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[1990] ZASCA 18
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Mweuhanga v Administrator-General of South West Africa and Others (270/89) [1990] ZASCA 18; [1990] 2 All SA 211 (A) (20 March 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
VICTORIA
MWEUHANGA
Appellant
and
THE ADMINISTRATOR-GENERAL OF SOUTH
WEST
AFRICA
First Respondent
THE STATE PRESIDENT OF THE REPUBLIC
OF SCUTH AFRICA
Second Respondent
THE ATTORNEY-GENERAL FOR SOUTH
WEST AFRICA
Third Respondent
THE MINISTER OF DEFENCE
Eourth
Respcndent
CORAM:
CORBETT, CJ, HOEXTER, E M GROSSKOPF, SMALBERGER
JJA
et
NICHOLAS, AJA
HEARD:
19 February
1990
DELIVERED:
20 March 1990
JUDGMENT E M GROSSKOPF JA
This is an appeal against the refusal by
the Supreme Court of South West Africa (MOUTON J) of an application to
compel
2
the production of a document for the appellant's inspection in terms of Rule
35(12) read with Rule 30(5) of the Uniform Rules of Court.
To understand the
issues it is necessary to set out the background in some detail. It is as
follows.
On 28 November 1985 the appellant's husband was killed by members of
the South African Defence Force in Ovambo, South West Africa.
The
Attorney-General of South West Africa indicted four members of the South African
Defence Force on a charge of the murder of the
deceased. Thereafter the State
President of the Republic of South Africa, purporting to act under section 103
ter of the Defence
Act, no. 44 of 1957, authorized the Cabinet of the Interim
Government for South West Africa, ("the Cabinet") to issue a certificate
directing that the proceedings should not be continued.
This section, in so far as it is relevant for
present
purposes, reads as follows:
"(4) If any proceedings have at any time been instituted in a court of law
against the State, the State President, the Minister, a
member of the South
3
African Defence Force or any other person in the service of the State and the
State President is of the opinion -
(a) That the
proceedings were instituted by
reason of an act advised, commanded,
ordered,
directed or done in good faith by the State
President, the
Minister or a member of the
South African Defence Force for the
purposes
of or in connection with the prevention or
suppression of
terrorism in an operational
area; and
(b) that it is in the national interest that
the proceedings shall not be
continued,
he shall authorize the Minister of Justice to issue a certificate directing that
the proceedings shall not be continued.
(5) The
State President shall not authorize the Minister of Justice as contemplated in
subsection (4) except after having considered
a report by the Minister
(
scil
., of Defence) setting forth the circumstances under which the act
in question took place as well as the factors indicating that that
act was
advised, commanded, ordered, directed or done in good faith and for the purposes
of or in connection with the prevention
or suppression of terrorism in an
operational area."
It is common cause that the function assigned to
the
Minister of Justice in this section was, at the
time, exercisable
in South West Africa by the Cabinet pursuant to the provisions
of sec. 29 of Proclamation R 101 of 1985. The Cabinet, having
4
been advised that it had no alternative in law, issued the certificate on 27
June 1986 and the prosecution then terminated.
The appellant instituted
proceedings on notice of motion in the Supreme Court of South West Africa for
the setting aside of the certificate
so as to enable the prosecution to proceed.
She cited as respondents,
inter alios
, the Cabinet, the State President,
and the Minister of Defence. For convenience I shall refer to these proceedings
as "the main application".
An issue in the main application was whether the
State President had been furnished with a proper report by the Minister of
Defence
as required by section 103 ter (5) of the Defence ActT On behalf of the
Minister of Defence an affidavit was filed by Col. P J de
Klerk of the South
African Defence Force. Col. de Klerk stated
inter alia
that he had been
instructed to investigate whether the circumstances of the deceased's death fell
within the terms of section 103
ter of the Defence Act. He came to the
conclusion that action in terms of section 103 ter (4) of the Act was justified
and, indeed,
necessary. He
5
therefore prepared a report as contemplated by section 103 ter (5) for the
consideration of the Minister of Defence. In his affidavit
Col. de Klerk set out
a summary of the report, but added that he did not consider it advisable in the
public interest to attach the
report itself to his affidavit. His draft report
was signed by the Minister of Defence and submitted to the State
President.
