South African Defence and Aid Fund and Another v Minister of Justice

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Botha JA, Williamson JA and Trollip AJA
• Judgment Date: 10 November 1966
• Citation: 1967 (1) SA 263 (A)
• Hearing Date: 13 September 1966
• Court: Appellate Division

Steyn, C.J.:

I agree with the judgment of my Brother BOTHA. I would only add a few remarks in connection with certain English cases relied upon E by counsel for the appellant. They are Local Government Board v Arlidge, 1915 A.C. 120; Denby and Sons Ltd v Minister of Health, (1936) 1 K.B. 337, and Marriott v Minister of Health, (1936) 154 L.T.R. 47. These cases deal with Housing Acts. The relevant provisions relate to the power of local authorities to make certain orders in respect of dwelling-houses. In terms of the earlier legislation an F appeal lay from such an order affecting any house to a Local Government Board, while in terms of the latter legislation, such an order had to be confirmed by the Minister of Health. In regard to an appeal to the Local Government Board, the relevant Act of 1909 (9 Edw. 7, Ch. 44.) was to the effect that the Board could not dismiss an appeal without having G first held a public local enquiry. In practice, apparently, the enquiry was not held by the Board as such but by a deputy. In regard to confirmation of an order by the Minister of Health, para. 4 of the First Schedule to the Housing Act, 1930, provided that where an objection had been made and had not been withdrawn, the Minister

'shall, before confirming the order, cause a public local enquiry to be held and shall consider any objection not withdrawn and the report of H the person who held the enquiry, and may then confirm the order, either with or without modification'.

In this context, in the one case of an appeal, and in the other of an objection against confirmation, to be dealt with by the deciding authority, it is quite clear, I think, that the provision for a public local enquiry implied the concept of audi alteram partem, and would, I venture to think, have done so even if the function of the deciding authority were considered to be purely executive or administrative. By providing for a public local enquiry in such circumstances, the Legislature disclosed

Botha JA

an unmistakable intention that an interested party was to be heard. In Arlidge's case, supra at p. 144, Lord PARMOOR said:

'The obligation on the Local Government Board to hold a public enquiry in the locality is to enable the facts on either side to be ascertained by oral testimony, subjected to the test of cross-examination, if either party should so require, and to ensure in this respect a full A opportunity to the appellant to be heard before dismissing his appeal against the decision of the local authority.'

Referring to the description in the Act of the enquiry as a 'public local enquiry', Lord MOULTON observed (at p. 147 in fine):

'The effect of the insertion of the word 'public' appears to me to be that every member of the public would have a locus standi to bring before the enquiry any matters relevant thereto so as to ensure that everything bearing on the rights of the owner or occupier of the house B affected, or the interests of the public in general, or of the public living in the neighbourhood in particular, would be brought to the knowledge of the Local Government Board for the purpose of enabling it to discharge its duties in connection with the appeal.'

Lord MOULTON states the scope of such an enquiry in more comprehensive terms, but from the very nature of such an enquiry the right of the C parties themselves to be heard would, I consider, in this context, be more obviously implied in the term 'public local enquiry' than the right of any other member of the public. On the other hand the legislation considered in these cases contained no express provision to the effect that an owner or occupier had no claim to be heard by the deciding authority. It is apparent, therefore, that the provisions which the D English Courts were interpreting in these cases differ materially from the provisions we have to consider in this appeal. The Act specifically excludes the right to be heard by the deciding authority, and the enquiry to be held by a committee under sec. 17 is anything but a public enquiry for the purpose of enabling the deciding authority to deal with E an appeal or objection lodged by an interested party. I can find nothing in the reasoning reflected in these cases which would lead to the conclusion that, the right to be heard by the deciding authority having been explicitly excluded, a right to be heard by the committee is to be implied.

VAN BLERK, J.A., concurred in the above judgment.

Judgment

Botha, J.A.:

F Under the powers conferred upon him by sec. 2 (2) of the Suppression of Communism Act, 44 of 1950, the State President by Proc. 77 of 1966, of the 18th March, 1966, declared the organisation known as G the Defence and Aid Fund to be an unlawful organisation for the purposes of that Act.

