IN the SUPREME COURT of SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION CASE NO; in the Matter Between

IN THE SUPREME COURT OF SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION CASE NO;

In the matter between : -

END CONSCRIPTION CAMPAIGN First Applicant RICHARD RULE Second Applicant

and

THE MINISTER OF DEFENCE First Respondent THE CHIEF OF THE DEFENCE FORCE Second Respondent THE COMMANDING OFFICER. MODDERFONTEIN COMMANDO Third Respondent

FIRST APPLICANT'S FOUNDING AFFIDAVIT

I, the undersigned,

CHRISTOPHER MURRAY DE VILLIERS

hereby state under oath : - 1. I am an adult male residing at 2 19th Street,

Parkhurst, Johannesburg.

2. I am the Johannesburg Chairperson of the First

Applicant. As such, I am a member of the First

Applicant's National Executive Committee and I have

been duly authorised by it to depose to this affidavit

on its behalf.

3. The facts in this affidavit are true and correct and

save where appears from the context are within my own

knowledge.

4.1 The First Respondent is the MINISTER OF DEFENCE, care

of The State Attorney, Fedlife Forum, 4th Floor, South Tower, Van der Walt Street, Pretoria. The Minister is

cited in his capacity as the member of executive

government in charge of the South African Defence

Force.

4.2 The Second Respondent is the CHIEF OF THE DEFENCE

FORCE, care of Defence Headguarters, Potgieter Street,

Pretoria. The Second Respondent is cited in his

statutory capacity as chief of the South African

Defence Force.

4.3 The Third Respondent is the OFFICER COMMANDING

MODDERFONTEIN COMMANDO, care of Modderfontein Commando,

Modderfontein High Street, Modderfontein. He is cited

by virtue of his capacity as commanding officer of the

commando which called up the Second Applicant.

5. The First Applicant is a national organisation which

was founded in 1984 in order to oppose the system of

compulsory conscription into military service in South

Africa.

The First Applicant has 10 branches across the country,

representing approximately 160 active members. The First Applicant has been prominent in the fight

against conscription in South Africa, and has gained a

national standing as an organisation campaigning on

behalf of its members on this issue.

Most of the active members of the First Applicant are

persons who are or could be directly affected by the

system of compulsory military conscription as it used

to be applied in the past. In other words, most

(though by no means all) of the active membership

consists of young males who formerly would have been

classified as "white", and would thus have been liable

to conscription into the South African Defence Force.

The First Applicant brings this application by virtue:-

9.1 of its own interest as an organisation in the

issue of compulsory military conscription;

and

9.2 of the interests of its members in this

issue, to represent whom in matters of this

nature the First Applicant as an

organisation is specifically and expressly

mandated and empowered. It is the view of the First Applicant, its officers and

members, based upon legal advice, that the system of

compulsory military conscription as it is being applied

in South Africa at present is unlawful.

11.1 From information gathered from its membership across

the country, it is clear that, while significant

numbers of South Africans not formerly classified as

"white" are being accepted into the South African

Defence Force, the system of compulsory military

conscription into it is still being applied only to

males formerly classified as "white".

11.2 This fact has been confirmed by admissions made by

responsible government officials from time to time,

including the First Respondent.

12. In view of the repeal on the 28th June 1991 of the

Population Registration Act 30 of 1950, by the

Population Registration Act Repeal Act 114 of 1991, the

First Applicant is of the view that the racially

partial enforcement of a system of compulsoy military

conscription is irrational, unfair, oppressive and not

warranted by any statutory or common law authority. Notwithstanding this view of the First Applicant, which is being expressed in public and to which prominence has been given in the national electronic and print media, the First Respondent and the South African

Defence Force, under the Second Respondent, continue to assert not only that the system of whites-only conscription into the Defence Force is lawful, but that

it will be continued and enforced.

The statements in this regard of the First Respondent,

together with and/or in contradiction with those of his

Deputy Minister, Mr. Wynand Breytenbach, have created

confusion and dismay in the ranks of the First

Applicant. These statements create and add to feelings

of uncertainty and insecurity which all young men

formerly classified as "white" feel in relation to

their alleged liability to render military service.

The possibility of arrest by the Military or the South

African Police and/or of prosecution in conseguence of

refusal to obey call-ups purportedly issued in terms of

the Defence Act are also matters which weigh heavily on

the members of the First Applicant. 16. I refer in this regard to the affidavit of the Second

Applicant.

17. Against this background, it has become necessary for

the First Applicant to reguest a declarator regarding

the lawfulness and validity of the whites-only system

of conscription at present enforced by the Respondents.

18. In these circumstances, the First Applicant prays for

the relief set out in the Notice of Motion.

THUS DONE, SIGNED AND SWORN to before me at JOHANNESBURG on this the day of 1992, the Deponent having affirmed that he knows and understands the contents of this affidavit, has no objection to taking this oath and considers this oath binding on his conscience.

COMMISSIONER OF OATHS FULL ADDRESS : NAME: With Compliments Nicholls, Cambanis & Sudano Attorneys at Law A I ^ •'^4

23rd Floor Kine Centre Telephone 141 Commissioner Street 331-6919 (Cnr. Kruis Street) 331-6910 Johannesburg 331-6927/8/9 2001 Telex: 4-82099 S. A P.O. Box 8694 Fax:(011)331-8691 Johannesburg 2000 (APPELLATE DIVISION) CASE NO. ui

In the matter between :

END CONSCRIPTION CAMPAIGN First Petitioner RICHARD RULE Second Petitioner and THE MINISTER OF DEFENCE First Respondent THE CHIEF OF THE DEFENCE FORCE Second Respondent THE COMMANDING OFFICER. MODDERFONTEIN COMMANDO Third Respondent

In re : CASE NO. 4333/92 IN THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)

In the matter between :

END CONSCRIPTION CAMPAIGN First Applicant RICHARD RULE Second Applicant and THE MINISTER OF DEFENCE First Respondent THE CHIEF OF THE DEFENCE FORCE Second Respondent THE COMMANDING OFFICER. MODDERFONTEIN COMMANDO Third Respondent

