Winter and Others v Administrator-In-Executive Committee and Another

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson CJ, Rumpff JA, Botha JA, Holmes JA and Jansen JA
• Judgment Date: 01 December 1972
• Citation: 1973 (1) SA 873 (A)
• Hearing Date: 14 November 1972
• Court: Appellate Division

E Ogilvie Thompson, C.J.:

After being served with deportation orders, dated 26th February, 1972, and issued in terms of sec. 1 (1) of South-West Africa Proclamation, 50 of 1920, requiring them to leave the Territory of South-West Africa before noon on 4th March, 1972, the four appellants applied on motion, as a matter of urgency, to the South-West F Africa Division of the Supreme Court of South Africa for an interdict restraining respondents from executing and/or acting upon the aforementioned deportation order,

'pending a decision on the main application... for an order setting aside the said deportation orders'.

G When the notices of motion first came before the Court a quo, an adjournment to the following day was granted to enable respondents, if so advised, to file opposing affidavits. In fact no opposing affidavits were filed and argument - both sides being represented by counsel - proceeded upon the papers as filed by appellants. From those papers it appears that, at the time the aforementioned orders were served upon H them, the four appellants were lawfully resident in South-West Africa. As at that date, first appellant was the Bishop of Damaraland of the Church of the Province of South Africa (Anglican Church), and the second appellant was the Diocesan Treasurer of the Diocese of Damaraland of that Church. The third appellant was the Assistant Priest of St. George's Cathedral of the Church of the Province of South Africa. The three first-named appellants filed a joint affidavit in support of their notice of motion. Fourth appellant - who claims to be a South

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African citizen and describes herself as a church worker for the Diocese of Damaraland of the aforementioned Church who has at times also worked as a teacher and reporter - filed a separate notice of motion A supported by an affidavit deposed to by herself. While some slight variation in wording exists between the two notices of motion and the two supporting affidavits reveal minor factual differences, the issues raised, and the relief claimed, are in the case of all four appellants identical and were so treated both in the Court below and in this Court.

During the forenoon of 4th March, 1972, the Court a quo (BADENHORST, B J.P., and HOEXTER, J.) dismissed both notices of motion (i.e., the applications of all four appellants) with costs. Thereupon - so we were informed from the Bar - the appellants left the Territory in compliance with the deportation orders.

An application for leave to appeal, dated 23rd March, 1972, and setting C out some ten different grounds, was thereafter argued before the same two learned Judges. On 23rd May, 1972, leave to appeal to this Court was granted 'in so far as leave may be necessary', such leave being, however, restricted to the grounds numbered 2 and 3 in the aforementioned application of 23rd March, 1972. In the course of its judgment granting leave to appeal, the Court a quo indicated that, D although the matter had not been argued, it might well be that

'the order sought to be appealed against though interlocutory in form, may in truth be final in effect; in which case no leave to appeal would be necessary'.

The notice of appeal to this Court subsequently filed by appellants contained a number of grounds additional to those numbered 2 and 3 in E the aforementioned application of 23rd March, 1972, and these were, without objection from respondents' counsel, argued before us. In the circumstances, and having regard to the nature of this case, we do not find it necessary to pursue the question adumbrated in the words last-quoted above from the judgment of the Court a quo.

The deportation orders, all dated 26th February, 1972, were served upon F first and second appellants the same day, upon third appellant the next day, and upon fourth appellant (who had been temporarily absent from the Territory) on 1st March, 1972. Save as regards names, designations and addresses, the deportation orders were in identical form and read as follows:

'Whereas the Administrator-in-Executive Committee has, in terms of sec. 1 (1) of the Undesirables Removal Proclamation, 50 of 1920, as amended, G directed me to issue an order to you (Here followed the full name and address of the individual appellant) to leave the Territory of South-West Africa before 12 noon on the fourth day of March, 1972; Now therefore I, Johannes Jacobus Klopper, in my capacity as Secretary for the Territory of South-West Africa, do hereby, in terms of sec. 1 (1) of the Removal of Undesirables Proclamation, 50 of 1920, as amended, H order you the said (The name of the addressee) to leave the Territory of South-West Africa before 12 noon on the fourth day of March, 1972. J. J. Klopper,; Secretary for South-West Africa.'

