Brief Summary

Constitutional Law — Legislative competence — South West Africa Constitution Act — Appellant challenged the validity of his conscription for national service under the Defence Act, arguing that the South African Parliament lacked authority to legislate for the territory post-termination of the mandate. The Supreme Court of South West Africa dismissed the application, ruling that the relevant proclamations were valid. The appellant subsequently appealed, maintaining that Proclamation 198 of 1980 was invalid and that he could not be conscripted for service outside the territory. The court upheld the validity of the proclamations and rejected the appellant's claims regarding conscription, affirming the legislative authority of the State President under the Constitution.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal to the Appellate Division of the Supreme Court of South Africa against a decision of a full bench of the Supreme Court of South West Africa (reported as 1984 (3) SA 949). The proceedings were brought by E. Binga as appellant, and the cited respondents were the Cabinet for South West Africa (substituted on appeal for the Administrator-General), the Minister of Defence, and the Exemption Board for the South West African Territorial Force.

In the court of first instance the appellant sought, principally, declaratory and review-related relief challenging the legality of his being called up for national service under the Defence Act 44 of 1957, as applied in South West Africa. Although an alternative review of the exemption board’s refusal to exempt him was initially pursued, that alternative relief was later abandoned during the proceedings in the court a quo.

The broader subject-matter of the dispute concerned the lawfulness of the extension of national service obligations to non-White inhabitants of South West Africa via Proclamation 198 of 1980, promulgated by the State President under section 38 of the South West Africa Constitution Act 39 of 1968, and the further question whether the appellant could be required to perform such service at Walvis Bay.

2. Material Facts

It was common cause that the South West Africa Constitution Act 39 of 1968 preserved extensive powers of administration and legislation over the territory, and that section 38(1) empowered the State President, by proclamation, to make laws for the territory and to repeal or amend legal provisions (including Acts of Parliament as they related to or applied in the territory), subject to a parliamentary disapproval mechanism in section 38(6) and (7).

It was also common cause that the Defence Act 44 of 1957 applied in South West Africa by virtue of section 153(1). Prior to the relevant amendment, section 2(1)(b) excluded from the Act’s application (subject to immaterial exceptions) females and persons who were not “White persons” as defined in section 1 of Act 30 of 1950.

In 1980, the State President promulgated Proclamation 198 of 1980, which (for purposes of the Act’s application in the territory) deemed the exclusionary words relating to “persons who are not White persons” not to form part of section 2(1)(b). The intended effect of the proclamation, if valid, was that non-White male inhabitants of the territory could be subjected to national service under the Defence Act (whereas the racial exclusion remained operative outside the territory).

Also in 1980, administrative arrangements were made relating to the South West African Territorial Force (SWATF). On 1 August 1980 the Administrator-General notified the organisation of certain Defence Force units in and as SWATF, and on the same date Proclamation 131 of 1980 was published, which vested the administration of specified chapters of the Defence Act in the Administrator-General in relation to, among other things, SWATF units and the registration and allotment system under Chapter VIII.

By virtue of these arrangements, an exemption board (the third respondent) was appointed for the territory to consider applications for deferment or exemption under section 69 of the Defence Act.

In November 1982 the appellant, then a minor and an inhabitant of the territory, was notified by SWATF that he had been allotted to the Second South African Infantry Battalion for national service at Walvis Bay for the period 10 January 1983 to 4 January 1985. He applied for exemption under section 69, but the exemption board refused his application. He then brought proceedings seeking, primarily, to be declared not liable for national service and to have the call-up notice set aside, with an alternative review of the refusal of exemption.

At the appeal stage, the appellant sought and obtained leave to supplement the record to allege expressly that he was non-White, an issue that had been assumed throughout the prior proceedings and formed the premise of the principal attack on Proclamation 198 of 1980.

A further factual development occurred after the hearing, when an affidavit by Colonel Potgieter was placed before the court. It stated that he held dual appointments: one as a representative in the territory of the registering officer for the South African Defence Force (appointed under the authority of the Minister of Defence), and another as registering officer for SWATF (appointed by the Administrator-General). He asserted that the notice calling up the appellant was issued under his authority, and he conceded that the Second South African Infantry Battalion was not a unit of SWATF.

3. Legal Issues

The central issues ultimately argued on appeal were questions of law and the application of law to the established facts, rather than disputes of primary fact.

The first question was whether section 38(1) of the South West Africa Constitution Act empowered the State President to promulgate legislation (here, Proclamation 198 of 1980) that could operate in conflict with article 4 of the Mandate for South West Africa, which prohibited the military training of “natives” otherwise than for internal police and local defence.

The second question was whether, even assuming Proclamation 198 of 1980 was valid, the appellant could lawfully be called up to perform national service at Walvis Bay, on the basis that Walvis Bay was said not to be part of the territory and that the proclamation applied only “in the territory”.

