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[1989] ZASCA 169
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Catholic Bishops Publishing Company (Association Incorporated Under s21) v State President of the Republic of South Africa and Another (168/89) [1989] ZASCA 169; [1990] 2 All SA 58 (A) (1 December 1989)
IN THE SUPREME COURT ÓF SOUTH AFRICA
(
APPELLATE
DIVISIPN
In the matter between:
CATHOLIC BISHOPS PUBLISHING COMPANY (ASSOCIATION INCORPORATED UNDER
s21)
..Appellant
AND
THE STATE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
First
Respondent
THE MINISTER OF HOME AFFAIRS
AND OF
COMMUNICATIONS
Second Respondent
Coram
CORBETT CJ, HOEXTER, NESTADT, STEYN et F H GROSSKOPF
JJA.
Date of Hearing
: 29 August 1989
Date of Judgment
: 1 December 1989
JUDGMENT
CORBETT
CJ:
In terms of the Public Safety Act 3 of 1953 ("the
2
Act") the State President is empowered to declare, by proclamation in the
Gazette, that a state of emergency exists within the Republic
as a whole or in
any area within the Republic. He may do so if he is of the opinion that the
circumstances set forth in sec 2(1)
of the Act obtain. The proclamation of a
state of emergency cannot remain in force for longer than twelve months (sec
2(2) of the
Act) . The State President is further empowered (by sec 3 of the
Act) to make such regulations (termed "emergency regulations") -
" as appear to him to be necessary or
expedient for providing for the safety of the public, or the maintenance of
public order and for making adequate provision for terminating
such emergency or
for dealing with any circumstances which in his opinion have arisen or are
likely to arise as a result of such
emergency."
These regulations apply
with reference to the area in which
3
the state of emergency has been declared and for as long as the
proclamation declaring the state of emergency remains in force ( sec
3(1) ).
In July 1985 and acting in terms of these powers the State President declared
a state of emergency in certain areas (magisterial districts)
within the
Republic and at the same time promulgated a set of emergency regulations. This
proclamation was withdrawn and the state
of emergency abolished in March 1986,
but in mid-1986 a new state of
emergency was declared, this time in respect of the whole of
the Republic and simultaneously a new set of emergency
regulations was promulgated. The state of emergency was
renewed for the
whole of South Africa by Proc R95 of 11 June
1987 and in terms of Proc R96 of the same date fresh
emergency regulations
were published. At the same time,
and in terms of Proc R97, the State
President made and
promulgated a separate set of regulations aimed generally
at
4 the regulation and control of what is published in newspapers,
periodicals, books, etc and by way of television or film recordings
and the
making of films and taking of photographs of unrest or security actions. These
have commonly been referred to as the "media
regulations". I shall speak simply
of "the regulations". The regulations were amended by Proc R123 of 28 August
1987. One of the
amendments effected by Proc R123 was the insertion of a new
regulation 7A. The relevant portion of this regulation
read as follows:-
"7A. (1) If the Minister is of the
opinion, solely on examination of any series of
issues of a periodical -
(a) that there is in that
periodical a systematic or repeated publishing of matter, or a systematic or
repeated publishing of matter
in a way, which, in his opinion, has or is
calculated to have the effect -
5
(i) of promoting or fanning revolution or uprisings in the Republic or other
acts aimed at the overthrow of the Government otherwise
than by constitutional
means;
(ii) of promoting, fanning or sparking the perpetration of acts referred to
in paragraph (b) or (c) of the definition of 'unrest';
(iii) of promoting or fanning the breaking down of the public order in the
Republic or in any area of the Republic or in any community;
(iv) of stirring up or fomenting feelings of hatred or hostility in members
of the public towards a local authority or a security
force, or towards members
or employees of a local authority or members of a security force, or towards
members of any population
group or section of the public;
(v) of promoting the public image
or esteem of any organisation
which is an unlawful
organisation under the
6
Internal Security Act, 1982 (Act 74 of 1982);
(vi) of promoting the establishment or activities of structures referred to in
paragraph (a) (viii) or (ix) of the definition of
'subversive statement'; or
(vii) of promoting, fanning or sparking boycott actions, acts of civil
disobedience, stay-aways or strikes referred to in paragraph
(a) (iii), (iv) or
(v) of the definition of 'subversive statement';
and
(b) that the said
effect which such systematic or repeated publishing in his opinion has or is
calculated to have is
causing a threat to the safety of the public or to the maintenance of public
order or is causing a delay in the termination of the
state of emergency, he
may, subject to subregulation (4), by notice in the Gazette issue a warning to
persons concerned in the production,
importation, compilation or publication of
issues of that periodical that the matter published in that periodical
or
7.
the way in which matter is published in that periodical, in his opinion, is
causing a threat to the safety of the public or to the
maintenance of public
order or is causing a delay in the termination of the state or emergency.
(2) In any examination under
subregulation (1) of a series of issues of
a
periodical, such series may include any issue of that periodical published
before the commencement of Proclamation R 123 of 1987 but
after 11 June
1987.
(3) If the Minister is of the
opinion, solely on examination of any issue
or
series of issues of a periodical published after a
warning under subregulation (1) has been issued in respect of that
periodical, that there is in the said issue or series of issues
a continuation
of a systematic or repeated publishing of matter, or of a systematic or repeated
publishing of matter in a way, which,
in his opinion, has or is calculated to
have an effect described in paragraph (a) of that subregulation and that the
said effect
which such systematic or repeated publishing in his opinion has or
is calculated to have is causing a
8
threat to the safety of the public or to the maintenance of public order or
is causing a delay in the termination of the state of
emergency, he may, subject
to subregulation (4), by notice in the Gazette issue an order -
(a) whereby the publication, during such
period as may be specified in the
order,
but not exceeding three months at a
time, of any further issue of that periodical is prohibited unless the matter to
be published in any such issue and the way in which
it is to be published in
such issue has previously been approved for publication by a person specified in
the order; or
(b) whereby the production, importation into
the Republic or publication,
during such
period as may be specified in the order,
but not exceeding
three months at a
time, of any further issue of that
periodical is totally
prohibited.
(4) No warning under sub-regulation (1)
nor any order under subregulation (3) shall be published unless the Minister
-
(a) has given notice in writing to the publisher or importer of the periodical
concerned of the fact that action under subregulation
(1) or (3), as the
case
9
may be, is being considered in respect
of that periodical, stating the grounds of the proposed action; and
(b) has given that publisher or importer an opportunity of submitting to him
in writing, within a period of two weeks, representations
in connection with the
proposed action."
