State President and Others v United Democratic Front and Others

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Joubert JA, Hefer JA, Vivier JA, M T Steyn JA
• Judgment Date: 29 September 1988
• Citation: 1989 (1) SA 766 (A)
• Hearing Date: 29 August 1988
• Court: Appellate Division

Rabie ACJ:

The issue in this appeal is the validity of the declaration made by the State President (the first appellant in the appeal) in respect of the United Democratic Front (the first respondent in the F appeal) in Proc 190 of 1986. The proclamation, which was published in the Government Gazette on 9 October 1986, reads:

'Under the powers vested in me by s 2(1) of the Affected Organisations Act 31 of 1974, I hereby declare the organisation known as the United Democratic Front to be an affected organisation.

Given under my Hand and the Seal of the Republic of South Africa at Pretoria this Sixth day of October, One thousand Nine hundred and Eighty-six. G P W BOTHA

State President.

By Order of the State President-in-Cabinet:

L LE GRANGE,

Minister of the Cabinet.'

H Section 2 (1) of the Affected Organisations Act 31 of 1974 provides as follows:

'2(1) If the State President is satisfied that politics are being engaged in by or through an organisation with the aid of or in co-operation with or in consultation with or under the influence of an organisation or person abroad, he may, without notice to the first-mentioned organisation, but subject to the provisions of s 8, by I proclamation in the Gazette declare that organisation to be an affected organisation.'

Section 8 of the Act reads:

'The power conferred upon the State President by s 2 to declare an organisation to be an affected organisation, shall not be exercised unless the Minister has given consideration to a factual report made J in relation to that organisation by a

Rabie ACJ

A committee consisting of three magistrates appointed by the Minister, of whom at least one shall be a chief magistrate or a regional magistrate.''Minister' is defined in s 1 of the Act as meaning the Minister of Justice. The effect of a declaration under s 2(1) of the Act is, briefly put, that the organisation concerned is prohibited from receiving, whether directly or indirectly, money from abroad. (See s 2(2) of the Act.)

B The applicants in the Court a quo were: first, the United Democratic Front (now the first respondent); second, the Durban Housing Action Committee (said to be a voluntary association affiliated to the first respondent; now the second respondent); third, the Natal Organisation of Women (also said to be a voluntary association affiliated to the first respondent; now the third respondent); and fourth, Curnich Ndlovu C (the chairman of the executive committee of the first respondent; now the fourth respondent). They attacked the aforesaid Proc 190 of 1986 on various grounds. The learned Judge, as will appear more fully below, upheld one of those grounds (without giving a final decision on the others) and issued an order declaring (1) that the declaration by D the State President contained in the aforesaid Proc 190 of 1986 was of no force and effect; (2) that the Registrar of Affected Organisations (the fifth respondent in the application) was not entitled to take any steps against the first respondent pursuant to the declaration contained in Proc 190 of 1986; and (3) that the Minister of Justice, the fourth respondent in the application (now the fourth appellant), was E not entitled to exercise any powers vesting in him in terms of the aforesaid Act against the first respondent arising from the declaration contained in Proc 190 of 1986. The Government of the Republic of South Africa (the second respondent in the application, now the appellant) was ordered to pay the costs of the application. The appeal is against these orders. (The fifth respondent in the application abides the decision of F the Court and is not a party in the appeal.)

The present respondents contended in their founding affidavit, deposed to by the aforesaid Curnich Ndlovu, that in terms of s 2(1) and s 8 of the aforesaid Affected Organisations Act the Minister of Justice had to give consideration to a factual report made by a committee of G three magistrates appointed by him concerning the first respondent before the State President could make a declaration declaring it to be an affected organisation, but that it appeared from the terms of a telex sent to the respondents' attorneys by the private secretary to the State President on 24 October 1986 that there had been a failure to comply H with the provisions of the said ss 2(1) and 8. The telex showed, they said, that no committee as envisaged in s 8 was appointed by the Minister of Justice, and that the first appellant made the declaration contained in Proc 190 of 1986 after the Minister of Law and Order (the third appellant) had given consideration to a report made by a committee appointed by him, ie the third appellant. This being so, the I respondents contended the State President had no jurisdiction to exercise the powers given to him by s 2(1) of the Act. The appellants admitted in their opposing affidavits that it was the third appellant, and not the fourth appellant, who appointed a committee of magistrates and who considered its report before the State President issued Proc 190 J of 1986, but denied that there had not been compliance with the

