About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1988
>>
[1988] ZASCA 138
|
|
Kauluma and Others v Cabinet for Interim Government of South Africa and Others (137/88) [1988] ZASCA 138 (8 November 1988)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JAMES HAMUPANDA KAULUMA
First
Appellant
BONAFATIUS HAUSHIKU
Second Appellant
KLEOFAS
DUMENI
Third Appellant
THE ANGLICAN DIÓCESE OF NAMIBIA
Fourth Appellant
THE ROMAN CATHOLIC CHURCH DIOCESE
OF
WINDHOEK
Fifth Appellant
THE EVANGELICAL LUTHERAN CHURCH
IN NAMIBIA
Sixth Appellant
and
THE CABINET FOR THE INTERIM GOVERNMENT
OF SOUTH WEST AFRICA
First Respondent
THE MINISTER OF DEFENCE
. Second
Respondent
THE ADMINISTRATOR-GENERAL OF
SOUTH WEST AFRICA
Third Respondent
Coram
: JOUBERT, HEFER, VIVIER, EKSTEEN JJA
et
VILJOEN AJA
Heard
: 5 September 1988
Delivered
: 8 November 1988
JUDGMENT JOUBERT
, JA
/2...
2
On 16 January 1987 the Full Bench (composed of 5 members) of
the Supreme Court of South West Africa dismissed, with costs, an application
brought by the six appellants against the three respondents for an order
declaring section 3(l)(a)(v) and (vi) of Proclamation AG
9 of 1977, (as amended)
promulgated by the Administrator-General on 11 November 1977, as well as two
so-called Orders, viz Order
AG 26 of 1978 and Order AG 50 of 1979, issued by the
Administrator-General pursuant to the provisions of section 3(l)(a)(v) and (vi)
respectively of the said Proclamation, to be invalid and of no force and effect.
With leave of the Court
a quo
the appellants now appeal to this Court
against the whole of its judgment and order.
Invalidity of section 3(l)(a)(v) and (vi) of Proclamation AG 9 of
1977
.
At all times relevant to the present inquiry
/3
3
the South African Parliament was the sovereign legislative
authority in and over the Territory known as South West Africa. See sec
37(1) of
the South West África Constitution Act No 39 of 1968 (hereinafter
referred to as "the Act"). As originally enacted
sec 38(1) of the Act empowered
the State President by proclamation in the
Gazette
and in the
Official
Gazette
to make laws for South West Africa in relation to any matter in
regard to which the Assembly for South West Africa could not make
ordinances,
Moreover, according to sec 38(2) a proclamation of the State President could not
be repugnant to or inconsistent with
an Act of the South African Parliament
which applied in South West Africa. At that stage the State President obviously
had limited
non-plenary powers to legislate for South West Africa. An important
development of the legislative powers of the State President
took place when sec
38, as amended and substituted by sec 1 of the South
/4
4
West Africa Constitution Amendment Act No 95 of 1977,
came
into operation on 1 July 1977. At that stage it provided in
its new
form as follows:
(1): The State President may by proclamation in the
Gazette
make laws for
the territory with a view to the eventual attainment of independence by the said
territory, the administration of Walvis
Bay and the regulation of any other
matter and may in any such law
-
(a) repeal or amend any legal provision, including this Act, except for the
provisions of subsections (6) and (7) of this section,
and any othe Act of
Parliament in so far as it relates to or applies in the territory or is
connected with the administra tion thereof
or the administration of any matter
by authority
therein;
(b) repeal or amend any Act of
Parliament,
and make different provision, to regulate
any matter which, in his opinion,
requires
to be regulated in consequence
of the repeal
or amendment of any Act in term of paragraph(a).
/5
5
"(2): If any authority is by law made in terms of subsection (1) empowered to
make laws, a law made by any such authority by virtue
of that power, shall not
be in force and effect until it has been approved by the State President.
"(3)
"(4)
"(5) No Act of Parliament and no ordinance of the Assembly passed on or after
the first day of November, 1951, shall apply in the
Eastern Caprivi Zipfel,
unless it is expressly declared so to apply.