Reg 7A thus confers upon the Minister (who is the
Minister of Home Affairs and of Communications) the power to issue an order
either whereby the publication of a periodical is made
subject, as to its
content, to the prior approval of a specified person (whom for convenience I
shall call "the censor") for a period
not exceeding three months or whereby the
production, importation or publication of a periodical is totally prohibited for
a period
not exceeding three months (see reg 7A(3) ). Any such order must be
preceded by a warning given in terms of reg 7A(1); but before
he can give such a
warning the Minister -
(a) must have examined a "series of issues" of the
10
periodical concerned;
(b) must have formed the opinion, on such examination,
that there is in that
periodical a systematic or
repeated
publishing of matter
or a
systematic or
repeated
publishing of matter in a way
which
is
calculated to have the effects set forth in paras
(a) and (b) of reg
7A(1);
(c) must have given notice in writing to the publisher
or importer
(henceforth, because of non-relevance
in this case, I shall omit reference
to
"importer") concerned informing him of the fact that a warning is being
considered in respect of that periodical and stating the
grounds of the proposed
action (reg 7A(4)(a) ); and
(d) must have given the publisher an opportunity of
submitting to him in
writing, within a period of
two weeks, representations in connection with
the
11
proposed action (reg 7A(4)(b) ).
Thereafter, before
making an order in terms of reg 7A(3) the Minister -
(1) must have given a similar written notice in terms of reg 7A(4)(a);
(2) must have given the publisher a similar opportunity to make written
representations; and
(3) must have formed the opinion, on an examinatioh of any issue or series of
issues of the periodical, that there is a continuation
of a systematic or
repeated
publishing of matter
or a systematic or repeated
publishing
of matter in a way
calculated to have the effects referred to in paras (a)
and (b) of reg 7A(1).
Proc R 123 also inserted the
following new definition in the regulations:
"'series of issues', in relation to
-
12
(a)
a periodical
which is a daily newspaper, means at least six different issues of that
newspaper whether or not issued on consecutive
days;
(b)
a periodical, other than a daily newspaper, which is ordinarily
issued at intervals of 10 days or less, means at least three different
issues of
that periodical whether or not issued during consecutive
intervals;
(c)
a periodical which is
ordinarily issued at intervals in excess of 10 days, means at least two
different issues of that periodical
whether or not issued during consecutive
intervals."
The appellant in this
appeal is the Catholic
Bishops Publishing Company, a company incorporated according
to the
company laws of the Republic and having its principal
place of business in
Johannesburg. Appellant carries on
business,
inter alia
, as a
publisher of periodicals. One
of its publications is a weekly newspaper
called "New
Nation".
On 1 October 1987 the Minister addressed a letter
13
to appellant. This letter was delivered to appellant the
following day. In it the Minister informed appellant that he had examined
a
series of three issues of New Nation; that, having done so, he was of the
opinion that there was a systematic and repeated publishing
of matter calculated
to have the effects referred to in reg 7A(1); that he was considering issuing a
warning under this sub-regulation;
and that appellant was thereby given the
opportunity to submit written representations to him within a period of two
weeks in connection
with the proposed action. I shall refer to this letter as
"the first notice". The three issues of New Nation referred to in the first
notice are those of 27 August - 2 September 1987, of 3 - 9 September 1987 and of
17 - 23 September 1987. It is common cause that
each of these issues was
published on the first date given.
In response to the first notice and on 14 October 1987
14 appellant
(through its attorneys) submitted written representations of a voluminous
nature. (They, together with various annexed
documents, occupy about 300 pages
of the appeal record.) Fortunately it is not necessary to refer to these
representations in detail.
I would merely mention at this stage that the
document contains a request that appellant be granted an interview by the
Minister
so as to have "the opportunity of debating the issue in person before
the Minister". Thereafter, on 6 November 1987, the Minister
wrote a further
letter to appellant's attorneys stating that after "careful consideration" of
appellant's representations it appeared
to him that appellant did not appreciate
the true import of reg 7A and had also misunderstood important aspects of his
original notification.
The letter further proceeded to elaborate upon this and
then concluded -
"In view of the gravity of the matter and
15
the fact that your clients' omission to deal with the matter on the basis as set
out above, may be attributed to a
bona fide
misunderstanding, I am
prepared to consider further representations from your clients provided that
such representations are submitted
to me in writing within a period of two weeks
from the date of receipt hereof.
In order to assist your clients I have prepared a
prima facie
evaluation
of the said articles as set forth in the Annexure attached
thereto."
I shall refer to this letter
as "the supplementary notice".
In reply to the supplementary notice and on 18 November 1987 appellant's
attorneys submitted further written representations (also
fairly voluminous),
dealing with the points raised by the Minister and the "
prima facie
evaluation" which accompanied the supplementary notice. These
representations, too, contain a request for a personal interview. In
a telex
dated 26 November 1987 the Minister stated that as appellant had been afforded
two opportunities
16
to submit written representations and had fully availed itself
of these opportunities, he was in a position to consider whether to
take further
action in terms of reg 7A and in the circumstances had decided not to accede to
the request for a personal audience.
This prompted a telexed reply from
appellant's attorneys on 27 November 1987 placing on record their client's
"grave concern" at
the Minister's refusal to entertain verbal representations.
Despite this, on the same date the Minister published in the Gazette
a notice
under reg 7A(1) giving the formal warning prescribed therein to persons
concerned in the production, compilation or publication
of New Nation. 1 shall
refer to this as "the warning notice".
On 5 December 1987 the Minister addressed a further written communication to
appellant stating that in terms of reg 7A(3) he had examined
the issue of New
Nation dated 3-9 December 1987; that he was considering issuing an
17
order under reg 7A(3)(a) or (b) in respect of New Nation; that
in order to assist appellant in the preparation of any representations
it might
wish to make in terms of reg 7A(4)(b) he had prepared a
prima facie
evaluation of the matter published in this issue of New Nation, particulars of
which were contained in a document annexed; and that
written representations had
to be submitted within two weeks. I shall call this "the second notice". Again
appellant responded by
submitting (on 21 December 1987) written representations
dealing with the matter in the issue of 3-9 December complained about by
the
Minister and reiterating its request for a personal audience.
Shortly thereafter appellant instituted proceedings on notice of motion in
the Witwatersrand Local Division (to be heard as a matter
or urgency), in which
the State President was cited as first respondent and the Minister as second
respondent and in which the substantive
18
relief claimed by the appellant consisted of (i) an interdict
restraining the Minister from issuing any contemplated order in terms
of reg
7A(3), (ii) orders declaring various provisions in reg 7A to be invalid, and
(iii) orders declaring certain of the action
taken by the Minister, purportedly
under reg 7A, to be invalid. The application was heard by Curlewis, Spoelstra
and Van Niekerk
JJ, who unanimously dismissed it, with costs. With leave of the
Court a
quo
, appellant now appeals to this Court against the whole of
this judgment.
