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1988
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[1988] ZASCA 165
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Van der Westhuizen v United Democratic Front (483/87) [1988] ZASCA 165; [1989] 4 All SA 431 (AD) (30 November 1988)
CASE NO 483/87
IN THE SUPREME COURT OF SOUTH
AFRICA
APPELLATE
DIVISION
In the matter between
RONALD NORMAN VAN DER WESTHUIZEN
NO
APPELLANT
AND
THE UNITED DEMOCRATIC FRONT
RESPONDENT
CORAM
: RABIE ACJ, JOUBERT, HEFER, EKSTEEN. JJA et VILJOEN AJA.
HEARD
: 14 NOVEMBER 1988.
DELIVERED
: 30 NOVEMBER 1988.
JUDGMENT
HEFER JA
:
2.
On 12 June 1986 a state of emergency was declared to exist in the
Republic and on the same day regulations made by the State President
in terms of
sec 3(l)(a) of the Public Safety Act 3 of 1953 were published in Proclamation
R109, 1986. The regulations were thereafter
amended from time to time.
Reg
7(l)(bA) authorizes a Divisional Commissioner of Police to prohibit, for certain
stated purposes, "any particular gathering, or
any gathering of a particular
nature, class or kind" within his division. The full text of the regulation will
be quoted later.
The appellant is the Divisional Commissioner of Police for the Western
Province. On 14 April 1987, actine in pursuance of the power
conferred upon him
by reg 7(l)(bA), he prohibited a public meeting which the respondent had
arranged to be held in the Cape Town
city hall on the evening of 15 April 1987.
Upon becoming aware of the prohibition the respondent approached the Cape of
Good Hope
Provincial Division with an urgent
3. application to have it set
aside. On 15 April 1987 a Full Bench of three judges heard the application.
Indicating at the conclusion
of the hearing that reasons would be furnished
later, the court eranted an order setting aside the prohibition and directing
the
appellant to pay the costs of the application. The appeal is directed at
this order.
The court's reasons were subsequently prepared by BERMAN J and have now been
reported in
United Democratic F
ro
nt (Western
Cape
Region) v Van
der
Westhuiz
en NO
1987(4) S A 926(C). The reasons proceed on the
basis that the
onus
was on the appellant to prove the lawfulness of the
prohibition and conclude with a finding that the
onus
was not discharged.
How this conclusion was arrived at emerges from the final passage at 932 E-G of
the report which reads as follows:
" regard being had to the fact that
the
onus
rests on respondent to justify the outright and total
prohibition he imposed on the proposed public meeting, no more is
4.
required of a party in applicant's position than to state merely that he or it
has organised a meeting and that respondent has prohibited
it pursuant to the
purported exercise of powers afforded by reg 7(1);
this obliges respondent to
satisfy the Court that the outright and total prohibition imposed by him on the
holding of that meeting
was justifiably imposed by him in the light of the duty
upon him to exercise an objective discretion when having resort to such
powers
. Respondent failed to discharge this onus, and applicant was
accordingly entitled to the order handed down by the presiding Judge
at the
conclusion of the hearing." (My
emphasis.)
The court's ruling on the
onus
of proof was
challenged in this court. Appellant's counsel
submitted that the real
issue was whether the appellant
had properly exercised the discretion
conferred upon him
by reg 7(1) and that it was for the respondent to
prove
that he had not done so. Although this was the main
ground for the
attack on the court
a quo
's order I find
it unnecessary to decide whether it was for the
appellant to prove the
lawfulness of the prohibition or
for the respondent to prove the unlawfulness thereof.
I say this because, assuming the court
a quo
's ruling to
5. be
correct, it is clear, to my mind, that the court erred in other respects and
that the order should not have been granted.
By way of introduction to the
discussion I regret to say that I have not found it easy to discover in the
court's reasons the grounds
for its interference with the exercise by the
appellant of a power which reg 7(l)(bA) undoubtedly confers upon him. Although
there
is a fairly lengthy recital in the reasons of the argument presented to
the court on respondent's behalf, and although there are
some indications that
the whole argument was favourably received, one simply does not know whether all
the submissions were in fact
accepted. It mav be that the recital was merely
intended to reveal the shortcomings in the appellant's case and thus to justify
the
conclusion that he had not discharged the
onus
, but the nett result
is that the reader of the reasons has largely been left in the 'dark as to the
court's own views.