PETITION TO THE HONOURABLE THE CHIEF JUSTICE AND THE OTHER JUDGES OF THE ABOVE COURT Presented for service and filing by :

NICHOLLS, CAMBANIS, KOOPASAMMY & PILLAY Petitioners’/Applicants’ Attorneys 23rd Floor, Kine Centre 141 Commissioner Street Johannesburg Ref: Ms M Taylor/Ms C Cambanis Tel: (011) 331-6919 CARE O F : ISRAEL AND SACKSTEIN 26 Aliwal Street Bloemfontein Ref: Mr D. Honiball Tel : (051) 48-3145

TO : THE REGISTRAR OF THE APPELLATE DIVISION, BLOEMFONTEIN (ORIGINAL PLUS TWO COPIES)

AND TO : THE REGISTRAR OF THE TRANSVAAL PROVINCIAL DIVISION _ PRETORIA (ONE COPY)

AND TO : THE STATE ATTORNEY Respondents’ Attorney 4th Floor STAATSFROKUREUR South Tower Fedlife Forum Van der Walt Street 1992 - 10- 2 6 Pretoria Ref : 2360/92/C2 JW/MW Tel : (012) 322 8522 (X204) ATTORNEY

Received copy hereof this day of Optober 1992

ONTVANaWnrr RPMAPr' ACCEHtOvvifhuui khljuD IC E (APPELLATE DIVISION) CASE NO.

In the matter between:

In re: num iirr in. In f.L CASE NO. 4333/92 IN THE SUPREME COURT OF SOUTH AFRICA fTRANSVAAL PROVINCIAL DIVISION) In the matter between: END CONSCRIPTION CAMPAIGN First Applicant RICHARD RULE Second Applicant and THE MINISTER OF DEFENCE First Respondent THE CHIEF OF THE DEFENCE FORCE Second Respondent

THE COMMANDING OFFICER. MODDERFONTEIN COMMANDO Third Respondent

PETITION

TO THE HONOURABLE THE CHIEF JUSTICE AND THE

OTHER JUDGES OF THE ABOVE COURT

The petition of the End Conscription Campaign and Richard Rule humbly sheweth that: Your First Petitioner is the END CONSCRIPTION CAMPAIGN, a national organisation which was founded in 1984 in order to oppose the system of compulsory conscription into military service in South Africa.

Your Second Petitioner is RICHARD RULE, an adult male Instrument and Electronics Technician residing at 15 Eleanor Street, Troyeville, Johannesburg.

EVENTS WHICH NECESSITATED THIS PETITION

Your Petitioners instituted motion proceedings in terms of Rule 53 in the Transvaal Provincial Division of the Supreme Court of South Africa under case number 4333/92 for an order in the following terms:

"1. Reviewing and setting aside the call-up instruction in respect of the Second Applicant for the period 24th January to 13th March 1992;

2. Declaring that the policy of the First and Second Respondents in terms of which only persons formerly classified as "white" are subjected to call- up for compulsory military service in terms of the Defence Act, 44 of 1957 is unlawful, invalid and of no force and effect."

Before the matter was set down for argument, the Judge President of the

Transvaal, Mr Justice Eloff, ruled in terms of Section 13(1)(a) of the Supreme

Court Act, 59 of 1959 that the matter was of such importance that it warranted being argued before a Full Court of three judges.

On 23 September 1992 the matter was argued before a Full Court of the

Transvaal Provincial Division; Eloff JP presiding; Van Dyk et Van der Walt JJ.

It was common cause between the parties and accepted as such by the court below that the only question to be decided in this matter is what effect, if any,

the Population Registration Act Repeal Act, 114 of 1991 had on Section 2(1 )(b)

of the Defence Act, 44 of 1957.

7. On 23 September 1992 Mr Justice Eloff handed down his judgment, in which

Mr Justice Van Dyk and Mr Justice Van der Walt concurred. Your Petitioners’

application was dismissed with costs, including the costs of two counsel.

8. The court below expressly found that Section 2(1 )(b) of Act 44 of 1957 ("the

Defence Act") was not affected at all by Act 114 of 1991 ('the Repeal Act"). A

copy of the judgment of the court below is annexed, marked "ECC1" ("the main

judgment").

9. Immediately after the main judgment was handed down, your Petitioners made

application for leave to appeal to this Court against the whole of the judgment,

including the order as to costs.

10. On 23 September 1992 Mr Justice Eloff, dismissed the application for leave to

appeal. Mr Justice Van Dyk and Mr Justice Van der Walt concurred. A copy

of the judgment dismissing the application for leave to appeal is annexed,

marked "ECC2" ("the judgment on leave to appeal").

11. At page 1 of the judgment on leave to appeal, the learned Judge President

stated that: "It has at once to be recognised that the issue is of great importance and if that had been the only consideration I might have been prompted to grant leave to appeal but the further question is whether the issue raised by the applicants is sufficiently arguable. I have dealt with all the issues at some length in my judgment and in my view there is not sufficient prospect that another court will take a different view".

Your Petitioners respectfully submit that the court below erred in a number of

material respects, as more fully set out below, both in the main judgment and

in the judgment on leave to appeal. Accordingly, the instant petition to this

Court has been rendered necessary.

THE SYSTEM OF CONSCRIPTION

It is common cause between the parties that there exists a system, which is presently being applied in the Republic by the First and Second Respondents, in terms of which only male persons formerly classified as "white" are compulsorally conscripted into military service in the South African Defence

Force (“the SADF").

The chairperson of the Johannesburg branch of your First Petitioner ("De

Villiers") stated as follows at page 8 of the papers before the court a quo:

"10- It is the view of the First Applicant, its officers and members, based upon legal advice, that the system of compulsory military conscription as it is being applied in South Africa at present is unlawful.

11.1 From information gathered from its membership across the country, it is clear that, while significant numbers of South Africans not formerly classified as "white" are being accepted into the South African Defence Force, the system of compulsory military conscription into it is still being applied only to males formerly classified as "white".