The then State President, Mr. p W Botha, filed an affidavit
confirming the facts, in so far as they related to him, set out in Col.
de
Klerk's affidavit.
On receipt of Col. de Klerk's affidavit, the appellant
gave notice in terms of Rule 35(12) of the Uniform Rules of Court requiring
the
Minister of Defence to produce for her inspection certain documents to which
reference was made in Col. de Klerk's affidavit.
Among these documents was "the
'report' purportedly in terms of Section 103 ter (5) ...". The Minister refused
to produce this document
"op grond daarvan dat gemelde verslag die veiligheid
van die Staat raak en dat blootstelling daarvan die
6
veiligheid van die Staat nadelig sal raak". Thereafter, on 28
June 1988,
the appellant applied on notice of motion for an order
directing the Minister
of Defence to comply forthwith with her
above-mentioned notice, and to
produce for her inspection certain
documents, of which the only one still in
issue is the report in
terms of section 103 ter (5). I shall refer to this
application
as "the interlocutory application". In opposition to the
interlocutory application Col. de Klerk filed an affidavit
attaching an
affidavit by the Minister of Defence said to have
been made in terms of
section 66 of the Internal Security Act,
no. 74 of 1982 and section 29 of the General Law Amendment Act,
no. 101 of
1969. The Minister's affidavit reads as follows:
"BEëDIGDE VERKLARING IN TERME VAN ARTIKEL 66 VAN DIE WET OP BINNELANDSE
VEILIGHEID, WET NO 74 VAN 1982 EN ARTIKEL 29 VAN DIE
ALGEMENE REGSWYSIGINGSWET,
WET NO. 101 VAN 1969 Ek, die
ondergetekende,
MAGNUS ANDRE DE MERINDOL MALAN
verklaar hiermee onder eed as volg:
1 . Ek is die Minister van Verdediging van die Republiek van Suid-Afrika en
die verantwoordelike Minister vir die doeleindes van Artikel
66 van die Wet
op
7
Binnelandse Veiligheid, Wet No. 74 van 1982, en Artikel 29 van die Algemene
Regswysigingswet, Wet No. 101 van 1969.
2. Ek het in die onderhawige aangeleentheid op 7 Mei 1986 h verslag ingevolge
Artikel 103 ter(5) van die Verdedigingswet 44 van 1957
aan die Tweede Respondent
(the State President) voorgelê. Ek het ook ter insae gehad h opsomming
deur Kolonel PETRUS JACOBUS
DE KLERK soos vervat in paragraaf 9 van sy
beëdigde verklaring gedateer 27 Januarie 1988 in die aangeleentheid van
VICTORIA
MWEUHANGA en DIE KABINET VAN DIE TUSSENTYDSE REGERING VIR
SUIDWES-AFRIKA EN ANDERE.
3. Ek het persoonlik die bogemelde verslag en opsomming oorweeg en na my
oordeel, raak die verslag, uitgesonderd die opsomming van
Kolonel DE KLERK, die
veiligheid van die Staat en sal die blootlegging van die volledige verslag, na
my oordeel, die veiligheid van
die Staat nadelig
raak."
The appellant persisted with the
interlocutory application. It came before MOUTON J, and was refused with
costs.
In due course the main application was heard by a Full Court
consisting of MOUTON, LEVY and HENDLER JJ. After hearing argument the
Court
granted the application and set aside the certificate purportedly issued in
terms of section 103 ter of the
8
Defence Act, with certain ancillary relief. The judgment of the Court is
reported as
Mweuhanga v. Cabinet of the Interim Government of South West
Africa and Others
1989(1) SA 976 (SWA).
The Cabinet and the State
President applied for leave to appeal against the order given in the main
application. The appellant in
turn applied, conditionally on leave being granted
in the main application, for leave to appeal against the order in the
interlocutory
application. All applications for leave to appeal were granted.
However, the appeal in the main application was withdrawn on 15 February
1990.
