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

• Jurisdiction: South Africa
• Judge: Diemont J and Corbett J
• Judgment Date: 05 October 1966
• Citation: 1967 (1) SA 31 (C)
• Hearing Date: 19 September 1966
• Court: Cape Provincial Division

Corbett, J.:

On 18th March, 1966, and in terms of sec. 2 (2) of the Suppression of Communism Act, 44 of 1950, as amended, there was promulgated in the Government Gazette a Proclamation 77 of 1966, whereby the State President declared an association known as the Defence and Aid D Fund to be an unlawful organisation under that Act. Thereafter this association (first plaintiff) and the chairman of its management committee (second plaintiff) instituted action against the Minister of Justice (defendant) claiming an order declaring Proc. 77 of 1966 to be of no force and effect or, alternatively, setting aside this Proclamation, together with costs of suit.

E The particulars of claim annexed to plaintiffs' combined summons, as amended, commence by referring to the promulgation of Proc. 77 of 1966 and then proceed as follows:

'2.

In order to be able validly to issue such Proclamation the State President had to be satisfied:

(a)

that the first plaintiff professed by its name or otherwise to be an organisation for propagating the principles or promoting F the spread of Communism, or

(b)

that the purpose or one of the purposes of the first plaintiff was to propagate the principles or promote the spread of Communism or to further the achievement of any of the objects of Communism.

(c)

that the first plaintiff engaged in activities which were calculated to further the achievement of any of the objects referred to in paras. (a), (b), (c) or (d) of the definition of G 'communism' in sec. 1 of the Suppression of Communism Act, 44 of 1950.

(d)

that the first plaintiff was controlled directly or indirectly by the Communist Party of South Africa or by any organisation referred to in sub-paras. (a), (b) or (c) of this paragraph, or

(e)

that the first plaintiff carried on or had been established for the purpose of carrying on directly or indirectly any of the activities of an unlawful organisation.

3. (a)

H There were no grounds upon which the State President could have satisfied himself as to the matters referred to in the preceding paragraph hereof and if any grounds were placed before him they were without any foundation, alternatively no reasonable man could have been satisfied that the first plaintiff fell within the purview of the matters referred to in the preceding paragraph.

(b)

In the premises the State President failed to satisfy himself as aforesaid, alternatively in purporting to so satisfy himself he did not apply his mind to the relevant facts, alternatively, any consideration that he gave to so satisfying himself was purely arbitrary and did not amount to the exercise of a proper discretion.

4.

In the premises the declaration by the State President that the first plaintiff

Corbett J

is an unlawful organisation is wrongful and unlawful and of no force and effect and the said Proclamation is of no force and effect.'

A request for further particulars having produced a negative response from the plaintiffs, defendant took exception to the combined summons, A as amended, on the ground that the particulars of claim annexed thereto lacked the averments necessary to sustain an action for the relief claimed and, accordingly, failed to disclose a cause of action. The notice of exception elaborates at some length the grounds upon which the exception is founded but it is not necessary to detail these grounds inasmuch as they will appear from the argument of defendant's counsel, to which I shall refer more fully later on in this judgment.

B Before considering the merits of the exception it is necessary to dilate briefly upon the power granted to the State President by sec. 2 (2) of Act 44 of 1950 to issue a proclamation declaring an organisation to be an unlawful organisation and upon the grounds which must be established in order to mount a successful attack upon the validity of C such a proclamation. Sec. 2 (2), as amended, provides as follows:

'(2)

If the State President is satisfied -

(a)

that any other organisation professes or has on or after 5th 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)

D 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)

that any organisation engages in activities which are calculated to further the achievement of any of the objects referred to in paras. (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 paras. (a), (b) or (c) E of this sub-section; or

(e)

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 proclamation in the Gazette declare that organisation to be an unlawful organisation, and the State President may in like manner withdraw any such proclamation.'

F The reference in this sub-section to the 'State President' must be read as meaning the State President acting by and with the advice of the Executive Council, i.e. the State President - in - Council (see sec. 2 of Act 33 of 1957, read with sec. 3 of Act 32 of 1961). For the sake of brevity I shall, however, continue to speak merely of the State President.

G Before the State President is entitled to exercise this power to declare an organisation to be an unlawful organisation he must be satisfied that one or more of the conditions set forth in paras. (a) to (e) of sec. 2 (2) obtain. In order to satisfy himself in this way he must have before him some information relating to such matters as the aims and objects of H the organisation in question, its membership, organisation and control, the nature and scope of its activities, what its purpose is and what it professes to be. Some indication as to how this information is obtained and placed before the State President is to be found in the Act itself. Thus sec. 7 provides for the appointment by the Minister of Justice of an authorised officer to investigate the purposes, activities or control of any organisation which the Minister has reason to suspect ought to be declared an unlawful organisation. To enable him to carry out such an investigation the authorised officer is given wide powers by the section.

Corbett J

He may, for instance, enter upon premises without notice; require the production of documents; seize documents; examine and make copies of documents; require explanations from persons regarding entries in documents; question certain persons with regard to the office-bearers A and membership of the organisation; and require certain persons to appear before him for questioning. In addition it is provided by sec. 17 that the power conferred upon the State President by, inter alia, sec. 2 (2) - except for the power to declare unlawful an organisation such as that...