11.2 This fact has been confirmed by admissions made by responsible government officials from time to time, including the First Respondent."

15. The Second Respondent answered De Villiers’ allegations as follows, at pages

78 to 79 of the papers:

"13. AD PARAGRAPH 10

13.1 I have noted the content of this paragraph.

13.2 I deny that the system, in terms whereof only male persons formerly classified as “white" ("whites") are subject to compulsory military service in the SADF, as it is being applied in the Republic at present ("the system"), is unlawful, (emphasis added)

14. AD PARAGRAPH 11

I admit the allegations contained in this paragraph."

16. De Villiers continued as follows, at page 9 of the papers:

"13. Notwithstanding this view of the First Applicant, which is being expressed in public and to which prominence has been given in the national electronic and print media, the First Respondent and the South African Defence Force, under the Second Respondent, continue to assert not only that the system of whites-only conscription into the Defence Force is lawful, but that it will be continued and enforced." (emphasis added) 17. The Second Respondent responded as follows, at page 82 of the papers:

"16. AD PARAGRAPH 13

Subject to what has been stated in paragraphs 15.4 and 15.5 above [not material], I admit the particulars contained in this paragraph."

Ill LEGISLATIVE SETTING

18. Section 2(1) of the Defence Act provides (so far material) that:

‘This Act shall not apply -

(b) ... to females or persons who are not white persons as defined in Section 1 of the Population Registration Act, 1950 (Act 30 of 1950):

Provided that the State President may with the approval by resolution of both Houses of Parliament by proclamation in the Gazette, apply any provision of this Act to females or any class of females or to such persons who are not white persons, as so defined, or any class of persons: Provided further that nothing in this section shall be construed as preventing any female or any person who is not a white person as so defined from engaging voluntarily and in accordance with regulations for service in the South African Defence Force in such capacity and subject to such conditions as may be prescribed.’ (emphasis added)

19. Section 1(1) of the Repeal Act expressly repeals the whole of the Population

Registration Act 30 of 1950, as well as a number of other statutes and statutory

provisions.

20. Section 1(2) of the Repeal Act expressly amends a number of statutory

provisions, including provisions in the Identification Act 72 of 1986 (‘the Identification Act’).

21. Section 1 (3) of the Repeal Act provides that -

The population register as compiled in terms of the Identification Act, 1986 (Act No. 72 of 1986), and as it exists at the commencement of this Act shall remain in force and of effect until the repeal of the Republic of South Africa Constitution Act, 1983 (Act No. 110 of 1983).’

22. Section 1 of the Identification Act 72 of 1986 defines ‘population register’ to

mean the population register referred to in s 2. Section 2(1) in turn provides

that the Director-General of Home Affairs shall ‘in the prescribed manner

compile and thereafter maintain a population register for the Republic’. In terms

of s 2(2) the particulars required for the compilation and maintenance of the

population register ‘shall be obtained by the Director-General in the prescribed

manner from the documents that may be available to him’.

23. Section 4 of the Identification Act requires the inclusion in the register of the

names of lawful permanent residents, certain persons domiciled in the Republic

and certain citizens resident outside the Republic. In terms of s 5(1) (as

amended by the Repeal Act) the Director-General ‘shall assign an identity

number to every person whose name is included in the population register’.

By s 5(2) (as also so amended) an identity number consists inter alia of a

reproduction in figure codes of every person’s sex and date of birth and

whether or not he is a South African citizen: ‘no other particulars whatsoever’

may be included._____ . .. 24. Section 5(3) of the Identification Act, deleted by the Repeal Act, read as follows:

‘(a) A birth entry number shall be compiled in the prescribed manner out of figures and shall consist of the same figures and numbers and figure codes as those of an identity number referred to in section 6 of the Population Registration Act, 1950 (Act No. 30 of 1950), as that section existed immediately prior to the commencement of this Act.

(b) An identity number assigned in terms of section 6 of the Population Registration Act, 1950, before the commencement of this Act, shall be deemed to be a birth entry number assigned in terms of this subsection.’

25. In terms of s 6 of the Population Registration Act (which was repealed in 1986

in terms of Part 1 of the Schedule to the Identification Act) the Director-General

was obliged to assign an identity number to every person whose name had

been included in the population register; and an identity number (in terms of

s 6(2)(b)) had to consist inter alia of a reproduction, in figure codes, of a

person’s classification in terms of s 5.

26. In terms of s 5(1) of the Population Registration Act of 1950 - which the

Identification Act did not repeal - every person whose name is included in the

population register ‘shall be classified by the Director-General as a white

person, a coloured person or a Black, as the case may be’.

27. Section 1 of the Population Registration Act defined ‘Black’ to mean a person

‘who is, or is generally accepted as, a member of any aboriginal race or tribe

of Africa’; ‘coloured person’ as ‘a person who is not a white person or a

Black’; and ‘white person’ as ‘a person who - ‘(a) in appearance obviously is a white person and who is not generally accepted as a coloured person; or

(b) is generally accepted as a white person and is not in appearance obviously not a white person,

but does not include any person who for the purposes of his classification under this Act, freely and voluntarily admits that he is by descent a Black or a coloured person unless it is proved that the admission is not based on fact.’

IV. THE EFFECT OF THE ORDER SOUGHT

28. Your Petitioners submit that the court below erred in in its understanding of the effect of the order sought. The learned Judge President stated:

At page 6: In other words, then, the effect of what the Applicants are now contending for is compulsory training and service by young coloureds and blacks in addition to what was once contemplated as being the duty only of whites."

At page 9: "Thirdly, I consider that if Parliament intended to bring about such a radical, drastic provision as to subject all citizens in this country, white, coloured and black, to compulsory military training it would have said so in clear and unmistakeable terms."

29. What your Petitioners do in fact contend is that the terms of the Repeal Act

have, by necessary implication, removed the references to "white persons as

(so) defined" from Section 2(1 )(b) of the Defence Act.

