South African Allied Workers Union and Another v Minister of Justice and Others

• Jurisdiction: South Africa
• Judge: Claassens J
• Judgment Date: 26 October 1987
• Citation: 1988 (2) SA 378 (CkS)
• Court: Ciskei Supreme Court

Claassens J:

Applicants seek an order declaring a notice issued on 2 September 1983 in terms of Government Notice 75 of 1983 declaring first B applicant an unlawful organisation in terms of s 8(1) of the National Security Act 13 of 1982 to be of no force and effect and accordingly setting aside the said notice. At the same time an order is sought setting aside the appointment of third respondent as liquidator of the assets of first applicant in terms of the said notice. Also is sought an order directing such of the respondents as oppose this C application to pay the costs thereof jointly and severally. The application is opposed by all three respondents.

The notice referred to is signed by L B Madolo, 'Brigadier, Acting Commander General of State Security', and is headed 'National Security Act 13 of 1982 Declaration of Certain Organisation to be an Unlawful Organisation' and reads as follows:

D 'Whereas I am satisfied that the organisation known as the South African Allied Workers Union (SAAWU) engages in activities in the Republic of Ciskei which endanger or are calculated to endanger national security or public safety.

Now, therefore, under and by virtue of the powers vested in me by s 8(1) of the National Security Act 1982 I do hereby declare the said organisation to be an unlawful organisation.

E I do further in terms of s 9(1)(b) of the said National Security Act, 1982, designate Mr Ian Melville (c/o Department of Finance and Economic Development, Zwelitsha) to be the liquidator of the assets within the Republic of Ciskei of the aforementioned unlawful organisation.'

Section 8(1) of the National Security Act provides:

F 'If the Commander General is satisfied

(a)

that any organisation engages in activities which are calculated to further the achievement of any of the objects referred to in para (a), (b), (c) or (d) of the definition of "doctrine hostile to the State" in s 7; or

(b)

that any organisation engages in activities which endanger or are calculated to endanger national security or public safety;

(c)

G that any organisation is controlled directly or indirectly by an organisation referred to in para (a) or (b) of this subsection; or

(d)

that any organisation carries on or has been established for the purpose of carrying on directly or indirectly any of the activities of an unlawful organisation,

he may without notice to the organisation concerned by notice in the H Gazette declare that organisation to be an unlawful organisation.'

Commander General in the aforesaid Act is defined as Commander General of State Security.

First applicant describes itself as a trade union and voluntary I organisation and a copy of its constitution is annexed to applicants' founding affidavit. According to applicants' papers first applicant was formed in Durban in March 1979 and was then known as the Black Allied Workers Union. In keeping with its objective to become a non-racial organisation its name was subsequently changed to South African Allied Workers Union. Since its formation it has operated on a national basis in South Africa with branches in various towns and cities in South J Africa and

Claassens J

A in other territories which were previously part of South Africa such as Ciskei. In their replying affidavit applicants were constrained to concede that first applicant does not actually have branches in all parts of South Africa and territories which were formerly part of it although 'first applicant's members consist of citizens from all parts of South Africa and territories formerly part of it'. However that may B be, it is stated by applicants that soon after first applicants formation its activities were extended to East London and the Border area and its East London office attracted a large number of members from Ciskei. In the East London area they state the membership figure to be approximately 40 000, 70% of such membership being resident in Ciskei at C Mdantsane. The aims and objects of first applicant appear from paras 1 - 4 of its constitution. First applicant was active in Ciskei until publication of the notice aforesaid on 2 September 1983.

When the application was launched second applicant was apparently the D national president of first applicant (he may still be so) and has purportedly joined in this application in his personal capacity on the basis of his self-interest in the relief sought, his contention being that he is both a member of first applicant and an employee thereof.

First respondent has been cited in this application in his capacity as E Minister of Justice and Head of the Department of Justice, it being contended by applicants that

'at all relevant times since 15 July 1983 the powers and duties of the Head of Department of State Security have been exercised by (him) and the powers and duties of the former Department of State Security have been vested in the Department of Justice'.

