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[1988] ZASCA 92
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Cabinet for Territory of South West Africa v Chikane and Another (521/86) [1988] ZASCA 92; [1989] 1 All SA 291 (A) (16 September 1988)

521/86
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
In the matter between:
THE CABINET POR THE TERRITORY OF SOUTH
WEST
AFRICA
Appellant
and
FRANK CHIKANE
1st Respondent
COUNCIL
OF CHURCHES IN NAMIBIA
2nd Respondent
CORAM
: RABIE, ACJ, JANSEN, VAN HEERDEN, HEFER et GROSSKOPF. JJA
HEARD
: 1 March 1988
DELIVERED
: 16 September 1988
J U D G M E N"T GROSSKOPF, JA
By
2 By Proclamation R 101 of 1985 the State President established
legislative and executive authorities for the territory of South West
Africa. As
an annexure to this proclamation there is set out a "Bill of Funda-mental Rights
and Objectives". The Bill of Rights,
as I shall call it, protects the
"fundamental rights" defined in the Bill,against certain infringements by
governmental ac-tion.
Subsequently the legislative authorities passed and promulgated the Residence
of Certain Persons in South West Africa Act, No 33 of
1985. Its purpose was,
according to the long title, "to restrict the right of certain persons to remain
or stay in the territory
of South West Africa; to
provide
3 provide for orders prohibiting certain persons from being in,
or requiring certain persons to depart from, the said territory; and
to provide
for matters connected therewith." I shall henceforth refer to Act 33 of 1985
simply as "the Act".
The present appeal raises questions concerning the
legality, in the light of the Bill of Rights, of certain provisions of the Act
and of action taken thereunder. To understand the issues, it is, however,
necessary first to have regard to the manner in which this
matter comes before
us, and to this I now turn.
The two respondents applied as a matter of urgency in the Supreme Court of
South West Africa for an order de-
claring
4 claring that a notice prohibiting the first respondent from
being in the territory (which notice had been issued by the appellant
purportedly in terms of Section 9 of the Act) was invalid and of no legal force
and effect; for an order in-terdicting, restraining
and prohibiting the
appellant from taking any steps to prevent the first respondent from attend-ing,
participating in and giving
a keynote speech at the general meeting of the
second respondent for the period from 21 September 1986 to 25 September 1986
inclusive;
for an order interdicting, restraining and prohibiting the appellant
from taking any steps which have the effect of denying to the
second respondent
and its constituent members "the exercise of their rights, guaranteed by
Proclamation R 101 of 1985,
to
5
to freedom of expression, including the freedom to
receive
information and ideas, to freedom of association and to free-
dom
to enjoy, practise, profess, maintain and promote their
religion"; and for an
order of costs. The application,
which was opposed, was set down for hearing
on 12 November
1986 before HENDLER AJ. On the morning of the hearing, be-
fore the case
was called, HENDLER AJ gave judgment in the
matter of
Eins v. The National
Assembly for the Territory
of South West Africa and Others
. In
this judgment he held
as follows:
"(a) Section 9 of Act 33 of 1985 is declared un-
constitutional, invalid and unenforceable for want of compliance with the
Bill of Pundamen-tal Rights incorporated in Proclamation
R 101 of 1985."
In
6 In passing I should note that the
Eins
case has
since come on appeal to this Court and that the appeal has succeeded on the
ground that the applicant did not have
locus standi
to apply for the
setting aside of the section. (See
The Ca-
bi
net of the Transitional
Government for the Territory of South West Africa v. Eins
1988 (3) SA 369
(A)).
To return to the history of the present matter: the decision of HENDLER
AJ in the
Eins
case placed the parties in the present matter in a
quandary: if, as had been held in the
Eins
case, section 9 of the Act was
invalid, there did not seem to be much point in arguing about the validity of a
notice purportedly
issued under the section. On the other hand, the
Eins
case had not decided all the issues raised in
the
7
the present case, as will be seen later. The parties
sought
to overcome their difficulties by agreeing that an order be
granted
in the present case, and agreeing that an application
for leave to appeal
would not be opposed. Consequently
HENDLER AJ gave the following judgment on
the merits of the
present case:
"Section 9 of Act 22 of 1985 having been declared unconstitutional and
invalid by a judgment given on the 12th November 1986 in the
matter of
Eins
and the National Assembly for the Territory of South West Africa
.
It was agreed between the parties that I make the following order in this
matter:
1.
That the notice issued by
the respondent on the 22nd May 1986 in terms of Section 9 of the Residence of
Certain Persons in South West
Africa Regulation Act No. 33 of 1985 is in-valid
and of no legal force and effect.
2.
The
respondent is to pay the costs of the ap-plication including the costs of two
counsel, but such costs shall not include any
costs
incurred
8
incurred by the second applicant or any costs occasioned by
prayer 1 including the costs of the hearing on the 19th September 1986."
Regarding leave to appeal HENDLER AJ held as follows:
"After having given an order by consent in the matter of Frank Chikane I was
immediately asked by Counsel for the respondent for leave
to appeal to the
Appellate Division and he set out his grounds being that the judgment I
delivered earlier today in the matter of
Eins v The National Assembly for the
Territory of South West Africa and Others
was wrong and that some other
Court, that being the Appellate Division, would come to a different
conclusion.
I am of the opinion that there is a reason-able possibility that some other
Court may reach a different decision and as the parties
are in agreement thereto
I hereby grant leave to appeal the appeal to be heard by the Appellate
Division."
In due course the appellant filed a notice of ap-
peal against "die hele
beslissing, uitspraak en bevel" given
by
9 by HENDLER AJ.
I have set out the course of the proceedings
before HENDLER AJ in some detail because, as will be seen,
it was the source
of a number of unsatisfactory features in the present appeal. As appears from
the above account, the parties and
the Court proceeded on the assumption that
the decision in the
Eins
case was decisive of the present matter. The
Eins
case was, however, concerned only with the validity of section 9 of
the Act. This section was not assailed, at any rate not expressly,
in the
present proceedings. As will have been seen, the prayers in the notice of motion
were directed to the action taken, or action
that was feared would be taken , in
terms of the section, and not to the validity
of
10 of the section itself. The same feature emerges from an
analysis of the affidavits. In this regard it is advisable to consider
separately the cases made out by each of the two respondents.
The first
respondent is a minister of religion and a South African citizen ordinarily
resident in Johannesburg. In 1985 the first
respondent was invited by the
Secretary of the Council of Churches in Namibia (the second respondent) to visit
the territory in his
capacity as general secretary of the Institute of
Contextual Theology. The purpose was to set up a structure in the territory
similar
to this insti-tute. The first respondent accepted the invitation. On
19
11
19 May 1986 the Diocesan Secretary and Treasurer
of the Anglican Diocese of Namibia, Mr. Matt Esau, wrote a letter to the first
respondent
in which he gave details of the programme arranged for him for the
period 24 May to 29 May 1986. The first respondent made arrangements
to travel
to South West Africa by air to arrive in time for the programme. On 23 May 1986,
while checking in at Jan Smuts Airport
for his flight, he was, however, served
with the notice prohibiting his presence in the territory, purportedly issued in
terms of
section 9(1) of the Act. The first respondent's contention in his
affidavits was that the notice was invalid on various grounds.
These grounds
were
12 were, broadly speaking - I return to them in greater
detail later - that the notice itself was irregular, and, in any event, that
the
appellant's decision to issue the notice was assailable for a number of reasons,
among which an alleged denial of natural justice
figured prominently.
The
second respondent, according to its founding affidavit, is an organization of
Christian churches. It regularly holds ecumenical
meetings, conferencesand
work-shops. It invited the first respondent to participate in the planned
programme to which reference has
already been made. The first respondent was,
inter alia
, to have been a keynote speaker at a conference-during the
period of his visit. The action taken by the appellant in purporting to
issue
13
issue the said notice, so it is alleged, constituted "a
flagrant violation of the fundamental rights set out in Annexure 1 to
Proclamation
R 101 of 1985" of the second re-spondent and its constituent
members in that they "have been denied (their) fundamental rights to
freedom of
expression, including the freedom to receive information and ideas". Moreover,
it is contended, the actión of the
appellant "con-stitutes a denial of
the freedom of association" in that the second appellant and its members "have
been deprived
of the right to associate in person" with the first
respondent.
Thirdly it is contended that, in issuing the said notice,the appellant
infringed article 9 of the Bill of Rights in that the second
respondent and its
members "have
been
14 been denied the right to enjoy, practise, profess, maintain and
promote their religion".
As appears from the above summary of its founding
affidavit, the second respondent's atttack was, like that of the first
respondent,
confined to the validity of the notice, no attack being launched
against the validity of the section under which the appellant purported
to act
in issuing the notice.
In short, both respondents' cases, as set out in their
notice of motion and founding affidavits,were that the notice was invalid.
The
validity of section 9 of the Act was not explicitly impugned. However, as will
have been seen, leave to appeal to this Court
was granted pertinently to enable
the parties to argue the correctness of the judgment
in
15 in the
Eins
case - a judgment which dealt solely
with the validity of the said section 9.
At the commencement of his argument
Mr. Mahomed , who appeared for the respondents, was questioned by the Court on
whether he was
entitled, on these papers, to advance the contention that section
9 of the Act was invalid. He re-plied that he had, during the proceedings
in the
Coúrt
a quo
, as also in his heads of argument in that Court as
well as be-fore us, clearly indicated that the validity of section 9 would be
attacked. The appellant was consequently not taken by surprise, he said; and
this, indeed, is common cause.
