State President and Others v United Democratic Front and Others

• Jurisdiction: South Africa

State President and Others v United Democratic Front and Others
1989 (1) SA 766 (A)

1989 (1) SA p766

Citation	1989 (1) SA 766 (A)
Court	Appellate Division
Judge	Rabie ACJ, Joubert JA, Hefer JA, Vivier JA, M T Steyn JA
Heard	August 29, 1988
Judgment	September 29, 1988

Flynote : Sleutelwoorde G

Internal Security — Affected Organisations Act 31 of 1974 — Validity of declaration made in terms of s 2(1) of Act 31 of 1974 — Effect of s 10(5) of Interpretation Act 33 of 1957 is that transfer in H terms of s 20A(1) of Republic of South Africa Constitution Act 32 of 1961 of administration of any law or provision of any law confers power on party to whom transferred to exercise powers and perform functions and duties in such law or provision of law — Construction of word 'approve' in proclamation purporting to effect such transfer — Means I approve following advice of Executive Council — Read as intending that transfer be effected — Phrase 'without notice' constituted express exclusion of requirement of audi alteram partem before proclamation issued in terms of s 2(1) of Act 31 of 1974 — Accordingly such declaration could not be challenged on basis of failure J to observe that requirement — Fact of State President's failure to give notice could not support argument that

1989 (1) SA p767

A he failed to exercise proper discretion because he was not in law obliged to give notice — No ground for contention that involvement in non-political activities as well as political activities place organisation beyond reach of provisions of Act 31 of 1974 — Fact that another organisation in same situation had not been declared an B affected organisation no ground for attacking declaration — No ground on evidence for imputing to State President motive extraneous to Act.

Headnote : Kopnota

In an appeal against a decision in a Local Division that Proc 190 of 1986 - issued by the State President (the first appellant) declaring the United Democratic Front (the first respondent) to be an C affected organisation in terms of s 2(1), subject to the provisions of s 8, of the Affected Organisations Act 31 of 1974 - was of no force and effect, on the ground that the State President in Proc R30 of 1984 did not, and did not purport to, transfer or assign the powers entrusted to the Minister of Justice by s 8 of Act 31 of 1974, but merely stated that he approved of such transfer, the Appellate Division dealt with this decision as well as various other grounds upon which the proclamation D had been attacked but upon which the learned Judge in the Court a quo had not made any final decision.

Held, that, in view of the provisions of s 10(5) of the Interpretation Act 33 of 1957, to the effect that whenever the administration of any law or provision of any law, which confers a power or imposes a duty upon or entrusts a function to any Minister of State, has under s 20A(1) of the Republic of South Africa Act 32 of 1961 been assigned by the State President to any other Minister, that power may be exercised by such other Minister and that duty shall and that function may E be performed by him, by transferring, in terms of Proc 30 of 1984, to the Minister of Law and Order powers entrusted by s 8 of Act 31 of 1974 to the Minister of Justice, the State President would have given effect to the assignment of the administration of the provisions of the law as contemplated in s 20A(1) of the Republic of South Africa Constitution Act 32 of 1961 and therefore Proc 30 of 1984 was not ultra vires that section.

F Held, further, with regard to the argument that from the wording of Proc R30 of 1984 the State President did not, and did not purport to, transfer or assign the powers entrusted to the Minister of Justice by s 8 of Act 31 of 1974 to the Minister of Law and Order but merely stated that he approved such transfer, that the only reasonable and correct construction to place on Proc 30 was that the State President indicated that he was transferring the powers, duties and functions entrusted G to the Minister of Justice by the Affected Organisations Act to the Minister of Law and Order and that by the use of the word 'approve' he indicated that he approved, following the advice given by the Executive Council in terms of s 16(1) of Act 32 of 1961, of the transfer of powers as contemplated in s 20A(1) of Act 32 of 1961.

Held, accordingly, that the Court a quo had erred in declaring Proc 30 of 1984 to be of no force and effect on the ground that it did.