Appellant's case, as presented in the Court a
quo
and before this
Court, is -
(a) that for various reasons reg 7A, or portions thereof, are invalid and that
such invalidity vitiates the action taken and proposed
to be taken by the
Minister against New Nation in terms of the regulation;
and
19
(b) that, alternatively, even if the regulation is valid, the action taken by
the Minister was flawed and invalid upon various
grounds.
And it was upon this basis that appellant
claimed the interdict and the declaratory orders referred to above.
The first target of appellant's attack upon the validity of reg 7A was
sub-reg (2) which empowers the Minister, in examining a series
of issues of a
periodical in terms of sub-reg (1), to have regard to an issue published
after
11 June 1987 (the date when the then-existing state of emergency
commenced and when the regulations were originally published) ,
but
before
the date of the commencement of the amending proclamation which
introduced reg 7A, ie 28 August 1987. This sub-regulation is of relevance
in
this case because of the publication on 27 August 1989 of one of the issues of
New Nation to which the Minister had regard for
the purposes of issuing the
warning. The appellant's
20
contention is that sub-reg (2) falls foul of the proviso to
sec 3(2)(b) of the Act, which provides as follows:
"(2) Without prejudice to the generality of the powers conferred by this section
-
(b) such regulations may be made
with
retrospective effect from the date from
which it has under section
two
been
declared that a state of emergency
exists within the
Republic or the area
concerned, as the case may be: Provided
that no such
regulation shall make
punishable any act or omission which was
not
punishable at the time when it was
committed; "
Mr
Browde
, who (with Mr
Marcus
as his junior) appeared for
the appellant, argued that an order made by the Minister in terms of reg
7A(3) amounts to a punishment and that consequently sub-reg
(2) makes
"punishable" an act,.namely the publication of an issue of the periodical in
question prior to the commencement of reg
7A, which at the time when it was
committed was not so punishable. Accordingly so it
21
was contended, reg (2) offends against the proviso and is
ultra vires
and invalid.
The ordinary meaning of the word "punishable", when used of
conduct, is "entailing punishment" (see The Oxford English Dictionary,
sv
"punishable"). "Punishment" is defined by the Oxford English Dictionary as: "the
action of punishing or the fact of being punished;
the infliction of a penalty
in retribution for an offence; also, that which is_ inflicted as a penalty; a
penalty imposed to ensure
the application and enforcement of a law." In the
Oxford Companion to Law
, compiled by David M Walker, "punishment" is said
to be -
"The infliction of some pain, suffering, loss, disability or other disadvantage
on a person by another having legal authority
to
impose punishment In modern
societies
punishment is generally confined to the
consequences of infraction of the
criminal
law "
22
This is similar to the definition of "punishment" given in
21 Am Jur 2nd
, par
576:
"Any pain, penalty, suffering or confinement inflicted on a person by authority
of law and the judgment or sentence of a court for
some crime or offense
committed by him".
(See also
S v
Nel
1987 (4) SA 950
(W), at 958 D - G;
Black's Law Dictionary
, 5th ed, sv "punishment".)
In my opinion, in an ordinary legal context the
term "punishment" has reference to some penalty imposed by a
court of law
for the commission of a criminal offence; and
"punishable", when applied to an act or omission, means an
act or omission which entails, or renders the person
concerned liable to,
such a punishment. The word
"strafbaar" in the Afrikaans text of sec 3(2)(b) likewise
means, in an
ordinary legal context: "wat straf verdien;
wat tot vervolging en straf kan
lei" (HAT sv "strafbaar) ;
23
and "straf" has a similar meaning to that which I have attributed to
"punishment."
In the light of the aforegoing, I am very doubtful whether an order made by
the Minister, in terms of reg 7A(3), for the temporary
appointment of a censor
to a periodical or for a temporary prohibition on the publication of the
periodical would constitute a punishment;
and, therefore, whether any act or
omission on the part of the publisher of, the periodical giving rise to the
order could be said
to be "punishable". Be that as it may and assuming that such
an order does constitute a punishment, I still do not thínk that
sub-reg
(2) conflicts with the proviso to sec 3(2)(b) of the Act. For the proviso to
operate the act or omission which is punishable
(ie liable to punishment or
entailing punishment) must have been one which was not punishable at the time
when it was committed.
Now it is true that the publication of an issue of a
periodical
24
containing matter falling within the ambit of sub-reg (l)(a), which took
place prior to the promulgation of Proc 123, could be described
as an act which
was not "punishable" when it was committed; but the question is whether such an
act could be said to render the publisher
liable to the so-called punishment of
an order under sub-reg (3). In my opinion, it could not. Sub-reg (2) is confined
to the examination
of a series of issues of a periodical which precedes a
warning. And it is only when an examination of a further issue or series of
issues of the periodical, published after the warning, reveals that the warning
has not been heeded and that there is a "continuation"
of the systematic or
repeated publishing of matter, etc, that the Minister may make an order. It is
this continuation that gives
rise to the order; and it is consequently only the
act or acts involved in such continuation that could be said to be punishable
by
the order, assuming that the latter
25
constituted a punishment. For these reasons the first ground of invalidity
must be rejected.
The next point raised by the appellant relates to the validity of reg 7A(1).
It was submitted that this sub-regulation purports to
vest discretionary powers
in the Minister which are greater than the powers enjoyed by the State President
himself under the Act.
And in this connection Mr
Browde
placed emphasis
on the fact that the sub-regulation refers no less than three times to the
"opinion? of the Minister. It was further
argued that the delegation of powers
by the State President to the Minister under reg 7A(1) offends against the rule
that save in
exceptional circumstances (which do not apply in this case) a
subordinate authority may not confer an unfettered discretion on a
public
officer in a manner which affects the ordinary common law rights of the citizen.
It also offends
26
against the rule that the repository of a power to make delegated legislation
may not sub-delegate that power to another. On these
grounds, so it was argued,
the sub-regulation is
ultra vires
and invalid.