The reason for this was that Government Notice AG 16 of 9 February 1990 had
declared a general amnesty in respect of persons
"who while they were members
of... the South African Defence Force, including the South West African
Territory Force, in the performance
of their duties and functions in the
territory have performed ... any act which amounts to a criminal offence ..."
The appellants
in the main application considered that this provision applied to
the accused persons in respect of whom the State President had
9
purported to issue the certificate in terms of section 103 ter of the Defence
Act, and that the validity of the certificate had consequently
become
academic,
In the result it is only the appeal in the interlocutory
application which is before us. Initially the State President opposed this
appeal, but he has withdrawn his opposition and the appeal is now unopposed. Of
course, the mere fact that an appeal is unopposed
does not release this Court
from the duty of examining its merits. Before I do so, however, there are
certain preliminary matters
with which I should deal. First, the powers, duties,
functions, rights and obligations of the Cabinet have now been transferred to
the Administrator-General of South West Africa pursuant to section 38(4) read
with sections 38(2)(b) and 6(1)(f) of Proclamation
R101 of 1985 (see
Proclamation R 13 of 1989). This transfer was confirmed by section 2 of
Proclamation AG 16 of 1989. In terms of
section 4 of the latter Proclamation the
Administrator-General replaced the Cabinet as a party in all uncompleted
proceedings, and
10
accordingly the Administrator-General was, at the inception of the hearing on
appeal, substituted on the record for the Cabinet. Second,
the appellant applied
for condonation of the late lodging of the Notice of Appeal and Power of
Attorney. The reason for the default,
which was not a particularly serious one,
was partly the appellant's absence in Angola at the crucial time, and partly an
oversight
by her attorney for which she is not to blame. No prejudice was caused
to the respondents. In these circumstances condonation is
granted.
I now turn to the merits of the appeal. It will be recalled that the
affidavit by the Minister of Defence which was filed in the interlocutory
application purported to be based on both section 66 of the Internal Security
Act of 1982 and section 29 of the General Law Amendment
Act of 1969. As appears
from the judgment of the Court
a quo
, the appellant contended in that
Court that neither of these Acts applied in South West Africa. The Court held
that the Internal
Security Act did not apply in South West Africa but that
section 29 of the General Law
11
Amendment Act was in force there, although the latter section had, in so far
as the Republic of South Africa was concerned, been repealed
by section 73 of
the Internal Security Act. The Court held further that the affidavit in terms of
section 29 of the General Law Amendment
Act was decisive of the interlocutory
application, and that production of the report could not be ordered in the face
of this affidavit.
The Court did not deal expressly with a preliminary argument
raised by the respondents before it, viz. that the appellant did not
have
locus standi
to bring the interlocutory application. Inasmuch as the
merits of the application were considered, one can perhaps infer that the
Court
was satisfied as to the appellant's
locus standi
. Be that as it may, none
of the respondents appeared before us to attack the Court's attitude in this
regard and I shall assume,
without deciding, that the appellant had
locus
standi
.
On appeal before us Mr.
Gauntlett
, for the appellant, accepted the
Court's finding that section 29 of the General Law Amendment Act applied in
South West Africa, but
that the Internal
12
Security Act did not. I agree with this. Section 29(3) of the General Law
Amendment Act specifically provides that the provisions
of section 29 and any
amendment thereof apply also in the territory of South West Africa. No
corresponding provision is found in
the Internal Security Act. And it is
noteworthy that sub-sections 66(1) and (2) of the Internal Security Act
correspond almost word
for word with sub-sections 29(1) and (2) of the General
Law Amendment Act (as substituted by section 25 of the General Law Amendment
Act, no. 102 of 1972) save that the latter contain a reference to South West
Africa whereas the former do not. The meaning and effect
of this reference will
be considered later, but its absence from section 66 of the Internal Security
Act is a further indication
that the latter act was not intended to apply in
South West Africa.
