Van der Westhuizen NO v United Democratic Front

• Jurisdiction: South Africa
• Citation: 1989 (2) SA 242 (A)

Van der Westhuizen NO v United Democratic Front
1989 (2) SA 242 (A)

1989 (2) SA p242

Citation	1989 (2) SA 242 (A)
Court	Appellate Division
Judge	Rabie ACJ, Joubert JA, Hefer JA, Eksteen JA, Viljoen AJA
Heard	November 14, 1988
Judgment	November 30, 1988

Flynote : Sleutelwoorde B

Internal security — Emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as contained in Proc R109 in C Government Gazette 10280 of 12 June 1986 — Prohibition of public gatherings in terms of reg 7(1) (as amended) — Discretion to be exercised by Divisional Commissioner of Police (appellant) in this regard not objectively justiciable — Only limitation on exercise of his powers in terms of reg 7(1) is that it can only be exercised for purposes stated and order in terms thereof may not be inconsistent with D regulations — Intention of Legislature to constitute Commissioner sole arbiter of necessity or expediency of exercise of his powers — Appeal against Court a quo's setting aside of prohibition imposed by appellant allowed.

Appeal — Costs of — Appeal to Appellate Division — Heads of argument — Growing tendency for counsel to include quotations from E evidence, authorities and Court a quo's judgment — These often adding to Court's burden and inflating fees — Superfluous matters should be omitted and quotations kept within reasonable bounds — Rule 8 of Rules of Court for Appellate Division requiring only main heads of argument. F

Headnote : Kopnota

Appellant, the Divisional Commissioner of Police for the Western Province, had prohibited a public meeting which respondent had arranged and which was to take place on 15 April 1987. The appellant, in imposing the prohibition, had purported to act in terms of reg 7(1) of the regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as promulgated in Proc R109 in Government Gazette 10280 of 12 June 1986 and as amended by Proc R225 of 28 November 1986. The respondent G successfully applied in a Provincial Division for the setting aside of the prohibition, the Court holding that the onus to prove the lawfulness of the prohibition was on the appellant and that he had failed to discharge such onus. On appeal against this decision, the Court found it unnecessary to decide whether it was for the appellant to prove the lawfulness of the prohibition or for the respondent to prove the unlawfulness thereof as it found that the Court a quo had erred in other respects and that the order should not have been granted. It was contended for respondent that the appellant's discretion was H objectively justiciable and that it had not been properly exercised.

Held, that there was nothing in the wording of reg 7(1) (as amended by Proc R225 of 28 November 1986) which could be said to be a jurisdictional fact - there was nothing which could be adjudicated upon apart from the exercise of the power itself.

Held, further, that the only limitations on the exercise of the powers conferred in reg 7(1) were that it could only be exercised for the purposes stated and that no order in terms thereof should be inconsistent with the regulations.

I Held, further, that there was every reason to believe that the intention in reg 7(1) was to constitute the Commissioner the sole arbiter of the necessity or expediency of the exercise of his powers.

Held, therefore, that the Court a quo had erred in its conclusion that the appellant's decision to prohibit the meeting was objectively justiciable. Appeal allowed.

There is a growing tendency in the Appellate Division for counsel to J incorporate quotations from the evidence, from the Court a quo's judgment and from

1989 (2) SA p243

A the authorities on which they rely, in the heads of argument. Although these quotations are no doubt intended for the convenience of the Court they seldom serve that purpose and usually only add to the Court's burden. What is more important is the effect which this practice has on the costs in civil cases. Although counsel himself is not allowed a separate fee for the preparation of heads of argument, his instructing attorney and his opponent's instructing attorney are both entitled to fees in respect thereof and their fees are directly related to the B length of the heads. Superfluous matters should therefore be omitted and, although all quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel will be well advised to bear in mind that Rule 8 of the Rules of Court for the Appellate Division requires no more than the main heads of argument.

The decision in the Cape Provincial Division in United Democratic Front (Western Cape Region) v Van der Westhuizen NO 1987 (4) SA 926 reversed. C

Case Information

Appeal from a decision in the Cape Provincial Division (Baker J, Berman J and Foxcroft AJ), reported at 1987 (4) SA 926. The facts appear from the judgment of Hefer JA.