F Mr Mahomed SC who appeared for applicant rested his argument in favour of the relief sought by applicants in essence on three main grounds, these being:

(1)

that the purported exercise of powers conferred by s 8(1) of the National Security Act by second respondent in his purported capacity as 'Acting Commander General' was invalid and the G notice declaring first applicant to be an unlawful organisation is accordingly null and void;

(2)

that, in the alternative, the notice is null and void and of no force or effect in law in that neither first nor second applicant was afforded a hearing, or an opportunity to be heard, H prior to the declaration;

(3)

that further, in the alternative and in any event, in exercising the powers conferred by s 8(1) second respondent took into account irrelevant factors, failed to take into account relevant factors and failed properly to apply his mind in arriving at his decision.

I It was correctly contended by Mr Mahomed that a decision adverse to respondents on any one of these grounds would dispose of respondents' opposition to the relief sought herein by applicants. He argued further that if a decision could not be arrived at on the papers the matter should be referred to viva voce evidence in terms of the Rules of this Court.

J There are two other aspects which are dealt with in the papers, one raised by applicants and one by respondents and it will be convenient to

Claassens J

deal with and dispose of them at the outset. I did not understand A counsel respectively to advance his clients' case strenuously on either aspect.

It is contended in the papers by applicants that in the light of the declared aims and objects of first applicant it would be unconstitutional to interfere with its right to exist and to function. Reference is made to chap III of the Republic of Ciskei Constitution Act B 20 of 1982 dealing with Declaration of Fundamental Rights and more particularly ss 15(2) and 17 thereof. I have no hesitation in stating that the State will not be precluded from overriding these rights and freedoms if in the enjoyment thereof an individual or association of individuals engages in activities which endanger or are calculated to C endanger national security or public safety. In fact s 19(2) which falls within chap III of the Constitution Act provides:

'The rights and freedoms conferred under the provisions of this declaration may be restricted by a law of the National Assembly with general application for reasons which are necessary in a free and democratic society in the interests of national security, territorial D integrity or public safety, for the prevention of disorder or crime...'

Section 8 (1) of the National Security Act constitutes such a restrictive legislative provision.

The other aspect which is raised by respondents is that first applicant never had a legal role to play as a trade union in Ciskei and the E statement is made that the provisions of the Industrial Conciliation Act 28 of 1956, as amended, are not applicable in Ciskei insofar as the said Act has been repealed by Proc R84 of 1970 published on 20 March 1970. I do not consider it incumbent upon me to examine the merits or demerits of this contention as this application is not about that at all. The notice declaring first applicant an unlawful organisation in F terms of s 8(1) of the National Security Act presupposes that prior to the notice first applicant did function legally as a trade union in Ciskei and this application is about that notice.

I revert now to the first ground raised in Mr Mahomed's argument. I deem it expedient at the outset to refer to relevant legislation.

G Section 32 of the Republic of Ciskei Constitution Act 20 of 1981 provides that the Executive Government of Ciskei is vested in the President acting on the advice of the Ministers in Executive Council. Section 33 of the Act provides that the Executive Council shall consist of the President and the Ministers of State appointed under s 34(1). H Section 34(1) provides that the President shall establish such departments of State as he may deem necessary for the Government and appoint persons to administer such departments. Section 34(2) provides that such persons appointed under ss (1) shall be Ministers and shall hold office during the pleasure of the President.

In the first column of Schedule 1 of the Public Service Act 2 of 1981 I are listed the Departments of State as so far established by the President.

Turning to the Public Service Act it provides for the establishment of the Public Service in Ciskei and for, inter alia, the appointment of personnel therein. We are concerned here only with heads of departments. A head of a department is defined in the Act as the officer holding or J acting

Claassens J

A in a post on the fixed establishment mentioned in the second column of Schedule 1 (referred to above). Section (3) of the Act provides that the Public Service...