The starting-point of any enquiry as to whether or not delegated legislation
is
ultra vires
is the empowering statute, its nature and scope. As I have
indicated, under sec 3(1) (a) of the Act the State President is empowered-
to
make such regulations "as appear to him to be necessary or expedient" for
providing for the safety of the public or the maintenance
of public order and
for making adeguate provision. for terminating the emergency or for dealing with
any circumstances which in his
opinion have arisen or are likely to arise as a
result of the emergency. There is no doubt that this provision confers upon the
State
President powers of the widest possible character and leaves it to him to
decide what methods to follow in order to achieve the
27
purposes stated in the subsection (see
State President and Others v
Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others
1986
(4) SA 1150
(A), at 1182 B-F;
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 892 B-H;
Staatspresident en
Andere v United Democratic Front en 'n Ander
1988 (4) SA 830
(A), at 842
C-D, 845 H; also
Momoniat v Minister of Law and Order and Others; Naidoo and
Others v Minister of Law and Order and Others
1986 (2) 264 (W), at 268
B-271E, 277;
United Democratic Front v Staatspresident en Andere
1987 (4)
SA 649
(W), at 653 E-G). In the
United Democratic Front
case (AD case,
reported in 1988 (4) SALR) Rabie ACJ further stated (at p 842 D) -
"Die Wet magtig hom om, behalwe soos in die Wet bepaal, regulasies uit te
vaardig wat teen bestaande wette indruis indien dit na
sy
28
oordeel nodig of raadsaam is om dit te doen om die doeleindes wat in art 3(1)(a)
genoem word, te bereik."
With sec
3(1)(a), which delineates the general power, must be read sec 3(2)(a) which
creates a specific power in the following terms:
"(2) Without prejudice to the generality of the powers conferred by this section
-
(a) such regulations may provide for -
(i) the empowering of such persons or bodies as may be specified therein to
make orders, rules and by-laws for any of the purposes
for which the State
President is by this section
authorized to make regula-tions, and to prescribe penal-ties for any
contravention of or failure to comply with the provisions of
such orders, rules
or by-laws...."
In the
United Democratic Front
case (AD),
supra
, it was held by
the majority of the Court that the specific power
29
conferred upon the State President by this subsection is to
delegate by regulation to specified persons or bodies the competence to
make
orders, rules and by-laws and that this delegated competence is a legislative
one (see pp 844 J -845 B); and it would seem that
Van Heerden JA, who delivered
a minority, dissenting judgment, shared this view
(see pp 861 I - 862 A) . Indeed the power granted by sec
3(2)(a) to
prescribe penalties for any contravention of, or
failure to comply with, the
provisions of such orders, rules or by-laws is strongly suggestive of an
intention that orders, rules
or by-laws made under the subsection would be
legislative in character. In his aforementioned dissenting judgment Van Heerden
JA
indicated (at pp 861 I - 862 A) that the power of the State President, under
sec 3, to delegate legislative competence did not extend
beyond the provisions
of subsec 2(a). I am, with respect, inclined to share this view, but I do not
find it necessary in this case
to decide
30
the point. (See also the judgment of Grosskopf JA at p 873
G;
United Democratic
Front
case (WLD),
supra
, at 654 I
-
655 B.)
In elaboration of his submission that reg 7A(1) is
ultra vires
in that
it purports to vest in the Minister discretionary powers which are greater than
the powers enjoyed by the State President
himself under the Act, Mr
Browde
argued as follows (I quote from his heads of argument):
"Section 3(1)(a) of the Act authorises the
State President to make 'such regulations as appear to him to be necessary or
expedient' for certain specific purposes. By contrast,
Regulation 7A(1) vests
the Minister of Home Affairs with a discretion which is not confined to matters
which appear to the State
President to be 'necessary or expedient for providing
for the safety of the public, or the maintenance of public order and for making
adequate provision for terminating
the
31
state of emergency'. Everything is left to the 'opinion' of the Minister, a fact
emphasised no less than three times in the Regulation.
Indeed, the regulations
require the Minister to form an opinion on an
opinion."
I find it difficult, with
respect, to comprehend this argument. The powers conferred upon the Minister by
reg 7A are, in my opinion,
executive or administrative, perhaps quasi-judicial,
but certainly not legislative. The competence of the State President to confer
such powers by regulation must, therefore, derive, if at all, from sec 3(1)(a).
As I have shown, sec 3(1)(a) is of very wide import.
It has not been suggested -
nor do I think that it could be suggested - that a regulation curbing or placing
restrictions on the
systematic or repeated publication in periodicals of matter
(for the sake of brevity I omit reference to the systematic or repeated
publication of matter in a
way
) which has the effects defined in
paragraphs
32
(a) and (b) of reg 7A(1) - for convenience I shall call this "offensive
matter" - is beyond the competence of the State President.
In order that such a
regulation should operate in practice it is necessary that some person or body
must be vested with the power
to determine, in a particular case, whether the
periodical concerned has been publishing systematically or repeatedly offensive
matter.
This can only be done by reguiring such person or body to form an
opinion thereon. Theoretically the State President could have conferred
these
powers on himself, but obviously this is not a practical proposition; and in the
circumstances I cannot see why it should not
be competent for the State
President to confer the powers on the Minister of Home Affairs and
Communications. It is theoretically
possible, I suppose, that the Minister might
reach a decision in a particular case which is contrary to what the State
President
would have decided had he been seized of the
33
matter, but I cannot for this reason conclude that the sub-regulation is
ultra vires
(cf the comments of Rabie ACJ on a similar argument in the
United Democratic Front
case (AD),
supra
, at pp 845 G - 846
E).
The statements in counsels' heads that "everything is left to the 'opinion'
of the Minister" and that "the regulations require the
Minister to form an
opinion on an
opinion" do not, in my view, correctly reflect the position.
Basically, in terms of reg 7A(1) the Minister is reguired, on an examination
of
a series of issues of a periodical, to form an opinion on three separate
matters:-
(a) whether the periodical exhibits a systematic or
repeated publishing
(b) of matter which has or is calculated to have one or more of the effects
listed in sub-paras (i) to
(vii)
(c)
and whether the said effect of the systematic
or
34
repeated publïshing is causing a threat to the
safety
of the public or to the maintenance of
public order or is causing a delay in
the
termination of the state of emergency.
The various matters on which
the Minister is required to
form an opinion are thus limited and defined and
I do not
think that it is correct to say that he is reguired to form
"an
opinion on an opinion". In this connection I would
point out that the words
"in the opinion", appearing in reg
7A(l)(b), do not require the separate
formation of an
opinion: they merely appear as part of the description
of
the "systematic or repeated publishing", as determined in
accordance
with reg 7A(l)(a), which is required to cause, in
the Minister's opinion, the
results specified in reg
7A(l)(b).
I turn now to Mr
Browde
' s arguments that the delegation of powers to
the Minister under reg 7A(1) is
35
invalid in that it confers an unfettered discretion on a public officer and
constitutes an incompetent sub-delegation. It is true
that in general the
repository of a delegated power of legislation - and here we are dealing with
such a case, viz the power of the
State President to legislate by making
regulations - may not, in the absence of authorization in the empowering
statute, sub-delegate
his power to someone else. This principle is expressed by
the maxim
delegatus delegare non potest
. Such an incompetent
sub-delegation may occur where the repository of the legislative power, the
delegatus
, in the purported exercise of that power (say, by regulation)
confers upon another an unlimited discretion to deal with the matter
which is
the subject of the regulation. In such a case the effect of the regulation is to
make such other person, and not the
delegatus
, the legislator on the
matter with which the regulation seeks to deal. It amounts to an abdication
by
36
the
delegatus
of his power to legislate. This, in general, the
delegatus
cannot do, unless authorized thereto by the empowering statute.
