Sachs v Donges, NO

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Centlivres JA, Greenberg JA, Schreiner JA, and Van Den Heever JA
• Judgment Date: 14 March 1950
• Citation: 1950 (2) SA 265 (A)
• Court: Appellate Division
• Date: 14 March 1950
• Hearing Date: 30 November 1949
• Docket Number: Case No. 7

Watermeyer, C.J.:

This is an appeal from a decision of ROPER, J., sitting in the Witwatersrand Local Division.

On 28th May, 1949, the Minister of the Interior presented a petition to that Court alleging that on 6th May, 1949, a passport was issued to the present appellant without his authority; that subsequently, when it came to his notice that it had been issued, he revoked the passport and required appellant to return it to him for cancellation; that appellant had refused to do so, and he accordingly applied for a rule nisi calling on appellant to show cause why he should not be ordered to produce his passport to the principal immigration officer at Johannesburg for cancellation. A rule nisi was issued and appellant filed affidavits opposing the confirmation of the rule.

He alleged that he was a Union National and a naturalised British subject; that he had lived in South Africa since 1914 and was domiciled in Johannesburg; that he was the general secretary of the Garment Workers' Union, a Trade Union with 14,000 members, and had been elected as a delegate by that Union to attend an international conference of Textile and Clothing Workers' Trade Unions to be held at Lyons on 20th June, 1949; that he was a member of the National Executive Committee of the SA Trades and Labour Council, and in 1946 had, with the approval of the Union Government, attended the 29th session of the International Labour Organisation as the South African delegate chosen by ballot; that he had on several other occasions been granted a passport, which he had used while travelling abroad; that, in order to obtain the passport in question, he had filled in an application form for the issue of a passport and sent it, together with a fee of one pound, to the passport office in Johannesburg, and that the passport had been handed over in response to that application; that he had then gone to considerable trouble to obtain various visas which he required, that he had been vaccinated, had obtained certain necessary medical certificates, and made certain financial arrangements, all for the purpose of his proposed visit overseas.

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Appellant also alleged that the Minister's decision to revoke the passport was actuated by ill-will towards himself personally and by party political considerations.

The relevant portions of the Minister's replying affidavit, which I quote verbatim, are as follows:

'I admit that respondent duly applied for a passport on the 6th May, 1949, and that the passport bearing the facsimile signature of the Secretary for the Interior was issued to respondent by the Principal Immigration Officer in Johannesburg. The said passport was issued by mistake to respondent without my considering his application and without my knowledge or authority.

When I became aware of the fact that the said passport had been erroneously issued, I duly considered the whole matter and bona fide decided to withdraw and cancel it. I deny that I acted arbitrarily or capriciously or was actuated by malice or ill-will towards respondent personally.

I say that the granting or cancellation of a passport is not governed by any Act of Parliament or statutory regulations. I say that the granting or refusal of a passport to a Union National is in the nature of the exercise of an act of the prerogative of the Crown and in the discretion of the Minister of the Interior representing the Crown, and that consequently it is a privilege which can be withdrawn at any time by the Crown or the Government of the Union of South Africa without assigning any reasons for such withdrawal. I further respectfully submit that this Honourable Court has no jurisdiction over the exercise of such prerogative of the Crown. I say that it was in the exercise of the said prerogative that I duly revoked or cancelled the passport of respondent. I deny that the issuing of a passport is not a privilege as alleged in para. 2 (y) of respondent's replying affidavit.

That I am consequently not obliged to give the reasons for the cancellation of respondent's said passport, and I say that save for the above I am not called upon to deal with the other allegations in respondent's replying affidavit, which are, in fact, irrelevant to these proceedings.'

ROPER, J., held that the issue and revocation of passports were executive acts done by the Crown in the exercise of its prerogative powers, and that a Court of law could not control the exercise of those powers; consequently he made an order directing appellant to hand over his passport to the principal immigration officer for cancellation.

Against that decision this appeal has been brought.