30. The effect of such a removal is, it is submitted, that every male citizen of the

Republic between his seventeenth and sixty-fifth year, regardless of race, is

"liable to render service in the South African Defence Force", (emphasis

added). Section 3(1 )(b) of the Defence Act

That does not mean, it is submitted, that the SADF is compelled to conscript

every such male citizen. The SADF retains the power, to be exercised lawfully

and "with due regard to the requirements of the South African Defence Force",

to determine which citizens are to be called up for compulsory military training.

Section 67(1) of the Defence Act

Furthermore, the First Respondent is expressly empowered by the Defence Act

to determine the nature of the service to be rendered and the persons who are

to render such service. It is submitted that it is significant that Section 22(1) of

the Defence Act refers to "any person referred to in Section 21" and not to "all

persons referred to in Section 21".

It is therefore respectfully submitted that the effect of what your Petitioners are

contending is that the Respondents are barred from targeting a section of the

adult male population of the Republic for compulsory military conscription on

the ground of race.

Furthermore, your First Petitioner’s stand on this issue emerged plainly from the papers. (See page 152 of the papers before the court a q u o . De Villiers.) V SUMMARY OF YOUR PETITIONERS’ ARGUMENT

35. Your Petitioners’ argument rests in essence on the following propositions:

35.1 The provisions of the Repeal Act clearly indicate and exhaustively set out

the terms on which the Legislature repealed the Population Registration

Act.

35.2 The purpose of the Repeal Act was to remove race, except in one

respect, as a statutory phenomenon in South African law.

35.3 The Act’s object and its effect were thus comprehensively to remove

racial definitions and race itself from all legislation.

35.4 The Legislature achieved this objective in the Repeal Act, with a single

exception: that relating to the population register compiled in terms of

the Identification Act.

35.5 For this exception Parliament expressly made provision by enacting s

1 (3) of the Repeal Act, in terms of which the register in question as it

existed at the commencement of the Repeal Act remains in force until

the repeal of the Republic of South Africa Constitution Act of 1983 (‘the

1983 Constitution’). Page 12

35.6 The reference to the 1983 Constitution in s 1 (3) of the Repeal Act does

not signify merely a measure of time or an event upon the occurrence

of which the register is to lapse: it is an important indication of the

legislative intent underlying the Repeal Act. This was to abolish race as

a criterion in South African statute law for all purposes except in relation

to the 1983 Constitution.

35.7 The repeal of the Population Registration Act entails that the definition of

‘white person’ contained in s 1 no longer exists.

35.8 Allusions to the definition in other statutes (such as in s 2(1) (b) of the

Defence Act) are accordingly references to a concept the Legislature

expressly and deliberately abolished except in -relation to the existing

population register.

35.9 It follows that the limitation on the application of the Defence Act

regarding ‘persons who are not white persons as defined in section one

of the Population Registration Acf falls away.

35.10 Accordingly, a policy of whites-only conscription is partial and unequal

and not mandated by statutory authority. VI THE 'RULE OF INTERPRETATION’ IN SOLICITOR-GENERAL v MALGAS

36. In Solicitor-General v Malgas 1918 AD 489 at 491 Innes CJ stated that -

‘It is no doubt a rule of interpretation in England that where the provisions of one statute are incorporated by reference in another, the repeal of the earlier measure does not operate to repeal the incorporated provisions. That of course is logical and correct whenever the intention to incorporate by reference is clear, because the provisions referred to become part of the second Statute. They have in effect been enacted twice as separate Acts, and the repeal of the one does not affect the operation of the other.’ (emphasis added)

37. This statement was not necessary for the decision in Malgas since the court held that ‘there is no incorporation by reference here, nor any intention on the part of the Legislature to embody in or graft upon the South Africa Act the provisions [in question]’ (p 491). Innes CJ thus stated the ‘rule of interpretation in England’ only to show that it had no application to the case before him.

38. The legacy of Malgas is therefore less a ‘rule’ than an inference of logic in the interpretation of statutes. This indeed follows from the remark of Innes CJ that the rule is ‘logical and correct whenever the intention to incorporate by reference is clear’.

39. It is also on this basis that the Malgas dictum has been applied in our law. Thus in Walmer Municipality v Glover and Port Elizabeth Liguor Licensing Board 1952 (2) SA 38 (E) at 43 Reynolds J set out the dictum and continued:

‘But even assuming that rule of construction applies, it is only a rule of construction and must yield to the cardinal rule that it is the duty of the Court to ascertain the intention of the Legislature as fairly gathered from the language used in Acts. In this case there would seem no doubt as to that intention. ...’ (43E-F)

‘Hence even if the canon of construction contended for, applies in the case it cannot be used to override the intention of the Legislature.’ (45H)

40. The English cases which gave rise to the canon to which Innes CJ alluded in

Malgas similarly indicate that the ‘rue’ of construction yields to countervailing

indications of legislative intention. Compare -

R v Merionethshire Inhabitants (1844) 6 QB 343

R v Brecon Inhabitants (1849) 15 QB 813

R v Smith (1873) LR 8 QB 146

Clarke v Bradlaugh (1881) 8 QBD 63, CA

Jenkins v Great Central Railway Co [1912] 1 KB 1

41. In distilling the effect of these cases, Halsbury's Laws of England (4 ed, 1983)

vol 44 para 973 sets out the position as follows:

There is authority for a further limitation on the principle that a repealed enactment is to be treated as if it had never existed where enactments have come to form part of two or more statutes. This may result either from provision in one statute for its incorporation with subsequent statutes of a particular description or, as is more frequently the case today, from the adoption of existing statutes by reference. The rule in such cases is said to be that the repeal of the parent statute does not affect the continued operation of the enactments in question as part of any other statute unless it is expressed to extend to them as incorporated or there is a necessary implication that it was intended to do so.’

(Interestingly, Halsburv adds of English practice in construing such instances on the basis of the Interpretation Act of 1978:

‘However, it seems that it will usually be possible to argue that there was such an intention in Acts passed after 1978.’) 42. It is in any event important to note that the Malqas ‘inference of logic’ applies

only, as the italicised words from the statement of Innes CJ indicate, ‘where the

intention to incorporate by reference is clear'. Where a second statute does

not incorporate the terms of the earlier statute, but merely alludes to them, the

Malqas doctrine has no application. See -

LM du Plessis The Interpretation of Statutes (1986) p 23:

'Reference and incorporation by reference are to be distinguished.’

