Sachs v Donges, NO

• Jurisdiction: South Africa
• Citation: 1950 (2) SA 265 (A)

Sachs v Donges, NO
1950 (2) SA 265 (A)

1950 (2) SA p265

Citation	1950 (2) SA 265 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Centlivres JA, Greenberg JA, Schreiner JA, and Van Den Heever JA
Heard	November 30, 1949
Judgment	March 14, 1950

Flynote : Sleutelwoorde

Immigration — Passport — Revocation by Crown — When competent — Whether revocation can be questioned in Court — 'Prerogative' — Meaning of.

Headnote : Kopnota

A subject who has been granted a passport by the Crown cannot be deprived of such passport by an executive revocation of the grant; and, if so revoked, such revocation can be questioned in a court of law (per WATERMEYER, C.J.; GREENBERG, J.A., and SCHREINER, J.A., concurring; CENTLIVRES, J.A., and VAN DEN HEEVER, J.A., dissenting).

The meaning and scope of the term 'prerogative' discussed.

The decision in the Witwatersrand Local Division in Donges, N.O v Sachs, reversed.

Case Information

Appeal from a decision in the Witwatersrand Local Division (ROPER, J.). The facts appear from the judgment of WATERMEYER, C.J.

H. Snitcher, K.C. (with him D. B. Molteno and S. Kentridge), for the appellant: Once a passport is granted by the Crown, the latter cannot revoke it, except, possibly on certain grounds not relevant to the present appeal. Neither the Crown nor the subject can shed his respective duties arising on the issue of a passport, although the consequences to each in respect of a breach of duty may differ; but for the subject the passport is merely the outward title of his rights and nothing more; see Joyce v Director of Public Prosecutions (1946 (1), A.E.R. at pp. 191 - 2); it is not a testimonial of respectability. In this respect the definition of 'passport' in Rex v Brailsford (1905 (2), K.B. at p. 745) is not acceptable. That a passport is both a certificate of identity and a document of title to rights is evidenced by sec. 24 of Act 22 of 1913, as inserted by sec. 3 of Act 27 of 1937. Further, in modern times a passport is virtually a sine qua non; the possession of a passport is necessary for the exercise of a right with which the Crown has no power to interfere. From this point of view also a passport amounts to a document of title to rights; see Halsbury's Laws of England (Hailsham ed., 6th ed., p. 530). The grant and revocation of a passport must be acts involving the exercise of the Royal Prerogative

1950 (2) SA p266

or governed by the ordinary law. As to what the ancient and established Prerogative powers of the Crown are, see Wade & Phillips, Constitutional Law (3rd ed., pp. 128 - 30), Halsbury (supra, Vol. 6, pp. 445 et seq.), Bacon's Abridgement (s.v. 'Prerogative'). One of the Crown's Prerogative powers is to grant privileges to its subjects, e.g., grants of land, charters, patents, franchises, titles of honour, etc.; see Halsbury (supra, p. 565). If the grant of a passport is a matter of the exercise of the Prerogative it falls under the power to make grants, not the power to conduct foreign affairs; the grant of a passport has no bearing on the Crown's relations with foreign powers and while the holder of a passport is entitled, as a subject, to the Crown's protection abroad, the Crown has a complete discretion as to whether it will exercise such protection and need not do so if such exercise would involve it in foreign complications. On the other hand, a passport is a document of title to important rights of the subject, such rights being exercisable, not only abroad, but so far as sec. 24 of Act 22 of 1913 is concerned, also at home on the subject's return from abroad. The power to grant does not imply a power of revocation; a prerogative grant can only be revoked by due process of law (writ of scire facias) for good cause, e.g., that the King was deceived in his grant, subsequent abuse thereof, etc., or in terms of the grant itself; in either event it is for the Court to revoke on proof of the relevant facts; see Halsbury (supra, Vol. 9, pp. 698 - 9), Gray v Provost of Trinity College, Dublin (E. & E. Dig., Vol. 13, case 1577), Rex v Eastern Archipelago Co. (2 E. & B. at pp. 869 - 70, 880 - 1, 914), Broom's Constitutional Law (2nd ed., p. 234). The same principle applies in Roman-Dutch law in relation to revocation of a privilege granted by the princeps; see Voet, Ad Pand (1.4.21); the grant of a passport is an example of such a grant and the same principles apply to it as to the grant of any other privileges; see Grotius, De Jure Belli et Pacis (3.21.14). If then the grant of a passport is an act of the prerogative, it amounts to the grant of a privilege to the subject and should be construed on the same basis as any other privilege; apart from any other ground for revocation which the law recognises as instanced supra, the revocability of a passport then becomes a mere matter of construction of the document itself. The passport in the present case does not purport to be a licence and its true nature is, as laid down in Joyce's case (supra), a certificate of identity and a document of title or status. In terms of the regulations embodied in the passport, it is valid for