(See generally
Natal Organic Industries (Pty) Ltd v Union Government
1935
NPD 701
, at 714-15;
Arenstein v Durban Corporation
1952 (1) SA 279
(A),
at 297 A - 298 F;
United Democratic Front v Staatspresident en Andere
,
supra
, at 652 H - I, 654 F - H;
Staatspresident en Andere v United
Democratic Front en 'n Ander
,
supra
, at 861 H - 863 C.)
In the
United Democratic Front
case (WLD),
supra
, at 657 G -
659 A Coetzee DJP (Preiss J and Stafford J concurring) emphasized the
distinction that must be drawn in this context
between the delegation of
legislative powers and the delegation of purely administrative powers. The Court
was there considering
the validity of reg 11 of the emergency regulations
promulgated on 11 June 1986, in terms of which the Minister (in that case the
Minister of Law and
37
Order) was empowered by the State President to order the
seizure of any publication which in his opinion contained a "subversive
statement" (defined in the regulations) or -
".... any other information which is or may be detrimental to the safety of the
public, the maintenance of the public order or the
termination of the state of
emergency."
With reference to this
regulation Coetzee DJP remarked (at 657 H - 758 A) -
"Wat onmiddellik tref by die lees van hierdie regulasie en wat hom onderskei van
reg 7, is dat niks daarin slaan op enige vorm van
wetgewende bevoegdheid wat
verleen word nie. Dit is nie asof enigiemand enige algemene reël of iets
wat beskryf kan word as
h verordening of iets van daardie aard, kan uitvaardig
nie. Dis magsverlening tot ad
hoc
administratiewe optrede of handeling
puur en simpel.
Wanneer die kwessie van delegasie ter sprake kom, is dit nodig om te weet
presies
38
wat dit is wat die onderwerp vorm van die beweerde delegasie. Daar is in die
administratiefreg 'n baie duidelike verskil wat getrek
moet word tussen
delegasie van wetgewende bevoegdheid en delegasie van bevoegheid nie om algemene
reëls te maak nie maar om
op te tree en slegs uitvoerende handelinge te
verrig.
Naidoo and Others v Johannesburg City Council and Others
1979 (4)
SA 893
(W) illustreer hierdie verskil. Kyk bv op 897. Vgl ook
Minister of
Defence v Bourke
1950 (1) SA 393
(A) op
404."
Having further analysed the
nature of reg 11, the learned Judge concluded that the powers conferred on the
Minister thereby had nothing
to do with the delegation of legislative power, but
were typical of the powers which were included in the wide authorization given
the State President by sec 3(1)(a) of the Act. Referring to the State President,
Coetzee DJP further stated (at 658 H - 1) -
"As wetgewer kon hy net soos die Parlement of enige ander
wetgewer wat met
39
wetgewende mag van hierdie wydlopende aard beklee is, wetgewing uitvaardig
waardeur uitvoerende bevoegdhede en diskresies met of
sonder spesifiek beskrewe
magte van delegasie of subdelegasie verleen word. Dit moet onthou word dat hy
dit nie oordra of dit doen
as bekleër van slegs uitvoerende of
administratiewe bevoegdhede nie. Indien dit so was, kon die applikant se
argument moontlik
opgaan. Inteendeel, hy is self die
skepper van daardie tipe bevoegdheid in reg 11
qua
wetgewer en staan dit
hom vry om die bevoegdheid ten opsigte van ad
hoc
uitvoerende optrede te
koppel aan diskresies hetsy vry of gebonde, subjektief of objektief, ongeag of
dit deur 'n
delegatus
of
subdelegatus
uitgeoefen word."
This approach is consistent with the basic principle underlying the rule
delegatus deleqare non potest
, viz. that the repository of a statutory
power is not normally entitled, in the absence of statutory authorization, to
delegate the
exercise of
that
power. If
40
the power in guestion is a power to legislate, then this principle would
apply to a purported delegation of
legislative
power, but not
prima
facie
to the conferment of executive or administrative powers to deal ad
hoc
with particular cases. Of course, the conferment of what appear
ostensibly to be ad
hoc
administrative powers may in truth amount to the
delegation of the power to legislate and thus fall foul of the rule.
Arenstein
's case,
supra
, would appear to be an example of this.
Much would depend, however, on the nature and ambit of the powers conferred and
the statutory
authority under which this was done. Relevant in this connection
is whether or not what is conferred on the sub-delegee amounts to
an arbitrary
discretion to be exercised in each case without any guide-lines being laid
down.
Furthermore, certain exceptions to the general rule against sub-delegation
have been recognized. As was
41
stated by Feetham JP in the
Natal Organic Industries
case,
supra
, at 713-14 (quoting what he had previously said in
Farah v
Johannesburq Municipality
1928 TPD 169
, at 174) -
"By-laws which confer discretionary powers on officials are not for that reason
necessarily to be held unreasonable and therefore
invalid. The nature of the
particular decision which is required, and the conditions under which it has to
be given have been held
to justify the granting of discretionary authority to
officials to make that decision in two classes of cases; (1) in cases, of which
the regulation dealt with in
Lewis v Rex
,
[1910] T.S. 413
, affords an
example, where authority is given to a skilled official, who is qualified to
bring a trained judgment to bear on all
the factors of a complicated situation,
such as cannot adequately be covered by rigid rules made in advance; and (2) in
cases, of
which the by-law considered in
Smith v Germiston Municipality
,
[1908] T.S. 240
, conferring discretion on the superintendent of a native
location to order a person to leave
the
42
location, is an example, where authority is given to the official on the spot to
decide,
in the light of the actual circumstances of the moment, a particular question
which may fairly be regarded as requiring immediate
decision."
(See further
Natal
Newspapers (Pty) Ltd and Others v State President of the Republic of South
Africa and Others
1986 (4) SA 1109
(N), at 1119 I - 1120 D). I do not think
that the exceptions to the general rule are necessarily confined to the two
instances referred
to in this quotation. It all depends ultimately upon the
scope and terms of the enabling section and the nature of the discretionary
authority conferred by the delegated legislation.
