Smith, NO and Lardner-Burke, NO v Wonesayi

• Jurisdiction: South Africa
• Judge: Beadle CJ, Macdonald JP and Lewis AJA
• Judgment Date: 21 April 1972
• Citation: 1972 (3) SA 289 (RA)
• Hearing Date: 01 February 1972
• Court: Appellate Division

E Beadle, C.J.:

The respondent in this case, to whom I shall refer as the plaintiff, is an African tribesman who admits that at all material times he occupied part of one, Tsatsi's kraal on the Gaeresi Ranch in the Inyanga district. The appellants, to whom I shall refer as the defendants, are the Ministers of Internal Affairs and of Justice, Law F and Order, sued in their official capacities. Gaeresi Ranch is in the European area and at the material time occupation of land in Rhodesia was governed by the Land Apportionment Act, Chap. 257. Sec. 86 (1) of that Act provides that the President may by Proclamation order that the squatters named or described in the Proclamation, shall depart G permanently from any land specified in the Proclamation. Proc. 4 of 1969, R.G.N. 143 of 1969, issued under this section, provided that certain squatters (who included Tsatsi)

'together with every person who is a member of the families of or lives with the said squatters... shall permanently depart with all their property'

H from Gaeresi Ranch. The defendants apparently considered that the plaintiff 'lived with' Tsatsi, and was thus included in the Proclamation. The plaintiff did not conform with the requirements of the Proclamation, and the defendants, purporting to act under sec. 86 (7) and (9) of the Land Apportionment Act, acting through their police and other officers, removed certain of the plaintiff's property (which has not been returned to him) and destroyed 11 of his huts. The plaintiff also alleges that he was unlawfully imprisoned, maltreated while in prison, assaulted

Beadle CJ

by the police and chased round the Gaeresi Ranch by police with dogs. All these actions on the part of the defendants' employees, the plaintiff alleges, were unlawful and as a result he claimed relief from A the defendants under four distinct heads, viz.:

(1)

For the return of his property unlawfully removed or, alternatively, payment of its value.

(2)

Damages in the sum of $218, being the value of the 11 huts unlawfully destroyed.

(3)

$1 000 damages for the wrongful impairment of his person and dignity.

(4)

B Damages in the sum of $100 for pain and suffering suffered by the plaintiff as a result of the unlawful assault.

The claim for $1 000 for impairment of the plaintiff's persons and dignity was based partly on the injury to his dignity which the C plaintiff alleged he suffered as a result of the removal of his property and the destruction of his huts, which alleged wrongful acts also formed the basis of the first two claims.

It will be seen that the removal of the property and the destruction of D the huts are relied on in founding two separate causes of action for damages:

(1)

An action based on the lex Aquilia for patrimonial loss.

(2)

An action based on the actio injuriam, or some equivalent action, for the impairment of person and dignity.

The defendants admitted that they had removed the plaintiff's property E and destroyed his huts as alleged by him, but denied that their actions were unlawful. They pleaded as a main defence that they were entitled to do this by virtue of Proc. 4 of 1969. They also pleaded as an alternative defence that, even if they were wrong in this and the Proclamation did not permit them to do what they did, their officials who performed these acts, performed them bona fide in the course of F their duty, believing they were lawfully authorised under the Act to do what they did, and the denied that

'their officers had any animus injuriandi towards the plaintiff'.

The plaintiff excepted to both the defendants' defences.

Originally the defendants, in their pleadings, relied also on the alternative defence as a defence to the claims under the lex Aquilia, G but this contention was never argued before the General Division and was abandoned on appeal.

The trial Court dismissed the exception to the main defence, but allowed the exception to the alternative defence. The defendants now appeal H against the order allowing the exception to the alternative defence, and the plaintiff in turn has cross-appealed against the order dismissing his exception to the main defence.

I shall deal with the cross-appeal first as this relates to the main defence.

The defendants, in their pleadings, stated inter alia:

'(i)

That plaintiff was a squatter on Gaeresi Ranch in terms of sec. 86 (1) (a) (ii) of the Land Apportionment Act, Chap. 257, as read with para (d) of the definition of 'squatter' in sec. 2 (1) and with sec. 93 (2) and (3) of the said Act;

....................