"(6) Any proclamation issued under subsection (1) shall be laid on the Tables
of the Senate and of the House of Assembly within fourteen
days after
promulgation thereof if Parliament is in ordinary session, or if Parliament is
not in ordinary session, within fourteen
days after the commencement of its next
ensuing ordinary session,
/6
6
and shall remain on the said Tables for
a period of not less than twenty-eight
consecutive days, and if Parliament is
prorogued before the necessary twentyeight
days have elapsed, such proclamation
shall again be laid on the said Tables
as aforesaid within fourteen days
after
the commencement of its next
ensuing ordinary
session.
"(7): If the Senate and the House of
Assembly
by resolutions passed in the same session (being a session during which a
proclamation has been laid before Parliament in terms of
subsection (6) )
disapprove of any such proclamation or of any provision in any such
proclamation, such proclamation or such provision
thereof shall thereafter cease
to be in force and effect to the extent to which it is so disapproved, but
without prejudice to the
validity of anything done in terms of such proclamation
or of such provision thereof
/7
7
up to the date upon which it so ceased to be of force and
effect, or to any right, privilege, obligation or liability acquired, accrued
or
incurred as at the said date under and by virtue of such proclamation or such
provision thereof." I
n Binga v Cabinet for South West Africa
and Others
, 1988(3) SA 155 (A) at p 183G-184A this Court
held that
in the new sec 38(1), as quoted
supra
, the South
African Parliament
conferred on the State President full or
plenary legislative powers in
respect of South West Africa,
which were as wide as those possessed by the
South African
Parliament itself, subject to the limitations imposed by
the
provisions of subsections (6) and (7) of sec 38. That
is to say, the State
President could not by means of sec
38(l)(a) over-ride the limitations upon
his plenary legislative
powers imposed by the provisions of subsections (6)
and (7)
of sec 38. The position of the State President's legislative
/8
8
powers under sec 38 was therefore analogous to the plenary
legislative powers possessed by provincial councils (until their demise
on 1
July 1986 in terms of sec 2 of the Provincial Government Act No 69 of 1986)
within the limits imposed by the South African Parliament.
It follows that the
validity of the exercise of the State President's plenary legislative powers
could, like the legislation of the
former provincial councils, be attacked as
being
ultra vires
. His legislation could not, however, be invalid on the
ground of being unreasonable or because it involved some restriction on the
liberty of the subject or of his rights to property. See
Rex v Dickson
,
1934 AD 231
at p 233,
Joyce & Mc Gregor Ltd v Cape Provincial
Administration
,
1946 AD 658
at p 669, Moreover, by conferring the plenary
legislative powers on the State President the South African Parliament did not
divest
itself of its supreme legislative authority in respect of
/9
9
South West Africa. Notwithstanding the conferment the supreme
legislative authority of the South African Parliament remained unimpaired
in
respect of South West Africa and could be asserted at will.
Pursuant to the
power given to him by
sec 38(1) of the Act the State President on 19 August
1977
by Proclamation 180 of 1977 established the office
of
Administrator-General for South West Africa. On
19 August 1977 the
Department of the Prime Minister published in the
Gazette
No 5719
Government Notice No 1666 stating that the State President had appointed Mr
Justice M. T. Steyn as Administrator-General
for South West Africa with effect
from 1 September 1977.
On 19 August 1977 the State President promulgated
Proclamation 181 of 1977 which provided as follows:
"Under section 38 of the South West Africa Constitution
/10
10
Act, 1968
(Act 39 of 1968), I hereby empower the Administrator-General, subject
to the provisions of subsection (2) of the said section 38
-
(1) to make laws, by proclamation in
the
Official Gazette
of the Territory of South West Africa, for that
territory; and
(2) in any such law to repeal or amend
any legal provision, including
any
Act of Parliament in so far as it
relates to or applies in that
territo-
ry or is connected with the
administration thereof or
the
administration of any matter by any
authority therein, save the
said
section 38."
In promulgating Proclamation
181 of 1977 the State President acted in pursuance of the powers granted him by
the South African Parliament
in sec 38 of the Act. These powers are contained in
sec 38(1) and (2) of the Act. As I have already
/11
11
indicated, this court in
Binga's
case
supra
held
that the South African Parliament in sec 38 (1) of the Act conferred full or
plenary legislative powers, subject to certain
limitations, on the State
President in respect of South West Africa. In terms of sec 38(2) of the Act the
South African Parliament
empowered the State President to confer upon "any
authority" the power to make laws for South West Africa subject to his approval.