H Held, further, with regard to the argument that Proc 190 was invalid because of the failure on the part of the State President to observe the audi alteram partem rule, that s 2(1) of the Act provided that the provisions of s 8 of Act 31 of 1974 had to be complied with before the State President could declare an organisation to be an affected organisation within the meaning of the Act and, since it expressly authorised him to make such a declaration without giving notice of his intention to do so, the words 'without notice' constituted an I express exclusion of the requirement of audi alteram partem before the declaration was made, and, this being so, it was difficult to see how a declaration under s 2(1) of the Act could be challenged on the grounds of failure on the part of the State President to observe the audi alteram partem requirement before issuing such a declaration.

Held, furthermore, having elected not to give notice, first appellant was not obliged in law to inform first respondent, or anyone else why he had decided not to give notice, and the fact that he had not given J such notice could not be held to support an

1989 (1) SA p768

A argument that he had not given consideration to the question of whether he should give notice and therefore failed to exercise a proper discretion.

Held, further, that, from the language of s 2(1) of the Act, it was clear that the State President had the power to declare an organisation to be an affected organisation if he was satisfied that it was an organisation engaged in politics with the aid of an organisation or person abroad and there was no ground for holding that that power B should be restricted because an organisation was also involved in non-political activities: an organisation which was engaged in politics with aid from abroad did not cease to be such merely because it also engaged in non-political activities and the interpretation contended for by the respondents would frustrate the intention of Parliament as expressed in s 2(1) of Act 31 of 1974.

Held, further, that s 2(1) of the Act provided in clear terms that the State President might declare an organisation to be an affected organisation within the meaning of the Act if he was satisfied that C it was engaged in politics and did so with aid from abroad: if he was satisfied that organisation A was an organisation which was envisaged in the section, he was entitled to declare it an affected organisation and the fact that organisation B was an organisation in respect of which a similar declaration could justifiably have been made could not affect the validity of the declaration made in respect of organisation A.

Held, further, with regard to the contention that the declaration D was invalid because it had been made with an objective extraneous to the Act, that on the facts the first respondent fell within the definition of an organisation as contemplated by the Act and therefore the State President could declare it to be an affected organisation and there was no ground on the evidence for imputing any ulterior motive to the State President.

The decision in the Durban and Coast Local Division in United E Democratic Front and Others v State President and Others reversed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (Didcott J). The facts appear from the judgment of Rabie ACJ.

J H Combrink SC (with him J A Booysens ) for the first, second and third appellants referred to the following authorities: Dicey Law of the Constitution 10th ed at 246; O Hood-Phillips Constitutional F and Administrative Law 6th ed at 104 - 5; Verloren van Themaat Staatsreg 2nd ed (1967) at 151; Zuid-Afrika Wet 1909; Union Government (Minister of Lands) v Estate Whittaker 1916 AD 194 at 202; Union Government v Tonkin 1918 AD 533 at 539 - 40; Sachs v Donges NO 1950 (2) SA 265 (A) at 288 et seq ; Schierhout v Union Government 1927 AD 94 at G 101 - 2; SA Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C) at 34; R v Naran Samy 1945 AD 618 at 621 - 3; South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A) at 268; R v Ngwevela 1954 (1) SA 123 (A) at 131; Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at 488 - 9; H Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635F - 636E; Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 651; Judes v District Registrar of Mining Rights, Krugersdorp 1907 TS 1046 at 1051; Sachs v Minister of Justice 1943 AD 11 at 36 - 7; Jeewa v Donges NO and Others 1950 (3) SA 414 (A) at 423; Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law I and Order and Others; State President v Bill 1987 (3) SA 859 (A) at 891B; Union Government (Minister of Mines and Industries) v Union Steel Corporation of South Africa Ltd 1928 AD 220 at 236 - 7; National Transport Commission v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735 - 6; The Administrator, Transvaal and The Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A) at J 80; Administrateur van Suidwes-Afrika en 'n Ander v Pieters 1973 (1) SA 850 (A)

1989 (1) SA p769

A at 857 - 8; Schoch NO and Others v Bhettay and Others 1974 (4) SA 860 (A) at 865 - 6; Kabinet van die Tussentydse Regering vir Suidwes-Afrika...