L J L Visser SC (with him J A le Roux ) for the appellant referred to the following authorities: Regulation 7 of the Security D Emergency Regulations R108 of 1986; Proc R109 of 1986; Public Safety Act 3 of 1953; United Democratic Front (Western Cape Region) v Van der Westhuizen NO1987 (4) SA 926 (C) ; Staatspresident en 'n Ander v United Democratic Front en 'n Ander (unreported AD case No 204/87, delivered on 13 September 1988); * Reported at 1988 (4) SA 830 (A) - Eds. Minister of Law and Order and Another v Dempsey1988 (3) SA 19 (A); Mabaso v E Felix1981 (3) SA 865 (A); Ramsay v Minister of Police1981 (4) SA 802 (A); Macu v Du Toit en 'n Ander1982 (1) SA 272 (C); Shoba v Minister van Justisie1982 (2) SA 554 (C); Minister van Wet en Orde v Van der Heever1982 (4) SA 16 (C); Botha v Lues1983 (4) SA 496 (A); Joubert and Others v Venter 1985 (1) SA 651 (T); Veldhuizen NO v Minister of Police F 1985 (2) SA 374 (C); Minister van Wet en Orde v George1985 (4) SA 390 (C); Minister of Law and Order v Hurley and Another1986 (3) SA 549 (A); Wood and Others v Ondangwa Tribal Authority and Another1975 (2) SA 294 (A); Sigaba v Minister of Defence and Police and Another 1980 (3) SA 535 (Tk); Nevhutalu and Others v Minister of Police and Another1986 (4) SA 822 (V); Farisani v Minister of Justice and Others1987 (2) SA 321 (V) G ; Bloem v Minister of Law and Order and Others1987 (2) SA 436 (O); Gumede and Others v Minister of Law and Order1987 (3) SA 155 (D); Swart v Minister of Law and Order and Others1987 (4) SA 452 (C); Ngqumba/Damons/Jooste v Staatspresident en Andere1988 (4) SA 224 (A); H The South African Pocket Oxford Dictionary (1987) at 406; Reader's Digest English - Afrikaans Dictionary 1987 at 945; Dempsey v Minister of Law and Order and Others1986 (4) SA 530 (C); Radebe v Minister of Law and Order and Another1987 (1) SA 586 (W); Gumede and Others v Minister of Law and Order1987 (3) SA 155 (D) at 158H; Divisional Commissioner of SA Police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd and Another1966 (2) SA 503 (A); Shidiack v I Union Government1912 AD 642; Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier, SA Polisie, Noord-Transvaal1970 (4) SA 350 (T); Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and Another1961 (2) SA 505 (W); Cine Films (Pty) Ltd and Others v Commissioner of Police and Others1972 (2) SA 254 (A); Groenewald v J Minister van Justisie1973 (3) SA 877 (A); Mnyani and Others v Minister of

1989 (2) SA p244

A Justice and Others 1980 (4) SA 528 (Tk); Mbane v Minister of Police and Others 1982 (1) SA 223 (Tk); Matroos and Another v Coetzee NO1985 (3) SA 474 (SE); Duncan v Minister of Law and Order1986 (2) SA 805 (A); N and Another NO v Minister of Law and Order and Another1986 (3) SA 921 (C); Internal Security Act 74 of 1982; Union Government (Minister of Mines and Industries) v Union Steel Corporation (SA) Ltd 1928 AD B 220; African Realty Trust Ltd v Johannesburg Municipality 1906 TH 179; Crown Mines Ltd v Commissioner for Inland Revenue1922 AD 91; Feinstein v Baleta1930 AD 319; Minister of Posts and Telegraphs v Rasool1934 AD 167; Sinovich v Hercules Municipal Council1946 AD 783; Minister of the Interior v Lockhat1961 (2) SA 587 (A); Hillowitz v Germiston C Town Council1962 (3) SA 335 (W); Uys v Parow School Board; Arendse v Parow School Board1962 (3) SA 628 (C); S v Rooza1963 (2) SA 317 (C); Pretorius v Direkteur van Onderwys (OVS)1963 (3) SA 287 (O); S v Naicker1965 (2) SA 919 (N); Baron v Sherren1966 (3) SA 460 (R); Hulett v Administrator, Cape1967 (2) SA 483 (E); Welkom Bottling Co (Pty) Ltd v Belfast Mineral Waters (OFS) (Pty) Ltd1967 (3) SA 45 (O); Administrator, D Transvaal, and The Firs Investments (Pty) Ltd v Johannesburg City Council1971 (1) SA 56 (A); Johannesburg City Council v Administrator, Transvaal, and Mayofis1971 (1) SA 87 (A); Administrateur van Suidwes-Afrika v Pieters1973 (1) SA 850 (A); Northwest Townships (Pty) Ltd v The Administrator, Transvaal, and E Another1975 (4) SA 1 (T); National Transport Commission v Chetty's Motor Transport (Pty) Ltd1972 (3) SA 726 (A); Johannesburg City Council v The Administrator, Transvaal, and Another (1)1970 (2) SA 89 (T); Johannesburg City Council v The Administrator, Transvaal, and Another (2)1970 (2) SA 94 (T); Mauerberger v Mauerberger1948 (3) SA 731 (C); Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and F Others1974 (4) SA 362 (T); Shephard v Tuckers Land and Development Corporation (Pty) Ltd1978 (1) SA 173 (W); Director of Hospital Services v Mistry1979 (1) SA 626 (A); Skjelbreds Rederi A/S and Others v Heartless (Pty) Ltd1982 (2) SA 739 (W); Wiese v Joubert en Andere1983 (4) SA 182 (O); Shepherd v Mitchell Cotts Seafreight SA (Pty) Ltd1984 (3) SA 202 (T); Castel NO v Metal and Allied Workers Union1987 (4) SA 795 (A) G ; United Technical Equipment Co (Pty) Ltd v Johannesburg...