LC Steyn Die Uitleq van Wette (5 ed, 1981) p 176 makes the same distinction

between mere ‘verwysing na herroepe bepalings’ and ‘inlywing by verwysing’,

which involves more than "n blote verwysing’.

VII THE MALGAS DOCTRINE AND SECTION 2(1 Hb) OF THE DEFENCE ACT

43. Your Petitioners make two principal submissions regarding the proper

construction of the Repeal Act and its effect upon the terms of s 2(1 )(b) of the

Defence Act:

43.1 The provisions of the Repeal Act by necessary implication repeal the

racial reference in s 2(1 )(b) of the Defence Act; and

43.2 Section 2(1 )(b) of the Defence Act in any event does not ‘incorporate by reference’ s 1 of the Population Registration Act, but merely refers to a

definition which the latter statute, during its existence on the statute

books, contained, but which no longer exists.

Your Petitioners elaborate these submissions in turn.

THE PROPER CONSTRUCTION OF THE REPEAL ACT

Section 1 (3) of the Repeal Act is critical to the first submission. In terms of this

provision the population register as compiled in terms of the Identification Act

and as it existed at the commencement of the Repeal Act remains in force and

of effect until the repeal of the 1983 Constitution.

Before the Identification Act was passed in 1986 the compilation and maintenance of a population register in respect of the population of the

Republic of South Africa were provided for in the Population Registration Act.

After 1 July 1986, the continued compilation and maintenance of the population register were provided for in the Identification Act.

In 1986, in terms of Part I of the Schedule to the Identification Act, most of the provisions of the Population Registration Act dealing with the compilation and maintenance of the population register were repealed. This statute did not however repeal s 5 of the Population Registration Act. 47. Accordingly, until the Repeal Act, the population of the Republic continued to

be classified in the population register by race - i e every citizen was classified

as either a ‘white person’ or a ‘coloured person’ or a ‘Black’.

48. Section 5(3) of the Identification Act contained the crucial link with the racially

defining provisions of the Population Registration Act. This provision referred

to an identity number in terms of s 6 of the Population Registration Act; s 6 of

that statute in turn referred to a classification in terms of s 5; while s 5 required

the Director-General to assign a racial classification to every person on the

the statute in s 1.

49. But the Repeal Act expressly deleted subsection 5(3) of the Identification Act.

Racial classification in relation to the population register was thus abolished

with effect from 28 June 1991 when the Repeal Act came into force.

50. In so far therefore as Parliament wished to retain a racial basis for the existing

population register until the repeal of the 1983 Constitution, the deletion of s

5(3) from the Identification Act made it necessary for it to enact s 1 (3) of the

Repeal Act.

51. But the terms on which the Repeal Act provides for the retention of the register

are, it is submitted, significant: 51.1 In the first place, it is a register which is retained - a physical register,

as statutorily compiled. Parliament in s 1 (3) of the Repeal Act chose not

to preserve race-based definitions or categories or statutory provisions.

On the contrary: Parliament expressly deleted s 5(3) of the Identification

Act and repealed the 1950 Population Registration Act in total. All it

saved was a list of names and identities, classified under the old system

into racial groups. But the underlying definition and the statutory

apparatus which accompanied it was for all other purposes abolished.

51.2 Secondly, the register is retained only ‘as it exists at the

commencement' of the Repeal Act. This cut-off time (it is submitted)

conveys two plain implications:

51.2.1 Parliament no longer wanted public servants carrying out

statutory duties to have to apply race-based definitions or

to have to allude to them in implementing statutory

programmes.

51.2.2 The continuation of racially based classification in the

future would be impossible because the definitions

underlying the concept had for all purposes been

abolished.

52. This gives, it is submitted, a clear indication of Parliament’s intention to limit the Page 19

effect of retaining a race-based population register. Parliament intended the

the repeal of the 1983 Constitution. Apart from this, all race-based statutory

provisions and categories were abolished.

53. The Legislature’s intention in s 1 (3) of the Repeal Act in preserving the racial

classifications in the population register finds illumination in the provisions of the

1983 Constitution, to which s 1(3) expressly alludes.

54. Sections 52 and 53 of the 1983 Constitution define the composition and

potential representative of the three racially exclusive chambers of the present

Legislature.

55. Section 100 of the 1983 Constitution in turn defines a ‘white person’ as ‘a

person classified as a White person in terms of the Population Registration Act,

1950’ (emphasis added). The same section defines a ‘coloured person’ and

an ‘Indian’ in similar terms.

56. The statutory formulation (‘a person classified’) in s 100 of the 1983 Constitution

accords exactly with the retention of the population register as it existed at the

coming into operation of the Repeal Act. This is because that register in turn

depended on every person on the register being ‘classified’ by the Director-

General in terms of s 5 of the Population Registration Act. 57. Unless at the time of the repeal of racial definitions and classifications the adult

population of the Republic of South Africa were classified by race, it is plain that

the 1983 Constitution would not be workable - and the present Legislature

itself would have no legal framework within which to exist.

58. The clear intention of the Legislature in the Repeal Act was thus to remove the

concept of race from South African law: however, to achieve a specific and

limited purpose, i e to provide for its own survival in a period of transition, the

Legislature was obliged expressly to provide for the retention of the existing

population register.

59. The contrast between s 1(3) of the Repeal Act and s 100 of the 1983

Constitution, on the one hand, and s 2(1 )(b) of the Defence Act on the other

is clear. This submission is made for two reasons:

59.1 Unlike s 100 of the Constitution and s 1(3) of the Repeal Act, s 2(1 )(b)

of the Defence Act refers to neither a classification nor a register. It

refers instead to a definition. That definition, by express enactment of

Parliament, no longer exists.

59.2 Secondly, the 1983 Constitution would be unworkable unless an existing

true of the Defence Act. If all South Africans regardless of race are liable

for compulsory military call-up, that would enlarge rather than inhibit the powers and freedom of action of those entrusted with enforcing the

Defence Act.