Moreover, he submitted, his attack on the validity of section 9 was not based
on any factual contentions but
purely
16
purely on_a legal ground. In support of his right to
raise this issue he relied on
Allen v. van der Merwe
1942 WLD 39
at p.
47,
Heckroodt N O v. Gamiet
1959(4) SA 244 (T) at p. 246 A-C and
Van
Rensburg v. Van Rensburg en Andere
1963(1) SA 505 (A) at pp. 509 E to 510 B.
These cases lay down that a party in motion proceedings may advance legal
arguments in
support of the relief or defence claimed by it even where such
arguments are not specifically mentioned in the papers, provided they
arise from
the facts alleged. This principle is clear but its application to the present
case is not with-out difficulty. In the
present case facts which may be relevant
were not canvassed on the papers, as will be seen when one analyses the basis of
the respondents'
attack on
the
17 the validity of section 9 of the Act. To appreciate the arguments
advanced in this part of the case it is necessary to have regard
in some detail
to the background to the Bill of Rights as well as some of its provisions, and
to the con-tents of section 9 of the
Act. I propose dealing first with these
matters. Thereafter I shall return to the question whether evidence could have
been adduced.
The manner in which the Bill of Rights was incor-
porated
into the laws of South West Africa is discussed in
the judgment of this Court
in
The Cabinet of the Transitional
Government for the Territory of
South West Africa v. Eins
(
supra
). I can do no better than
gratefully to adopt the
relevant passage (pp. 383 H to 384 I). It reads
as follows:
"On
18
"On 17 June 1985 the State President of the Re-public of South Africa, acting
in terms of sec. 38 of the South West Africa Constitution
Act, 1968 (Act 39 of
1968), issued Proclamation R 101
of 1985 in which he made provision for
thé es-tablishment of a legislative body, to be known as the National
Assembly, and
of an executive authority, to be known as the Cabinet, for the
territory of South West Africa. The statutory provisions relating
to the
National Assembly and the Cabinet are set out in a Schedule to the
Pro-clamation. There are several annexures to the Schedule.
The first of these,
Annexure 1, is headed 'Fundamental Rights contained in Bill of Fundamental
Rights and Objectives'. It consists
of (a) a Preamble, which concludes with the
state-ment that '... we, the people of SWA/Namibia, claim
and
19
and reserve for ourselves and guarantee to our descendants the following
Fundamental Rights which shall be protected and upheld by
our suc-cessive
governments and protected by entrenchment inthe Constitution', and (b) eleven
'Articles' in which the 'Fundamental
Rights' are set out.
Sec. 3(1) of the
Schedule confers on the National Assembly the power -'(a) to make laws for the
territory which shall be entitled
Acts; and (b) in any such law to amend or
repeal any legal provision, including any Act of the Parliament of the Republic
of South
Africa in so far as it relates to or applies in the territory . ..'
Sec. 3(2)(b) imposes certain restrictions on the powers of the
National
Assembly. It reads as follows: '3.(2) The assembly shall not have power -
(a)
(b) to make any law abolishing, diminishing
or derogating from any
fundamental right.'
The aforesaid restriction on the powers of the National Assembly is, however,
not an absolute one, for sec. 3(3) provides:
'3(3) The provisions of paragraph (b) of subsec-tion (2) shall not be
construed as prohibiting
the
20
the Assembly from amending the provisions of any law -
(a)
which were in force in the
territory im-mediately before the first meeting of the
Assembly;
(b)
which abolish, diminish or
derogate from any fundamental right; and
(c)
which have as their aim the security of the
territory,
in such a manner that the
last-mentioned
provisions abolish, diminish or derogate from
any such
fundamental right to a lesser extent,
or to repeal any such law and to
re-enact the
provisions thereof in any other law which
amends some of the
provisions so repealed in
such a manner that it abolishes, diminishes
or
derogates from any fundamental right to
a lesser extent.'
'Fundamental Right' is defined in sec. 1(1) as
meaning 'any of the
fundamental rights contemplated
in articles 1 to 11 of the Bill of
Fundamental Rights
and Objectives'. Sec. 19 of the Schedule
contains
provisions relating to the power of the Supreme
Court of South
West Africa to pronounce upon the
validity of. Acts passed by the National
Assembly.
Subsections
21
Subsections (1) and (4) of the section read as
follows:
'19(1) The Supreme Court of South West
Africa shall be competent to inquire into and pronounce upon the validity of an
Act of the
Assembly in pursuance of the question -
(a) whether the provisions of this Proclamation were complied with in connection
with any law which is ex-pressed to be enacted by
the Assembly; and
(b) whether the provisions of any such law abolish, diminish or derogate from
any fundamental right.
(4) Save as provided in subsection (1), no
Court of law shall be competent to inquire into or pronounce upon the validity
of an Act
of the Assembly.'"
The respondents' argument concerning the validity
of
section 9 of the Act was based mainly on articles 3 and 10
of the Bill of
Rights. These articles read as follows:
ARTICLE
22
"ARTICLE 3
The right to Equality Before the Law
Everyone shall be equal
before the law and no branch or organ of government nor any public institution
may prejudice nor afford any
advantage to any per-son on the grounds of his
ethnic or social origin, sex, race, language, colour, religion or political
conviction."
ARTICLE 10
The Right to Freedom of Movement and Residence
Everyone
lawfully present within the borders of the country shall have the right to
freedom of movement and choice of residence subject
to the obligation not to
infringe upon the rights of others and to such provisions as are properly
prescribed by law in the interests
of public health and public order. No citizen
shall be arbitrarily deprived of the right to enter the country. Everyone shall
have
the right to leave the country in accordance with the procedures properly
prescribed by law."
I turn now to section 9(1) of
the Act, pursuant to
which the notice was purportedly issued. It reads as
follows:
"Notwithstanding
23
"Nothwithstanding the provisions of this Act or any provisions to the
contrary contained in any other law, the Cabinet may, if it
has reason to
believe that -
(a)
any person, excluding any
person referred to in section 3(2)(d) or (e) or any person born in the
territory, endangers or is likely
to endanger the security of the territory or
its inhabitants or the maintenance of public order;
(b)
any such person engenders or is likely to en-gender a feeling of
hostility between members of the different population groups of the
ter-ritory,
by notice in the
Official Gazette
or by notice in writing to the person concerned, issue an order prohibiting any
such person to be in the territory or, in the case
of any such person within the
ter-ritory, ordering any such person to depart after a period speoified in any
such notice from the
territory or any particular place in the territory or any
portion of the territory defined in such notice and not to return to the
territory or such place or portion of the territory."
Paragraph
24
Paragraph (a) . of this subsection excludes from
its
operation "any person referred to in section 3(2)(d) or (e)"
of the
Act. These persons are persons rendering service in
the territory in terms of
the Defence Act, 1957 (section 3
(2)(d)), and persons employed in the territory in the service
of the Government of South Africa or the government of Re-
hoboth or in
the government service of the territory (sec-
tion 3(2)(e)).
The respondents contend that section 9 of the
Act offends against articles
3 and 10 of the Bill of Rights,
because section 9(1)(a) discriminates between two categories
of persons:
1) The first category consists of persons born in the territory, persons
rendering service in the territory in terms of the Defence
Act and persons
employed in
the
25
the territory in the service of certain governments;
2) The second category consists of all other persons not included in the first
category.
The effect of section 9(1) is that the persons
re-ferred to in the first category can never be subject to a notice in terms of
section
9, whereas all other persons can be. This, the respondents submit, is
constitutionally impermissible in that it conflicts with the
guarantee against
"arbitrary" deprivation of the rights of persons to enter the territory in
article 10 of the Bill of Rights and
with the constitutional guarantee of the
right of equality enshrined in article 3 of the Bill of Rights.
It was common
cause in argument that the opening words of article 3 ("Everyone shall be equal
before the law")
established
26
established a general rule against discrimination, and
that
substantially the same concept was included in the prohibi-
tion on
"arbitrary" conduct in terms of article 10. It was,
however, also common
cause that this general rule did not
forbid reasonable classification for the purposes of legisla-
tion. In
this regard the parties referred us
inter alia
to
authorities on the
Fourteenth Amendment to the Constitution
of the United States of America
which forbids each of the
States "to deny to any person within its jurisdiction the
equal protection of the laws". With reference to this pro-
vision, the following has been said:
"The guarantee of the equal protection of the laws means the protection of
equal laws. It forbids class legislation, but does not
forbid classifica-
tion
27
tion which rests upon reasonable grounds of dis-tinction. It does not prohibit
legislation, which is limited either in the objects
to which it is directed or
by the territory within which it is to operate. It merely requires that all
per-sons subjected to such
legislation shall be treated alike under like
circumstances and con-ditions both in the privileges conferred and in the
liabilities
imposed. The inhibition of the amendment ... was designed to prevent
any person or class from being singled out as a special subject
for
discriminating and hostile legisla-tion. It does not take from the states the
power to classify either in the adoption of police
laws, or tax laws, or eminent
domain laws, but permits to them the exercise of a wide scope of discretion, and
nullifies what they
do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required. Similarity, not
identity
of treatment, is enough. If any state of facts can reasonably be
conceived to sustain a classification, the existence of that state
of facts must
be assumed.. One who assails a clas-sification must carry the burden of showing
that it does not rest upon any reasonable
basis."
(Willis, Constitutional Law (1st ed.)
579,quoted by Paul
Sieghart
28
Sieghart, The International Law of Human Rights, p.
265.