A further procedural issue arose in relation to whether an argument based on Proclamation 131 of 1980 (concerning the allotment of territorial residents to units forming part of SWATF) could be entertained, given that it had not been pleaded or relied upon in the founding papers and would materially alter the case the respondents were called upon to meet.

4. Court’s Reasoning

On the preliminary matters, the court accepted that the Cabinet for South West Africa should be substituted for the Administrator-General as first respondent, because of a transfer of powers effected by section 29 of Proclamation 101 of 1985. The court also granted leave to supplement the papers to include a direct allegation that the appellant was Black, as the litigation had proceeded on that assumption and the validity challenge depended on it.

As to the first substantive issue, the court approached the matter by treating as decisive the scope of section 38(1) of the South West Africa Constitution Act. Although the appellant sought to argue that Parliament did not intend to empower the State President to legislate in conflict with the Mandate, the court held that the language of section 38(1) was unambiguously wide. It empowered the State President to make laws for the territory not merely for independence-related aims or Walvis Bay administration, but also for “the regulation of any other matter”, and it expressly authorised the repeal or amendment of “any legal provision” and relevant Acts of Parliament.

The court considered the legislative history of section 38(1) and emphasised that amendments made by Act 95 of 1977 removed earlier limitations. Previously, the State President’s law-making power was more constrained, including a limitation that laws would be effective only so long as they were not inconsistent with Acts of Parliament applying in the territory. The substituted version, in the court’s analysis, conferred plenary legislative powers in respect of the territory, comparable in breadth to Parliament’s own powers in the relevant sphere.

Proceeding on an assumption favourable to the appellant, the court was willing (without deciding) to assume that the Mandate provisions had become part of the “composite constitution” or statutory law relevant to the territory. Even on that assumption, the decisive enquiry remained whether section 38(1) authorised the State President to amend or repeal legal provisions applicable in the territory. The court held that it did, and that the only meaningful “curb” on such power lay in the parliamentary disapproval mechanism in section 38(7), not in implied substantive constraints derived from the Mandate.

In reaching that conclusion, the court relied on principles associated with plenary legislative competence and the approach that courts determine validity by reference to the affirmative grant and any express restrictions in the empowering instrument, without “constructively” enlarging restrictions where none are specified. The court applied this reasoning to reject the appellant’s attempt to imply a limitation derived from international obligations into the clear wording of section 38(1).

The appellant also invoked a presumption that Parliament does not intend to violate international obligations, relying on English authority. The court rejected this as a basis for narrowing section 38(1), holding that such a presumption operates, at most, where statutory wording is ambiguous and reasonably capable of more than one meaning, and where there is cogent evidence that the statute was intended to give effect to a treaty obligation. In the present case, the court found no ambiguity in section 38(1) and no indication that Parliament intended, through the South West Africa Constitution Act, to give effect to Mandate obligations; indeed, the Act made no reference to the Mandate. On that footing, the presumption was held to be inapplicable. Because the court held that section 38(1) empowered legislation even if inconsistent with the Mandate, it considered it unnecessary to decide whether Proclamation 198 of 1980 in fact conflicted with article 4 of the Mandate.

On the Walvis Bay issue, the court examined the relevant provisions of the Defence Act. It held that, under the Act, persons liable for service could be required to perform training or service “whether within or outside the Republic” at places designated by the Minister, in terms of section 138. Prior to the 1980 proclamation, this applied to White male citizens, including inhabitants of the territory. The 1980 proclamation, in the court’s view, did not create a separate territorial defence statute with narrower geographic reach; it simply removed, for the territory, the racial exclusion in section 2(1)(b), while leaving the rest of the Act (including section 138) intact.

The court rejected the argument that the words “in the territory” in Proclamation 198 of 1980 confined the service obligation geographically to the territory. It held that those words functioned to confine the deeming amendment (removing the race-based exclusion) to the territory, rather than to qualify the operational scope of other provisions governing where service might be performed. The effect of the proclamation was therefore to extend the Defence Act’s application to non-White male inhabitants of the territory, with the same consequences as the Act otherwise provided, including potential service at locations designated by ministerial direction.

The court then addressed an attempt, raised only late in argument, to rely on section 2(1)(c) of the Schedule to Proclamation 131 of 1980 to contend that territorial residents could be allotted only to units forming part of SWATF, and not to a South African Defence Force unit such as the Second South African Infantry Battalion. The court declined to consider this submission because it had not been pleaded or advanced in the founding papers, and entertaining it would effectively introduce a new cause of action and raise issues the respondents had not been called upon to meet (including the possibility that the Minister of Defence might have opposed the application and placed evidence and argument before the court). The court treated this as a matter of procedural fairness and proper appellate adjudication.