60. These distinctions explain, it is submitted, the form the Repeal Act takes, and

clearly illuminate the legislative intention behind it.

61. It is therefore submitted that while the racial classifications in the population

of the Repeal Act, the racial definitions in the Population Registration Act and,

by necessary implication, all references to those definitions were abolished after

the commencement of the Repeal Act.

62. At page 9 of the main judgment, the Judge President stated:

"As far as section 2(1 )(b) is concerned, there is in my judgment, no reason to think that the repeal of the Population Registration Act was intended by Parliament to have any effect on that section. On the contrary, all the pointers are the other way."

63. The Judge President proceeded to identify three such "pointers", namely:

63.1 the Repeal Act makes no mention of the Defence Act;

63.2 the definition of "white persons" in Section 2(1 )(b) of the Defence Act is

ancillary to the main component of the sub-section, which is "that whites

only are liable for compulsory military service"; and 63.3 If Parliament had intended "to bring about such a radical, drastic

provision as to subject all citizens in this country, white, coloured and

black, to compulsory military training it would have said so in clear and

unmistakeable terms." (At page 10).

64. It is submitted that the learned Judge President erred in concluding that

Parliament did not intend the Repeal Act to have any effect on Section 2(1 )(b)

of the Defence Act. Each of the identified "pointers" is dealt with in turn.

65. No mention of the Defence Act in the Repeal Act

65.1 The court below correctly found, at page 10, line 12 of the main

judgment, that Section 2(1 )(b) of the Defence Act was sensitive to

changes to the definition of "white persons" in Section 1 of the

Population Registration Act. However, it is submitted that the court

below failed to attach any, or sufficient, weight to the fact that such

changes to the definition in the Population Registration Act were effected

without any express mention being made of the Defence Act in the

statutes which effected the changes to the definition. Accordingly, the

fact that the Defence Act was not expressly mentioned in the Repeal Act

is, it is submitted, not a factor which points either to or from the intention

of the Legislature.

65.2 The learned Judge President, at page 10, line 28, emphasised only a part of the long title of the Repeal Act. The long title in full reads as

follows:

"To repeal the Population Registration Act, 1950: to amend or repeal certain laws so as to abolish the distinction made therein between persons belonging to different races or population groups; and to provide for matters connected therewith." (emphasis added)

Insofar as the long title is relevant to ascertaining the intention of the

Legislature, it is submitted that the intention "to amend or repeal certain

laws" must be read conjunctively with:

(a) the intention to repeal the Population Registration Act; and

(b) the intention to provide for matters connected therewith.

The reason as to why "certain laws" were expressly mentioned in the

schedules to the Repeal Act is dealt with in paragraph 65.3 hereunder.

It is submitted that the court below erred in isolating only a part of the

long title. To ignore the phrases underlined above is, it is submitted, to

omit to consider the very question raised by this matter, namely: What

is the effect of the Act was passed "to repeal the Population Registration

Act, 1950"?

65.3 Schedule II to the Repeal Act expressly mentions specific statutes which are to be amended. Section 2(1)(b) of the Defence Act is not mentioned in the schedule. It is submitted that the sections of the statutes mentioned in the schedule differ from Section 2(1 )(b) of the Defence Act in that in none of the former sections is there an undiluted reference to a definition in the Population Registration Act as there in fact is in

Section 2(1 )(b) of the Defence Act.

(a) The sections of the Workmen’s Compensation Act, 30 of 1941

referred to in the schedule contain racial provisions which do not

in any way refer to or depend upon the Population Registration

Act;

(b) Section 152(2) of the Merchant Shipping Act, 57 of 1951 contains

a reference to the Population Registration Act together with a

racial allusion in the Development Trust and Land Act, 18 of 1936;

contain racial provisions which do not in any way refer to the

Population Registration Act;

(d) Section 12(1) (a) of the Marriage Act, 25 of 1961 is the only

section of the sections referred to in that Act which contains a

reference to the Population Registration Act. The reference

however is not to a racial definition. This provision, it is „ r submitted, needed to be expressly mentioned in the schedule because of the transfer of procedures relating to identity documents from the Population Registration Act to the

Identification Act;

Section 1 of the Births, Marriages and Deaths Registration Act, 81 of 1963 contains a reference to the Population Registration Act together with the Native Administration Proclamation 1928

(Proclamation 15 o f 1928), of South West Africa. Furthermore, the reference is to "a person who is classified or must be classified" and not to a definition;

Section 7A of Act 81 of 1963 refers to "classification under the

Population Registration Act, 1950" and not to a definition;

The other sections of Act 81 of 1963 referred to contain racial provisions which do not in any way refer to the Population

Registration Act;

The section of the Unemployment Insurance Act, 30 of 1966 referred to in the schedule contains racial provisions which do not in any way refer to the Population Registration Act;

The proclamation referred to in Section 62 of the General Law Amendment Act, 70 of 1968 contains the definitions of various

sub-groups of "coloured persons". It is submitted that the validity

of the proclamation needed to be expressly withdrawn as the

proclamation itself contains racial definitions which are not found

in Section 1 of the Population Registration Act;

(j) The sections of the National Parks Act 57 of 1976 referred to in

the schedule contain racial provisions which do not in any way

refer to the Population Registration Act;

(k) Section 5(3) of the Identification Act, 72 of 1986 contained the

crucial link between the Identification Act and the Population

Registration Act which facilitated the continued classification in the

population register of all citizens by race. It was, it is submitted,

necessary for the Legislature expressly to mention this section in

the schedule given the provisions of Section 1 (3) of the Repeal

Act;

(I) Part I of the schedule to the Identification Act constituted an

amendment to the Population Registration Act and, therefore, it

is submitted, had to be expressly repealed together with all other

amendments to the Population Registration Act;

(m) None of the other sections of the Intimidation Act referred to contain any reference to the Population Registration Act.

65.4 At page 10, line 29 of the main judgment, the learned Judge President

stated that:

"The laws concerned are carefully specified and, as Mr Cohen for the Respondents pointed out, the number of statutes containing reference to race or colour were not dealt with by the Repeal Act."