I turn now to the. interpretation and effect of section 29 of the General Law
Amendment Act of 1969. Before I consider its terms it
will be instructive to
sketch briefly the background against which it was introduced. Prior to the
decision of this
13
Court in
Van der Linde v. Calitz
1967(2) SA 239 (A) the accepted view
was, in the words of CORBETT JA in
Minister van Justisie v. Alexander
1975(4) SA 530 (A) at p. 550 C-D:
"... that evidence, particularly documentary evidence,
which was otherwise relevant and liable to production in a court of law, should
not be produced if the public interest required that
it should be withheld. In
the case of an official document in the possession of a State department,
objection to its production on
this ground, taken in proper form by the
political head of the department concerned, was regarded by the Court as
conclusive, unless,
possibly, the Court was able to hold that the objection to
production was frivolous or vexatious ..."
This situation was changed by
Van der Linde v.
Calitz
(
supra
) and the decision of the
House of Lords in
Conway v.
Rimmer
[1968] UKHL 2
;
1968 AC 910.
It was held in
these cases that the Court
retained a residual power to reject an objection that the
disclosure or production of a document would be injurious or
prejudicial to the public interest. For present purposes I need
not consider the exact ambit of this residual power. The point
to be made is that it clearly was this change in judicial
philosophy which inspired the promulgation of section 29 of the
14
General Law Amendment Act of 1969. As initially introduced this section,
broadly speaking, protected from disclosure in courts of
law and similar
tribunals information, or books or documents, "if a certificate purporting to
have been signed by the Prime Minister
or any person authorized thereto by him
or purporting to have been signed by any other Minister is produced ... to the
effect that
the said (information, document etc.) affects the interests of the
State or public security and that the disclosure thereof will,
in the opinion of
the Prime Minister or the said person so authorized or other Minister, as the
case may be, be prejudicial to the
interests of the State or public
security."
Sub-section (2) preserved the common law with respect to
disclosure of matters not affecting the interests of the State or public
security.
It will be noted that the State privilege or public interest immunity created
by this section was extremely wide. In the first place
it was available not only
to Ministers but also to any persons authorized by the Prime Minister. And,
15
secondly, it could be invoked in cases in which any of these
persons was
of the opinion that the disclosure would be
prejudicial, not merely to public
security, but also to the
"interests of the State". The latter expression was
undefined
and had a wide potential ambit. Cf.
Geldenhuys v.
Pretorius
1971(2) SA 277 (0) at pp. 278 F to 280 D. In 1972 sub-sections
29(1) and (2) were replaced by the provisions which have at all
material
times since applied in South West Africa. They read as
follows:
"29. (l)Notwithstanding anything to the contrary in any law or the common law
contained, no person shall be compelled and no person
shall be permitted or
ordered to give evidence or to furnish any information in any proceedings in any
court of law or before any
body or institution established by or under any law
or before any commission as contemplated by the Commissions Act, 1947, as to
any
fact, matter or thing or as to any communication made to or by such person, and
no book or document shall be produced in any
such proceedings, if an affidavit
purporting to have been signed by the Minister responsible in respect of such
fact, matter, thing,
communication, book or document, or, in the case of a
provincial administration or the territory of South-West Africa, the
Administrator
concerned, is produced to the court of law, body, institution or
commission concerned, to the effect that
16
the said Minister or Administrator, as the case may be, has personally
considered the said fact, matter, thing, communication, book
or document; that
in his opinion, it affects the security of the State and that disclosure thereof
will, in his opinion, prejudicially
affect the security of the State.
(2) The provisions of subsection (1) shall not derogate from the provisions of
any law or of the common law which do not compel or
permit any person to give
evidence or to furnish any information in any proceedings in any court of law or
before any body or institution
established by or under any law or before any
commission as contemplated by the Commissions Act, 1947, as to any fact, matter
or
thing or as to any communication made to or by such person, or to produce any
book or document, in connection with any matter other
than that affecting the
security of the State."
It will have been noticed that the provisions
were
substantially tightened up. The privilege can
now be claimed
only by "the Minister responsible in respect of such
fact,
matter, thing, communication, book or document, or, in the case
of a
provincial administration or the territory of South-West
Africa, the
Administrator concerned." Delegation is no longer
possible, and the
functionaries entitled to exercise this power
are specified. And the only ground for claiming this privilege
is that, in the opinion of the person claiming it, the fact,
17
matter etc. affects the security of the State, and disclosure thereof will
prejudicially affect the security of the State. The amended
sub-section (2) also
makes it clear that the common law is retained in respect of matters other than
those affecting the security
of the State.