In their affidavits the appellants deposed that, save for certain newspaper imputations and criticisms - summarised in the affidavits and therein averred to be wholly unfounded, but which are, in any event,

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not material to the decision of this appeal - they were, prior to the service of the deportation orders upon them, unaware either of any complaints against them or of any 'ground for action in terms of the Proclamation.' Emphasising that they had had no opportunity whatsoever of defending themselves, appellants, inter alia, averred in their A affidavits that they had

'at no stage transgressed any law or committed any offence';

that they had pursued their respective lawful activities

'without endangering the peace, order and good government of the Territory';

and that, on the various grounds stated in the affidavits, the direction B by the Administrator-in-Executive Committee to the Secretary for South-West Africa

'was illegal and/or ultra vires sec. 1 (1) of Proc. 50 of 1920'.

In reply to a letter, dated 29th February, 1972, written on behalf of the first three appellants by their attorney enquiring whether he was willing to furnish the reasons for the issue of the deportation orders, the Administrator, under date 1st March, 1972, answered as follows:

C 'In antwoord op u brief van 29 Februarie 1972, wens ek u mee te deel dat die bevel uitgereik is op grond van die bepalings van art. 1 (1) (a) van Prok. 50 van 1920. Die Uitvoerende Komitee het die omstandighede van elke geval deeglik oorweeg en sy bevoegdheid uitgeoefen kragtens genoemde bepalings, maar in elke geval weens oorwegings ten opsigte van Staatsbelange nie die inligting waarop sy beslissing gebaseer is, verstrek nie.

D Dieselfde gronde waarom die redes aanvanklik nie verstrek is nie, bestaan nog steeds en die Uitvoerende Komitee het gevolglik besluit dat hy nie aan u versoek kan voldoen nie.'

With reference to this letter, the three first-named appellants in their affidavit - to which the letter was annexure E - deposed as follows:

'We strongly deny that disclosure of the reasons requested would or could be harmful to State interest as stated in his reply. It has in E fact come to our notice that the Honourable the Prime Minister has stated in Parliament that he would reply in Parliament to any formal request for the reasons. We believe that it would in fact be in the public and State interest to disclose the reasons for the drastic action as well as the alleged facts supporting it. We believe furthermore that the alleged ground for refusal of reasons is a mere pretext.'

As appears from the aforegoing summary, and as is underlined by the F respondents' failure to avail themselves of the opportunity of placing on affidavit even a bare confirmation of the statements made in the Administrator's above-cited letter of 1st March, 1972 (annexure E), it is plain that the respondents gave the appellants but little time to leave the Territory, refused to disclose the reasons actuating the issue of the deportation orders, and deliberately declined to accord the Court any information whatever in response to the notice of motion. Whatever G view one may take of the attitude thus adopted by respondents, the question for decision in this appeal is whether, upon such information as is before us, the appellants were in law entitled to the interim relief which they sought in the Court below. I accordingly now address myself to that enquiry.

H Proc. 50 of 1920, known as the 'Undesirables Removal Proclamation, 1920', was signed by the Administrator of South-West Africa on 1st October, 1920, and promulgated by publication in the Gazette of 18th November, 1920. It may here be mentioned that in terms of sec. 2 (b) of the Treaty of Peace and South-West Africa Mandate Act, 49 of 1919 the Governor General was empowered to make, by proclamation, new laws applicable to the Territory (i.e. South-West Africa),

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and that his authority in that behalf could, in terms of sec. 2 (c) of that Act, be delegated by him. Sec. 2 of the Treaties of Peace Act, 32 of 1921, extended the operation of Act 49 of 1919, and in terms of Union A Proclamation, 1 of 1921, the Governor General ratified, inter alia, Proclamations previously issued by the Administrator of South-West Africa and also delegated to the latter his powers under sec. 2 of Act 49 of 1919. In terms of sec. 39 of the South-West Africa Constitution Act, 39 of 1968, the validity of Proclamations issued under delegation as aforesaid and in force before 1st November, 1951, was expressly preserved.

B The 'Undesirables Removal Proclamation, 1920' has from time to time been amended, notably by Union Proclamation, 51 of 1937 (issued under Act 49 of 1919 read with sec. 2 of Act 32 of 1921 and sec. 44 of Act 42 of 1925), and by Ord. 2 of 1972. This last-mentioned Ordinance C was passed by the Legislative Assembly for the Territory of South-West Africa and promulgated on 25th February, 1972, with effect from that date.

As amended by the...