See also Corpus Juris Secundum,(1985 ed)Vol 16 B, para 708 pp 499 to
507
Both parties referred us also to the attitude of
the Courts in India,
whose constitution contains a similar
provision in article 14. There it was
decided that, to
pass the test of permissible classification, two
conditions
had to be fulfilled:
"1. The classification must be founded on an
intelligible
differentia
which distinguishes persons or things that
are grouped together from others left out of the group; 2. That
d
ifferentia
must have a rational rela-tion to the object sought to be
achieved by the statute in question. The classification may be founded
on
different bases, namely geographical, or according to objects, oc-cupations or
the like. What is necessary is that there must
be a nexus between the basis
of
28 A
of classification and the object of the Act
under consideration."
(Paul Sieghart,
op cit
, p. 266).
In the Federal Republic of Germany article 3 para-
graph 1 of the Grundgesetz is, as far as translation permits,
identical to
the introductory words of article 3 of the Bill
of Rights in South West
Africa. It reads:"Alle Menschen
sind vor dem Gesetz gleich". In the
application of this
provision, the Bundesverfassungsgericht (the
constitutional
court) has adopted the same general approach as that
applied
in the United States óf America and India, set out above.
See K Doehring, Staatsrecht der Bundesrepublik Deutschland
(1976) pp. 277-9; H H Rapp, Art. 3 G G als Masstab Ver-
fassungsgerichtlicher Gesetzkontrolle,in vol. 2, at p. 371
of
28 B
of a collection of contributions called
Bundesverfassungs-gericht und Grundgesetz published in 1976 to honour the 25th
anniversary
of the Bundesverfassungsgericht; and I von Munch,
Grundgesetzkommentar (1981) Vol. 1 pp. 159, 163-4.
The above principles laid
down with respect to the constitutions of the United States of America, the
Republic of India and the Federal
Republic of Germany are in my view equally
applicable to article 3 of the South West African
Bill
29
Bill of Rights, and to article 10 in so far as it refers to
the arbitrary deprivation of the right to enter the territory.
The question
then is whether the distinctions in section 9 of the Act rest on a "reasonable
basis": i.e., whether they are "founded
on an intelligible
differentia
";
and whether that
differentia
has a "rational relation to the object
sought to be achieved by the statute in question". A Court, in ascertaining the
object sought
to be achieved by the statute, engages in a process of
interpretation. In doing so, it may make use of whatever permissible aids
are
available for the interpretation of the statute in issue. The ques-tion of
interpretation is one of law.
The
30
The position is, however, different when a Court considers
matters such as the reasonableness or intelligi-bility of the distinctions
in
the Act, and the rationality of their relation to the object sought to be
achieved by the Act. These are largely matters of fact
depending upon the
circumstances to which the Act applies. This aspect was not adverted to in
argument before us, but would appear
to be self-evident: whether a distinction
is a reasonable one must, in the final analysis, depend on the facts to which it
relates,
and, where the facts are not such that a Court can take judicial notice
of them it is difficult to see how a Court can come to a
conclusion without
evidence.
Before
30 A
Before I consider whether evidence is or should
be admissible in our law, it is instructive to see how the matter is approached
in
the United States of America, a country in which the rules of evidence
correspond closely to ours, and where the Courts have great
experience in
applying the provisions of a Bill of Rights. There the permissibility of leading
evidence has been recognized
in
31 in a number of authoritative decisions of the United States
Supreme Court. I refer to two which are illustrative.
Weaver v. Palmer
Brothers Company
(1926) 270 U S 402
con-cerned a Pennsylvanian statute which
regulated the manufacture, sterilization and sale of bedding. Section 2 of the
Act prohibited
the use of material known as "shoddy" in the making, remaking or
renovating of various types of bedding and up-holstery (known collectively
as
"comfortables"). The question for decision was "whether the provision purporting
absolute-ly to forbid the use of shoddy in comfortables
violates the due process
clause of the egual protection clause" (i.e., the Fourteenth Amendment)
(
ibid
. at p, 410). The Court approached the case as follows
(
ibid
.):
"The
32
"The answer depends on the facts of the case. Legislative
determinations express or implied are entitled to great weight; but it is
always
open to interested parties to show that the legislature has transgressed the
limits of its power.
Penna. Coal Co. v. Mahon
,
[1922] USSC 193
;
260 U.S. 393
, 413.
Invalidity may be shown by things which will be judicially noticed (
Quong
Wing v. Kirkendall
,
223 U.S. 59
, 64), or by facts established by evidence.
The burden is on the attacking party to establish the invalidating facts. See
Minne
-*
sota Rate Cases
[1913] USSC 200
; ,
230 U.S. 352
, 452."
On the facts the Court found, by a majority, that
"the absolute
prohibition of the use of shoddy in the manufac-
ture of comfortables is
purely arbitrary and violates the
due process clause of the Fourteenth
Amendment" (
ibid
., p.
415). The minority came to a different conclusion on the
facts (
ibid
. pp. 415-6).
Borden's
33
Borden's Farm Products Co. Inc. v. Baldwin,
Com
-
missioner of Agricultural and Markets of New York et al
[1934] USSC 162
;
(1934)
293 U.S. 194
was a case concerning a New York Milk Control Law of 1933, as
amended in 1934, which,
inter alia
, autho-rized certain milk dealers to
sell milk at a lower minimum price than that applying to others. Here also the
question was
whether the provision contravened the due process and equal
protection clauses of the Fourteenth Amendment to the Constitution. The
reasonableness of the distinction in the Act obyiously depended on the
circumstances of the milk trade in New York, which, the Court
held, "largely lie
outside the range of judicial notice" (ibid.,.at p. 208). However, the case was
not before the Court on evidence,
or upon determi-
nations
34
nations of fact based upon evidence. In these
circumstances
the respondents invoked the presumption that legislative
ac-
tion is
prima facie
to be regarded as constitutional. The
Court
dealt with this contention as follows
(ibid
., pp.
209-10):
"Respondents invoke the presumption which at-taches to the legislative
action. But that is a presumption of fact, of the existence
of factual
conditions supporting the legislation. As such, it is a rebuttable presumption.
Lindsley v. Natural Carbonic Gas Co
.,
220 U.S. 61
, 78-80;
Hammond
v
.
Schappi Bus Line
,
[1927] USSC 176
;
275 U.S. 164
, 170-172;
O'Gorman & Young
v. Hartford Insurance Co
.
[1931] USSC 10
; ,
282 U.S. 251
, 256-258. It is not a conclusive
presumption, or a rule of law which makes legislative action in-vulnerable to
constitutional assault.
Nor is such an immunity achieved by treating any
fanci-ful conjecture as enough to repel attack. When the classification made by
the legislature is called in question, if any state of facts reason-ably can be
conceived that would sustain it, there
is
35
is a presumption of the existence of that state of facts, and one who assails
the classification must carry the burden of showing
by a resort to common
knowledge or other matters which may be judicially noticed, or to other
legitimate proof, that the action is
arbitrary.
Lindsley v. Natural Carbonic
Gas Co
.,
supra
;
Clarke v. Deckebach
,
[1927] USSC 118
;
274 U.S. 392
, 397;
Lawrence v. State Tax Comm'n
,
[1932] USSC 95
;
286 U.S. 276
, 283. The principle that the
State has a broad discretion in classification, in the exercise of its power of
regulation, is constant-ly
recognized by this Court. Still, the statute may show
on its face that the classification is arbitrary (
Smith v. Cahoon
,
[1931] USSC 147
;
283
U.S. 553
, 567) or that may appear by facts admitted or proved.
Southern Ry.
Co. v. Greene
,
[1910] USSC 60
;
216 U.S. 400
, 417;
Air-Way Electric Corp. v. Day
,
266
U.S. 71
, 85;
Concordia Insurance Co. v. Illinois
,
[1934] USSC 134
;
292 U.S. 535
, 549. Or,
after a full showing of facts, or opportunity to show them, it may be found that
the burden of establishing that the classification
is without rational basis has
not been sustained.
Lindsley v. Natural Carbonic Gas Co
.,
supra
;
Rast v. Van Deman & Lewis Co
.
[1916] USSC 82
; ,
240 U.S. 342
;
Radice v. New
York
,
[1924] USSC 60
;
264 U.S. 292
;
Clarke v. Deckebach
,
supra
;
Ohio
36
Ohio Oil Co. v. Conway
[1930] USSC 73
; ,
281 U.S. 146
;
Tax Com
-
missioners v. Jackson
[1931] USSC 131
; ,
283 U.S. 527.
But where the
legislative action is suitably challenged, and a rational basis for it is
predicated upon the particular economic facts
of a given trade or industry,
which are outside the sphere of judicial notice, these facts are properly the
subject of evidence and
of findings. With the notable expansion of the scope of
governmental regulation, and the consequent assertion of violation of
constitutional
rights, it is increas-ingly important that when it becomes
necessary for the court to deal with the facts relating to particular
commercial
or industrial conditions, they should be presented concretely with appro-priate
determinations upon evidence, so that
con-clusions shall not be reached without
adequate factual support."