Mr.
Gauntlett
accepted that
the affidavit in the present case was in a form which complied with section 29.
He contended however that in the case
of the Territory of South West Africa the
affidavit must be signed by the Administrator. The Minister of Defence was not,
so the
argument proceeded, entitled to make the affidavit and invoke the
privilege; only the Administrator could do so. It was unnecessary
to decide, he
said, who the proper authority was to exercise the powers of the Administrator
in the changed constitutional circumstances
prevailing at the time when this
matter came before the Court since no affidavit was furnished by any person or
authority other than
the Minister of Defence, and he clearly could not be
equated with the Administrator.
18
The question therefore is who, in relation to South West Africa, is the
person entitled to invoke the privilege created by section
29 ? With that
question in mind I turn now to the provisions of the section.
The purpose of
section 29 (1) is to provide an immunity in respect of production of evidential
material before a court or similar
tribunal. Two types of evidential material
are mentioned, namely, evidence or information as to facts, matters, things or
communications,
and, secondly, the production of books or docúments. As
far as the central government is concerned, the privilege may be claimed
by "the
Minister responsible in respect of such fact, matter, thing, communication, book
or document."
In its relevant sense the word "responsible" is defined in
the
Shorter Oxford Dictionary as "answerable, accountable; liable to be called to
account." A Minister is responsible in this sense to
Parliament and the public
for the acts and omissions of his department. The Minister who is entitled to
claim the privilege is accordingly,
speaking broadly, the Minister who is at the
head
19
of the department whose functions relate to the fact, matter etc. or the book
or document which is in issue. I realize that this formulation
is very broad,
and that problems of demarcation or overlapping could arise, but fortunately
there are no such problems in the present
case. For present purposes the
important point is only that the responsible Minister of whom the section
speaks, is the Minister
who, through his department, is responsible in a
functional sense in respect of the fact, matter, document etc. And as a matter
of
common sense this must be so. It is the Minister whose department deals with
a matter who is able to form the opinion that such a
matter affects the security
of the State and that its disclosure would prejudicially affect the security of
the State. _
This then is the position in regard to the central government. The section
proceeds with the words "or, in the case of a provincial
administration or the
territory of South West Africa, the Administrator concerned ..." I deal first
with the position of a provincial
administration. If one reads the
20
relevant words in their context they present no difficulty. The section
deals, up to that stage, with the central government's executive
departments
which, represented by their political heads, are responsible for the performance
of certain functions. In this context
"the case of" the provincial
administration indicates a situation where the provincial administration's
position is the same as that
of the central government departments, i.e., it is
the responsible authority in respect of the relevant function. The reason for
this provision is obvious. The amended section, as I have noted, lays down how
the heads of executive departments of the State can
invoke the privilege created
by the section. Since the provincial administrations perform important executive
functions within their
sphere of operations, it is natural that they are
included.
This then brings me to South West Africa. In the section South West Africa is
grouped together with the provincial administrations,
and this is hardly
surprising. Whatever the constitutional differences may have been between the
provinces
21
and South West Africa, they had, at all relevant times, one feature in common
which is of decisive importance for present purposes.
This feature is that their
administrations were divided ones. Certain governmental functions were performed
in the provinces and
South West Africa by the central government in the course
of governing the country as a whole (including South West Africa) whereas
others
were performed by the local administrations (see e.g. the South-West Africa
Constitution Act, no. 39 of 1968, and in particular,
sections 22 and 38). There
was therefore a need for the head of the administration of South West Africa (at
that stage the Administrator)
to be granted the same rights in respect of his
administration as were granted to the heads of the provincial administrations
and
the government departments. The fact that, in section 29, South West Africa
is included without comment with the provincial administrations
suggests that
this indeed was what was intended. However, Mr.
Gauntlett
points out that
there is a difference in the wording. Whereas the act speaks of "a provincial
administration" it refers
22
to the "territory of South-West Africa". A territory, he contends, cannot be
responsible for governmental actions, and therefore the
section must mean
something different in reference to South West Africa from what it does in
reference to the provincial administrations.
