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[1988] ZASCA 110
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Attorney-General of Natal v Mngadi and Others (64/86) [1988] ZASCA 110 (27 September 1988)
Case No 64/86 /mb
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
THE ATTORNEY-GENERAL OF NATAL
APPELLANT
and
FANA MNGADI AND
91 OTHERS
RESPONDENTS
CORAM
: VILJOEN, GROSSKOPF, SMALBERGER,
VIVIER,
JJA, et STEYN, AJA
HEARD
: 13 November 1987
DELIVERED
:
27 September 1988
JUDGMENT
VILJOEN, JA
In the regional court at Scottburgh, Natal, the respondents, at the time
residents of Umbumbulu in KwaZulu, were convicted on a charge
of contravening
section 7(1) read with sections 7 (1A) and section 7 (1B) read with other
2/...
2. sections of the Code of Zulu Law, (hereinafter referred
to
as the Code), as amended, and further read with section 124(3)
i of the KwaZulu Act on the Code of Zulu Law (Act 6 of 1981).
It was alleged in the charge sheet that
upon or about the 6th day MAY 1984 and at or near
NKOMAKAZI RESERVE, in the Regional Division of Natal,
the said accused, being Blacks, did unlawfully and
intentionally and other than in the execution
of
any legal right or duty, attend,
promote or participate
in an assembly of armed men, or attempt, consent
or take any steps to attend such assembly or compel,
incite, instigate, command, aid, advise, encourage,
urge or persuade or attempt to persuade any other
person(s) to attend such an assembly."
It is common cause that the Nkomakazi Reserve
is
part of KwaZulu.
The regional magistrate considered himself
bound in terms of sections
7(l)(c) and 7B(2) of the Code
as inserted by Proclamation R266 of 1978
(hereinafter referred
to as the 1978 Proclamation) to impose upon the respondents
the minimum sentence for the offence in question i e an
unsuspended sentence of one year's imprisonment.
3/...
3.
The respondents successfully appeáled to the Natal
Provincial Division against their convictions, Leon ADJP (with whose judgment
Wilson J agreed) holding that the changes brought about by the State President
by virtue of the 1978 Proclamation cannot properly
be described as amendments to
the existing law and that in enacting the Proclamation the State President
created a new offence which
was
ultra vires
the powers conferred upon him
by s 24 of the Black Administration Act 38 of 1927, as amended. The judgment of
the Court
a quo
is fully reported in 1986(1) SA 526(N). With the leave of
that Court the appellant now appeals to this Court in terms of
s 311(1)
of the
Criminal Procedure Act 51 of 1977
.
Section 7
of the Code, which the 1978 Proclamation amended, appeared in
Chapter 2 of the Code as reflected in Proclamation R195 of 1967 (hereinafter
referred
4/...
4. to as the 1967 Proclamation). In spite of the assumption
by the magistrate, by the Court
a quo
and by counsel who appeared in this
Court, that the 1978 Proclamation operated in KwaZulu it, in my view, for the
reasons stated
below, never did.
The Natal Code of Zulu Law has a long history. For the purposes of this
judgment I do not deem it necessary to go into great detail.
I shall therefore
only briefly highlight the main events in the course of its development. From
the preamble to Law 19 of 1891 (Natal)
it appears that in terms of Law 44 of
1887 (Natal) a Board was appointed to prepare a "Code of Native Law as known and
administered
in the Colony of Natal." The colony of Natal at the time did not
include Zululand. Such a Code was duly prepared. It covered a wide
range of
aspects of Zulu law, both civil (which includes the law of persons, the law of
inheritance and the law of things), Zulu
constitutional law (all of which being
aspects of what I may refer to as Zulu
5/...
5. indigenous law) and criminal law as administered in
Natal. As far as the criminal law is concerned it seems that the incidence
of
armed assemblies where all the organisation, fomentation and instigation
preparatory to faction fights, riots and breaches of
the peace, occurred,
constituted a particularly prevalent mischief which had to be legislated
against.
The Code was adopted and approved by the Governor in Council of Natal and
became law by virtue of the provisions of the said Law No
19 of 1891 which
incorporated it as a schedule thereto. In terms of section 2 of this Law the
Governor of Natal, by and with the
advice and consent of the Legislative
Council, was empowered to alter, add to or amend the Code from time to time.