6.
What does, however, appear reasonably clearly
from the
passage in the reasons cited above, is that the
court a
quo's
conclusion was based on the premise that
the appellant had the "duty to exercise an objective
discretion". This
somewhat confounding statement was presumably intended to convey that the
exercise by the appellant of his powers
under reg 7(1) was objectively
justiciable in the sense in which that expression was used in
South African
Defence and Aid Fund and Another v Minister of Justice
1967(1) S A 31 (C) at
34-35. Counsel were agreed that this is how the passage is to be understood and
I shall proceed on that basis.
It was pointed out in the
South African Defence and Aid Fun
d case at
34 F-H that there are cases in which the exercise of a power is dependent upon
the existence of certain so-called jurisdictional
facts, i e facts or a state of
affairs which must exist before the power may be exercised. What the
jurisdictional facts
7. are, depends, of course, on the legislation in
question, but they always fall into one of two categories which CORBETT J (as he
then was) described as follows:
"Upon a proper contruction of the
legislation concerned, a jurisdictional
fact
may fall into one or other of two broad categories. It may consist of a fact, or
state of affairs, which, objectively speaking, must
have existed before the
statutory power could validly be exercised. In such a case, the objective
existence of the jurisdictional
fact as a prelude to the exercise of that power
in a particular case is justiciable in a Court of law. If the Court finds that
objectively
the fact did not exist, it may then declare invalid the purported
exercise of
the power .On the other
hand, it may
fall into the category comprised by instances where the statute itself has
entrusted to the repository of the power the sole and exclusive
function of
determining whether in its opinion the pre-requisite fact, or state of affairs,
existed prior to the exercise of the
power. In that event, the jurisdictional
fact is, in truth, not whether the prescribed fact, or state of affairs, existed
in an objective
sense but whether, subjectively speaking, the repository of the
power had decided that it did."
8. It is the former type of case that BERMAN
J must have had in mind when he spoke of the appellant's "objective" discretion
and,
I may add, it was Mr
Gauntlett's
submission on respondent's behalf
that the present is indeed such a case. In my view, however, it is not.
As I said before, it depends upon the legislation in question whether a
jurisdictional fact falls within the one or the other category.
It obviously
also depends upon the legislation whether jurisdictional facts are indeed
required and, if so, what they are. I turn,
therefore, to examine the
legislation now under consideration.
Reg 7(1) originally read as follows:
"7. (1) The Commissioner of the South African Police or any person authorized
thereto by him may, without furnishing reasons and
without hearing any person,
issue orders not inconsistent with these Regulations -(a) relating to
-
(i) the demarcation of areas; (ii) the closing off of any particular area or
part of such area in order to control entrance to or
departure from such area or
part thereof;
9.
(iii) the control of entrance to or departure from any particular area or
part of such area; (iv) the control of traffic; (v) the
temporary closing of any
public or private place or any business undertaking or industrial undertaking:
or (vi) the control of essential
services and the security and safety of any
installation and works connected therewith; (b) whereby any person is prohibited
from
-
(i) bringing into any particular area any object or article specified in the
order or being in possession thereof in such area; (ii)
performing any act or
carrying on any activity specified in the order in any particular area; (iii)
being outside the boundaries
of his residential premises in any particular area,
at any time; (iv) putting in motion or driving or being in upon any vehicle that
is in motion in any particular area, at any time; or (v) entering any particular
area or part thereof if he is not normally resident
in that area or part
thereof; (c) relating to the control, regulation or prohibition of the
announcement, dissemination, distribution,
taking or sending of any comment on
or news in connection with any conduct of a Force or any member of a Force
regarding the
10.
maintenance of the safety of the public or the public order or the termination
of the state of emergency; and (d) relating to any
other matter the regulating,
control, or prohibition o which in his opinion is necessary or expedient with a
view to the safety of
any member or members of the public or the maintenance of
the public order, or in order to terminate the state of emergency, the
generality of the powers conferred by this paragraph not being restricted by the
provisions of the preceding paragraphs."