1950 (2) SA p267

five years; such regulations constitute the conditions of the grant. The contention that it is revocable contradicts the express terms of the grant itself. There is a distinction between the grant of a passport to a subject and to an alien; in the latter case it is a matter of the Royal Prerogative to concede or to withdraw protection at pleasure; in the case of a subject, on the other hand, the Crown can never withdraw protection although it might not actively assist it at any particular moment; in the case of an alien, therefore, when the protection (which from its nature is always temporary) is withdrawn, the whole basis of the passport disappears; consequently the passport itself falls away with the renunciation of protection; see Joyce's case (supra, at p. 189), Thomas & Ballot's Leading Cases in Constitutional Law (6th ed., p. 51). If the Crown derives no power of revocation from the terms of the grant itself or the circumstances in which it was made, the only other power of revocation that it can have must be derived from a separate prerogative power which exists independently of the grant, such, for instance, as it was attempted to assert in A - G v de Keyser's Royal Hotel Ltd. (1920, A.C. 508). If the Crown relies on such a prerogative power, it must prove its existence from time immemorial; see Lewis, The Courts and the Royal Prerogative (46 L.Q.R. p. 328), Halsbury (supra, Vol. 6, p. 444). A claim of State interest or security is quite insufficient to establish the existence of a prerogative power; see Wade & Phillips (supra, p. 127). The Court will hesitate to find that a prerogative power has been established which has the effect of extending the Crown's right to interfere with individual liberty; see Halsbury (supra, Vol. 6, p. 444). If the passport was not granted as the result of the exercise of a prerogative power, the Crown is in the same position as a subject who grants something to another individual for a stipulated period; the matter then becomes entirely one of construction of the grant. Appellant has expended money on the faith that the passport will remain valid for the period stated in the regulations embodied therein thus changing his position to his prejudice; even, therefore, if the grant was precarious, the Crown is estopped at this stage from revoking the passport, since estoppel operates against the Crown; see A - G v Collom (1916 (2), K.B. 193 at p. 204), Plimmer v Mayor of Wellington (9 A.C. 699), Robertson v Minister of Pensions (64 T.L.R. 526). No law exists in South Africa nor is any constituted convention alleged whereby the Minister of the Interior represents the Governor-General for

1950 (2) SA p268

the purpose of revoking a passport granted by him; in the United Kingdom the Sovereign, as a matter of constitutional practice, has delegated the exercise of prerogative powers to various Ministers; see Halsbury (supra, Vol. 6, p. 590) and cf Netz v Ede (1946, Ch. 226); but in the Union the powers of the executive government are expressly vested by statute in the King and must be exercised either by His Majesty in person or the Governor-General as his representative. The only function of Ministers is to advise His Majesty or the Governor-General; see Act 69 of 1934, sec. 4 (1). Whilst the Governor-General is bound to act on the advice of his Ministers it is not competent for a Minister himself to do an act that is committed by statute to the Governor-General, and if he purports to do so the act will be invalid; see Union Government v Schierhout (1925 AD 322 at pp. 335 - 6), Union Government v Hill (1914 AD 195), MacKay v A - G. for British Columbia (1922, 1 A.C. 457). In the specific case of the Royal Prerogative, South African Ministers are not the persons to whom the prerogative has been committed; see Rex v Loots (1940 OPD at p. 295), Deitch, N.O v Smuts, N.O. (1939 TPD 58), nor can the Governor-General delegate the powers that have been committed to him to be exercised with the advice of his Ministers to a particular Minister; see Musgrave v Pulido (5 A.C. 102), and cf. Joseph v Colonial Treasurer of New South Wales (25 C.L.R. 32), Re: Behari Lal (E. & E. Dig., Vol. 17, p. 420 (Canada)). When the Secretary for the Interior signed the passport, he did so by order of the Governor-General, not by order of the Minister; only an order of the Governor-General, therefore, can revoke the passport; here the Minister says he has revoked the passport as representing the Crown. Alternatively if, contrary to the above submissions, the Royal Prerogative committed by statute to the Governor-General can be delegated by His Excellency to a particular Minister to be exercised by him, such delegated power must be exercised by the Minister in accordance with the general...