Beadle CJ

(iii)

That plaintiff, inter alios, failed to remove himself from such land by 31st August, 1969, and in so evicting plaintiff and removing his property therefrom to Holdenby Tribal Trust Land whither plaintiff had been ordered to move, defendants' officers were acting lawfully in terms of sec. 86 (7) and (9) of the Land Apportionment Act.'

The plaintiff then applied, in these terms, for further particulars:

'1.

A Of paras. 3 (c) and 4 (c) (ii):

Is it alleged that plaintiff was wholly dependent upon, or lived with, any person named in the said Proclamation? If so, the name of such person is required, and full particulars (if this is relied upon) of the place where it is alleged that plaintiff 'lived with' any such person. More particularly, defendants are required to state whether or not it is alleged that plaintiff lived in the same household as any such person B and if not, in what way it is alleged that he 'lived with' any such person.'

To this application for particulars, the defendants replied:

'1.

As to para. 1 of the request for particulars.

(a)

The name of the person in Proc. 4 of 1969 with whom it is alleged plaintiff lived is Mavditaure Jim X8731, who is the person referred to in plaintiff's declaration as Tsatsi.

(b)

It is not alleged that plaintiff lived in the same household C as Tsatsi, but that in the circumstances of the case he lived with Tsatsi, more particularly in that he was an adherent of Tsatsi or lived in the company of Tsatsi as being in the same Kraal or social group headed by Tsatsi, and from which he could be expelled by Tsatsi, if the latter chose to do so; the members of which group had land allocated to them by Tsatsi for cultivation and which shared grazing and D participated generally in a communal existence; and which group contained a number of persons including plaintiff, whose identities were not known and could not be reliably ascertained because of their prolonged absences from their homes.'

The plaintiff contends that, in view of the fact that he was not named in the Proclamation and that it is not alleged that he was a member of Tsatsi's family, he could only be covered by the Proclamation if, in E law, he was regarded as 'living with' Tsatsi, and the burden of his exception is that, in view of the particulars supplied by the defendants, he could not in law be said to be 'living with' Tsatsi; alternatively, he claims that the words 'living with' in the Proclamation were so vague that they should be struck out of the F Proclamation, and if this was done he obviously would not be covered by the Proclamation, and the defence relying on the Proclamation was thus bad in law.

I shall deal first with the contention that the words 'living with' in the Proclamation are void for vagueness.

The reasons for which subordinate legislation will be set aside by a G Court on the grounds of vagueness have long been settled. If the words are capable of being understood with reasonable certainty by those who are bound by them, they will not be regarded as being too vague. See R. v Jopp and Another, 1949 (4) SA 11 (N) at p. 14. The words must not be

'so vague as to create confusion or substantial uncertainty in the H minds of reasonable subjects who have to apply its terms'.

See Arnold v Race Classification Appeal Board and Another, 1967 (2) SA 267 (C) at p. 272.

'It is, however, the duty of the Court to avoid, if possible, the conclusion that the Notice is too vague to be effective,'

- Per CENTLIVRES, J.A., in R. v Pretoria Timber Co. (Pty.) Ltd. and Another, 1950 (3) SA 163 (AD) at p. 170.

'The law requires reasonable and not perfect lucidity and the fact that cases may arise in which it would be difficult, perhaps extremely difficult,'

Beadle CJ

to apply the regulation is not

'a reason for holding that the description is not reasonably clear'.

- Per SCHREINER, J.A., in the same case at p. 176.

A As I see it, if the legislation can be applied with reasonable certainty in the vast majority of cases, that is enough, and the fact that in borderline cases it may be extremeley difficult to apply is not a ground for holding the legislation to be void for vagueness.

The Proclamation now under review has certainly not been drafted as clearly as it might have been. One can conceive of many better ways of B describing an unnamed squatter than by describing him as a squatter who 'lives with' a named squatter. For example, when the named squatter is a 'kraalhead', as Tsatsi was, the unnamed squatter might well have been described as a squatter who lived under the headship of a named squatter, or even as a squatter who lived 'in' the kraal of such a named C squatter. Either of these descriptions would have avoided the difficulty of having to decide when a particular squatter did or did not 'live with' a named squatter, which is not a particularly simple test to apply. The fact that in the borderline case it may be difficult to decide when a particular squatter does or does not 'live with' a named squatter is, however, no ground in itself for holding the words to be void for vagueness. In different circumstances, the Courts have had D little difficulty in deciding what the words 'live with' mean in the contexts in which they were used. For example:

In Stromsoe v...