Thereafter the appellants unsuccessfully applied in the Cape Provincial Division for an order, inter alia, (a) declaring that Proc. 77 of 1966 has no application to the first appellant, the South African Defence and H Aid Fund, of which the second appellant is the chairman, and (b) setting aside the said Proclamation or alternatively declaring it to be of no force or effect.

In this appeal we are concerned only with the dismissal by the Court a quo of the appellants' application for an order setting aside Proc. 77 of 1966 or declaring it to be of no force or effect.

The validity of Proc. 77 of 1966 was, both in the Court a quo and in this Court, attacked on the ground that the first appellant was not, prior to the issue of the Proclamation, afforded any opportunity,

Botha JA

in accordance with the maxim audi alteram partem, of being heard in its defence.

It is clear, and it was common cause, that, having regard to the consequences flowing from the declaration of an organisation under sec. A 2 (2) of the Act as an unlawful organisation, as set out in secs. 3 and 4, such a declaration prejudicially affects the rights of the organisation concerned, and that such an organisation would therefore impliedly, in accordance with the well-known maxim audi alteram partem, and in the absence of clear indications to the contrary, have the right B to be heard before being declared an unlawful organisation. (Builders Ltd v Union Government (Minister of Finance), 1928 AD 46 at pp. 59 - 60, and R v Ngwevela, 1954 (1) SA 123 (AD)). But as has been pointed out by STRATFORD, A.C.J., in Sachs v Minister of Justice, 1934 AD 11 at p. 38:

'Sacred though the maxim is held to be, Parliament is free to violate C it. In all cases where by judicial interpretation it has been invoked, this has been justified on the ground that the enactment impliedly incorporated it. When on the true interpretation of the Act, the implication is excluded, there is an end of the matter.'

By sec. 2 (1) of the Act, the Communist Party of South Africa is D declared to be an unlawful organisation. Then follows sec. 2 (2) which provides that if the State President is satisfied:

'(a)

that any other organisation professes or has on or after the fifth day of May, 1950, and before the commencement of this Act, professed by its name or otherwise to be an organisation for propagating the principles or promoting the spread of communism; or

(b)

that the purpose or one of the purposes of any organisation is to propagate the principles or promote the spread of communism or to further the achievement of any of the objects of communism; or

(c)

E 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 'communism' in sec. 1; or

(d)

that any organisation is controlled, directly or indirectly, by an organisation referred to in sub-sec. (1) or para. (a), (b) or (c) of this sub-section; or

(e)

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

he may without notice to the organisation concerned by proclamation in the Gazette declare that organisation to be an unlawful organisation, and the State President may in like manner withdraw any such proclamation.'

Counsel for the appellants conceded that the words 'without notice to G the organisation concerned' in sec. 2 (2) effectively exclude any right on the part of the organisation concerned to be heard at the stage, at any rate, when the State President finally deals with the matter, but contended that the words cited are wholly insufficient to exclude the implied right of the organisation concerned to be heard at one of the H preceding stages envisaged by sec. 17 of the Act which, as substituted by sec. 7 of Act 97 of 1965, reads as follows:

'17.

The powers conferred by this Act upon the State President . . . except the power conferred under sub-sec. (2) of sec. 2 in respect of an organization contemplated in para. (e) of the said sub-section . . . shall not be exercised in relation to any . . . organisation . . . unless the Minister . . . has considered a factual report in relation to that . . . organisation . . . made by a committee of three persons appointed by the Minister of whom one shall be a magistrate of a rank not lower than the rank of senior magistrate.'

It is common cause that the first appellant was not, prior to its declaration as an unlawful organisation under sec. 2 (2), afforded any

Botha JA

opportunity of being heard at any one of the stages contended for by counsel; hence his argument that, the principles of natural justice having been violated, Proc. 77 of 1966 was invalid.

A Counsel contended, in the light of the provisions of sec. 17 cited above, that the principles of natural justice apply in relation to the proceedings contemplated by that section, and that the first appellant was therefore entitled to be heard in its defence either before the committee, appointed under the...