the defence a witness was called on an B aspect of the case other than the validity of the Proclamation, but in regard to that counsel referred the court to Ismail and Others v Additional Magistrate, Wynberg, and Another, 1963 (1) SA 1 (AD). At p. 6 the CHIEF JUSTICE said the magistrate

'had no jurisdiction to enter upon the issue of the validity of the Proclamation or to hear evidence in substantiation of any alleged grounds of invalidity . . . It (that issue) could be raised on appeal in C the same way as on indictment before the Provincial Division, and could there be dealt with as adequately as and probably more expeditiously than in the civil action'.

Counsel said that the remainder of the defence evidence would relate to the invalidity of the Proclamation only and the magistrate, without calling on the State, ruled that

'this court is not prepared to record such evidence and that it is D therefore inadmissible for the purposes of these proceedings'.

Neither of the appellants gave evidence, but the first appellant made an unsworn statement from the dock. Both were convicted and each was sentenced to pay a fine of R50 or serve 30 days' imprisonment and also a further 30 days' imprisonment suspended for nine months on condition E that they both vacated the premises on or before a stated date, by which indeed they were ordered to vacate them.

Both appellants noted an appeal to this Court. The grounds of appeal are two-fold; the first challenges the conviction on the ground that the State failed to prove, by the required evidence, the commission of the F offence - this relates to the merits of the case, but up to now there has been no argument on this part of the appeal. The second ground of appeal is that

'the conviction was bad in law in that Proc. 152 of 1958 is invalid and/or ultra vires the enabling Act'.

Subsequently the appellants gave notice of an application to amend the G notice of appeal by providing particulars of the grounds on which they contend that the Proclamation is ultra vires. There has been a little confusion in the setting out of these grounds, but Mr. Shaw, who appeared before us, in the circumstances I shall mention later, explained that they were on two heads. The first relates to an attack on the acts of the Minister of the Interior and the Group Areas Board, whilst the second relates to an attack on the acts of the Minister and H the Governor-General-in-Council. (I observe that the appellants' attorneys have referred to this as the Governor-in-Council). The basis of the former attack is that the Board purported to hold an enquiry upon the desirability or otherwise of setting up Group Areas in Durban and for that purpose to consider, inter alia, whether or not suitable alternative accommodation would be available for persons whose occupation of land or premises within any area would be rendered unlawful by the issue of a Proclamation; the Board made a report, but the report was not a

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proper report in terms of the Act because the enquiry was not a proper enquiry in that:

'(i)

The Minister and the Governor-in-Council in issuing the said Proclamaability of suitable alternative accommodation for members of the non-white groups outside the areas which have in terms of the aforesaid Proclamation been declared Group Areas for the occupation A of members of the white Group;

(2)

The said Board, before commencing the said enquiry or alternatively before completing it, had already made a decision as to the Group Areas which it was going to recommend in its report and failed to give due or bona fide consideration to the representation made to it by interested parties at the enquiry.'

In the attack on the acts of the Minister and the B Governor-General-in-Council, the grounds upon which the appellants contend that the Proclamation is ultra vires, are stated as follows:

'(i)

The Minister and the Governor-in-Council in issuing the said Proclamation were following a fixed policy of making life economically and socially intolerable and insupportable for the Asian inhabitants of the country and in particular for the Indian C inhabitants and/or compelling them to emigrate from the country.

(ii)

The Minister and the Governor-in-Council in issuing the said Proclamation followed the above fixed policy and failed to exercise a true discretion with regard to the expediency or otherwise of the Proclamation declaring the Group Areas in Durban.

(iii)

The Minister and the Governor-in-Council did not honestly deem it expedient for the purposes of the Group Areas Act to issue the said Proclamation but did so with the improper and ulterior D motive of giving effect to the aforesaid policy.'

The dispute out of which this judgment arises relates to the admissibility of evidence in support of these grounds. This question came before us in the following circumstances. On 24th September, 1963, the appeal came before this Court and counsel for the appellants applied E for an order in terms of sec. 22 (a) of the Supreme Court Act, 59 of 1959, for the hearing of evidence either orally by this Court or by depositions before a person to be appointed by the Court. Counsel for the State did not oppose the application, 'the attitude of the State' being as said by HENNING, J., in giving the judgment of the Court on the application,

'that the matter was of great importance and that justice could not be F done until evidence on the issue of ultra vires was heard'.

The Court came to the conclusion that it was inadvisable that evidence be heard by way of depositions, and that the best course would be for this Court itself to hear oral evidence. Consequently, the appeal was adjourned to a date to be fixed

'for the purpose of this Court receiving evidence on the issues raised G by ground 2 of the notice of appeal as amended'.

Upon 8th November, 1963, the appeal again came before this Court. By then Minister of Community Development v Saloojee and Another, 1963 (4) SA 65 (T), had been decided. I shall return to discuss that case, but the relevance of it at the time of the hearing on 8th November, 1963, H was that the decision was adverse to the present appellants in relation to the admissibility of evidence they desired to lead before the Court, but was under appeal to the Appellate Division. Counsel consequently applied for a postponement of the proceedings, to await the decision of the Appellate Division, although he indicated that he was ready to lead evidence if the Court took the view that the matter should not be postponed. Counsel for the State opposed the postponement. In the course of the discussion which ensued, he indicated that

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the State was completely in the dark as to the nature of the evidence the appellants proposed to lead, and eventually counsel for the appellants indicated that he was prepared to throw light upon the matter A by providing a summary of the effect of the evidence and also supply a summary of the evidence of each witness. The upshot of the matter on that occasion was that the appeal was postponed to a date to be fixed not earlier than the delivery of the judgment of the Appellate Division in the case I have mentioned, unless with the leave of the Court, and the appellants were to provide the Attorney-General with the two B summaries which their counsel had indicated their willingness to provide. The appellants did then supply a summary of the effect of the evidence the appellants proposed to lead. This document commenced by repeating the three grounds of attack on the Proclamation in so far as related to the acts of the Minister and the Governor-General-in-Council, C saying that evidence would be led in regard to those matters, and then proceeded to state the nature of the evidence, as follows:

'(i)

The nature and effects of the Proclamation declaring Group Areas in Durban and also the nature and effect of the Proclamations declaring Group Areas and future Group Areas in other towns and cities in the Republic of South Africa.

(ii)

Official pronouncements including pronouncements of members of the Executive Committee and pronouncements of members and supporters of the Government in regard to the allegation of fixed policy referred D to above.

(iii)

The practice and policy of the Group Areas Board in regard to applications for permits and determinations under the Group Areas Act and the practice and policy of the Minister and the Governor-General-in-Council in regard to Proclamations issued in terms of sec. 16 (3) (a) of the Group Areas Act, 77 of 1957, and the analysis of provisions of the Group Areas Act, 41 of 1950.'

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