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1991
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[1991] ZASCA 61
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Sebogodi v State President and Another (453/89) [1991] ZASCA 61 (23 May 1991)
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
PUPSEY NTSANYANA SEBOGODI
Appellant
and
THE STATE PRESIDENT
First Respondent
and
MINISTER OF EDUCATION
AND DEVELOPMENT AID
Second
Respondent
Coram
: JOUBERT, NESTADT, KUMLEBEN, F H GROSSKOPF JJ
A
et
PREISS A J A. Heard: 2 May 1991
Delivered
: 23 May 1991
JUDGMENT JOUBERT
, JA:
/This
2
This is an appeal against a judgment of VAN DER MERWE J in the Transvaal
Provincial Division, discharging a rule nisi and dismissing
an application of
the appellant against the respondents. Leave to appeal to this Court was granted
by the Court
a quo
. For the sake of convenience I shall refer to the
first respondent as "the State President" and the second respondent as "Minister
Viljoen".
This appeal concerns the validity of Proclamation R220 of 1988
issued by the State President on 30 December 1988, in so far as it
relates to
the farm Braklaagte situated in the district of Marico, Transvaal.
Shortly
after the turn of the present century the Bahurutshe Ba Sebogodi tribe under the
chieftainship of the appellant's grandfather
settled on the farm Braklaagte
which had been bought by the tribe. Braklaagte was registered
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in the name of a Minister of State in trust for the exclusive use and
occupation of the tribe. In 1965 the South African Government
in pursuance of
its official policy expropriated the farm Braklaagte in order to remove and
resettle the tribe in Bophuthatswana
as a "Black homeland." From 1965 onwards
the farm Braklaagte was State property, earmarked for White settlement. In the
meantime
members of the tribe continued to reside on the farm Braklaagte,
growing crops and raising cattle.
In a letter, dated 27 December 1988,
Minister Viljoen informed the attorneys of the appellant that "(T)he two farms
Braklaagte and
Leeuwfontein as well as certain farms situated between them and
Bophuthatswana, will therefore be incorporated into Bophuthatswana
as from 31
December 1988 by Presidential Proclamation in terms of section 1 of Act 2 of
1980 as amended". The upshot was the launching
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by the appellant of an urgent application to the Transvaal Provincial
Division on 29 December 1988. The original relief sought was
the issue of a rule
nisi calling upon the State President and Minister Viljoen as respondents to
show cause why they should not be
interdicted from publishing the proposed
proclamation pending the institution of an action by the appellant to have the
publication
declared unlawful. Before the urgent application was heard by
SPOELSTRA J on 29 and 30 December 1988 it was, however, established
that
Proclamation R220 had already been signed by the respondents and that the
Government Gazette in which it appeared had already
been printed and published
and was in the course of being distributed via the post office. On 30 December
1988 SPOELSTRA J, without
stating reasons, granted a rule nisi calling upon the
respondents to show cause on 7 March 1989 why Proclamation R220 published in
Government Gazette
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No 11644 of 30 December 1988 should not, in so far as it related to the farm
Braklaagte, be declared to be null and void and why the
respondents should not
be ordered to pay the costs of the application. The matter was heard on or after
the return day by VAN DER
MERWE J who gave the judgment referred to
supra
.
Proclamation R220 of 1988 was published in the Government
Gazette. In terms thereof the State President purported to determine under
the
powers conferred on him by sec 1 (1) of the Borders of Particular States
Extension Act 2 of 1980 that certain land, including
the farm Braklaagte, would
with effect from 31 December 1988 cease to be part of South Africa and would
become part of Bophuthatswana.
It was signed on 20 December 1988 by P W Botha,
the State President, and co-signed by Minister Viljoen by Order of the State
President-in-Cabinet.
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Owing to illness the State President was unable to file an answering
affidavit. Mr Cilliers, a civil servant in the Department of
Development Aid,
was authorised to file an answering affidavit on behalf of the State President
and Minister Viljoen as respondents.
An affidavit of Minister Viljoen has,
however, been filed in which he elected to deal with certain matters which were
within his
personal knowledge.
The background to the case may be outlined as
follows:
During 1983 the Commission for Co-operation and Development proposed
to the Government that the farm Braklaagte and another farm Leeuwfontein
should
remain Black areas but were to be incorporated into Bophuthatswana. This
Commission had after due notice held meetings at
Zeerust during August 1983 to
hear evidence and receive representations from
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interested parties who were affected by its consolidation proposal to
incorporate certain land, including the farm Braklaagte, into
Bophuthatswana.
On 15 October 1984 the Government decided that the farm
Braklaagte would remain a Black area but that it would be incorporated into
Bophuthatswana.