In the result the case was remanded to the Court
below to proceed "upon
pleadings and proofs" with the in-
struction that "the facts should be found
and conclusions of
law be stated" (
ibid
. at p. 213). See, also,
Pacific States
Box
37
Box and Basket Co. v. White et al
[1935] USSC 177
;
(1935)
296 U.S. 176.
The above two cases were, perhaps, obvious ones: a Court can
hardly take judicial notice of facts relevant to the merits or demerits
of using
"shoddy" in the manufacture of "comfortables" or of facts bearing on the need
for different minimum prices for milk in New
York. In principle, however, the
present case does not seem to me to be essential-ly different. We are asked to
pronounce on the
reasonable-ness of two distinctions found in section 9 of the
Act,
viz
., that between persons born in the territory, and others; and
that between persons employed in the territory in various types of
government
service, and those not so employed. The question is whether these distinctions
are justifiable in
respect
38 respect of a power to prohibit certain persons (being,
broadly speaking, persons believed to be a threat to security, public order
or
the harmony between different population groups) from being in the territory or
any part of the ter-ritory. No doubt some of the
issues involved in these
dis-tinctions may be sufficiently notorious for us to take judi-cial notice of
them. Others are less obvious.
This is so particularly with regard to the
various types of government employees referred to in the section. To illustrate
the principle
involved I propose analysing the provisions of the Act in this
regard in greater detail.
It will be recalled that the power to issue a notice in terms of section 9 of
the Act may be exercised if the
Cabinet
39
Cabinet has reason to believe that a person "endangers or is
likely to endanger the security of the territory or its in-habitants
or the
maintenance of public order" ( sec. 9(1) (a)) or "engenders or is likely to
engender a feeling of hos-tility between members
of the different population
groups of the territory" ( sec. 9(1)(b)). As a short-hand symbol I shall refer
to the conduct,actual
or potential, de-scribed in section 9(1)(a) and (b) as
"harmful conduct".
For present purposes we are concerned with the following
persons excluded from the ambit of section 9,
viz
. persons rendering
service in the territory in terms of the Defence Act, and persons employed in
the territory in the service of
the government of the Republic of South Africa
or
the
40
the Government of Rehoboth or in the government service of the
territory. I shall refer to these persons collectively as government
servants.
The immunity of government servants to action under section 9 may
be explicable on a number of bases. In theory it may be contended
that
government servants will never be guilty of harmful conduct, and that there
consequently is no need to include them within the
purview of the Act. This
possibility may, I consider, be ignored as far-fetched and unrealistic.
Other possible reasons for the distinction between government servants and
others cannot, however, be so sum-marily dismissed. There
may be means of
dealing with
government
41
government servants who are believed to be guilty
of harm-ful conduct which are as effective or more so than those laid down in
the
Act, thus rendering the Act unnecessary in relation to them. Moreover, if in
some cases these means were to be less than effective,
there may be satisfactory
ways of terminating the employment of a government servant suspected of being
guilty of harmful conduct,
and thereby making him subject to the provisibns of
the Act like everybody else. In short: the exclusion of government servants may
conceivably be justified on the basis that the purpose of the Act may, with
reference to them, be achieved in other satis-factory
ways.
The validity of this postulated justification
would
42 would depend on the extent of control which the appellant has
in respect of government servants of the various classes referred
to in the
section. Relevant to this question would be the service conditions, disciplinary
provisions, etc. in respect of each of
these classes. These matters were not
canvassed before us at all, and although much of it may presumably be found in
statutes, regulations
or other of-ficial publications,it is hardly the task of a
Court to make an independent investigation into these matters. Moreover,
in
assessing the effect of matters such as the relevant con-ditions of service, one
would be concerned not only with the theoretical
position expressed in official
documents but also with the position as it pertains in practice. This we
cannot
ascertain
43
ascertain without evidence. In the present case
there is a further complication in that some classes of government servants
would
appear not to be under the direct control of the appellant but of some
other government or authority. Among these are included persons
rendering
service in terms of the Defence Act, persons employed in the service of the
government of the Republic of South Africa,
and those employed in the service of
the government of Rehoboth. (In regard to Rehoboth, see the Rehoboth
Self-Government Act, no.
56 of 1976, and particularly section 16, read with item
11 of the Schedule, and sections 34, 35 and 36). In respect of these classes
of
government servants the attitudes of the authori-ties which employ them may also
be a relevant factor. What,
f or
44 for instance, would the position be if these
authorities were unalterably opposed to the application of the Act to their
employees?
Would the legislature then be placed before the choice either to
forgo the protection of section 9, which it considers necessary
in the interests
of the territory, or to insist on the application of the Act to all government
servants even if it leads to a conflict
with the authorities employing them,
with consequences which I can hardly imagine, far leës assess? In such a
situation it could,
depending on the circumstances, surely be open to the
legislature to pass an act with the exclusion of such government servants.
Such
legislation would, again depending on the circumstances, it seems to me, not
necessarily offend against
article
45
article 3 or article 10. A particular
classification may sometimes be justified by the exigenciés of the
State's external relations
or constitutional limitations. In regard to possible
issues such as these also,it seems to me, a Court will need full information
in
order to come to any firm conclusion.
It appears from the above that there are many issues involving mixed
questions of fact and law which are at least of potential relevance
to the
differentiation between government servants and others which have not been
canvassed in the present case. And, as will be
seen, the same applies to other
issues raised by the respondents.
The question then is: is evidence
admissible to resolve these issues? In the light of what I have said it seems
clear that a Court
would often be unable to give a satisfactory decision on the
reasonableness or unreasonable-
ness
46
ness of a distinction introduced by legislation
unless it can hear evidence concerning the facts to which the distinc-tion
relates.
This is obviously a strong reason for allowing such evidence. There are
also, however, certain possible disadvantages. In particular
the admission of
evidence would make a decision on the validity of legislation, which is a matter
of general importance, depend on
the evidence which the parties place before the
Court. In a case like the present there is nó reason to suppose that the
parties,
if they had s.o wished, could not have placed all the relevant facts
before the Court, but this might not always be so. Questions
as to the validity
of legislation may presumably arise in different types of proceedings, and the
parties to
such
47 such proceedings may not always be able to present complete
evidence on all relevant aspects of the case before the Court, or it
may not
suit their interests to do so. I assume, for instance, that an accused in
criminal proceed-ings would be entitled to contend
that the statute under which
he is charged is void because it conflicts with the Bill of Rights. Such an
accused would not necessarily
be able to produce all the evidence which may be
relevant to his attack on the legislation. In other types of proceed-ings
parties
may be able to produce evidence, but for one reason or another may not
wish to do so. In the result the Court may still be compelled
to decide the
matter on incomplete information even though evidence was admissible
and
48
and was in fact admitted. This is, of course, by itself
undesirable in a matter as important as the validity of a statute, In addition
it raises the question whether another Court would, in the light of further
evidence adduced in another matter, be entitled to come
to a different
conclusion. If different Courts in different cases could come to different
conclusions about the validity of a statute,
chaos could result. The same
problems could, of course, arise in attacks on sub-ordinate legislation, where
evidence is admissible
in certain cases (see,e.g.,
Sinovich v. Hercules
Municipal Council
1946 AD 783
at p. 811 per SCHREINER JA), but the results
are more serious when one deals with legislation of an organ like the National
Assembly.
In
49 In view of the problems which could result from allowing
evidence in these matters, it might be thought bet-ter to decide constitutional
matters without evidence and purely on the basis that a Court will not rule a
measure invalid if it can reasonably conceive of a
state of facts which would
justify the distinction which the measure intro-duces. An approach along these
lines is, however, also
not satisfactory. It would require a Court to indulge in
a process of conjecture and imagination, and the Court's de-cision would
turn on
hypothetical facts, which may be wide of the mark, rather than on the true facts
which may be easily ascertainable. Moreover,
a particular application of the
Bill of Rights may relate to facts which are so
specialized
50
specialized that a Court would scarcely be able, without
evidence, to imagine what the practical implications are
of the measure which is attacked, or what the circumstances
may be which could justify it. As examples I may refer again
to the two American cases discussed above.
Now, as I have stated, the question whether evidence
is admissible in a case like the present was not argued be-
fore us. It is an important question, and its answer is
not self-evident. Accordingly I prefer not to give any
decision on it. I consider that I am entitled to follow
this course because no evidence was in fact tendered by either
of the parties in the Court
a quo
or before us. The issue of
the
legality of the legislation was, it will be recalled, pre-
sented to us by
the respondents as a pure question of law argued in support
of
51 of their contention that the notice was invalid. If one
assumes that evidence was, despite the parties' attitude, admissible in
principle, the Court will accordingly have to decide the matter as if on
exception. This will entail that all issues of fact that
might be relevant must
be assumed to have been determined adversely to the present respondents. This
method of dealing with the matter
is essentially the same as that which one
would apply if, in principle, no evidence is ad-missible, and I proceed to deal
with the
appeal on that basis.
In the light of my comments above I turn now to the respondents' criticisms
of section 9 of the Act. Their main argument, as I have
stated, was that the
distinctions between persons subject to the section, and those not sub-
ject
52
ject to it, were impermissible. I have already by
way of illustration dealt with the distinction between what I called government
servants and others. As I have indicated, one can imagine the possible
explanations for the distinction which I have discussed above
and there may well
be circum-stances in which one or more of them may constitute a reasonable basis
for the distinction. It follows
that, by reason of the limited basis upon which
I am dealing with this matter, the respondents' attack founded on this
distinc-tion
cannot succeed.