The greater part of the arguments both for appellant and respondent was taken up by a discussion of the prerogative powers of the Crown, but before considering those arguments reference must be made to the statement contained in the Minister's affidavit, to the effect that the passport was issued without his authority. This point was not elaborated in any way, and no reliance was placed upon it by respondent in argument. I take it, therefore, that the Minister did not intend, by that statement, to mean that

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the passport was irregularly issued by some official who has no authority to do so, but merely that he did not personally authorise its issue. In other words, he is not saying that the issue of the passport was null and void ab initio as an act done without the authority of the Executive Government of the Union (which for convenience I shall refer to as the Crown), but that the Crown has a common law legal right to cancel it derived from its prerogative powers.

That leaves the way clear for an examination of the prerogative powers vested in the Crown uncomplicated by other issues.

The executive powers of the Crown are to a large extent conferred or defined by Parliament, and consequently there exists a vast field of this administrative law, which is to be found in the Statute Books. But besides those defined powers, certain other powers and privileges exist by virtue of eustom or common law. The term 'prerogative' may be applied to the whole of the Crown's executive powers, but it is usually limited to the customary and common law powers and privileges. See Anson, Law and Custom of the Constitution (Vol. 2, Ch. 1, sec. 1).

The prerogative has been defined by Dicey as the 'discretionary authority of the executive', that is, anything which the King or his servants, duly authorised by him, may do without the authority of an Act of Parliament. Anson derives the Crown's prerogative powers in Great Britain from three sources:

(1)

the residue of the executive powers which the King possessed in the early stages of English history when he led his people in war, administered their affairs in peace and was their judge in the last resort, and this power, reduced in compass by statute and limited by conventional and practical restrictions, is the discretionary authority of the executive mentioned by Dicey;

(2)

prerogative rights which owe their origin to the position of the King as a feudal chief and ultimate landowner and Lord of every man;

(3)

prerogative rights springing from the attributes with which the King in legal theory is invested, which are expressed in maxims such as the King can do no wrong.

The subject of the prerogative of the Crown is fully dealt with in Halsbury, Laws of England (2nd Ed., Vol. 6, sec. 511 et seq.), and in Bacon's Abridgement, and in Comyn's Digest s.v. prerogative, and these last two books are constantly referred to by Sir

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William Holdsworth, who is the author of the title on the Royal Prerogative appearing in Halsbury.

When no Parliamentary authority for executive action by the Crown exists, such action can, within the limits of the law, be taken by virtue of the prerogative.

The Crown cannot, of course, by such executive action infringe the legal rights of subjects with impunity.

It was argued that the interests of the State may require the Crown to perform executive acts which infringe the rights of subjects. No doubt that is so, but such acts are not legally validated by State necessity. The Crown may be compelled by State necessity to break contracts or commit torts, but if it does so it is not acting lawfully and must suffer the legal consequences, unless it is indemnified by Parliament (see a discussion of the subject in Krohn v The Minister for Defence and Others (1915 AD 191) and Halsbury (supra, sec. 535)).

With regard to passports, although the grant and issue of a passport in South Africa is an act done by a subordinate official in the Ministry of the Interior, and is not an executive act formally executed in the manner provided by Act 70 of 1934, it is nevertheless an administrative act not authorised by any Act of Parliament, and consequently it must be an act done by the Crown by virtue of its discretionary authority.

In the trial Court it was assumed as axiomatic that because the Crown was at liberty to grant a passport by virtue of its prerogative power, therefore it had a legal right to revoke a passport by virtue of the same power. But whence is the power to revoke derived? The Crown is at liberty to grant a passport because such a grant is an administrative act which in no way infringes the legal rights of anyone, is not expressly or impliedly forbidden by law and is not restrained by the financial consideration that Parliament has voted no funds to defray the cost of such administrative action. But if by issuing a passport the Crown has granted rights to the recipient of the passport, the question arises whether the Crown is at liberty thereafter to take away those rights? Furthermore, can the Crown claim assistance from a Court of law to compel the recipient to surrender the passport for cancellation?

It was argued on behalf of the respondent that the grant of a passport vests no legal...