It is submitted that the court below erred in finding that the failure of the

Legislature expressly to maintain the statutes listed at page 11 of the

main judgment detracts from or defeats your Petitioners’ argument. It

is further submitted that there were very good reasons for the

Legislature to act as it did.

(a) The Sorghum Beer Act, 63 of 1962 was repealed in its entirety by

the Liquor Act, 27 of 1989. There was, therefore, no basis on

which the Sorghum Beer Act could have been mentioned in the

schedules to the Repeal Act;

(b) The Development Trust and Land Act, 18 of 1936 was repealed

in its entirety by the Abolition of Racially Based Land Measures

Act, 108 of 1991, which was assented to on 27 June 1991 and

which commenced on 30 June 1991. The Repeal Act was

assented to on 27 June 1991 and commenced on 28 June 1991.

Since both Acts were prepared for, and passed in, the same Page 28 session of Parliament, there was no need for the Development

Trust & Land Act to have been mentioned in the schedules to the

Repeal Act;

follows:

"(4) For the purposes of this section "specified officer" means an officer as defined in Section 1 of the Public Service Act, 1957 (Act No. 54 of 1957), who is not a White person as defined in Section 1 of the Population Registration Act, 1950 (Act No. 30 of 1950), and whose period of service as such an officer includes a period of service in respect of which he has not contributed to a pension fund and which is not pensionable service for the purposes of any such fund."

Act 54 of 1957 was replaced in its entirety by the Public Service

Act, 111 of 1984, which contains a definition of "officer" in Section

1 thereof.

The same argument which your Petitioners rely on in relation to

Section 2(1 )(b) of the Defence Act applies with equal force to

Section 10(4) of the General Pensions Act. The effect of this is

that Public Service employees are no longer to be discriminated

against on the ground of race. This, too, accords with the

intention of the Legislature in the Repeal Act, manifested in this

regard by the inclusion of the Merchant Shipping Act and the

National Parks Act (both dealing with employees) in the schedule to the Repeal Act;

(d) Section 16(2) of the General Pensions Act [so far material], which

deals with presumptions and definitions for the purposes of laws

relating to social pensions, reads as follows:

"(2) For the purposes of this section, unless the context otherwise indicates -

(a) "Coloured person" means a person classified as a member of the Cape Coloured, Malay or Griqua group or the other Coloured group in terms of the Population Registration Act, 1950 (Act No. 30 of 1950);

(b) "Indian" means a person classified as a member of the Indian group in terms of the Population Registration Act, 1950;

(d) "White person" means a White person as defined in Section 1 of the Population Registration Act, 1950,

and any word to which any meaning has been assigned in the applicable law with reference to social pensions, shall have that meaning." (emphasis added)

It follows from this section that the Legislature deliberately

intended to define a "White person" in a manner that was different

from the definitions of "Coloured person" and "Indian". The fact

that this subsection was not expressly mentioned in the schedule

to the Repeal Act means, it is submitted, that "Coloured persons"

and "Indians" are still discriminated against in the General Pensions Act;

(e) Section 1 of the Education and Training Act, 90 of 1979, Section

1 of the Technikons (Education & Training) Act, 27 of 1981 and

Section 1 of the Black Local Authorities Act, 102 of 1982 all

contain the same racial definition of "Black" or "Black person". In

all three Acts, such a reference means:

"a Black as defined in Section 1 of the Population Registration Act, 1950 (Act No. 30 of 1950);"

It is submitted that these three sections fall squarely within the

argument advanced by your Petitioners. All three sections, like

Section 2(1 )(b) of the Defence Act, contain undiluted references

to the Population Registration Act. That, it is submitted, is clearly

the reason why, like Section 2(1 )(b), they were not expressly

mentioned in the schedule to the Repeal Act;

(f) The amendments to Section 5 of the Nursing Act, 50 of 1978 by

Section 3 of the Nursing Amendment Act, 21 of 1992 went far

beyond the express exclusion of references to race. The entire

section was replaced by a new section which significantly altered

the constitution of the council referred to in the section. It is

submitted that the racial references had already been excluded

by necessary implication. In recasting the section and in altering the composition of the council (unrelated to race), the Legislature,

it is submitted, merely gave express effect to what had already

been achieved by the Repeal Act;

(g) The State Land Disposal Amendment Act, 26 of 1976 and the

Transport Services Additional Appropriation Act, A of 1989 contain

no "reference to race or colour" whatsoever. The failure to

mention these Acts in the schedule to the Repeal Act can, it is

submitted, therefore have no meaning at all.

66. The definition of "white persons" is ancillary

66.1 It is submitted that, in coming to the conclusion (at page 9, line 29) that

"the definition of who white persons are is ancillary", the court below was

motivated by the inarticulate premise that the question of who a "white"

person is, is a question of fact and not a fiction dependent on a

statutory definition.

66.2 It is further submitted that although the court below (at page 9, lines 19 -

21) expressly found that Section 2(1 )(b) of the Defence Act was

unaffected by the Repeal Act, the court impliedly found that even if the

reference to the definition in Section 2(1 )(b) was now a reference to a

non-existent definition, the section could still be read to exclude "persons

who are not white persons". 66.3 It is submitted that the court below erred in making these findings.

(a) It is submitted that, as a matter of fact, there is no such thing as

a "white" person. For that reason, the Legislature was compelled,

during Apartheid, to resort to express definitions, amended from

time to time, to define the fictional "white" person.

(b) Section 3 of the Defence Act renders all citizens in a particular

age group liable to render service in the SADF.

This general provision is then limited by the provisions of Section

2 of the Act. One such limitation is the exclusion of "persons who

are not white persons as defined". This is not the only limitation

or exclusion.

It is therefore submitted that it cannot be said that 'the main

component of importance in Section 2(1 )(b) is that whites only

are liable for compulsory military service."