The crucial question which now falls to be decided is whether or not the State
President in turn by Proclamation 181 of 1977 conferred
full or plenary
legislative powers, subject to certain limitations, on the
Administrator-General. In other words, did the State President
as the recipient
of full or plenary legislative powers, subject to certain limitations, from the
South African Parliament in turn
confer full or plenary legislative powers,
subject to certain limitations, on the Administrator-General as a
/12
12
third legislative authority (
tertius
)? The answer to
this question is, in my judgment, to be sought in the intention of the South
African Parliament as appears from sec
38(2) of the Act read in conjunction with
the State President's intention as expressed in Proclamation 181 of 1977. On
behalf of
the appellants Mr
De Villiers
in his written supplementaty
heads of argument, as augmented by his oral argument in this Court, contended
that subordinate or non-plenary
legislative powers were conferred by the State
President in Proclamation 181 of 1977 on the AdministratorGeneral.
His line
of reasoning was that, while the South African Parliament remained the supreme
legislature, the State President, on whom
the South African Parliament conferred
full or plenary legislative powers, as decided in
Binga's
case
supra
, retained his legislative powers
in toto
despite the
promulgation of Proclamation 181 of 1977. These steps
/13
13
in his line of reasoning up to this state are, in my judgment,
sound. Mr
De Villiers
proceeded, however, to contend that the
Administrator-General who required the assent of the State President to
legislate had mere
subordinate or non-plenary legislative powers. Accordingly,
he contended that the Administrator-General as a third legislative authority
(
tertius
) was a mere agent or delegate (
delegatus
) of the State
President without full or plenary legislative powers.
In my judgment, this
contention is not warranted by the terms of sec 38(2) of the Act read in
conjunction with the empowering provisions
of Proclamation 181 of 1977. The
effect of sec 38(2) is that the rule
delegatus delegari non potest
does
not apply to the State President in empowering a third legislative authority
(
tertius
) to legislate in respect of South West Africa. Moreover,
contrary to the contention of Mr
De Villiers
, the requirements of the
/14
14
State President's assent as a limitation in the legislative
powers of the third legislative authority (
tertius
) does not render such
legislative powers non-plenary. Compare the position of the provincial councils
which had plenary legislative
powers to legislate on certain topics entrusted to
them by the South African Parliament notwithstanding the requirement of the
State
President's assent in terms of secs 84(1) and 90(1) of the Republic of
South Africa Constitution Act No 32 of 1961 in order to render
their ordinances
valid. See LAWSA, vol 21,
s.v
. Provincial Government, paras. 274, 275.
Proclamation 181 of 1977 confers extremely wide legislative powers on the
Administrator-General.
His legislative powers to make laws for South West
Africa, subject to certain limitations, include the power "to repeal or amend
any legal provision, including any Act of Parliament in so far as it relates to
or applies in that territory or is connected with
/15
15
the administration thereof or the administration of any matter
by any authority therein, save the said section 38." It is clear from
the
provisions of this Proclamation that the State President did not purport to
confer on the Administrator-General greater legislative
powers than he himself
had. Moreover, the State President did not divest himself of his full or plenary
legislative powers under
sec 38 of the Act.
In substance the legislative
powers conferred on the Administrator-General, subject to the limitations
contained in sec 38 of the
Act, are as extensive as those of the South African
Parliament itself. It follows that his legislative powers are full or plenary
and not merely subordinate or non-plenary. Contrary to the contention of Mr
De Villiers
the Administrator-General is not a mere agent or delegate
(
delegatus
) of the State President without full or plenary legislative
powers.
/16
16
To sum up the position of the legislatures:
,
at all relevant times to the present inquiry three legislatures have
legislative powers in respect of South West Africa, viz.:
1.
The South African Parliament
as supreme legislature.
2.
The State President
with full or plenary legislative powers, subject to certain
limitations.
3.
The Administrator-General with
full or plenary legislative powers, subject to certain
limitations.