At the time of the enactment of Law 19 of 1891 the so-called "territory" of
Zululand was administered
6/...
6. separately from the "colony" of Natal. By section 3 of
Act 37 of 1897 (Natal) it was provided that from and after the taking effect
of
the Act the territory of Zululand woúld become annexed to and would
thenceforth be a portion of the colony of Natal and
would be known as the
province of Zululand. In terms of section 4 it was provided that laws for the
peace, order and good government
of the province of Zululand "may be made by Her
Majesty with the advice and consent of the Parliament of Natal as provided in
the
Constitution Act of 1893 of the Colony of Natal". To this provision a
proviso was added to the effect that "save so far as is otherwise
provided by
this Act, and until other and further provision shall have been made by
Parliament, the laws in force in the Territory
of Zululand immediately before
the taking effect of this Act shall apply to and be in force in the province of
Zululand". It is not
certain when this Act took effect but I assume it was
shortly after the passing thereof.
7/...
7. Thereafter Act 17 of 1898 was passed by the parliament
of Natal "to apply certain of the laws of the Colony of Natal to the Province
of
Zululand, and to amend and declare the construction of the laws heretoforein
force in the said Province". In terms of section
4 it was provided that from the
taking effect of the Act the laws and acts of the colony of Natal which had been
passed since the
twenty-first day of June, 1887, and which were then in force,
would extend to and be in force, within the province of Zululand, but
with
certain limitations and exceptions.
One category of such exceptions and limitations appeared in paragraph (b) as
follows:
"The Laws and Acts enumerated in the second schedule shall not apply to the
Province of Zululand unless and until express provision
in that behalf be made
by Act of Parliament".
One of the laws enumerated in
the second schedule was Natal
8/...
8. Law 19
of 1891.
Subsequently in terms of section 8 of Act 37 of 1903 the operation of the
Code of Native Law was deemed not to extend to the province
of Zululand.
After the establishment of the Union the Code and amendments thereof, were,
subject to the substitution of the Governor-General of
the Union for the
Governor and Executive Council of Natal as the Supreme Chief, decreed to be
continued in full force and effect
by s 24 of the Native Administration Act 38
of 1927 (the title of which was later changed to "The Bantu Administration Act"
and still
later to "The Black Administration Act" - hereinafter referred to as
"the Act"). After the establishment of the Republic of South
Africa the
Governor-General was, for purposes of the Code, replaced by the State President
as the Supreme Chief. Section 24 of the
Act, as originally enacted, read:
9/...
9.
"
Operation in Natal of Native Code
(1) Notwithstanding anything to the contrary in
Natal Law 19 of 1891, the
Governor-General may from
time to time, by proclamation in the Gazette,
amend
the provisions of the Natal Code of Native Law which
Code or any
amendments thereof shall remain in full
force and effect except in so far as
amended under
the provisions of this section. [The proviso to
this
subsection is not important.]
(2) The Governor-General may, by proclamation in
the Gazette, extend the
operation of the Code of
Native Law mentioned in sub-section (1), and
any
amendment thereof, to Zululand in the Province
of
Natal".
Thus, the authority to
extend the operation
of the Code to Zululand was, in wording somewhat different
from that of
section 4(b) of Natal Act 17 of 1898, revived
by s 24(2) of the Act.
Under and by virtue of the powers vested in him by the said section, as it
then read, the Governor-General, in terms of Proclamation
168 of 1932,
(hereinafter
10/...
10. referred to as the 1932 Proclamation), amended the
Code by substituting the Schedule to the Proclamation for the Schedule to Law
19
of 1891 (Natal), by repealing certain Natal Acts and by extending the Code, as
amended by the Proclamation, to Zululand. Until
1955 the 1932 Proclamation was
amended from time to time. Such amendments which comprised Proclamations 162 of
1933, 75 of 1934,
250 of 1934, 219 of 1944, 176 of 1952, 9 of 1954 and 27 of
1955 were not specifically extended to Zululand. These were minor amendments
of
the Code. In each case the amendment was prefaced as follows:
"Whereas it is expedient to amend the Natal
Code
of Native Law contained in the
Schedule to Proclamation
No 168 of 1932:
Now, therefore, under and by virtue of the powers vested in me by section
twenty-four of the Native Administration Act (Act No. 38
of 1927) I do hereby
declare that the said Natal Code of Native Law shall be and is hereby amended by
...."