If these principles be applied to reg 7A(1) of the regulations, then, in my
opinion, the making thereof did not amount to an improper
sub-delegation by the
State President of the power of legislation conferred upon him by
43
sec 3(1) (a) of the Act. As I have pointed out, the powers conferred upon the
Minister by reg 7A(1) are not legislativé in
nature. They are executive
or administrative (perhaps quasi-judicial) powers, to be exercised ad
hoc
in regard to particular periodicals. The powers, and the procedures for their
exercise, are specified in detail in reg 7A(1), and
also in sub-regs (2), (3)
and (4), and it cannot be said that in terms thereof the State President
conferred upon the Minister unfettered
discretionary powers with no guidelines
as to how the latter was to act. In my opinion, the position is quite the
contrary. Necessarily
the exercise of the powers created by reg 7A(1) involves
the formation of certain value judgments and this is where the opinion of
the
Minister comes into the picture, but I can find no ground for holding that this
renders the sub-regulation
ultra vires
and invalid.
The third ground of attack upon reg 7A centres
44
upon the use of the word "solely" (Afrikaans: "bloot") in the opening
portion of sub-reg (1). Upon the premise that in terms of the
sub-regulation the
Minister is required to act solely on an examination of a series of issues of a
periodical and consequently may
not have regard to any other relevant or
material fact or circumstance, Mr
Browde
argued that a manifestly unfair
and grossly unreasonable situatioh arises, since it is trite that a person
vested with a discretion
is obliged to base his decision on all relevant
considerations. Consequently, so it was contended, the sub-regulation is
ultra vires
and invalid.
I cannot agree. Even assuming the premise to be correct, I am doubtful
whether the result would be that the sub-regulation is put
beyond the very wide
powers of delegated legislation accorded to the State President under sec 3 of
the Act. But be that as it may,
I am convinced that the premise does not
represent a correct interpretation
45 of the sub-regulation. What the word
"solely ("bloot") connotes, in the context of reg 7A(1), is that as far as the
published material
is concerned the Minister may come to the opinion predicated
by the sub-regulation merely on an examination of a series of issues
of the
periodical in question: it does not mean that in evaluating the matter contained
in these issues and deciding whether there
has been a systematic or repeated
publishing with the effects stated in the sub-regulation the Minister must close
his eyes to relevant
facts and surrounding circumstances. In
fact, it would
often not be practically feasible to make the
value judgments involved
without viewing the published matter in the context of the general situation in
the country. There is, accordingly,
in my view, no substance in this ground of
attack.
Fourthly, appellant's counsel contended that the vagueness and uncertainty of
meaning of various words and
46
phrases in reg 7A(1) invalidates the sub-regulation. In this regard Mr
Browde
acknowledged that the majority decision in the
United
Democratic Front
case (AD),
supra
, stood in his path, but he invited
this Court to depart from that decision. In that case it was held by the
majority that the ouster
provision in sec 5B of the Act precluded the Court from
pronouncing on the validity of a regulation madê by the State President
in
terms of sec 3 of the Act where it was assailed on the ground of vagueness (see
particularly pp 852 H - 855 H, 866 F - 873 C).
The reluctance of this Court to depart from a previous decision of its own is
well-known. Where the decision represents part of the
ratio decidendi
and
is a considered one (as is the position in this case) then it should be followed
unless at the very least, we are satisfied that
it is clearly wrong (see
Government of Lebowa v Government of the Republic of South Africa. and
Another
47
1988 (1) SA 344
(A), at 361 B - D). Mr
Browde
advanced various
arguments aimed at showing that the majority decision in the
United
Democratic Front
case (AD),
supra
, was an incorrect one. I do not
propose to deal with these arguments in detail. I have carefully considered
them, but I remain unpersuaded
that the majority decision in the
United
Democratic Front
case (AD),
supra
, on this particular point is
clearly wrong. I am, therefore, precluded by sec 5B from considering the
arguments directed at the alleged
vagueness of reg 7A(1) in various
respects.
The fifth ground of attack upon reg 7A is directed at sub-reg (3)(a) which
empowers the Minister to make an order prohibiting the
publication of the
periodical in question unless the matter to be published therein has been
approved for publication by a censor,
who is to be "a person specified in the
order". The choice and the appointment of the censor are thus left in the hands
of the Minister.
It
48
was contended on appellant's behalf that this proyision is invalid in that
-
(1) it amounts to an improper sub-delegation to an unnamed person; and/or
(2) the person specified by the Minister is given an entirely free hand without
any guidelines.
I do not think that either of these
contentions is well-founded. Admittedly sec 3(2)(a) of the Act enacts that
regulations made by
the State President under sec 3 may provide for the
empowering of such persons "as may be specified therein" (i e in the
regulations)
to make orders, rules and by-laws, etc. Consequently were the State
President's powers to make regulations confined to those conferred
by sec
3(2)(a) there might be some difficulty in holding that sub-reg 3(a), in so far
as the power to appoint a censor (an unspecified
person) is concerned, was
intra vires
. But, of course, the State President's powers are
49
not confined to those specified in sec 3(2)(a). The general power, as I
have indicated, is to be found in sec 3(1) (a); and sec 3(2)(a)
deals wïth
the delegation by the State President of legislative powers by way of order,
rule or by-law. The powers conferred
on the censor are clearly not legislative
in character and consequently the source of the State President's authority to
provide
for his appointment must be sought in sec 3(1)(a). Having regard to the
amplitude of the power to make regulations under sec 3(1)(a),
I do not think
that the State President can be held to have acted
ultra vires
when he
made provision in reg 7A(3)(a) for a censor to be appointed by the Minister in
the circumstances prescribed by that sub-regulation.
It is not suggested that a
provision for the appointment of a censor
as such
is
ultra vires
;
and I think that it could hardly be expected that the State President should
himself always name and appoint the censor by regulation.
Moreover, it seems
50
likely that the Minister would be in a better position to
select a suitable person for appointmént. There is, in my opinion,
no
basis for holding that the conferment of this power of appointment amounts to an
improper sub-delegation.
As to the argument that the censor has been given an entirely free hand
without any guidelines, it seems to me that it is necessarily
implicit in reg
7A(3) (a) that in deciding whether or not to approve the publication of matter
in the periodical concerned the censor
must be guided by the criteria laid down
in reg 7A(1). The obvious intention underlying reg 7A, read as a whole, is the
prevention
of the systema'tic or repeated publishing of what I have termed
"offensive matter". If, despite warning, a publisher continues to
do so, then
the Minister may either appoint a censor or prohibit publication (each for a
period not exceeding three months), clearly
in order in that way to prevent the
publication of offensive matter. A censor who
51
used his powers to censor arbitrarily or indiscriminately, and not merely to
eliminate offensive matter, would, in my view, be acting
ultra vires
. (Cf
the limitations implied in other emergency regulations in
Tsenoli
's case,
supra
, at 1183 C - 1184 F;
Omar
's case,
supra
, at p 896 H -
897 C;
Visagie v State President and Others
1989 (3) SA 859
(A), at 870
D-F; and of
Natal Newspapers
case,
supra
, at pp 1125 G 1126 B. )
The absence of express guidelines in reg 7A(3)(a) does not, therefore, result in
its invalidity.