Reg 7 (1)
was amended by Proclamation R140, 1986 of 1 August 1986 but this amendment is
not presently material. By Proclamation R225,
1986 of 28 November 1986 it was
amended again. New words were substituted for those preceding subreg (a) and two
new subregulations,
(bA) and (bB), were inserted after subreg (b). Subregs
(a),(b),(c)and (d) were left intact with the result that reg 7(1) then read
as
follows:
11.
"(1) The Commissioner may for the purpose of the safety of the public, the
maintenance of public order or the termination of the state
of emergency, and
without prior notice to any person and without hearing any person, issue orders
not inconsistent with these regulations
-(a [As before] (b)[As before]
(bA) whereby any particular gathering, or any gathering of a particular
nature, class or kind, is prohibited at any place or in any
area specified in
the order; (bB) (i) prohibiting the holding of
any particular gathering, or
any gathering of a
particular nature,
class or
kind, in any area specified
in the order otherwise than
in
accordance with condition
likewise specified, which
conditions may
include
conditions requiring the
Commissioner's prior
approval for the time, date and place of the gathering, prescribing the hours
of the day or the days of the week during which the
gathering may or may not
take place, limiting the number of persons who may attend the gathering and
prohibiting persons not belonging
to a specified category of persons from making
speeches
12.
at the gathering; (ii) prohibiting persons from committing at a gathering
referred to in subparagraph (i) any acts specified in the
order, or from
attending, or from remaining present at, a gathering in respect of which a
condition specified in the order has not
been or is not being complied with;
(iii) [Irrelevant]
(c)
[As
before]
(d)
[As before]
"
(In terms of the amended reg 1 "the Commissioner,"
for the purpose of applying the regulations in a police division, means the
Commissioner
of the South African Police or the Divisional Commissioner for the
division in question. Henceforth when I refer to reg 7(1) the
reference is to
the amended version).
The difficulty that I have with the court a
quo's
reasons and with Mr
Gauntlett's
argument is to find anything
in the wording of reg 7(1) (save, of course, the position which the repository
of the power must hold)
which can properly be said to be a
13.
jurisdictional fact. It must be borne in mind that in the type of case
postulated in the reasons and in Mr
Gauntlett's
argument there is always
something
apart from th
e
exercise of the power itself
which is
capable of objective adjudication; there is in such cases always a fact or facts
on which the exercise of the power depends
and which may be adjudicated upon
without enquiring into the exercise of the power itself. As explained in the
South
African Defence and Aid Fun
d case (
supra
) at 34H and later
in
Duncan v Minister of Law and Order
1986 (2) S A 805
(A) at 818 H-I,
the power itself being a discretionary one, the repository may decide not to
exercise it despite the existence of
the iurisdictional fact; and, in the event
of it beiug exercised, only the existence of the jurisdictional fact may be
adjudicated
upon objectively whereas the decision to exercise it is only
assailable on the grounds mentioned in
Shidiack
v
Union G
overnment
(Minister
o
f the Interior)
1912 A D 642
at 651. In reg
16. 7(1)
there is nothing which can be adjudicated upon apart from the exercise of the
power itself. What then is the jurisdictional
fact?
There is no answer to
this question in the court a quo's reasons but according to Mr
Gauntlett
the jurisdictional fact is that the action taken in terms of reg 7(1) must be
necessary or expedient for the purpose of the safetv
of the public or the
maintenance of public order or the termination of the state of emergency. In
developins the argument he pointed
out that reg 7(l)(d) which authorizes the
Commissioner to issue orders in relation to matters the control, regulation or
prohibition
of which is i
n his opinion
necessary or expedient for one of
the stated purposes, was declared invalid in
Natal
Newspapers
(Pty)
Ltd and Others v State President of the Republic of South Africa and Others
1986(4) S A 1109 (N). Shortly after the judgment had been handed down reg
7(1) was amended in Proclamation R225, 1986 and subregs
(bA) and (bB) were
inserted
15. without a reference therein to the Commissioner's opinion. Mr
Gauntlett
submitted that this omission evinces a clear change of
intention and justifies the inference that the intention no longer was to
entrust the necessity or expediency of prohibitions to the subjective discretion
of the Commissioner, probably because it was realized
that it would not be
competent for the State President to do so.