Whether these amendments were ever intended to
operate in
11/...
13.
Zululand is not certain. If they were, the
legislature must have regarded them as automatically so operating. This seems to
me to
be unlikely in view of the words "and any amendment thereof" in s 24(2) of
the Act which indicate, in my opinion, that any amendment
of the Code had to be
extended specifically before it could operate in Zululand. I shall assume,
however, that these amendments did
operate in Zululand.
In terms of the 1967 Proclamation (which came into operation on 1 January
1968) the Code was once more drastically amended by substituting
the Schedule to
the Proclamation for the Schedule to Law 18 of 1891 (Natal) and by repealing the
1932 Proclamation as amended by
the various subsequent Proclamations to which
reference was made above. Section 7(1) of this 1967 Proclamation provided:
"Any Bantu who shall participate in an assembly of armed men held without
authority or who shall directly or indirectly promote and
assist in
any
12/...
12.
such assembly shall be guilty of an offence, whether or not such assembly leads
to a breach of the peace or other offence".
The
wording of this section did not differ materially from its predecessor in the
1932 Proclamation. It was specifically provided
in the 1967 Proclamation that
the Code, as amended, would apply in Zululand.
In 1976 sub-section (1) of s 24 of the Act was, by s 2 of Act 4 of 1976,
amended to read:
"Notwithstanding the repeal of Natal Law No. 19 of 1891 by section 1 of the
Bantu Laws Amendment Act, 1976, the Schedule to that
Act, as substituted by
Proclamation R.195 of 1967, shall remain of full force as Bantu Law in Natal,
and the State President may
from time to time by proclamation in the
Gazette
amend, repeal or substitute the provisions of the said Schedule, which shall
be known as the Natal Code of Bantu Law;" [the proviso
is not
relevant]
Why the words "
repeal
" and
"
substitute
" were inserted is not clear. The only inference is that
the
13/...
legislature feared that the word
amend
, standing
alone, might be interpreted to refer to minor amendments only and not to a
complete substitution of the Code.
As only subsection (1) was amended subsection (2) which made provision for
extension of the Code and any amendment thereof to Zululand
was retained.
The Government of KwaZulu was established under the National States
Constitution Act 21 of 1971 (hereinafter referred to as the 1971
Act) and the
KwaZulu Legislative Assembly was established by Proclamation R70 of 1972 which
was issued by the State President in
terms of the 1971 Act. (cf
Government of
the Republic of South Africa and Another v Government of KwaZulu and Another
1983(1) SA 164(A)). The proclamation detailed the geographical areas which fell
under the jurisdiction of the KwaZulu National Assembly.
These areas were, I
assume, substantially the areas which
14/...
14.
previously constituted the province of Zululand.
The Code,
as amended by the 1967 Proclamation was, in terms of s 18
of the
1971 Act, which provides for the continuation of existing
laws until repealed
or amended by the competent authority,
one of the laws which were in force in
KwaZulu.
By Proclamation Rll of 1977 it was declared that the area defined in
Proclamation R70 of 1972 would, as from 1 February 1977 be a
self-governing
territory, named "KwaZulu", within the Republic of South Africa, in accordance
with the provisions of the 1971 Act.
Constitutionally it was no longer part of
Natal. The power to amend the Natal Code of Bantu law "which was in force as
Bantu law
in Natal" (see s 24(1) of the Act) and "to extend its operation to
Zululand in the Province of Natal" (see s 24(2)) consequently
no longer applied
to KwaZulu. In terms of s 30 (l)(a) of the 1971 Act the legislative assembly of
a self-governing territory has
power to make laws not inconsistent with the Act
with regard to all matters referred to in Schedule 1 thereof.
15/...