Rabie ACJ

A provisions of s 8 of the Act. They stated that the State President was by virtue of the powers given to him by s 20A(1) of the Republic of South Africa Constitution Act 32 of 1961 entitled to transfer to the Minister of Law and Order the powers, duties and functions entrusted to the Minister of Justice by s 8 of the Act, and that the State President (the predecessor of the first appellant) effected such transfer by B the issue of Proc R30 of 1984 on 9 March 1984. Section 20A(1) of Act 32 of 1961 (since repealed) read as follows:

'The State President may assign the administration of any provision in any law which entrusts to a Minister any power, duty or function, to any other Minister, either specifically or by way of a general C assignment of the administration of any law or of all laws entrusting powers, duties or functions to such first-mentioned Minister.'

Proclamation R30 of 1984 reads as follows:

'By virtue of the powers vested in me by s 20A of the Republic of South Africa Constitution Act 32 of 1961, I hereby approve the transfer of all the powers, duties and functions which at present are D entrusted to the Minister of Justice in terms of the Public Safety Act 1953, the Tear Gas Act 1964 and the Affected Organisations Act 1974 to the Minister of Law and Order.

Given under my Hand and the Seal of the Republic of South Africa at Pretoria this Second day of February, One thousand Nine hundred and Eighty-four.

M VILJOEN, State President.

By order of the State President-in-Council:

E H J COETSEE.'

The reply of the respondents (who had, it would seem, not been aware of the existence of Proc R30 of 1984 until the appellants referred thereto) to the appellants' contention was that this proclamation did not have the effect contended for by the appellants. They advanced F two grounds for their submission, which I propose to quote because they seem to me to contain a concise statement of the two grounds on which the respondents attacked Proc R30 of 1984 both in the Court a quo and in this Court. They read as follows:

(1) 'Section 20A of Act 32 of 1961 only authorises the State G President to assign the administration of any provision in any law which entrusts to a Minister any power, duty or function, to any other Minister. It does not authorise the assignment of such power, duty or function directly. Proclamation R30 of 9 March 1984 purports not to assign the administration of any provision in any law which entrusts to the fourth respondent any power, duty or function to the third respondent. It purports to transfer directly the powers, duties and functions entrusted to the fourth respondent in terms of the Act, to H the third respondent. This is ultra vires.'

(2) 'A proper assignment envisaged by s 20A is different from a mere approval to do so. Proclamation 30 of 9 March 1984 does not purport to constitute the assignment itself. It merely purports to constitute an 'approval' (or 'goedkeuring') of the first respondent to 'the transfer'. To approve a transfer is not to effect a transfer, let I alone to effect an assignment. In the result, even if Proc R30 of 1984 was not ultra vires, it does not have the effect in law of substituting the third respondent for the fourth respondent in s 8 of the Act.'

As to the first ground, Mr Mahomed's argument on behalf of the J respondents in this Court may be summed up as follows: s 20A(1) of Act 32 of 1961 conferred on the State President the authority to assign 'the

Rabie ACJ

A administration of any provision in any law which entrusts to a Minister any power, duty or function, to any other Minister; if the Legislature had intended to confer upon the State President the authority to assign a power, duty of function vesting in one Minister to another Minister, it would have been a simple matter to say so; s 20A(2) of Act 32 of 1961 authorised the Prime Minister to assign 'any power, duty or B function entrusted to him by any law, to any other Minister...', without making any reference to a power to assign the administration of any law; this difference in the wording of s 20A(1) and s 20A(2) of the same Act denotes prima facie a change of intention; there is a distinction between an assignment of powers, duties and functions vesting in a Minister in terms of a law to another Minister and an C assignment of the administration of the provisions of any law (in which such powers, duties or functions are described) from one Minister to another; an assignment in terms of s 20A(1) of Act 32 of 1961 involves the administration of the relevant Act 'fall(ing) under the civil service and the infra -structure of the department headed by the Minister D to whom the assignment takes place'. In the present case, counsel submitted, an...