Now, of course, a possible
explanation for this wording is simply that the draftsman did not repeat the
word "administration" with
respect to South West Africa: in other words, that he
meant "in the case of a provincial administration or
the administration
of
the territory of South West Africa". Elliptical expressions of this sort
are, as we know, quite common. This possibility gains added
force if one
considers possible alternative meanings of the reference to South West Africa.
In his written heads of argument Mr.
Gauntlett
contended that "where as a
matter of territorial jurisdictioh South West Africa is 'concerned', its
administrator is the relevant
authority". This contention raises the question:
when is South West Africa concerned as a matter of territorial jurisdiction?
23
It can hardly be suggested, and was not in fact suggested, that this happens
whenever the performance of a governmental action affects
the territory or its
inhabitants, since this would cover a large part of the central government's
activities. At one stage Mr.
Gauntlett
suggested that the test was
whether the proceedings in which privilege was claimed were conducted in South
West Africa. This would,
however, mean that governmental actions of the
administration of South West Africa could not be protected from disclosure
before
a tribunal in any other part of the country, and Mr.
Gauntlett
later accepted that the place where the privilege is claimed, could not be
decisive. In the result the appellant's argument did not
attribute any clear
meaning to the expression "in
the case
of ... the
territory of South West Africa", and a great deal of extensive interpretation
would be required to ascribe a sensible
meaning to it which would afford the
Administrator of South West Africa greater powers than his counterparts in the
provinces. I
conclude, therefore, that there was no intention to distinquish
between the various
24
provinces on the one hand, and South West Africa on the other, and that the
power of an Administrator of any of these territories
to invoke the privilege
was limited to matters falling under the authority of his administration. As I
have indicated, this result
is achieved by simply reading the word
"administration" as also being implied in respect of South West Africa. In the
present matter
the affidavit signed by the Minister of Defence clearly related
to a matter falling under the Department of Defence and not under
the
administration of South West Africa. The Minister of Defence was, accordingly,
the proper person to make this affidavit.
In an alternative argument
appellant's counsel contended that the Minister's affidavit did not establish a
privilege in respect of
the whole report, but only in respect of parts, and that
the rest of the report should be ordered to be produced. This contention
is
based on the following facts.
It will be recalled that Col. de Klerk filed an affidavit in the main
application in which he summarised the
25
Minister's report, but declined to attach the report itself because, he said,
he did not consider it advisable in the public interest
to do so. In paragraph 2
of his affidavit in terms of section 29 of the General Law Amendment Act the
Minister states that he submitted
a report to the State President, and that he
has had sight of the summary of the report contained in Col. de Klerk's above
mentioned
affidavit. In paragraph 3 he then expresses the opinion that the
summary could safely be disclosed, but that disclosure of "die volledige
verslag" would prejudicially affect the security of the State. Now by the
complete report ("die volledige verslag") is clearly meant
the report itself, as
distinct from Col. de Klerk's summary. There is no warrant for reading the
affidavit as suggesting that there
are parts of the report which, in the
Minister's opinion, could be disclosed without prejudice to the security of the
State.
In the appellant's heads of argument the contention is advanced that the
State President and Minister of Defence have, by providing
Col. de Klerk's
summary of the report, waived any
26
right they may have had to invoke State privilege in respect of the report as
a whole. However, in argument before us Mr.
Gauntlett
made it clear that
this contention was intended only as an answer to a possible claim by the
respondents to an immunity or privilege
under the common law,as distinct from
the privilege allowed by section 29 óf the General Law Amendment Act.
Since my view
is that section 29 applies, it is consequently not necessary to
deal with this argument.
In the result I consider that the affidavit by the Minister of Defence
complies with the requirements of section 29 of the General
Laws Amendment Act,
no. 101 of 1969, and that the production of the report for inspection by the
appellant was therefore prohibited.
The following orders are made
1. Condonation is granted of the late lodging of the Notice of Appeal and
Power of Attorney.
27
2. The appeal is dismissed with costs.
E M GROSSKOPF, JA
CORBETT, CJ
HOEXTER, JA Concur
SMALBERGER, JA NICHOLAS, AJA