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

• Jurisdiction: South Africa
• Judgment Date: 01 December 1972
• Citation: 1973 (1) SA 873 (A)

Winter and Others v Administrator-In-Executive Committee and Another
1973 (1) SA 873 (A)

1973 (1) SA p873

Citation	1973 (1) SA 873 (A)
Court	Appellate Division
Judge	Ogilvie Thompson CJ, Rumpff JA, Botha JA, Holmes JA and Jansen JA
Heard	November 14, 1972
Judgment	December 1, 1972

Flynote : Sleutelwoorde A

Immigration — Lawful residents issued with deportation order under Proc. 50 of 1920 (S.W.A.), as amended — Sec. 1 (1) (a) of B Proclamation not repugnant to Act 59 of 1959 nor Act 22 of 1913, as amended — Court's jurisdiction ousted by sec. 1 (3) of Proclamation — Provisions of sec. 1 (1) directory only — Facts not establishing arbitrariness — Maxim audi alteram partem excluded — Administrator-in-Executive Committee not having exceeded its powers.

Headnote : Kopnota

Appellants, three churchmen and a church worker, lawful residents, C applied for an interdict pending a main application for an order setting aside deportation orders issued in terms of section 1 (1) (a) of Proclamation 50 of 1920 (S.W.A.), as amended, which were stated to have been issued for State reasons which could not be disclosed. The South-West Africa Division of the Supreme Court found that, in regard to D appellants' charges of gross arbitrariness, fraud, and mala fides, no sufficient prima facie case had been made out. It assumed, without deciding, that the maxim audi alteram partem was applicable and that, consequentially, a failure of natural justice had occurred, but held that the provisions of section 1 (3) of the Proclamation operated to exclude the Court's jurisdiction to review deportation orders on that ground. It dismissed the application with costs, and appellants then left the Territory in compliance with the deportation orders. Subsequently an application for leave to appeal was granted by the same E Court 'in so far as leave may be necessary'. In an appeal,

Held, that section 1 (3) of the Proclamation, as amended, which section ousted the Court's jurisdiction, was not repugnant to either Act 59 of 1959 or Act 22 of 1913, as amended: the ouster provision in section 1 (3) of the Proclamation, for the purposes under consideration, had to be regarded as if it had been passed by Parliament, whose competence to enact such a provision (however undesirable in itself) was indisputable.

F Held, further, that the provisions of section 1 (1) of the Proclamation were directory only and that the deportation orders served on the appellants had substantially complied with the requirements of the Proclamation.

Held, further, that, in its present form, the intention by section 1 (3) of the Proclamation to exclude the Court's jurisdiction was abundantly plain; and the provision had the force of a statutory enactment.

Held, further, although a failure to furnish reasons for the exercise of G a discretionary decision might under certain circumstances lend colour to an inference of arbitrariness, the facts before the Court were wholly insufficient to justify the drawing of such an inference in the present case.

Held, further, that appellants' protestations that no behaviour on their part fell within the ambit of section 1 of the Proclamation, afforded insufficient justification for the Court's interference.

Held, further, however, notwithstanding that the powers conferred by H section 1 (1) (a) of the Proclamation made a drastic inroad upon the liberty of the individual, that the exercise of those powers was not subject to the maxim audi alteram partem.

Held, further, that the Administrator-in-Executive Committee had not exceeded its jurisdiction in issuing the deportation orders and, consequently, that the provisions of section 1 (3) of the Proclamation entirely excluded the Court from granting appellants any relief.

The decision in the South-West Africa Division in Winter and Others v Administrator, South-West Africa and Another, confirmed.

1973 (1) SA p874

Case Information

Appeal from a decision in the South-West Africa Division (BADENHORST, J.P., and HOEXTER, J.). The facts appear from the judgment of OGILVIE THOMPSON, C.J.

B. O'Linn (with him Mrs. E. Blum ), for the appellants: A question of law may be advanced for the first time on appeal if its consideration then involves no unfairness to the party against whom it is directed, Cole v Union Government, 1910 AD at p. 272; Morobane v Bateman, 1918 AD 460, and the Court may raise a question of illegality mero motu, Cape Dairy and General Livestock Auctioneers v Sim, 1924 AD 167. A