I do not agree. Mr
Gauntlett's
argument is based on the assumption
that before the amendment the Commissioner had no power to prohibit gatherings
save under reg
7(1)(d). This is not so; reg 7(1)(b)(ii) authorized him to
prohibit any person from performing any act or carrying on any activity
in any
particular area. The submission relating to the probable reason for a changed
intention is equally unacceptable. As appears
from 1127 B-I of the judgment in
the
Natal Newspapers
case reg 7(1)(d) was declared invalid, not on
account of the Commissioner's subiective discretion
per
16.
se, but on account of the generality and the
extremely
wide ambit of the matters which were entrusted to
his
discretion. It appears, moreover, from 1125 G- 1126 H
that, when it
came to specific powers like those
mentioned in subregs (a) and (b), the
court had no
objection to an "unfettered discretion to take
executive
action" being conferred on the Commissioner. The new
subregs
(bA) and (bB) contained specific powers relating
specifically to gatherings
and were formulated on the
lines of subreg (b). This is significant for
two
reasons. Firstly, the validity of subreg (b) had been
tested and
established. Secondly, the court had
expressly indicated that the conferment
upon the
Commissioner of an unfettered discretion in specific
matters like
those mentioned in subregs (a) and (b)
would be unobjectionable. There was
thus every reason
to assume that the State President could validly
confer
such a discretion on the Commissioner in the specific
terms of the
two new subregulations in relation to a
17. matter comparable to the matters mentioned in subregs (a) and (b).
Mr
Gauntlett
advanced a further argument to the effect that, quite
apart from what may be inferred from the way in which reg 7(1) was amended,
subregs (bA) and (bB) must, in any event, be interpreted in such a way that the
powers thereby conferred may only be exercised if,
objectively speaking, it is
necessary or expedient to do so for the purpose of the safety of the public or
the maintenance of public
order or the termination of the state of emergency.
The basis for this submission is (a) the absence of words like "in his opinion"
or "to his satisfaction" or one of the other similar expressions often used when
a power entailing the exercise of a purely subjective
discretion is conferred,
and (b) the unlikelihood of an intention on the part of the State President to
entrust the decision to exercise
a power which seriously impinges upon the
freedom of assembly to the subjective discretion of the
18.
Commissioner. The freedom of assembly, he submitted, is an important right
jealously protected by the courts and the only protection
against the arbitrary
exercise of the powers conferred by subregs (bA) and (bB) lies in the
constrution for which he contended.
Again I do not agree. As to (a) it need hardly be stated that a purely
subjective discretion may be conferred without expressly consigning
the question
of necessity or expediency to the opinion of the repository of the power. The
same result is achieved when a discretionary
power is conferred unreservedly and
in unqualified terms, unless there is reason to believe that such a result could
not have been
intended. The only limitations on the exercise of the powers in
Reg 7 (1) are that they may only be exercised for the purposes stated
and that
no order in terms thereof may be inconsistent with the regulations. And as to
(b), without derogating in any way from the
importance of the freedom of
assembly, but taking into account matters
19. such as the nature and purpose
of the powers, the status
of those on whom they were conferred, and the fact
that
they were conferred and are to be exercised in a
declared state of
emergency, there is every reason to
believe that the intention was to constitute the
Commissioner the sole
arbiter of the necessity or
expediency of exercising his powers. What was said in
the
Natal Newspapers
case (
supra
) in connection with
subregs (a)- and (b) applies with equal force to
subregs (bA) and (bB). At 1125 G-H of
the judgment it was said:
"Now, one has only to look at the topics listed in reg 7(1)(a) and (b) to
realise that they are pre-eminently the sort of precautionary
measures that may
well have to be adopted during any state of emergency. By their very nature one
would also not expect the State
President to take these measures himself but to
leave the actual details and implementation to others so authorised."
The following passage appears at 1126 F:
"But, even if he [the Commissioner] was given an unfettered discretion to
take executive action, this is so obviously a matter for
20.
delegation, in circumstances where the
delegatus
is
enjoined to act on the exigencies
of the moment, that such a discretion, in our view, is reasonably
implied."