The second distinction which was criticized was
the distinction between persons born in the territory, who are immune to action
under
the Act, and persons not so born,
who
53
who are subject to the Act. The reason for this distinction
is, I think, reasonably clear. The right to freedom of move-ment within
a state,
and, more particularly, the right to enter a state, is often, in charters of
human rights, re-stricted to nationals of the
state. See Sieghart,
op
cit
. p. 179. This same attitude is reflected in article 10 of the Bill of
Rights which protects a "citizen" against arbi-trary deprivation
of his right to
enter the territory (I deal fully with this provision later). The limitation of
such rights to nationals or citizens
reflects the generally held view that the
distinction between national and alien is a relevant one in respect of rights to
entry
into, residence in, and movement within a state. Nationals have a
greater
stake
54
stake in the state; they are less likely than aliens tó
com-mit acts which may prejudice the state or cause racial animosity;
and they
have a stronger moral claim than aliens to freedom of movement and residence
within the state. Now as we know, there is
no South West African citizenship,
and the legislature consequently could not exclude citizens from the provisions
of the Act. Birth
within the country is, however, an accepted manner by which
citizenship is acquired in South Africa (see sections 2,3 and 4 of the
South
African Citizenship Act
, no. 44 of 1949; sec-tion l(a) of the
British
Nationality in the Union and Natu
-
ralization and Status of Aliens
Act
, no. 18 of 1926; and section l(a) of the
Union Nationality and Flags
Act
, no. 40
of
55
of 1927). It does not seem to me that the legislature would
have been unreasonable in considering that,although citizens could not
be
excluded from the operation of section 9 because no citizenship existed, there
was another way in which much the same result could
be achieved. This was by
excluding one class of persons who were regarded as entitled to citizenship,
viz., persons born in the territory.
And information on the composition of the
South West African po-pulation may conceivably have shown that they represent by
f ar the
largest part of those who would be entitled to South Wsst African
citizenship under any citizenship statute that was likely to be
introduced.
The
55 A The fact that some anomalies may result from the
clas-sification in certain exceptional circumstances would not necessarily
result
in the classification being objectionable. As is said in the Corpus Juris
Secundum (1985 ed vol. 16. B para 716 pp 533-4:".. a classification
having some
reasonable basis does not offend the equal protection clause because it is not
made with mathematical nicety or scientific
exactness or because in practice it
actually results in some inequality."
To
To sum up on this part of the case: I find myself unable to hold as a
matter of law that the distinctions be-tween persons subject
to section 9 of the
Act and those not so subject cause the section to contravene the prohibition on
discrimination contained in articles
3 and 10 of the Bill of Rights.
I turn
now to further alleged grounds of invalidi-ty of section 9. Before doing so I
should, however, once again place the respondents'
attack on this section in its
proper perspective. The respondents' claims in the present matter are based
solely on the notice issued
against the first respondent: it is the validity of
that notice which is im-pugned, and the legality of section 9 is attacked only
as an
argument
57
argument in support of the conclusion that the notice is
in-
valid.. It follows that it would not avail the respondents
to point to
defects in the section which do not bear on the
validity of the action taken
against the first respondent.
In particular it would not help them to show
that parts of
the sectión are invalid unless the invalidity of these
parts
taint also the provision under which the appellant purported
to act
in the present case.
These considerations apply with particular force
to the appellant's second
attack on the section. This at-
tack is directed against the ouster clause,
section 9(3), which
reads as follows:
"No Court of law shall have jurisdiction to pronounce upon the validity of an
order issued under subsection 1."
This
58
This clause, it is contended, "is arbitrary because it
in-sulates arbitrary action from judicial scrutiny". (The quotation is from
the
Respondents' Heads of Argument). Moreover, the respondents contend, the
provision is "potentially capable of infringing article
4 of the Bill of Rights"
(
ibid
.) which, generally, declares everyone to be "entitled to a fair and
public hearing" in "the determination of his rights and obligations
in a civil
action and of any criminal charge against him". It seems to me that it is not
neces-sary to go into these matters, nor
other ancillary ones that were debated.
Even if section 9(3) were to be invalid on any of the grounds suggested, this
would not,
in my view, affect the validity of sub-section(l)under which the
impugned
notice
58 A notice was issued. Section 9(3) is an ancillary,
adjec-tival, provision, which is, in my view, clearly severable from the
substantive
provisions of sub-section(l).
The next ground of alleged
invalidity derives from the
audi alteram partem
rule. The respondents'
contention is that if, on a proper interpretation of section 9 of the Act, the
audi alteram partem
rule is excluded both
before
a decision to act
in terms of the section is taken and
after
, then the section is
unconstitutional, again because it is arbitrary.
I shall be dealing with the
application of the
audi alteram partem
rule specifically in its relation
to the respondents later. As will be seen my conclusion is that,
whether
59 whether or not the rule may be capable of invocation in
other circumstances or by other persons, the respondents can-
not rely on it in the present case. In this regard I rely,
inter alia
, on the urgent circumstances under which action was
taken against the first respondent. The fact that action could
be taken in the circumstances of the present case without affording the
person affected a hearing would clearly not, in my view, render
the empowering legislation unconstitutional.
Against this background the present argument has
a
certain air of unreality about it. We are asked to
assess
the legality of the section on the grounds of its possible
application in the future in different circumstances or against
other persons. One may question whether it is desirable to
decide constitutional issues on such a theoretical basis. Be
that
59 A that as it may, the present argument may, in my view,
be disposed of quite simply. Section 9 does not contain an express indication
whether or not the
audi alteram partem
principle is to be applied, nor,
if it is applicable, in what form it
is
60
is to be applied. If this matter were to be pertinently raised
the Court will accordingly give effect to the legis-lature's presumed
intention.
At the same time the Court will also have to bear other principles of
construction in mind. In particular the Court will
have regard to the principle
expressed in the maxim
ut res magis valeat quam pereat
, i.e., the
principle that the legislature must be presumed to have intended to make a valid
and effective provision. Apply-ing the
latter principle to the circumstances of
the present case, a Court will be disinclined to interpret a statute in such a
way that
it would offend against the Bill of Rights. If an alternative
constrúction were reasonably possible, a Court would tend to
prefer that
constrúction. Consequently,
if
61 if the Act were to offend against the Bill of Rights unless a
certain minimum by way of resort to the
audi alteram partem
rule were
included in the Act, a Court would, if possible, interpret the Act so as to
include at least that minimum. And in the present
case there would be no
difficulty in in-terpreting the Act in such a way. The
audi alteram partem
rule is applied,
inter alia
, in cases where governmental organs are
authorized by statute to give decisions prejudi-cially affecting the rights of
an individual
(see the autho-rities quoted later in this judgment). The present
is such a case, and although there are
indicia
to suggest that the rule
was not intended to apply, as was held in
Winter and Others v.
Administrator-in-Executive Committee and Another
1973
62
1973(1) SA 873 (A) at p. 888 G to 891 F,a case decided un-der
the predecessor to the Act, viz., Proclamation 50 of 1920, these
indicia
would not necessarily be accorded the same weight in interpreting the present
Act. In particular it seems to me that in the present
context the principle
ut res magis valeat quam pereat
would be decisive. If a Court were to
consider that the exclusion of the
audi alteram partem
rule would render
the Act invalid, it would in my view inevitably decide thát the rule was
not intended to be ex-cluded.
It follows,therefore, that one can safely
accept that the Act is not invalid by reason of the exclusion of the
audi
alteram partem
rule. This may be so either because
the
63
the exclusion of the rule would not in law render the Act
invalid, or because the rule has not been excluded from the
Act, at least
not to such an extent as to render the Act in-
valid. I need not decide which
of these reasons is valid
because, as I have said, the respondents themselves
can
in any event not invoke the rule, if it applies.
Then it is contended that section 9(1)(b) of the
Act is open to the
objection that it has no reasonably as-
certainable meaning as to the
"different population groups"
between whom feelings of hostility must not be
engendered.
It is not clear to me that this complaint is really covered
by the Bill of Rights, but, be that as it may, it is in my view without
substance if regard is had to relevant legis-lation in South
West Africa. In
this regard the most im-portant measure is Proclamation A G 8 of 1980 which
makes
provision
64
provision: for representative authorities to be established
for the population groups of the territory. Section 3 of the Procla-mation
lays
down that the population groups for which repre-sentative authorities may be
established are the Basters; the Bushmen; the Caprivians;
the Coloureds; the
Damaras; the Hereros; the Kavangos; the Namas; the Ovambos; the Tswanas and the
Whites. The manner in which these
groups are consti-tuted is summed up as
follows in
Ex parte Cabinet for the Interim Government of South West Africa:
In re Advisory Opinion in terms of section 19(2) of Proclamation
R 101 of 1985
(RSA)
1988 (2) SA 832
(SWA) at pp. 840 E to J.
"In terms of s 4 of Proc AG 8,
every
65
every person in the territory, for the purpose of the Proclamation, is deemed
to be a member of the population group indicated in
the iden-tity document
issued to him under the provisions of the Identification of Persons Act 1979
(Act 2 of 1979). Further provision
is made for other persons, who for one reason
or another are not a member of a population group indicated in the identity
document
issued to him in terms of, or recognised, by the Act referred to (such
as for instance married women or persons under 16 years, or
persons holding
other types of identity docu-ments), to be assigned to a particular population
group. Finally any person who is still
not under any of these provisions falling
under any popula-tion group is deemed to be a member of the po-pulation group of
which
he is generally accepted to be a member.
The Identification of Persons Act 1979 makes it compulsory (s 2 (1)) for any
person 'in the territory' who is over the age of sixteen
years to be in
possession of an identity document. Failure to produce such identity document to
a member of the security forces on
demand may result in arrest without warrant,
and generally failure
to
66
to comply with any provision of that Act is made an offence.
