Van der Westhuizen v United Democratic Front (483/87) [1988] ZASCA 165; [1989] 4 All SA 431 (AD) (30 November 1988)

Van der Westhuizen v United Democratic Front (483/87) [1988] ZASCA 165; [1989] 4 All SA 431 (AD) (30 November 1988)

The Supreme Court of Appeal held that the power conferred on the Divisional Commissioner under reg 7(1)(bA) of the Public Safety Act was a discretionary power to be exercised subjectively, not one requiring objective justification. The regulation did not create jurisdictional facts capable of objective adjudication; rather, the necessity or expediency of prohibiting gatherings was entrusted to the Commissioner's discretion, especially in the context of a declared state of emergency. The court a quo erred in finding that the prohibition was objectively justiciable and in placing the onus on the appellant to justify the prohibition. There was no evidence that the appellant acted in bad...

Citation
[1988] ZASCA 165
Parties
Appellant: Ronald Norman van der Westhuizen NO; Respondent: United Democratic Front
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 1988
Case Number
483/87
Procedural Posture
Civil Appeal / Appeal From Full Bench Decision of Cape of Good Hope Provincial Division
Outcome
Appeal allowed; order of court a quo set aside; application dismissed with costs.
Judges
Rabie, Joubert, Hefer, Eksteen, Viljoen
Legal Topics
State of Emergency Regulations, Jurisdictional Facts, Onus of Proof, Discretionary Powers, Costs in Appeal
Administrative Law Civil Procedure State of Emergency Regulations Jurisdictional Facts Onus of Proof Discretionary Powers Costs in Appeal

Case Brief

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Parties

Ronald Norman van der Westhuizen NO

Appellant

United Democratic Front

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench Decision of Cape of Good Hope Provincial Division

Legal Issues

  1. 1 Whether the Divisional Commissioner of Police's prohibition of a public meeting under reg 7(1)(bA) of the Public Safety Act was lawfully exercised.
  2. 2 Whether the onus was on the appellant to prove lawfulness or on the respondent to prove unlawfulness of the prohibition.
  3. 3 Whether the exercise of the power under reg 7(1)(bA) was objectively justiciable or subject to the Commissioner's subjective discretion.

Ratio Decidendi

The Supreme Court of Appeal held that the power conferred on the Divisional Commissioner under reg 7(1)(bA) of the Public Safety Act was a discretionary power to be exercised subjectively, not one requiring objective justification. The regulation did not create jurisdictional facts capable of objective adjudication; rather, the necessity or expediency of prohibiting gatherings was entrusted to the Commissioner's discretion, especially in the context of a declared state of emergency. The court a quo erred in finding that the prohibition was objectively justiciable and in placing the onus on the appellant to justify the prohibition. There was no evidence that the appellant acted in bad...

Court Disposition

Appeal allowed; order of court a quo set aside; application dismissed with costs.

Orders

  • The appeal is allowed.
  • The order of the court a quo is set aside and substituted with an order dismissing the application with costs, including the costs of two counsel.