On 30 August 1985 a formal agreement was concluded between
the State President and the State President of Bophuthatswana regarding
the
incorporation into Bophuthatswana of the farms Braklaagte, Leeuwfontein and
certain other farms situated between them and Bophuthatswana.
In terms of the
Status of Bophuthatswana Act 89 of 1977 Bophuthatswana on 6 December 1977
received its independence from South Africa
as an independent national state.
According to sec 1(1) its territory was defined in Schedule A thereto. This
description of its
territory
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was taken over in sec 6 of the Republic of Bophuthatswana Constitution Act 18
of 1977 "together with such other land as may be added
thereto". The draftsmen
of the Constitution of Bophuthatswana were hopeful that Bophuthatswana's
territory would be augmented in
the future.
The method initially adopted by
the South African Legislature to transfer further South African territory to
Bophuthatswana was by
means of legislation. The Bophuthatswana Border Extension
Act 8 of 1978 was an instance of such legislation. In this manner the
Legislature
determined and controlled the transfer of South African land to
Bophuthatswana.
The Legislature thereafter introduced a new method to
transfer South African land to the independent national states. Sec 1 (1) of
the
Borders of Particular States Extension Act 2 of 1980 provides as follows:
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"The State President may from time to
time by proclamation in the Gazette determine
that part or all of the land defined in
the appropriate Schedule shall, as from
a date mentioned in such proclamation,
cease to be part of the Republic of South
Africa and become a part of the sovereign
and independent state mentioned in such
Schedule."
At the time of its enactment Act 2 of 1980 had three Schedules which related
to "Land in Relation to Transkei", "Land in Relation
to Bophuthatswana" and "
Land in Relation to Venda" respectively. At that stage the farm Braklaagte was
not mentioned in Schedule
2. In 1983 Schedule 4 was added by sec 3 of Act 25 of
1983 to make provision for Ciskei. The inclusion of the land in the schedules
by
the Legislature would seem to have been based on inter-State agreements between
the South African Government and the Governments
of the relevant
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independent national states. See Annual Survey of South African Law 1980, p
28. According to the new method provided for in Act 2
of 1980 the Legislature
conferred on the State President a discretionary power to order "from time to
time by proclamation" the transfer
of "part or all of the iand" specified in the
appropriate schedule to the relevant independent national state as from a
specific
date. The Legislature, however, decided which land was to be included
in the schedules. The discretionary power of the State President
was
circumscribed as stated above. He had no power in respect of land not included
in the schedules. An advantage of the new method
was that the transfer of
scheduled land could be effected by the State President's proclamation when he
considered the time opportune
to do so irrespective of whether or not Parliament
was convened at the time.
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On 10 September 1986 the State President assented to the Borders of
Particular States Extension Amendment Act 112 of 1986 which came
into operation
on 30 April
1987. Sec 2
(e) thereof amended Schedule 2 to Act 2 of 1980 in order
to include in it a description of an area comprising the farms Braklaagte,
Leeuwfontein and certain other farms. The effect of the amendment was that the
Legislature had earmarked the farm Braklaagte for
incorporation into
Bophuthatswana by enlisting it in Schedule 2, as amended. If and when transfer
of the farm Braklaagte as scheduled
land was to be made to Bophuthatswana the
matter fell to be determined by the exercise of the State President's
discretionary power
in terms of sec 1 (1) of Act 2 of 1980.
On 22 September
1986 the State President's Office received from the appellant and three
co-signatories an undated letter in which
they expressed grave misgivings
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regarding the incorporation of the farm Braklaagte into Bophuthatswana. They
also requested the State President to reconsider the
matter. The private
secretary of the State President in a letter dated 25 September 1986
acknowledged on behalf of the State President
receipt of the undated letter. It
was recorded that the State President had taken note of its contents "with
interest". It was suggested
that the matter should be taken up with the Minister
of Constitutional Development and Planning. A further response in writing, dated
28 November 1986, to the undated letter came from Mr Wilkens, the Deputy
Minister of Development and of Land Affairs. In his letter
Mr Wilkens stated
that "- - - I regret to inform you that the relative amendment to the Borders of
Particular States Extension Act,
1980 (Act 2/1980), cannot be withdrawn". No
reference was made to the State President's discretionary power in terms of sec
1 (1)
of Act 2 of 1980.