On 11 November 1977 the
Administrator-
eneral by virtue of the powers conferred on him by
Proclamation
181 of 1977 promulgated in the
Official Gazette
Proclamation
AG 9 of 1977 with the approval of the State President.
Sec
3(l)(a)(v) thereof provides as follows:
"The Administrator-General or any person
acting on his authority may, in
such
manner as he may deem fit, issue an order -
(i)
/17
17
(ii)
(iii)
(iv)
(v) prohibiting any person in a security district mentioned in the order, or
any person at a place or in an area situated within a
security district and
indicated in the order, from being out-side the boundary of a stand,. lot or
site or other place intended or
normally used for human habita-tion, at any time
during the night."
On 13 June 1978 the Administrator-Generaí with the approval of the
State President promulgated in the
Official Gazette
Proclamation AG 34 of
1978 which added the following subparagraph to section 3(l)(a) of Proclamation
AG 9 of 1977, viz.:
/18
18
(vi) prohibiting any person from putting in motion or driving
or travelling by any vehicle or being in or upon any vehicle that is
in motion,
at any time during the night at any place within a security district mentioned
in the order, or at any place within an
area situated in a security district and
indicated in the order."
Since sec 3(l)(a)(v) and (vi) of Proclamation AG 9 of 1977
(as amended by
Proclamation AG 34 of 1977) fall within the
ambit and scope of the full or
plenary legislative powers
of the Administrator-General which were exercised
by him with
the approval of the State President they are
intra vires
his
powers. Moreover, its validity cannot be impugned on the
grounds of
unreasonableness or vagueness as set out in the
written main heads of
argument on behalf of the apppellants.
See by analogy the decided cases referred to
supra
in regard
to the
validity of ordinances made by provincial councils.
/19
19
Invalidity of Order AG 26 of 1978 and Order AG 50 of 1979.
In Government Notice AG 1 of 11 November 1977 the Administrator-General
declared the provisions of secs 3, 4 and 5 of Proclamation
AG 9 of 1977 (called
the Security Districts Proclamation) applicable to certain districts including
Owambo. The latter thereby became
a security district as defined in sec 1 of
Proclamation AG 9 of 1977. The Administrator-General also declared a certain
area in the
district of Owambo, as defined in the Schedule to the Government
Notice, a prohibited area.
Order AG 26 of 1978 and Order AG 50 of 1979 are
night-time curfew measures. Order AG 26 of 1978 issued by the
Administrator-General
pursuant to the enabling provisions of sec 3(l)(a)(vi) of
Proclamation AG 9 of 1977, as inserted by sec l(a) of Proclamation AG 34
of
1978, reads as follows:
/20
20
"Under the powers vested in me by section 3 of the Security Districts
Proclamation, 1977 (Proclamation AG 9 of 1977), I hereby order
that no person
shall put in motion, drive or travel by any vehicle, or be therein or thereon,
at any time during the night in the
district of Owambo without the permission in
writing of a peace officer, as defined in section 1 of the Criminal Procedure
Act, 1977
(Act 51 of 1977), or any officer of the security forces."