In terms of Regulations promulgated under the Identification of Persons Act 1980
(AG 13 of 1980), the application for an Identification
Document, which must be
completed in order to obtain such a document, requires the applicant to denote
the population group to which
he belongs, which is then inserted in the identity
document issued to him.
The effect of the combined provisions of the identification of Persons Act 1979,
and of Proc AG 8, is therefore that for practical
purposes every person born or
resident in the Territory is deemed to belong to one of the 11 population groups
established in s 3
of Proc AG 8."
Against this legislative background the reference
to
"the different population groups of the territory" in
section
67
section 9 of the Act seems to me to be perfectly
clear. It obviously refers to the groups dealt with in
Proclamation 8 of
1980 and Act 2 of 1979, including the re-
gulations thereunder.
Then the respondents objected to section 9(2) of the
Act, which reads as follows:
"Any order issued under sub-section(l)shall be of force during the period
specified in the order or, if no period is so specified,
until it is
with-drawn."
This provision, the respondents submit, renders the whole
section
arbitrary, since no "decisional criteria or
jurisdictional
grounds" (guoted from the Heads of Argument) are stated
to
enable the appellant to decide why and under what circumstances
it can
withdraw an order. I do not agree. An order under
sub-section
68
sub-section (1) may be issued if the appellant
has reason to believe that a person may indulge in what I have called harm-ful
conduct.
The power to withdraw an order granted in terms of sub-section (1) can
and should plainly be exercised if and when the appellant
no longer has reason
so to believe. Compare
State President and Others v. Tsenoli
;
Kerchho
f
f and Another v. Minister of Law and Order and Others
1986(4) SA 1150 (A) at p. 1183 C to 1184 F.
Finally it is contended that
section 9 of the Act infringes article 10 of the Bill of Rights for a further
reason. Article 10 guarantees
the right of freedom of movement and residence
subject,
inter alia
, to "such pro-visions as are properly prescribed by
law in the interests of
public
69
public health and public order". Section 9, it is
contended, goes beyond the ambit of these exceptions. In particular the
respondents
argue that "public order" is a narrower con-cept than, for instance,
national security, and that the exception was introduced to
prevent people such
as convicted prisoners from claiming the right to travel freely within the
territory.
The expression "public order" is not defined in the article nor
have we been referredto any authority which suggests that it has an
accepted
technical meaning. It must accordingly be accorded its ordinary meaning in the
context. In the present case the context
is of particular importance. It can
hardly be contended that everyone lawfully present in
South
69 A
South West Africa is entitled to travel freely
through mili-tary camps and other military or security installations, or to
visit strategic
spots or areas. Provisións in the interest of "public
order" would clearly, in the context, include ap-propriate limitations
on the
freedom of movement and residence to protect the security of the territory and
its inhabitants. The context would
seem
70 seem to demand such limitations, and the ordinary meaning of
"public order" is, in my view, wide enough to encompass them.
It is true that
certain other provisions of the Bill of Rights refer to both "public order" and
"national security" in defining permissible
exceptions - see, for in-stance,
article 5 dealing with freedom of expression and article 7, dealing with freedom
of association.
These ar-ticles would appear to suggest that the two expressions
bear different meanings. I need not, however, pursue this matter,
because even
if "public order" and "national security" are to be distinguished for purposes
of articles 5 and 7, this would not entail
that any meaning attributed to
"public order" in those articles would necessarily also be the correct
meaning
in
71 in article 10. It is no law of the Medes and Persians
that the same expression must always bear the same meaning throughout an
enactment, and in the present case common sense demands that the exception in
respect of "public order" must be given a reasonably
wide meaning in article
10.
The evil which section 9 of the Act is designed to counteract would
appear to be the endangering of "the security of the territory
or its
inhabitants or the main-tenance of public order" and the engendering of "a
feeling of hostility between members of the different
population groups of the
territory". Action to combat these evils would, I consider, fall within the
description "provisions prescribed
in the interests of
public
72
public order". We were not asked to hold that section 9 was
not "properly" so prescribed within the meaning of article 10.
This then
concludes my discussion of the respondents' attack on the legality of section 9
of the Act. The result is that the respondents
have not shown, in my view, that
the notice issued in terms of the section should be set aside on the grounds
that the section itself
violates the Bill of Rights. In view of this conclusion
it is not necessary to consider whether the Act, if it had been in conflict
with
the Bill of Rights, would have been saved by section 3(3) of Proclamation R 101
of 1985 which, it will be recalled, permits
certain limited conflicts with the
Bill of Rights in respect of
amendments
73
amendments to, or re-enactments of, laws which existed
im-mediately before the first meeting of the National Assembly. I turn now
to
the respondents' attack on the vali-dity of the notice. Before dealing with it
in detail I wish to make a few general observations
about the form of the
notice. Section 9(1) of the Act authorizes the appel-lant, if the necessary
jurisdictional facts are present,
to "issue an order prohibiting any ... person
to be in the ter-ritory". This is to be done, according to the Act, "by
notice
74 notice in the Official Gazette or by notice in writing to the
person concerned". The latter type of notice was given in the present
case. No
particular form is reguired by the Act, and the appellant need not disclose its
reasons for is-suing the notice. See in
this regard
Winter and Others v
.
Administrator-in-Executive Committee and Another
1973(1) SA 873 (A) at p.
888 A. Although
Winter's
case was, as noted above, decided under the
predecessor to the Act, it is in my view still applicable in the respect now
under consideration.
The position under the Act therefore differs from that
per-taining, for instance, to a notice under the Rents Act, in respect of
which
it has been held.
"When the tenant is given notice of ejectment,
the
75 .
the reason why the lessor requires occupation
must clearly be stated so that the tenant may know whether the ground is a just
one
and re-quires him to vacate".
(
R. v. Moldenhauer
1954(4) SA 112 (E) at p. 114 E. See
also
Akoon v. Thoolasamiah
1963(4) SA 498 (N)). It follows there-
fore that the above decisions under the Rents Act, to which we
were
referred, are not of assistance for present purposes.
Nor, I should add, are
cases like
R. v. Anthony
1938 TPD 602
which deal with the effect of
allegations in a charge sheet.
This brings me to the terms of the notice. They
were as follows:
"NOTICE TO:
PASTOR FRANK CHIKANE
Whereas the Cabinet has reason to
believe that your presence is likely to endanger the security of South West
Africa/Namibia or its
inhabitants
or
76 .
or the maintenance of public order and or will engender or is likely to engender
a feeling of hostility between members of the different
po-pulation groups, you
are hereby prohibited in terms of section 9 of the Residence of Certain .
Bersons in South West Africa Regulation
Act, 1985 (Act 33 of 1985) to be in
South West Africa/ Namibia."
The respondents' first
contention is that the
notice is in law invalid and,"in effect,excipiable"
because
it does not allege a jurisdictional ground contemplated by
the
legislation. The basis of this contention seems to me
to be misconceived. As
I have noted above, the Act does not
require the appellant to furnish its
reasons at all, and a
fortiori
does not require it to set them out
fully and ac-
curately in the notice. The failure to state a proper
juris-
dictional ground in the notice therefore cannot
per se
lead
to
77. to the invalidity of the notice. Any statement in the notice may
of course be evidence as to what in fact the reasons of the appellant
were, to
be considered in conjunction with other evidence if an enquiry into the
appellant's reasons were to be necessary for any
purpose. That, however, is
another matter.
In any event, the respondents' argument on this point seems
to me to be insubstantial and even hair-splitting. It amounts to this:
in the
notice the appellant specified the "presence" of the first respondent in South
West Africa as the feature which was considered
likely to endanger the security
of the territory, etc. However, the respondents argue, the mere
presence
of the first respondent, as distinct from any acts which he might perform while
being present, cannot have
the
78 the feared result. Moreover, it is contended, the very
affidavits filed by the appellant show that the appellant was not in fact
concerned about the mere passive presence of the first respondent in South West
Africa, but that the appellant sought to prevent
the action which it expected
the first respondent to take. In these circumstances, the respon-dents conclude,
the notice did not
disclose any jurisdictional ground, and, even if it did, it
did not disclose the juris-dictional ground on which the appellant's
decision
was based. In my view this argument cannot succeed. No reasonable man would read
the notice in the sense suggested by the
respon-dents, i.e., as indicating that
it was the mere inactive, passive presence
per se
of the first respondent
which was
considered ....
79 considered undesirable.
Allied to the argument is a further one which I
consider equally insubstantial. The expression "and or" in the notice, it is
said,
introduces confusion and vagueness as to the reason for the notice.
Various authorities de-precating the use of the "bastard conjunction"
"and/or"
were quoted to us in support of this argument. As I have said, the appellant
need not give its reasons for issuing the notice
at all, and consequently it
follows, in my view, that if the reasons are given in a vague or obscure way,
that would not
per se
invalidate the notice.
In any event I do not
think that the notice is vague or obscure. Whatever stylistic objection there
may
be
80 be to the expression"and/or", the expression is in common
and regular use and often has a clear meaning in its context. In the
present
case the notice mentions two broad classes of danger which, in the appellant's
view, could be created by the first respondent's
presence in the territory. The
first class is danger to the security of the territory or its in-habitants or
the maintenance of public
order. The second class is the danger that a feeling
of hostility might be engendered between members of the different population
groups. The expression "and/or" indicates that one or the other or both of these
classes influenced the appellant in giving the notice.
This information may not
be particularly informative, but it is clear enough.
Then ..