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On May 20 1987 the attorneys of the Braklaagte tribal authority wrote to the
Deputy Minister of Constitutional Development and Planning
to record the strong
opposition of their client to the intended inclusion of the farm Braklaagte into
Bophuthatswana. It was also
stated that their client had never been consulted by
the Government about the aforesaid inclusion. This letter evoked a written
reply,
dated 17 August 1987, from Minister Viljoen in which he gave a brief
resume of the history of the Government's attitude in regard
to the farm
Braklaagte. He pointed out that the residents of the farm Braklaagte had raised
no objections to the proposals of the
Commission for Co-operation and
Development in 1983. Reference was made to the "final decision of the
Government" on 15 October 1984
to incorporate the farm Braklaagte into
Bophuthatswana, the agreement concluded on 30 August 1985 with the State
President of
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Bophuthatswana and that Parliament had amended Act 2 1980 during 1986 "(T)o
enable the State President of the R S A to implement this
decision - - -"
Minister Viljoen in conclusion stated that if the Braklaagte tribal authority
still wanted to discuss the matter
he would grant them an interview.
In a
departmental Memorandum, dated 24 November 1988, Mr Cilliers, the Deputy
Director General of Development Aid, made certain recommendations
to Minister
Viljoen concerning the "noodsaaklikheid" that the farm Braklaagte should be
transferred to the Minister of Education
and Development Aid in trust on behalf
of the Bahurutshe Ba Ga Moilwa tribe before 1 January 1989 and that it should be
incorporated
into Bophuthatswana. By an endorsement, dated 28 November 1988, in
his own handwriting on the Memorandum Minister Viljoen approved
the
recommendations contained therein.
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Registration of the transfer of farm Braklaagte in trust as recommended was
effected on 22 December 1988.
On 15 December 1988 a meeting took place
between a delegation representing the Braklaagte community and Minister Viljoen
accompanied
by members of his staff. The delegation consisted of the appellant
and some of his supporters assisted by their legal advisers. A
Memorandum
containing the reasons for the opposition of the Braklaagte community to the
incorporation of the farm Braklaagte into
Bophuthatswana was handed to
Ministér Viljoen. According to the minutes of the meeting full
discussions were held. Minister
Viljoen undertook without delay to consider all
arguments advanced before steps would be taken in the matter although the
Government
also had problems "as decisions have already been accepted by the
Government of Bophúthatswana and the R S A which will be
difficult to
change".
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The Rubicon was crossed when Proclamation R220 was signed on 20 December 1988
by the State President and Minister Viljoen. In doing
so the State President had
elected to exercise his discretionary power to incorporate the farm Braklaagte
into Bophuthatswana with
effect from 31 December 1988. As far as the State
President was concerned the publication of Proclamation R220 in the Gazette on
30 December 1988 rendered the exercise of his discretionary power final and
irreversible in respect of the farm Braklaagte.
Minister Viljoen in his
letter, dated 27 December 1988, informed the appellant's attorneys that careful
consideration had been given
to the Memorandum handed to him as well as the
arguments put forward by the delegation of the Braklaagte community on 15
December
1988. After outlining the history of the matter from the Government's
point of view he disclosed that by presidential Proclamation
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the farm Braklaagte would be incorporated into Bophuthatswana as from 31
December 1988.
I now turn to consider the submissions made by Mr
Unterhalter
on behalf of the appellant. He contended that there was a
fundamental objection to the exercise of the State President's discretion
which
he based on the following premises. In the first place the Government had taken
a final decision on 15 October 1984 concerning
the incorporation of the farm
Braklaagte from which it was not prepared to deviate. The Government had
accordingly fettered its discretion
before
the State President acquired
on 30 April 1987 a vested statutory discretion in respect of the incorporation
of the farm Braklaagte.
Secondly, the State President by entering into an
agreement with the State President of Bophuthatswana on 30 August 1985 fettered
his discretion
before
he had even acquired the discretion on 30 April
1987.
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Thirdly, Mr
Unterhalter
in para 3.8 of his written Heads of Argument
contended as follows: "The incorporation of Braklaagte in 1988 was not preceded
by the
exercise of a discretion vesting in the First Respondent for the first
time after Act 112 of 1986 came into operation. It was merely
an administrative
act to give effect to discretions and decisions already purportedly exercised
and made before the legal power and
duty to exercise such discretion came into
existence."