It was contended on behalf of the appellants that Order AG 26 of 1978 was
invalid because it exceeded the empowering provisions of
sec 3(l)(a)(vi) of
Proclamation AG 9 of 1977. They empower the Administrator-General, or any person
acting on his authority, to issue
an order prohibiting (absolutely) any person
from driving any vehicle or being in or upon any vehicle in motion by night in a
security
district. On comparing the
/21
21
contents of Order AG 26 of 1978 with the wording of sec 3(l)(a)(vi) of
Proclamation AG 9 of 1977 it would seem that they are virtually
alike save for
two variations. The first variation is a slight textual difference between their
wording. Sec 3(l)(a)(vi) expressly
mentions "any person- - being in or upon any
vehicle
that is in motion
" (my underlining) whereas Order AG 26 of 1978
omits this description of the vehicle owing to the intromission of the phrase
"or be
therein or thereon" which qualifies "no person". Order AG 26 of 1978
prohibits any person to "put in motion, drive or travel by any
vehicle,
or be
therein or thereon
" (my underlining) from which it clearly appears that the
prohibition is directed at putting a vehicle in motion or driving a vehicle
or
travelling by vehicle. That is to say, the prohibition relates to causing a
vehicle to be in motion or to driving a vehicle or
to travelling by vehicle
while
/22
22
the phrase "or be therein or thereon" according to the context refers to a
person who is in or on a vehicle that is in motion or being
driven or is
travelling. There is accordingly, in my opinion, no difference in meaning
occasioned by this slight textual difference
between the wording of sec
3(l)(a)(vi) and that of Order AG 26 of 1978. The second variation is that
whereas sec 3 (l)(a)(vi) empowers
the imposition of an absolute prohibition as
such, Order AG 26 of 1978 on the other hand also provides for an exemption in
writing
by a peace officer or an officer of the security forces. This exemption
was obviously intended to relax the absolute prohibition
by ameliorating any
harshness that might be caused by a rigid and inflexible application of the
prohibition without taking cognizance
of unforeseen contingencies. In my
opinion, it would be absurd to hold that the provision for the exemption in
Order AG 26 of
/23
23
1978 rendered it
ultra vires
. Compare
Rex v Dekeda
, 1950(3) SA
583 (C) at p 586 C-H. The contention on behalf of the appellants that Order AG
26 of 1978 is invalid because it allegedly
exceeded the powers conferred by sec
3(l)(a)(vi) is therefore without substance.
It remains to consider the
validity of Order AG 50 of 1979 which was issued by the Administrator-General in
pursuance of the enabling
provisions of sec 3(l)(a)(v) of Proclamation AG 9 of
1977. Order AG 50 of 1979 reads as follows:
"Under the powers vested in me by section 3 of the Security Districts
Proclamation, 1977 (Proclamation AG 9 of 1977), I hereby order
that no person
shall be at any place in the district of Owambo outside the boundary of a stand,
lot or site or other place intended
/24
24
or normally used for human habitation, at any time during the night without
the permission in writing of a peace officer, as defined
in section 1 of the
Criminal Procedure Act 1977 (Act 51 of 1977), or any officer of the security
forces."
It was contended on behalf of the appellants that Order AG 50 of 1979 was
likewise invalid because it exceeded the empowering provisions
of sec 3(l)(a)(v)
of Proclamation AG 9 of 1977. The latter empowers the Administrator-General, or
any person acting on his authority,
to issue an order prohibiting (absolutely)
any person from being outside the boundary of a stand, lot or site or other
place intended
or normally used for human habitation by night in an area
situated within a security district. Save to make allowances for an exemption
in
writing, Order AG 50 of 1979 is couched in the
ipsissima verba
of the
/25
25
enabling provisions of sec 3(l)(a)(v) of Proclamation AG 9 of 1977. The
comments I made
supra
in connection with the identical exemption
contained in Order AG 26 of 1978 are equally applicable here. It is not
necessary to repeat
these comments. The contention on behalf of the appellants
that Order AG 50 of 1979 is invalid because it allegedly exceeded the
enabling
provisions of sec 3(l)(a)(v) of Proclamation AG 9 of 1977 is entirely without
substance.
Since Order AG 50 of 1979 is worded identically with the
provisions of sec 3 (l)(a)(v) of Proclamation AG 9 of 1977 (save for the
inclusion of the valid exemption in writing) while Order AG 26 of 1978 is,
practically speaking, almost identically worded with the
enabling provisions of
sec 3 (l)(a)(vi) of Proclamation AG 9 of 1977 (save for the inclusion of the
valid exemption in writing) it
follows that
/26
26
these two Orders, like their respective enabling subsections (v) and (vi) of
sec 3(1)(a) of Proclamation AG 9 of 1977, cannot be invalidated
on the alleged
grounds of unreasonableness or vagueness as set out in the written main heads of
argument on behalf of the appellants.
On the papers the respondents objected
to the
locus standi
of the 4th, 5th and 6th appellants but this objection
was abandoned at the commencement of the hearing in this Court.
In the result the appeal is dismissed with costs. Such costs are to include
the costs of two counsel.
C P JOUBERT JA. HEFER JA) VIVIER JA) EKSTEEN JA) Concur.
VILJOEN AJA)