During NO v Boesak and Another (10/89) [1990] ZASCA 51; 1990 (3) SA 661 (AD); [1990] 2 All SA 347 (A) (23 May 1990)

During NO v Boesak and Another (10/89) [1990] ZASCA 51; 1990 (3) SA 661 (AD); [1990] 2 All SA 347 (A) (23 May 1990)

The majority held that the appellant, as the functionary empowered under regulation 10(1)(c), bore the onus to prove that he properly exercised his discretion in prohibiting the concert. The discretion was not objectively justiciable, but the appellant was required to show that his decision was made in good faith, with proper consideration of relevant facts. The information relied upon by the appellant was vague and did not establish a sufficient nexus between the anticipated activities of certain black youths and the necessity to prohibit the concert. The appellant failed to discharge the onus of proving that the prohibition was justified for the purposes of public safety or order....

Citation
[1990] ZASCA 51
Parties
Appellant: Roy During NO; Respondent: Allan Aubrey Boesak; Respondent: Mandela Birthday Committee
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 May 1990
Case Number
10/89
Procedural Posture
Civil Appeal / Appeal From the Decision of the Court a Quo
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Joubert, Botha, E M Grosskopf, Nestadt, Milne
Legal Topics
Onus of Proof, Review of Administrative Action, Regulation 10 1 C, Fundamental Rights, Ultra Vires, State of Emergency
Administrative Law Civil Procedure Onus of Proof Review of Administrative Action Regulation 10 1 C Fundamental Rights Ultra Vires State of Emergency

Case Brief

Summary, issues, holding and outcome

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Parties

Roy During NO

Appellant

Allan Aubrey Boesak

Respondent

Mandela Birthday Committee

Respondent

Procedural Posture

Civil Appeal / Appeal From the Decision of the Court a Quo

Legal Issues

  1. 1 Whether the appellant properly exercised his discretion under regulation 10(1)(c) in prohibiting the Mandela Birthday concert.
  2. 2 Whether the prohibition was justified by the information available to the appellant regarding public safety and order.
  3. 3 Where the onus of proof lies in cases involving the infringement of fundamental rights by administrative action.

Ratio Decidendi

The majority held that the appellant, as the functionary empowered under regulation 10(1)(c), bore the onus to prove that he properly exercised his discretion in prohibiting the concert. The discretion was not objectively justiciable, but the appellant was required to show that his decision was made in good faith, with proper consideration of relevant facts. The information relied upon by the appellant was vague and did not establish a sufficient nexus between the anticipated activities of certain black youths and the necessity to prohibit the concert. The appellant failed to discharge the onus of proving that the prohibition was justified for the purposes of public safety or order....

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The order of the court a quo setting aside the prohibition is confirmed.