In my judgment the fundamental objection contended for by Mr
Unterhalter
is manifestly unsound for the following reasons: 1. The
finality of the Government's decision of 15
October 1984 should be seen in its proper setting in the historical background
to the case. This decision was taken after the Commission
for Co-operation and
Development had canvassed during
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1983 the opinions of interested persons as regards its proposal for the
incorporation of the farm Braklaagte. No objections were,
however, raised to its
proposal by interested persons or parties, including the residents of the farm
Braklaagte. The "finality"
of the Government's decision of 15 October 1984 was
actually of a relative nature which amounted to a reversal of its earlier policy
to resettle the occupants of the farm Braklaagte in Bophuthatswana and to make
the farm Braklaagte available for settlement by White
farmers. In principle
nothing precluded the Government from abandoning or altering its "final
decision". Moreover, there was no nexus
between the Government's "final
decision" and the statutory discretion which vested in the State President on 30
April 1987. There
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is nothing on record to indicate that the State President considered his
statutory discretion to have been fettered by the Government's
"final decision"
of 15 October 1984. The submission that the decision of 15 October 1984 fettered
the Government's discretion cannot
prevail. The case turns on the exercise by
the State President of his statutory discretion and not on the immutability of
the Government's
decision of 15 October 1984. 2. The aforementioned reversal of
the Government's policy, viz. to incorporate the farm Braklaagte into
Bophuthatswana, compelled the Government to take certain preparatory steps to
bring Act 2 of 1980 into effect. In other words, the
scene had to be prepared by
the Government to make the incorporation of the farm Braklaagte feasible
should
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the State President, after the farm Braklaagte as scheduled land became
subject to the jurisdiction of his discretionary power, exercise
his
discretionary power in favour of the incorporation of the farm Braklaagte into
Bophuthatswana.
Inasmuch as incorporation by agreement is a bilateral
juristic act based on the consensus of both transferor and transferee, it became
necessary to establish the attitude of Bophuthatswana on the question of
incorporation. It was for this very purpose that the inter-State
agreement of 30
August 1985 was concluded by the Government and the Government of
Bophuthatswana. No date was fixed by the inter-State
agreement for the
incorporation of the farm Braklaagte. There was accordingly no nexus between the
inter-State agreement with Bophuthatswana
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and the statutory discretion which vested in the
State President on 30 April 1987. Contrary to
what Mr
Unterhalter
contended for, the inter-State
agreement did not fetter the statutory
discretion
of the State President. The
latter never considered
his statutory authority to have been fettered by
the inter-State agreement.
In addition the
Government had to expropriate those White farms which were located between the
farm Braklaagte and the border of Bophuthatswana.
3. There is a fallacy in the
reasoning underlying the contention of Mr
Unterhalter
as stated in para
3.8 of his written Heads of Argument. The factual position is that the
incorporation of the farm Braklaagte by
Proclamation R220 was preceded by
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the exercise of the State President's statutory
discretion between the meeting of 15 December 1988
and the signing by him of the Proclamation on 20
December 1988. In his letter, dated 27 December
1988, Minister Viljoen wrote to the attorneys of
the appellant as follows:
"With reference to the
interview I had on 15 December 1988 with representatives of the Braklaagte
community, I wish to inform you
that careful consideration has been given to the
memorandum you handed to me as well as the arguments put forward by the various
spokesmen in the deputation."
See also para. 18 of Minister Viljoen's affidavit. The appellant, correctly
in my view, never challenged the
bona fides
of Minister Viljoen. In my
judgment the contention set out in para 3.8 of Mr
Unterhalter
's written
Heads of Argument
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is devoid of real substance.
Finally, Mr
Unterhalter
submitted that
the State President failed to apply his mind to the relevant issue because he
and Minister Viljoen merely administratively
implemented a decision already
taken by the Government on 15 October 1984. According to Mr
Unterhalter
complete finality had already been reached on 28 November 1988 when Minister
Viljoen endorsed the departmental Memorandum. This submission
is, however, based
on several misconceptions. It overlooks the important fact that effect was only
given to the departmental Memorandum
on 22 December 1988, i.e. after the signing
of Proclamation R220 on 20 December 1988. Moreover, it is abundantly clear from
the sequence
of relevant events, as stated
supra
, that the State
President and Minister Viljoen did not blindly adhere to any previous decisions
taken by the Government. Nor did
they administratively implement
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decisions of the Government. Besides, the very fact that the meeting of 15
December 1988 was held to enable representations to be
made on behalf of the
Braklaagte community to Minister Viljoen regarding its grievances and opposition
to the incorporation of the
farm Braklaagte as contained in the Memorandum
handed to Minister Viljoen; and the careful consideration thereafter given to
the
Memorandum and arguments advanced at the meeting as stated by Minister
Viljoen, belie the submission that the State President had
failed to apply his
mind to the relevant issue. It also belies the submission that the State
President and Minister Viljoen had merely
administratively implemented previous
decisions of the Government.
Mr
Maritz
on behalf of the respondents
wisely did not argue the matters concerning the
locus standi
of the
appellant and the prerogative powers of the State
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President, as raised in the written Heads of Argument on behalf of the
respondents.
All things considered, the appellant, in my judgment, has failed
to establish the invalidity of Proclamation R220 in so far as it
relates to the
incorporation of the farm Braklaagte into Bophuthatswana .
In the result the
appeal is dismissed with costs. Such costs are to include the costs of two
counsel.
C P JOÚBERT J A. NESTADT JA
KUMLEBEN JA Concur.
F H GROSSKOPF
JA
PREISS AJA