Saloojee and Another, NNO v Minister of Community Development

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Holmes JA, Wessels JA and Van Winsen AJA
• Judgment Date: 06 November 1964
• Citation: 1965 (2) SA 135 (A)
• Hearing Date: 21 September 1964
• Court: Appellate Division

Steyn, C.J.:

This is an application for the condonation under Rule 13 of the Rules of this Court of the late noting of an appeal and the late filing of the record. The applicants are the executors testamentary in the estate of the late Suliman Moosa Saloojee, who died on 27th D February, 1960. Before that date, on 23rd July, 1957, he had instituted an action against the Minister of the Interior for an order setting aside as null and void Proc. 153 of 1956, by which certain areas within the municipal areas of Johannesburg and Roodepoort Maraisburg, and on the farm Rietfontein in the district of Johannesburg, were declared group areas in terms of the Group Areas Act, 41 of 1950. By order of E Court the applicants have been substituted as plaintiffs in the action.

The validity of the Proclamation was attacked on a number of grounds. It was initially alleged that the Group Areas Board had failed to give proper consideration to the availability of alternative accommodation F for members of the groups affected, that the Board had decided in advance which group areas it was going to recommend and had failed to give proper consideration to the representations made by interested parties; that, in the alternative, the Minister concerned had likewise taken decisions in advance; and that he and the Governor-General-in-Council, in issuing the Proclamation, had failed to G apply their minds to the relevant issues and to exercise an honest discretion, more particularly in that they failed to give any or any honest consideration to the availability of alternative accommodation. As a result of the judgment of this Court in Minister of the Interior v Lockhat and Others, 1961 (2) SA 587 (AD) at p. 599, the latter allegation, in so far as it mentioned more particularly the failure to H give any or any honest consideration to the availability of alternative accommodation was abandoned in February, 1962. It was then averred that, in support of the more general allegation, the plaintiffs would rely upon a fixed policy in pursuance of which the Proclamation had been issued. The fixed policy is described as one of

'making life economically and socially intolerable and insupportable for the Asian inhabitants of the country and in particular for the Indian inhabitants, and/or of compelling them to emigrate from the country'.

According to the amended declaration, the Minister and the

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Governor-General-in-Council did not honestly deem it expedient for the purposes of the Group Areas Act to issue the Proclamation, but did so with the improper and ulterior motive of giving effect to the fixed policy. The amended declaration indicated, further, that the plaintiffs A would rely not only on the nature and effect of the Proclamation mentioned, but also on other Proclamations declaring group areas in a list of 47 other towns and cities, in three Provinces of the Republic, and also on official pronouncements, including those of members of the Executive Council and of members and supporters of the Government.

B By a petition dated 14th May, 1962, the respondent sought an order declining to entertain the action on the ground that the original plaintiff unduly delayed the institution of the action and that the applicants unduly delayed the prosecution of the action to the respondent's prejudice; as also on the further ground that,

'in changing the basis of portion of their case by only now attacking the validity of the Proclamation on the ground of the so-called fixed C policy, an unreasonable length of time has elapsed since the publication of the Proclamation, and the State has been seriously prejudiced in consequence'.

The applicants thereupon applied for the cancellation of the respondent's petition. Their counsel contended that an action could not be stayed on the grounds advanced. HILL, J., held

'that although the proceedings were initiated by summons and not by way D of petition the true nature thereof is a review and that the defendant may rely on delay and prejudice as grounds for the stay of the proceedings'.

The application accordingly failed. (Kalil and Another, NN.O v Minister of the Interior, 1962 (4) SA 755 (T)).

Thereafter the petition was heard by CLAASSEN, J. [*] , who held that there E had been no undue delay in the institution of the action, and that both parties had contributed to the delay in prosecuting it. He did not find any such delay which could be a basis for refusing to hear the action. As to the new ground of attack upon the validity of the Proclamation, the learned Judge was of the view that whatever occurred at the relevant F meeting of the Governor-General-in-Council is secret, confidential and privileged from disclosure, and that the Judge in charge of the proceedings would not therefore permit the giving of direct or circumstantial evidence of what occurred at the meeting. In the result he declined to entertain or permit evidence to be led in respect of the alleged fixed policy. To that extent the application succeeded. Although, according to the order of Court which was issued, the G application was allowed, the Court did in fact not decline to entertain the action, as prayed. In that respect the order is incorrect. The learned Judge did not, however, deal with the contention as to delay and prejudice in regard to this new ground. The judgment was delivered on 30th July, 1963. On the next day the applicants noted an appeal against H this judgment to the Provincial Division.

On 16th August, 1963, the applicants' attorneys wrote to the State Attorney, referring to a telephonic discussion and suggesting a direct appeal to this Court by consent. By a letter dated 24th August, the State Attorney replied that the Department concerned had no objection to such a course. The form of consent was forwarded to him on 5th

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October, and was returned to the applicants' attorneys on 8th October, duly completed.

On 11th October a notice of appeal, together with a written consent, was A handed in at the office of the...