81
Then it is contended that any possible mischief
which could have been expected from the presence of the first respondent in the
territory
could "with greater flexibility, effectiveness and sensitivity and
with less prejudice to the First Respondent" (quoted from the
Heads of Argument)
have been prevented by making use of the machinery of the Internal Security Act,
no. 44 of 1950, which is still
in force in South West Africa. So, the
respondents suggest, the appel-lant might have taken action to prevent the first
respondent
from addressing a particular gathering, or being in a relevant area
at a particular time, rather than to impose an all-em-bracing
prohibition under
the Act. This submission is pre-sented in two alternative forms. In the first
form the
respondents ..
82
respondents assume for the sake of argument that
the appel-lant did fear on reasonable grounds that the first respondent would by
his utterances endanger the maintenance of public order and possibly engender
feelings of hostility between different population
groups in the territory. They
ex-pressly disavow any contention that the appellant, in applying the Act in
these circumstances, used
its power under the Act for a wrong purpose, or acted
mala fide
. "The submission is simply that the appellant acted
ultra
vires
: it used the Act in circumstances where it was never the intention of
the lawgiver that the Act should be used."(ibid.).
I find it difficult to
follow this reasoning. If the Act was applied on reasonable grounds in good
faith and
for
82 A
for the purpose for which it was intended I
cannot see how one can say that the appellant acted
ultra vires
. The mere
fact that another measure was available which could as ap-propriately (or, let
us assume, more appropriately) have been
applied in the circumstances could
hardly
83 hardly deprive the appellant of authority to take
action under the Act. At most it could suggest that the appellant did not
exercise
its discretion properly by applying the less appropriate rather than
the more appropriate statute. This, however, is in effect the
respondents'
alternative argument with which I deal later.
The respondents relied heavily
on the case of Minis-
ter of Justice and Law and Order and Attorney-General
v
.
Musarurwa and Others and Nkomo and Others
1964(4) SA 209 (RAD) in
support of its contention. In that Rhodesian case three Acts were in issue. The
Law and Order (Maintenance)
Act authorized the Minister to confine persons
within a particu-lar area. Acting in terms of this Act the Minister caused
the
84
the respondents to be confined within the area of Wha
Wha.
The Law and Order (Maintenance) Act did not grant powers to exclude
other persons from the area in which per-sons are confined. However,
the
Protected Places and Areas Act authorized the Minister to declare "protected
places" from which unauthorized members of the public
were excluded.
Pari
passu
with the order confining the respondents to Wha Wha, the Minister
declared "protected places" so as to prevent un-authorized members
of the public
approaching anywhere near to the boundary of Wha Wha and thus making contact
with the respondents. In this way the
Minister caused the respondents to be
confined to Wha Wha without free access by members of the public. This
result,which the Court
described as the de-tention of the respondents, could not
be achieved under either
of
85
of the Acts used separately. A third Act, the Preventive
Detention (Temporary Provisions) Act did however make pro-vision for the
detention of persons under certain circumstances and subject to certain
safeguards. Under this Act the re-,sults could be achieved
which the Minister
sought to achieve by using the other two Acts in combination. The Court of
Appeal held that this was impermissible.
The
ratio
wasthat the Law and
Order (Maintenance) Act and the Protected Places and Areas Act together, or,
alternatively, the Acts indivi-dually,
were used for an unauthorized purpose,
viz., to se-cure the detention of the respondents, a result which could in law
be achieved
only by applying the Preventive Detention Act. See at p. 221 G-224 A
(BEADLE CJ); 224 E-F (QUENET JP)
and
86
and 226 H (HATHORN JA).
In the present case the respondents expressly disavow any suggestion that the
appellant used its powers for an unauthorized purpose.
Masarurwa's
case
(
supra
) is accordingly not in point.
I turn now to the alternative
argument based on the Internal Security Act, viz., that the appellant did not
exercise a proper discretion
in that it failed to apply its mind to the
possibility of acting under the Internal Se-curity Act rather than in terms of
section
9 of the Act. In its affidavits the appellant set out in considerable
detail what the information (or,at ieast, somë of it)
was which gave it
"reason to
believe"
86 A believe" that the first respondent fell within the
provisions of section 9 of the Act. The correctness of much of this information
is disputed by the respondents, but it has not been suggested that the Court
a quo
could or should have in-vestigated the disputes. On the affidavits
as they stand the Court must therefore accept that section 9 could,
in
principle,be applied, and I did not uhderstand the respon-dents to dispute this
for purposes of the present argument.
The question then is whether it has
been shown that the appellant failed to consider the possibility of
rather
87
rather making use of the Internal Security Act, and
whether
this failure rendered its decision to act under section
9
impeachable. In the fouhding papers no reference was made
to the
Internal Security Act. The first respondent's com-
plaint on the facts was
formulated as follows:
"No reasonable person, properly applying his mind and having access to all
the information concerning me (all of which is a matter
of public record) could
honestly have come to the conclusion that I was a person who would, or be likely
to, endanger the public
order or engender feelings of hostility between members
of the different population groups in South West Africa/ Namibia ..."
No suggestion was made that, even if such a con-
clusion was possible, the
appellant should have acted under
the Internal Security Act rather than under
the Act.
In
88
In opposing the above-quoted submission the ap-pellant filed
voluminous affidavits, as I have said, in which it set out some of the
information on which it acted. The purpose was to answer the criticism made in
the founding affidavit, and there was no call on it
to deal with com-plaints
which were not made. In reply, the first respon-dent's affidavit, although
extensive, was limitëd to
the same issue. Even then he did not raise the
possibility that action under the Internal Security Act may have been more
appropriate
in the circumstances. In the result, by reason of the manner in
which the respondents presented their case, we do not know whether
the appellant
did consider invoking the Internal Security Act in preference to the Act, and,
if
it
89
it did, what induced it nevertheless to issue an
order under the latter Act. It follows that there is no basis upon which we can
hold
that the appellant's action is impeachable on this ground.
Before
considering the details of the further criticisms of the notice I propose
digressing briefly to consider the ambit of the rights
enshrined by the Bill of
Rights, a matter which is relevant to various topics with which I still must
deal.
It appears from the definition of "fundamental right" in section 1 of
Proclamation R 101 of 1985 that the Bill of Fundamental Rights
and Obgectives
was adopted on 18 April 1984 by what was then known as the Multi-Party
Conference
90 Conference. The Multi-Party conference did not have
legis-lative compete.nce, and the Bill of Rights did not, by its mere adoption,
acquire any legal effect. The purpose of the Multi-Party conference was, as
expressed in the Preamble to the Bill of Rights, that
the Fundamental Rights
enshrined in the Bill "shall be respected and upheld by our successive
governments and protected by entrenchment
in the Constitution". This presupposed
that action would be taken to incorporate the Bill of Rights in a future
constitution of the
territory. In fact it was so incorporated in Proclamation R
101 of 1985, and the effect which it has must be ascertained by an
in-terpretation
of the Proclamation..
An examination of the Proclamation immediately
shows
91
shows that the intentions of the authors of the
Bill of Rights have not yet been satisfied in full - although the Bill of Rights
has
been given legislative force, it has cer-tainly not been "entrenched". There
is nothing to prevent the amendment or repeal of the
Proclamation by the
appropriate legislative processes. And the effect which has been ac-corded the
Bill of Rights is not as full
as its authors might have desired: certainly it is
not as full as contended by the respondents. The relevant provisions of the
Proclamation
are discussed in the above-quoted passage from the judgment in
Eins's
case and I do not wish to repeat them. Summarized they provide
that (subject to the-exception stated in section 3(3)) the National
Assembly
does not have the power to make
any
92
any law abolishing, eliminating or derogating from any
fun-
damental right (section 3(2)(b)); and that the Supreme Court
of South West Africa is competent to enquire into and
pronounce upon the validity of Acts of the Assembly in order
to determine whether section 3(2)(b) was contravened (section
19(l)(b)). Moreover, and this is an aspect not mentioned
before, provision
is made for the examination of existing
legislation with the view to its possible amendment or re-
peal if it
contravenes the Bill of Rights (section 19(2)
and (3)). The Proclamation thus
deals with the effect of
the Bill of Rights on two types of legislation:
legislation
passed by the legislative authorities established by the Proclamation and
pre- existing legislation. Cf.
Ex Parte Cabinet for the Interim Government of
South West Africa
(
supra
) at p. 836 F-J, p. 837 I. The
Proclamation
does
93 does not, however, accord any effect to the Bill of
Rights outside the field of legislation. In particular there is nothing in
the
Proclamation to suggest that the Bill of Rights would, as such, have any bearing
on the validity of administrative actions. Of
course, the rights enshrined in
the Bill are, generally speaking, recognized by our com-mon law, and should be
suitably borne in
mind by authorities exercising delegated powers (cf.
Omar
and Others v. Minister of Law and Order and Others
;
Fani and Others v.
Minister of Law and Order and Others
;
State President and Others v. Bill
1987(3) SA 859 (A) at p. 893 E-F),but this is something else from saying
that any administrative action would necessarily be invalid
if it conflicted
with the provisions of the Bill
of
94
of Rights. In many cases the fact that administrative ac-tion
under a statute is in conflict with the provisions of the Bill of Rights
would
serve to show that the statute, which authorizes such conduct, is itself
objectionable, but this would not necessarily be so.
In any event the statute
may be an existing one, which is not invalid under the Procla-mation even if it
is in conflict with the
Bill of Rights. In short, the rights enshrined in the
Bill of Rights are, under the Proclamation, available only to challenge the
validity of Acts of the National Assembly, and do not serve to limit
governmental powers in other respects.