It follows that the court a
quo
erred in its
conclusion that the appellant's decision to prohibit the
meeting was
objectively justiciable. This does not
mean, of course, that it could not be
assailed on the
grounds stated in the
Shidiack
case (
supra
). But,
although all these grounds were relied upon in the
respondent's founding affidavit (deposed to by Mr W A
Hofmeyr) Mr
Gauntlett
expressly abendoned them in this
court. His decision to do so was a proper one f or
there was not a shred of evidence to substantiate Mr
Hofmeyr's allegation that the appellant had failed to
apply his mind to the correct criteria "for a
prohibition, had taken irrelevant or extraneous
factors into account, and had acted grossly
unreasonably,
mala fide
and for an ulterior purpose.
There is no need for me to deal with the factuel
21. allegations in his
affidavit and in the supporting affidavits but I do wish to say that it cannot
be inferred from anything said
therein that the appellant's decision to prohibit
the meeting was tainted in the way in which Mr Hofmeyr alleged it to have been.
The impression created in the founding affidavit was that every meeting which
the respondent had organised in the past had been peacefully
conducted. What the
affidavit did not reveal, but what was revealed in the appellant's opposing
affidavit, is that some bf its meetings
had been marked by violence, damage to
property, and even murder.
Since, for these reasons, the appeal must succeed it is not necessary to deal
with the other submissions made on appellant's behalf
or even to state what they
were. But since costs will be awarded to the appellant there are two matters
affecting the costs which
have to be raised. Mr
Griessel
and Mr
Louw
who prepared the original heads of argument for the
22. appellant
were not available for the hearing of the appeal. Mr
Visser
and Mr
Le
Roux
, who took their place, elected to file their own heads and discarded
the original set. There is no reason why the respondent should
pay the costs of
the discarded set.
Then there is Mr
Visser
and Mr
Le Roux's
own
heads of argument. There is a growing tendency in this court for counsel to
incorporate quotations from the evidence, from the
court a
quo's
judgment
and from the authorities on which they rely, in their heads of argument. I have
no doubt fhat these quotations are intended
for the convenience of the court
bu.t they seldom serve that purpose and usually only add to the court's burden.
What is more important,
is the effect which this practice has on the costs in
civil cases. Although counsel himself is not allowed a separate fee for the
preparation of heads of argument his instructing attorney and his opponent's
instructing attorney are both entitled to fees in respect
thereof, and their
fees
23.
are directly related to the length of the heads.
Superfluous
matter should therefore be omitted and,
although all quotations can obviously
not be eliminated
they should be kept within reasonable bounds.
Counsel
will be well advised to bear in mind that Rule 8 of the
Rules of
this court requires no more than the
main heads
of argument.
In the present case Mr
Visser
and Mr
Le Roux's
heads of
argument comprise 85 pages and their list of authorities 7 further pages. The
heads abound with unnecessary quotations from
the record and from the
authorities. They reveal, moreover, another disturbing feature which is that the
typing on many pages does
not cover the full page. Page 10 e g covers only 17 of
the available 40 lines, page 17 only 11, page 81 only 7 and page 23 only 4
lines. This is quite improper in view thereof that the number of pages forms the
basis of the attorney's fees for perusing the heads.
Had the heads been properly
drawn and typed I do not think more
24. than 20 pages would have been
required. The costs cannot be permitted to be increased in this manner and an
order will therefore
be made to ensure that the respondent does not become
liable for more than what was reasonably necessary.
The following order is
made:
1.
The appeal is
allowed.
2. The order of the court a
quo
is set aside. Substituted for it is an
order that the application is dismissed with costs, including the costs of two
counael.
3.
The respondent is directed to pay the costs
of
appeal which shall include the costs of two
counsel but
(a)
shall not include any costs
relating to the heads of argument prepared by Mr
Griessel
and Mr
Louw
, and
(b)
shall be taxed on the
basis that the heads of argument prepared by Mr
Vis
ser and Mr
Le
Roux
comprise 20 pages excluding the list of
authorities.
4. Appellant is directed to pay the wasted costs
occasioned by Mr
Griesel
and Mr
Louw's
heads
of
argument.
25.
J J F HEFER JA. RABIE ACJ ) JOUBERT JA ) EKSTEEN JA ) CONCUR. VILJOEN AJA
)