B The Court erred in holding that its jurisdiction was ousted because of the provisions of sec. 1 (3) of Proc. 50 of 1920. The ousted clause would not debar the Court from hearing and deciding an application, inter alia, in the following circumstances: (1) A manifest absence of jurisdiction. See Union Government v Fakir, 1923 AD 466; C Narainsamy v Principal Immigration Officer, 1923 AD at p. 675. (2) Fraud or mala fides; see Fakir's case, supra; Narainsamy's case, supra. (3) Some similar element to fraud and mala fides, see Fakir's case, supra at pp. 469 - 470; Narainsamy's case, supra at p. 675, or a similar element. See Forgan v Minister of Interior, 1925 CPD at pp. D 104 - 105; Mhlengwa v Secretary for Native Affairs, 1952 (1) SA at p. 319; Singh v Umzinto Rural Licensing Board and Others, 1963 (1) SA at p. 877D - H; Nyangeni v Minister of Bantu Administration and Another, 1961 (1) SA at pp. 569 - 570; Khan v Rural Licensing Board and Others, 1964 (4) SA at p. 183G - H; Dada v Minister of Interior, 1927 T.P.D. 157; Kazee v Principal Immigration Officer and Another, E 1954 (3) SA 759; R. v Mpanza, 1946 AD at p. 771; Saliwa v Minister of Native Affairs, 1956 (2) SA at pp. 316, 317, 318E; (which explains Sachs' case, 1934 AD 11); Bignaar v Municipal Council of Rustenburg, 1927 T.P.D. at pp. 615, 616; Steyn, Uitleg van Wette, 3rd ed., pp. 101, 103, 204 - 206, 263 - 265; Rose-Innes, Judicial Review F of Administrative Tribunals in S.A. at p. 142; Ameen & Co. v Glenmore Borough, 1935 NPD 356; Woolworths v Durban City Council, 1936 NPD 591; Minister van Naturelle Sake v Monnakgotla, 1959 (3) SA at pp. 521D - 522; Mohammed v Principal Immigration Officer, 1951 (3) SA at p. 888. The words 'some similar element', embrace all cases where it can G be inferred that the legislative did not intend to authorise an act such as the one in question or a procedure such as the one in question. It must therefore be similar in the sense that, just as it must be assumed that the Legislature did not intend to authorise a fraudulent or mala fide act under the pretence of the authority granted, so it must H also be assumed, e.g. that the Legislature did not intend one authority to be used for an improper purpose or to be used by the authority, without applying its mind properly to the issues, or without reference to the fundamental principles of our law, such as the audi alteram partem rule, or without complying with the express or implied requirements of the law. No order issued by the second respondent in consequence of a decision by first respondent arrived at without complying with the said assumed intention of the legislation can be regarded as an order 'under' or in terms of the Proclamation, and therefore not

1973 (1) SA p875

such a decision or order as would oust the jurisdiction of the Court. In the instant case there was a manifest absence of jurisdiction. First respondent had no jurisdiction to take a decision and issue a direction to second respondent in terms of Proc. 50 of 1920, as amended, in view A of the provisions of sec. 6 (1) and 6 (2) of the S.W.A. Constitution Act, 39 of 1968, read with sec. 22 (e) and (i) of the said Act, which vests the power and responsibility in the Administrator of South-West Africa.

The whole of Proc. 50 of 1920, as amended, is invalid in that the provisions which individually are not repugnant to Acts of Parliament B cannot be severed from those provisions which are repugnant, for example: Proc. 50 of 1920, as amended, is repugnant to sec. 19 (1) of the Supreme Court Act, 59 of 1959, in so far as it purports to oust the review jurisdiction of the Supreme Court and is to that extent invalid. In any event, Ord. 2 of 1972, is invalid as being repugnant to sec. 19 C (1) of Act 59 of 1959, in so far as it purports to abolish the existing prerequisite of a conviction by a criminal court, before a person can be removed from the Territory under warrant issued under the said Proc. 59 of 1920. The sanction clauses in Proc. 50 of 1920, as amended, are repugnant to sec. 6 of Act 22 of 1913, as applied to South-West Africa by sec. 4 of Act 43 of 1953 and to that extent Proc. 50 of 1920, as D amended, is invalid. Sec. 2 of Proc. 50 of 1920 contemplated, inter alia, that a person who has been ordered to leave South-West Africa in terms of a notice issued under sec. 1 of Proc. 50 of 1920, would have a right of appeal to the board constituted under sec. 3 of Proc. 23 of 1924. This latter Proclamation, however, was repealed by Act 43 of 1953 E and, by virtue of sec. 11 (1) of the Interpretation of Laws Proclamation, 37 of 1920, a reference in sec. 2 of Proc. 50 of 1920 to Proc. 23 of 1924, should be taken as a reference to Act 22 of 1913. Sec. 2 (6) of Act 22 of 1913, clearly excludes appeals to the board by persons 'who may in terms of any other law be dealt with as prohibited F persons' under Act 22 of 1913. The said sec. 2 of Proc. 50 of 1920, envisaging an appeal to the Board such as that constituted under sec. 3 of the said Proc. 23 of 1924, is repugnant to sec. 2 (6) of Act 22 of 1913, and in consequence, invalid. Similarly, sec. 1 of Proc. 50 of 1920, in so far as it lists the categories of persons against whom action can be taken without any qualification or exception in respect of G persons listed in secs. 5 and 21 of the said Act 22 of 1913, is in...