If I apply this conclusion to the question whether the appellant properly
exercised its mind when deciding to
issue
95
issue a notice in terms of section 9, the result is that the
appellant was clearly obliged to have regard,
inter alia
, to the effect
which the notice would have on the first respondent's rights and position, but
that this obligation was a general
one deriving from the common law, and not a
peremptory pro-hibition on contravening the Bill of Rights as was contended by
the respondents.
On the facts and issues presented to the Court no case has been
made out that the appellant's decision is assailable by reason of
a failure to
comply with its common law obligations in this regard.
I turn now to the
complaint that the
audi alteram partem
rule has not been obeyed. This
maxim
has its ap-plication
inter alia
in cases where governmental
organs are
authorized
96
authorized by statute to give decisions prejudicially
affect-
ing the rights of an individual. In such cases the
affected
individual should,in the absence of sufficiently
strong
considerations to the contrary, be given an oppor-
tunity to make
appropriate representations before a decision is taken (see the cases collected
in
Strydom v. Staatspresident Republiek van Suid Afrika, en 'n Ander
1987(3) SA 74(A) at p. 94 E) or, sometimes, afterwards (see, eg.
Omar and
Others v
.
Minister of Law and Order and Others
;
Fani and Others
v
.
Minister of Law and Order and Others
;
State President and
Others v. Bill
1987(3) SA 859 (A) at p. 906 A to 907 F).
In the present case the appellant concedes that action under section 9 of the
Act may sometimes affect the
rights
97
rights of the individual. However, the appellant
contends,
the notice issued against the first respondent did not im-
pinge
on any right enjoyed by either of the respondents, and
consequently neither
of them was entitled to the benefit of
a hearing.
In reply to this argument, counsel for the
respon-
dents relied primarily upon the Bill of
Rights. The first
respondent, he said, was entitled under article 10 as a
"citizen" not to be arbitrarily deprived of the right to
enter the
country. "Citizen", it was conbended, must be
interpreted as a South African citizen since there is no
provision for a
separate South West African citizenship.
This contention is, in my view,
untenable. Article 10
protects
98 protects a "citizen" against arbitrary deprival of his right
to enter the "country". By "country" is clearly meant the country
of which he is
a citizen, i.e., South West Africa. This accords with the general purpose of the
Bill of Rights which is to protect
the fundamental rights of the people of the
territory. Why should these rights be extended to all citizens of South Africa?
More
particularly, why should the people of South West Africa proclaim that all
South African citizens have a fundamental right to enter
the territory? If that
had indeed been the intention one would have expected an express reference to
South African citizenship.
The only other provision in the Bill of Rights
which
93
which uses the expression "citizen" is article 8, which
guarantees to every "citizen" the right to participate in peaceful political
activity intended to influence the compo-sition and policies of the government;
to form and join political parties and to participate
in the conduct of public
affairs. Quite clearly it was not intended that all South African citizens would
be entitled to exercise
these rights in South West Africa. "Citizen" in article
8 obviously means a citizen of South West Africa, and no reason exists why
it
should bear a different meaning in article 10. In-deed, for the reasons I have
mentioned, all the indications are that the meaning
of "citizen"in article 10 is
the same in article 10 as in article 8. The submission that it
means
100 means a South African citizen must be rejected.
In the alternative the respondents'
counsel argued that "citizen" had a
wider meaning,
including, if I understood him correctly, also foreign
citi-zens who under present legislation are entitled to travel be-tween South
Africa snd South West Africa. Such an interpre-tation is even less acceptable.
The considerations which show that "citizen" does
not mean a South African
citizen mili-tate even more strongly against the notion that it in-cludes
everybody who is at present entitled
to visit the territory.
It is true that there is no citizenship of South West Africa yet, but when
the Multi-Party Conference adopted the Bill of Rights on
18 April 1984 (see the
definition of
"fundamental
101 "fundamental right" in section 1 of Proclamation R 101
of 1985), it intended that the Bill of Rights should take effect in the
future,
and clearly contemplated that a South West African citizenship would come into
being. Prior to the establishment of such
citizenship the relevant sentence of
article 10 creates difficulties of interpretation and ap-plication, but once
again I need not
dwell on this aspect, because no possible interpretation of
"citizen" of South West Africa would be wide enough to include the first
re-spondent.
Moreover, even if the first respondent had been a "citizen" for the purposes
of article 10 this would, in my view, not have availed
him. As I have tried to
show above,
the
102
the Bill of Rights does not add anything to the
common law except in regard to legislation. It does not create rights in
administrative
law which entitle individuals to insist on a hearing pursuant to
the
audi alteram partem
rule.
A further contention in the respondents'
heads of argument was that the first respondent was entitled, as a South African
citizen,
to enter into and remain in South West Africa for a period of thirty
days in terms of section 3(1) of the Act, and that this was
the right which had
been encroached upon by the appellant. I assume, without deciding, that the
liberty to enter the territory for
this limited period constitutes a sufficient
"antecedent-right" to call for the
invocation
103
invocation of the
audi alteram partem
principle. On
this assumption I agree with my brother VAN HEERDEN, whose judgment I have had
the benefit of reading, that the first
respondent was not entitled in the
circumstances of urgency which pre-vailed in the present matter, to a hearing
prior to the issue
of the notice in question. I need not decide whether he was
entitled to a hearing after the issue of the notice since it is not disputed
that the appellant was then quite prepared to receive and consider any
representations which the first re-spondent wished to make,
but that the first
respondent did not avail himself of this opportunity.
In seeking to invoke the
audi alteram partem
rule, the second
respondent relies on articles 5,6,7 and 9 of the
Bill
104 Bill of Rights, dealing with, generally, the right to freedom
of expression, the right to peaceful assembly, the right to freedom
of
association and the right to enjoy, practise, profess, maintain and promote
culture, language, tradition and religion. The argument
is that by preventing
the first respondent from visiting the territory, the appel-lant has interfered
with these rights vesting in
the second
respondent
104 A
respondent, and should accordingly have
afforded the second respondent an opportunity to make representations. My
conclusion that
the Bill of Rights does not create rights in administrative law
which entitle persons to invoke the
audi alteram partem
rule would by
itself be an answer to this contention, but there is, I consider, a further one
with which I deal in the next paragraph.
If the second respondent's
contention is correct it would mean that, whenever action is taken under section
9, representations should
be invited not only from the person whose rights are
directly involved, i.e., the person in re-spect of whom the notice is issued,
but also from everybody having an indirect right or interest in the matter, such
as
his
10 5
his family, employers, employees, business associates etc,
and even friends who would like to associate with him pur-suant to article
7 of
the Bill of Rights. All of these people could claim some interest or right,
including appeals to the Bill of Rights, which may
be harmed by a deportation,
or a refusal of entry of some other person. No authority has been quoted to us
in which the
audi alteram partem
rule has been applied in respect of
persons with indirect rights or interests of that kind. To include them within
the category of
persons entitled to make representations seems entirely
impractical. Not only would the class of persons so included be impossibly
wide,
but the relevant authority would not normally know who they are or what their
interest
is
106 is. Moreover, there does not seem to be any strong moral
or equitable grounds for according such persons the right to make
representations
either in addition to, or in the place of, the person directly
affected. In these circumstances the law does not in my view grant
persons in
the posision of the second respondent any right to make representations in
respect of a notice or proposed notice under
section 9 of the Act against a
third party such as the first respon-dent.
My conclusion accordingly is that neither the first nor the second respondent
has suffered any injury to
its rights which would entitle them to invoke the maxim
audi alteram
partem
. It is accordingly unnecessary to
decide
107 decide whether the maxim may be invoked if the Act were
applied in other circumstances. If the question were to arise pertinently
the
Court would have to decide whether the reasoning in
Winter and Others v.
Administrator- in-Executive Committ
e
e and Another
1973 (1) SA 873
(A), in which it was held that the maxim was excluded under Procla-mation 50 of
1920, applies also to the present Act. In this regard
it should be remembered
that, as discussed above, the present Act falls to be interpreted in the light
of the Bill of Rights. Whether
this or other factors call for a different
interpretation is a question which I leave entirely open.
This
108 This concludes my discussion of the respondents' attack on the
validity of the notice. For the reasons I have given, I do not
consider that any
of the respondents' grounds of attack can be sustained. In the result it is not
necessary to decide whether, or
to what extent, the Court is in any event
precluded from pronouncing upon these matters by section 9(3) of the Act
(assuming, of
course, that this sub-section is valid - a question which I left
open when dealing with the effect of the Bill of Rights on the validity
of the
Act).
My over-all conclusion is accordingly that neither of the respondents
has shown that-the appellant has acted unlawfully in issuing
the notice in
issue. It follows that
none
109
none of the relief sought in the notice of motion should have
been granted.
Finally I should note that the appellant questioned the
locus standi
of the second respondent. Mr. Máhomed, while seeking
to support the
locus standi
, also contended that the objection was
largely irrelevant since the Court would have to consider the merits of the
first respon-dent's
contentions anyway. As I have now in fact considered and
rejected both respondents' contentions on the merits, there is no further
need
to dwell on the second respondent's
locus standi
, and I decline to do
so.
In the result I make tbe following order: 1. The appeal is allowed with
costs, including the costs
of
110
of the application to the Court
a quo
for
leave to appeal. Costs are in both cases to include costs of two counsel.
2. The order of the Court
a quo
is set aside and replaced by the
following:
The application is refused with costs, including the costs of two
counsel.
E M GROSSKOPF, JA
RABIE, ACJ
JANSEN, JA Concur
HEFER, JA