Counsel for the appellant conceded that, while there is no
item in Schedule I of the 1971 Act which expressly confers on the KwaZulu
Legislative Assembly the power to legislate on the Code,that did not constitute
any bar to its competence to legislate on the Code
having regard to the
multitude of matters about which it could legislate. In any event, conceded
counsel, item 21 which refers i
a to "the protection of life, persons and
property . ..." empowers the KwaZulu Legislative Assembly to legislate on the
matters covered
by Chapter 2 of the 1967 Proclamation. Consequently, after
KwaZulu became a self-governing territory the State President, while he
retained
competence to legislate for Blacks in Natal in terms of s 24(1) of the Act, was
deprived of the power to extend, in . terms
of s 24(2) of the Act, any amendment
of the Code to operate in KwaZulu.
Section 24 of the Act was once more amended
16/...
16.
in 1980 by the repeal of ss (2) which had made provision for the extension of
the Code or any amendment thereof to Zululand (now KwaZulu)
and by amending the
erstwhile s 24(1) (now simply s 24) to read:
Operation of Code of Zulu Law
Notwithstanding the repeal of Natal Law No 19 of 1891 by section 1 of the Black
Laws Amendment Act, 1976, the Schedule to that Act,
as substituted by
Proclamation R195 of 1967, shall .... remain of full force as law for Blacks in
Natal, and the State President
may from time to time by proclamation in the
Gazette amend, repeal or substitute the provisions of the said Schedule, which
shall
be known as the Code of Zulu Law."
This
amendment was effected subsequent to the amendment of s 7 of the Code by the
1978 Proclamation but in my view the amendment of
s 24 only in 1980 is of no
great significance. It merely ratified a constitutional dispensation which had
been settled, at the latest,
in 1977 when KwaZulu became a self-governing
territory and the KwaZulu Government took over, as far as the Code was
concerned, the
17/...
17. function of legislator for KwaZulu from the State
President.
In fact, the KwaZulu Government assumed legislative powers in its own
territory in respect of the Code. After various laws, amending
the Code, were
passed, the Code was materially amended by KwaZulu Act 6 of 1981 which was
assented to by the State President by virtue
of the powers vested in him by s
31(2) of the 1971 Act. In terms of s 124(3) of the 1981 KwaZulu Act (to which
subsection reference
is made in the charge sheet) the 1967 Proclamation (except
Chapter 2 and certain other sections) was repealed. Chapter 2 is the chapter
which, the reader of this judgment is reminded, includes s 7 of the Code. The
crisp inquiry is finally, therefore, whether the Chapter
2 referred to in s
124(3) is the Chapter 2 which appeared in the 1967 Proclamation or Chapter 2 as
amended by the 1978 Proclamation.
It is conceded by counsel for the appellant
that when the 1978 Pro-clamation was promulgated, the State President was,
18/...
18. quite apart from the fact that he did in fact not
expressly make the amendment operative in KwaZulu, no longer competent to
"extend
the operation of the Code" (in the words of the then s 24(2) of the Act)
to KwaZulu. But, argues counsel for the appellant, the 1978
amendment became of
force and effect in KwaZulu by virtue of its incorporation by reference in terms
of s 124(3) of the KwaZulu Act
of 1981. This submission is, in my view, not
well-founded. There is nothing in s 124(3) to indicate that it was the amended
Chapter
2 of the 1967 Proclamation which was saved from repeal. Regard being had
to the constitutional development of KwaZulu I have come
to the conclusion that
it was the unamended Chapter 2 of the 1967 Proclamation which was so retained by
the 1981 KwaZulu Act.
The latest legislative measure by the KwaZulu Government in this respect is
the KwaZulu Act on the
19/...
19.
Code of Zulu law, 16 of 1985. By this Act, the Act on
the
Code of Zulu Law 1981 (to which reference is made above),
as amended,
was, again with the exception of Chapter 2, repealed
and virtually a new Code
of Zulu law was substituted. This
Act was passed subsequent to the date on
which the offence
in question was committed but this does not affect the
position
because Chapter 2 was once more the only portion of the 1967
Proclamation
which was not repealed. In my view, for the
reasons stated above, it is
Chapter 2 in its unamended form
which still forms part of the KwaZulu Code of
Zulu law.