In any event, the court considered the later affidavit evidence indicating that the registering officer held dual authority and that the call-up notice was issued under that authority. The court reasoned that, even if one assumed a limitation on allotment under the Administrator-General’s authority alone, the composite authority derived from the dual appointments meant that the appellant could in principle be allotted to a unit not forming part of SWATF. The court further held that any residual doubt could not be resolved in the appellant’s favour given that the “SWATF unit” point was not part of the case advanced in the application.

On costs, the court drew a distinction between the third respondent’s proper role and the manner in which it participated in the appeal. It held that the exemption board’s statutory function related to exemption applications and did not extend to calling up persons or adjudicating the validity of call-up notices. The third respondent was a necessary party in the court a quo because the alternative review relief targeted its refusal of exemption, and after abandonment of that alternative relief without a tender of costs, it was entitled to representation to secure a costs order. On appeal, it was entitled to oppose only to protect the existing costs order, but it nonetheless argued the merits extensively. The court held that the exemption board’s asserted “indirect interest” did not amount to a legal interest justifying full opposition on the merits, and it therefore made a special costs order limiting recoverable costs.

5. Outcome and Relief

The Appellate Division granted the substitution of the Cabinet for South West Africa as first respondent in place of the Administrator-General.

The appeal was dismissed, and the dismissal included an order that the appellant pay costs, including the costs related to the application for leave to appeal.

A special order as to costs was made to the effect that costs were to be taxed as if the third respondent had opposed the appeal, and as if one counsel appeared, but only for the limited purpose of defending the costs order made by the court a quo.

Cases Cited

S v Tuhadeleni and Others 1969 (1) SA 153 (A)

R v Christian 1924 AD 101

Verein Fur Schutzgebietsanleihen E V v Conradie N O 1937 AD 113

Winter v Minister of Defence and Others 1940 AD 194

Hodge v The Queen (1883) 9 AC 117

Collins v Minister of the Interior and Another 1957 (1) SA 552 (A)

The Queen v Burah (1878) 3 AC 889

James v Commonwealth of Australia (1936) AC 578

R v Secretary of State for Home Affairs and Another, ex parte Bhajan Singh (1975) 2 All ER 1081

Salomon v Commissioners of Customs and Excise (1966) 3 All ER 871 (CA)

The Andrea Ursula (1971) 1 All ER 821

Jerusalem-Jaffa District Governor and Another v Suleiman Murra and Others 1926 AC 321

Legislation Cited

South West Africa Constitution Act 39 of 1968

Defence Act 44 of 1957

Population Registration Act 30 of 1950

Republic of South Africa Constitution Act 32 of 1961

Act 95 of 1977

Act 101 of 1980

Act 110 of 1983

Act 83 of 1967

Act 44 of 1950 (as amended by Act 62 of 1966)

Act 49 of 1919

Act 42 of 1925

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that section 38(1) of the South West Africa Constitution Act 39 of 1968 conferred plenary legislative power on the State President to make laws for the territory, including the power to amend or repeal legal provisions applicable in the territory, and that no implied limitation derived from the Mandate could be read into that clear grant of power.

It further held that Proclamation 198 of 1980, in removing the racial exclusion from the Defence Act’s application in the territory, did not geographically confine national service obligations to the territory. Because section 138 of the Defence Act 44 of 1957 authorised service at places designated by the Minister “whether within or outside the Republic”, the appellant could lawfully be required to perform national service at Walvis Bay, assuming the proclamation’s validity.

The court declined to entertain a late argument that the appellant could only be allotted to SWATF units under Proclamation 131 of 1980, because it had not been raised in the founding papers and would constitute, in substance, a new cause of action not properly before the court on appeal.

LEGAL PRINCIPLES

Where an empowering provision confers clear and extensive legislative authority, the validity enquiry focuses on whether the impugned measure falls within the affirmative grant of power and whether it violates any express restriction contained in the empowering instrument. Courts should not readily imply substantive restrictions into plenary legislative powers where none are stated.

The interpretive presumption that legislation is intended to comply with international obligations is relevant, if at all, only where the domestic provision is ambiguous and reasonably capable of more than one meaning, and typically where there is cogent indication that the legislation was intended to give effect to such obligations. Where the domestic provision is unambiguous and contains no reference to the international instrument, that presumption does not warrant reading in limitations inconsistent with the plain text.

An appellate court should be slow to determine issues that were not properly raised on the papers and that would, if entertained, effectively introduce a new cause of action or materially alter the case that the opposing parties were required to meet in the court of first instance.

In costs, a party without a direct legal interest in the substantive issues may be entitled to participate only to protect a costs order, and a court may make a special costs order where that party extends opposition beyond that legitimate purpose.

Binga v Cabinet for South West Africa and Others (250/1984) [1988] ZASCA 22 (24 March 1988)