That concludes my consideration of the grounds advanced by appellant's
counsel in support of the contention that portions of reg 7A
are invalid. As
appears from the aforegoing, none of these grounds is in my opinion
well-founded. I turn now to the contention that
the action taken by the Minister
under the regulation in respect of New Nation was flawed and invalid in various
respects.
The first point raised in this connection was that
52 the first notice (dated 1 October 1987) failed to comply with the
requirements of reg 7A (4) (a) in that it did not state the "grounds"
of the
proposed action: it merely recited the words of the regulations. This rendered
the opportunity to make representations in
connection with the proposed action
"meaningless". In this connection counsel referred, by way of analogy, to sec
28(3)(b) of the
Internal Security Act 74 of 1982, which reguires the Minister,
when ordering preventive detention, to give a written statement setting
forth
the "reasons" for the detention of the person concerned; and to the case of
Nkondo and Others v Minister of Law and Order and Another; Gumede and Others
v Minister of Law and Order and Another; Minister of
Law and Order v Gumede and
Others
1986 (2) SA 756
(A), in which it was held that a written statement
merely informing the person concerned of the statutory grounds for his detention
did not constitute a setting forth of the "reasons" for his
53
detention and, , therefore, did not comply with the requirements of sed
28(3) (b) : see pp 772 I - 775 B. In relying on
Nkondo
's case, counsel
equated in meaning the words "grounds" and "reasons". I am not convinced
that
this equation is justified. As appears from the pages of the report
referred to, this Court drew a distinction in
Nkondo
's case,
supra
, between the statutory grounds for detention and the reasons
therefor; and it seems to me that there is much to be said for the view
that the
word "grounds" in reg 7A(4)(a) simply means one or other of the statutory
grounds set forth in reg 7A(1). At all events,
whatever the precise meaning of
"grounds" may be, I do not think that a duty to state grounds is as extensive as
the duty to give
reasons. Counsel's reliance on
Nkondo
's case is,
therefore, in my opinion, misplaced.
It is true that the f irst notice (in para 3) merely lists the various items
in the three issues of the
54
New Nation involved which are said to constitute offensive matter, in various
groups, and indicates which of the sub-paragraphs of
reg 7A(1) applies. Thus,
for example, each of the f irst group of five items, which are taken f rom all
three issues, are said to
have or be calculated to have the effect of promoting
or fanning revolution or uprising in the Republic or acts aimed at the overthrow
of the Government otherwise than by constitutional means. This obviously has
reference to sub-para, (i) of reg 7A(l)(a). The other
groups are linked
respectively to sub-paras (iii), (iv) and (v). But, as 1 have already recounted,
on 6 November and after appellant
had submitted its first set of written
representations the Minister sent the supplementary notice to the appellant.
This included
the "
prima facie
evaluation" of the various items listed in
the first notice. This
prima facie
evaluation elaborates substantially
upon the grounds set forth in the first notice. Without going
55
into detail, I am satisfied that the first notice, read together with
the supplementary notice, sufficiently sets forth the grounds
for the Minister's
proposed action, whatever the precise meaning of "grounds" in reg 7A(4)(a) may
be.
Appellant's counsel seek to neutralize the effect of the supplementary notice
by arguing that because of its alleged defects the first
notice was a nullity
and that as a result thereof the whole procedure under reg 7A was invalidated;
and that, in any event, the supplementary
notice had "no legal status".
It seems to me that this argument involves an
unduly technical approach. Assuming in appellant's favour
that the first
notice insufficiently set forth the grounds
of the Minister's proposed
action, I fail to see why its
defects could not validly be remedied by a
supplementary
notice. Although normally the "notice in writing"
56
referred to in reg 7A(4)(a) would comprise a single document, the
sub-regulation does not appear to preclude or forbid the notice
being contained
in more than one document. Nor, on the facts of this case, does appellant appear
to have been prejudiced in any way
by the issue of a first notice and a
supplementary notice. Indeed, the supplementary notice invited further written
representations
and appellant availed itself of the opportunity to make them.
Accordingly, I hold that the Minister's notice in writing did sufficiently
state
the grounds of his proposed action.
Further criticisms levelled at the notices (ie the first and supplementary
notices) were that -
(a) the material part of the first notice, viz para 3, states why in the
Minister's opinion certain articles have or are calculated
to have certain of
the effects defined in reg 7A(l)(a), but fails
to
57
state that in relation thereto the Minister has formed the requisite opinion
that the effect of the systematic or repeated publishing
of the articles in
question is to cause one or other of the situations mentioned in reg
7A(l)(b);
(b) in the first notice the Minister refers merely to
the matter published as
such, whereas in the
supplementary notice he speaks of the publishing
of
matter or the publishing of matter "in a way"
calculated to have certain
effects, and in the
prima facie
evaluation he again speaks only of publishing of matter "in a
manner" calculated to have certain effects; this, it is said, is not
only
confusing to the recipient of the notices (the appellant) but also shows
confusion in the mind of the Minister;
(c) in the first notice it
is stated, in the various
58
sub-paragraphs of para 3, that
each
of the articles listed has or is
calculated to have the effect specified (this leading to the appellant in its
first written representations
placing emphasis on the effect of each article),
while in the supplementary notice it is indicated that the case is that the
articles,
"considered as a whole", constituted a systematic or repeated
publishing of matter, etc; and it is argued that this, too, is contradictory
and
confusing; and
(d)the supplementary notice nowhere states that the Minister has formed the
reguisite opinion that the publishing of the articles
in guestion has the.
effects specified in reg 7A(l)(b) and at the same time fails to give any reasons
for reaching such a conclusion.
It is certainly true that the first notice and
the
59
supplementary notice are not models of lucid
draftmanship. Nevertheless, I do not think that the above points of criticism,
taken
either individually or together, are sufficiently substantial to enable
the Court to say that the Minister failed to comply with
the requirements of reg
7A(4)(a) as regards notice.
This sub-regulation requires, as a prelude to the issue of a warning under
reg7A(l) or of an order under reg 7A(3) -
(a) a notice in writing from the Minister to the publisher of the periodical
concerned,
(b) intimation in the notice of the fact that action under reg 7A(1) or reg
TA(3) is being considered in respect of the periodical,
and
(c) a statement in the notice of the grounds of the proposed
action.
60
These basic requirements are imperative, but when it comes to the way in
which the grounds are expressed in the notice it seems to
me that it is
sufficient if there is substantial compliance with the sub-regulation in the
sense that the publisher concerned is
adequately apprised of the "case" against
him so that he can make appropriate representations to the Minister in
connection with
the proposed action (cf
Nkisimane and Others v Santam
Insurance Co Ltd
1978 (2) SA 430
(A), at 434 H - 435 F). Such a notice does
not have to be drafted with the precision and comprehensiveness of, say, a
pleading.