To complete the picture: The Code was by virtue of the powers vested in him
by s 24 of the Act, subsequently repealed by the State
President and replaced by
an amended Code by Proclamation R151 of 1987. This Proclamation obviously only
operated in respect of Blacks
in Natal excluding KwaZulu. In terms of s 120 of
this latter Proclamation the 1967 Proclamation, the 1978 Proclamation
20/...
20. (with the exception of
Schedule
2 - n b not
Chapter
2) and certain other Proclamations were repealed. Schedule 2
which was not repealed contains provisions relating to measures for
the tracing
of certain offenders. This 1987 Proclamation is substantially similar to KwaZulu
Act 16 of 1985. The essential difference
between the two is that the latter Act
retains Chapter 2 of the 1967 Proclamation while the 1987 Proclamation has
repealed Chapter
2 but retains Schedule 2. Section 7(1) of this Proclamation,
which now appears in Chapter 3 thereof, places the responsibility and
confers
authority in respect of armed assemblies on chiefs, in the following terms:
"(1) Chiefs have authority to require compliance by the people under their
jurisdiction with their duties under Zulu law and may
give orders for the
purpose. The enforcement of obedience to authority, of the duty of children to
their parents and of the obligations
of inmates of family homes toward their
family heads shall in particular fall within the scope of their authority. In
addition they
shall disperse or order the dispersal of any
assembly
21/...
21.
of armed persons in their areas, held without authority, or of any riotous or
unlawful meeting or gathering and, where a state of
lawlessness or unrest exists
in their areas, shall have authority to order that , for a period not exceeding
seven days or such longer
period as the district officer may determine
-
(a) the gathering of persons in groups,
or the
brewing of beer at family homes
within such area as they may specify i"n
the neighbourhood or vicinity of a particular family home, or of family homes
in general, at which a wedding or other ceremony is
being or is about to be
held;
(b)
the carrying by any person
of a shield or of more than one stick;
(c)
the
shouting of war cries and the blowing of bugles or
whistles,
shall be prohibited.
(2) In exercising their functions under this section chiefs may impose a fine
not exceeding fifty rand for defiance or disregard
of their
orders."
The KwaZulu Act 16 of 1985 contains
a
similar provision. I cannot resist the temptation to comment,
en
passant, that it is therefore surprising that the latter
Act has retained s 7
of the 1967 Proclamation.
22/...
22.
Whether the reason for the repeal by the 1987 Proclamation of
the 1978 Proclamation was the judgment in
S v Ngubane
1984(4) SA 223(N)
is not certain. It seems likely though.
In my judgment, therefore, for the reasons stated, the amendment under which
the respondents were charged never applied in KwaZulu
and they were,
consequently, wrongly charged and should have been acquitted by the
magistrate.
Having come to this conclusion it is unnecessary to deal with the judgment
a quo
. I cannot, however, refrain from expressing my disagreement with
the view of the learned Judges
a quo
as to the meaning of the word
"amend". The power of the State President to "amend, repeal or substitute" the
provisions of the Code
is derived from s 24 of the Act. That the word "amend"
was used in the section to the exclusion
23/...
23.
of the word "legislate" (cf s 25 of the Act) may be a factor
to be taken into consideration in determining the powers conferred on
the State
President by the enabling section but the solution to the problem does not lie
in construing the word "amend" by deliberating
whether a wide or a narrow
meaning should be assigned thereto. For the purposes of s 24 of 'the Act the
State President is a subordinate
legislator (see
Sekretaris van Binnelandse
Sake v Jawoodien
1969(3) S A 413(A) 423 E) but he is a legislator
nevertheless and I do not appreciate why any meaning other than the meaning
which
it bears in relation to legislation by the sovereign legislator should be
affixed to the word "amend" when used in relation to delegated
legislation.
Invariably the term "amend" is, in the legislative process, used as a
comprehensive term indicating, with particular
reference to the provision
concerned, whether the amendment is of the nature of an insertion or repeal or
substitution or a combination
of any of these varieties of amendment. Our
statute book abounds with illustrations
24/...
24. and the Code itself furnishes, as appears from the
history of the many amendments thereto, ample proof of this
modus
operandi
. What would have had to be determined, if it was necessary to do
so, is what the ambit of the State President's delegated authority
was.
The appeal is dismissed with costs. STEYN AJA - concurs