As I have indicated, the two notices should be read together. So read, I
think that it clearly emerges
that the Minister informed the appellant that, with
the reference to/issues of New Nation examined by him, he had
formed the opinion
both
that there was a systematic
publishing of matter which had, or was calculated to have,
61
the effects set forth in reg 7A(l)(a) and those stated in reg 7A(l)(b). It is
true that in regard to the effects stated in reg 7A(l)(b)
no specific reasons
are given (whereas in regard to the effects provided for in reg 7A(l)(a) reasons
are given) but, as I have held,
"grounds" and "reasons" are not the same
concept. Moreover, if, for example, the Minister is of the opinion that there
has been a
systematic or repeated publishing of matter calculated to promote or
fan revolution or uprisings, then the further opinion that this
effect is
calculated to cause a threat to the safety of the public or the maintenance of
public order hardly demands elaborate rationalization.
The grounds for the
second opinion are self-evident. And, in my view, this disposes of criticisms
(a) and (d) above.
As to point (b) above, I do not think that the two notices, read together,
leave any doubt that the Minister was of the opinion which
he held by reason
both of the
62
matter contained in the articles specified and the way in
which this matter was presented. No doubt, in some individual instances
the
intrinsic nature of the matter would have been the dominant factor and in others
the way or manner of presentation may have assumed
greater importance, but I do
not think it was incumbent upon the Minister to endeavour to evaluate this in
relation to every individual
item.
As to (c) above, the first notice does not, in my view, convey that the
Minister did not have regard to the
cumulative effect of the articles - indeed the idea of the
cumulative effect is inherent in the statement that there is
"a systematic and repeated publishing of matter" - and the
supplementary
notice makes it clear that he considered the
articles "as a whole" in
reaching his conclusions. There
is no substance in this criticism.
The next point raised by Mr
Browde
relates, as I
63
understand the position, to the manner in which the Minister formed the
opinion which led to his giving the warning under reg 7A(1).
In the first place,
counsel emphasized the use in the
prima facie
evaluation of certain
words, such as "tends", "derogative", "negative", "negatively", which do not
appear in reg 7A(1) and argued
that this showed that the Minister had wrongly
exercised his discretion. I do not propose to discuss this argument in detail. I
have
carefully considered the use of these words in their context and in the
light of what is stated in the Minister's affidavit in this
regard and am
satisfied that they do not indicate any such wrongful exercise of
discretion.
Secondly, it is contended that the Minister's failure to grant the appellant
a personal audience contravened the principle of
audi alteram partem
. In
this connection counsel for the appellant referred to a meeting held by the
Minister on 2 September 1987 with a number of
64
newspaper editors and senior journalists at which the Minister
"briefed" them on the new measures introduced by Proc R123. At this
meeting the
Minister indicated that he was in favour of an "open-door" policy and that much
could be settled by without-prejudice
discussions. The regulation lays down an
elaborate procedure for hearing the party concerned (by way of written
representations)
and in the circumstances, where this procedure has been adhered
to, I do not think that the Minister can be held to have acted unfairly
if he
jibs at a personal interview as well. Nor do I think that (as argued by
appellant) what was said by the Minister at the meeting
of 2 September 1987
raised a "legitimate expectation" (cf
Administrator of the Transvaal
.
and Others v Traub and Others
(AD) 24 August 1989) that a party against
whom action under reg 7A was contemplated would be entitled to a personal
interview before
the action was taken.
65
Thirdly, it was argued that the Minister took into account
extraneous factors in forming his opinion. This argument was founded upon
a
statement by the Minister in his answering affidavit to the following
effect:
Ek het die gemelde vertoë, tesame met die Applikant se eerste vertoë,
deeglik in ag geneem. Met inagneming van die vermelde
vertoë sowel as die
ander tersaaklike inlig-ting waaroor ek beskik het, was ek van oor-deel dat daar
in NEW NATION stelselmatige
of herhaalde publisering van stof of 'n
stelsel-matige of herhaalde publisering van stof op 'n wyse was wat volgens my
oordeel die
uitwerk-ing het of bereken was om die uitwerking te hê soos
uiteengesit in Regulasie 7A(l)(a)(i), (iii), (iv) en (v) en dat
sodanige
uitwerking wat die stelselmatige or herhaalde publise-ring volgens my oordeel
gehad het 'n bedreig-ing vir die veiligheid
van die publiek of vir die
handhawing van die openbare orde of 'n vertraging in die beëindiging van
die noodtoestand veroorsaak
het."
The
Minister went on to say that by reason of the aforegoing
66
he issued the warning. Later in his affidavit the Minister stated:
"Nadat ek die Applikant se skriftelike vertoë ontvang het, is dit met
inagneming van alle ander tersaaklike inligting waaroor
ek beskik het, bona fide
en behoorlik en sonder enige bymotiewe oorweeg en is die oordeel gevorm dat dit
nodig is dat ek 'n bevel
kragtens die bepalings vervat in Regulasie 7A(3)(b)
moet uitreik met werking vanaf datum van afkondiging van die bevel tot en met
8
April 1988."
Thus at each stage the
Minister had regard to "ander tersaaklike inligting", but there is no indication
as to what this information
comprised. In the appellant's replying affidavit
(deposed to by Bishop Orsmond) the deponent stated, with reference to these
passages
in the Minister's answering affidavit -
" there is mention of certain relevant
information which was at the disposal of the
67
second respondent but which was not made available to the applicant to enable
it to deal therewith."
At the hearing below no attempt was made, by cross-examination or otherwise,
to elucidate the position in regard to this other relevant
information: what it
was, how it was used, whether it ought to have been conveyed to the appellant,
and so on. The onus to establish
that reliance on this information vitiated the
Minister's decisions rested on the appellant and in the circumstances it cannot
be
said
that appellant discharged this onus.
Finally, it was argued on appellant's behalf that the second notice does not
comply with reg 7A(4)(a), read with reg 7A( 3) , in that
it does not state the
grounds for the proposed action. The second notice, as I have said, has annexed
to it a "prima facie evaluation"
of the offensive matter contained in the issue
of the New Nation of
68
3 - 9 December 1987. Having regard to what I have previously stated in
regard to the meaning of "grounds" in the sub-regulation, I
am not persuaded
that the second notice is defective in this regard.
For these reasons the appeal fails and is dismissed with costs, including the
costs of two counsel.
M M CORBETT
HOEXTER JA)
NESTADT JA)
STEYN JA) CONCUR.
F H GROSSKOPF JA)