There being no such thing as a "white" person, as soon as the

"ancillary" definition falls away, one of the restrictions on the

application of the Act falls away and the general provision in

Section 3 re-asserts itself. (c) At page 12, line 26 the learned Judge President stated:

"It is not crucial to our decision in this case, but the preservation of the population list could also (have been) decreed by Parliament to facilitate the application of Section 2(1 )(b) of the Defence Act."

If, as the learned Judge President concluded at page 13, lines 4 -

5, the position is that "for the purpose of the Defence Act that

definition (of "white persons") still has statutory efficacy", then the

express retention by Section 1(3) of the Repeal Act of the

population register is irrelevant and meaningless insofar as

Section 2(1 )(b) is concerned.

As long as the definition "still has statutory efficacy", there is no

need to refer to the register to determine who is a "white" person

and who is not. All that is required is that the relevant official

carry out the controversial tests formerly used by officials

entrusted with the duty of classifying persons by race.

But Parliament, in the Repeal Act, has, by necessary implication,

decreed that such testing is no longer tolerable.

Unlike the 1983 Constitution, Section 2(1 )(b) of the Defence Act

does not rely on classifications already made. There is no link

whatsoever between Section 2(1 )(b) and the population register. There would therefore be no statutory basis upon which officials

of the SADF could use the population register "to facilitate the

application of Section 2(1 )(b) of the Defence Act."

(d) At page 11, line 27 the learned Judge President stated:

"(The population register) will no doubt serve as a useful tool in order to enable the Defence Department to decide who are the white persons to take up for military service."

At page 12, line 4 the learned Judge President continued:

"It may be that if the population register is used as the guide for determining who are the whites liable to render compulsory military service, some persons who are whites in terms of the definition will, because their names have not been placed on the list, avoid liability for military service. That, however, is not a matter which need concern us."

It is submitted that, had the court below been convinced that

Section 2(1 )(b) remained unaffected by the Repeal Act, it would

not, have found it necessary to embark upon the reasoning

quoted above.

The SADF cannot, it is submitted, use the population

The classifications in the population register have no bearing on

the question of liability for service in the SADF. If the definition of "white" persons as referred to in Section 2(1 )(b)

no longer exists, the population register cannot be used in its

place because there is no statutory authority for such use.

(e) It is therefore submitted that, without the definition of "white"

persons, Section 2(1 )(b) cannot be read as excluding persons on

the ground of race.

67. The "radical" provisions intended by Parliament

67.1 The court below correctly found, at page 11, lines 17-20, that:

"The terms of the Repeal Act certainly reflect an intention to eliminate race as a factor in South African legislation but one has to be careful not to read more into this statute than is justified by (its) terms." (emphasis added)

67.2 If the intention of the Legislature was to "eliminate race as a factor in

South African legislation" then, it is submitted, that intention ought to be

given effect to, unless there are strong countervailing indications which

suggest that the Legislature intended to preserve race as a factor in any

particular statute.

It is submitted that no such countervailing indications are present in

relation to the Defence Act, particularly since it is common cause that a

large percentage of the SADF consists of persons who were not formerly classified as "white".

67.3 The court below found, at page 12, line 25, that there is nothing in the

Repeal Act to suggest that the sole purpose of retaining the population

Whatever the purpose of retaining the population register, it is submitted

that:

(a) Parliament created a clear and express link in Section 1 (3) of the

Repeal Act between the continued existence and validity of the

population register and the continued existence and validity of the

1983 Constitution. The validity of the register shall only terminate

when the 1983 Constitution is repealed. As soon as the 1983

Constitution is repealed, Parliament itself will cease to function as

presently constituted; and

(b) There is no link between Section 2(1 )(b) and either the 1983

Constitution or the population register.

67.4 It is submitted that the court below misconceived the intended effect of

the Repeal Act. Your Petitioners do not suggest that "Parliament

intended to bring about such a radical, drastic provision as to subject

all citizens ... to compulsory military training". In this regard your

Petitioners refer to paragraphs 28 to 34 above. 67.5 At page 9, line 10 the court below stated that:

"In that regard it is to be remembered that an intention to repeal by implication is not (readily) assumed. Hallsburv’s Laws of England. 4th Ed. volume 44 paragraph 966 says that repeal by implication is not favoured by the courts for it is to be presumed that Parliament would not intend to effect so important a matter as to repeal a law without expressing its intention to do so. That, to my mind, is the attitude to be adopted by us."

67.6 Halsburv’s Laws of England, 4th Ed. volume 44 paragraph 966 states as

follows:

"Repeal by implication is not favoured by the courts, for it is to be presumed that Parliament would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so. However, if provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible is that, unless it failed to address its mind to the question, Parliament intended that the provisions of the existing statute should cease to have effect, and an intention so evinced is as effective as one expressed in terms."

Moreover, it is submitted that the above-quoted extract refers to the

implied repeal of entire statutes, not to the implied amendment of a sub

section of a particular statute.

68. It is therefore submitted that Parliament indeed intended the Repeal Act to have

a cleansing effect on all those statutes which relied on provisions of the

Population Registration Act, including Section 2(1 )(b) of the Defence Act.

IX. DOES SECTION 2(1 Hb) OF THE DEFENCE ACT ‘INCORPORATE BY

REFERENCE’ SECTION 1 OF THE POPULATION REGISTRATION ACT? 69. It is submitted in any event that s 2(1 )(b) of the Defence Act does not

incorporate by reference s 1 of the Population Registration Act. Your

Petitioners' argument in this respect is succinctly conveyed in an article by

Christo Botha,

‘"Boetie (en wie nog?) gaan border toe”: verpligte nasionale diensplig

en artikel 2(1 )(b) van die Verdedigingswet 44 van 1957 oorkant die

Rubicon’ 1992 SA Publiekreg / Public Law 117 at 119-20. A copy of the

article is annexed, marked "ECC3".

70. Of the argument sought to be maintained by the Respondents in the present

case, Botha says the following:

‘Deur bloot in die onderhawige geval te aanvaar dat die verwysing na ’n bepaling van die Bevolkingsregistrasiewet outomaties tot gevolg gaan he dat dit in die Verdedigingswet geinkorporeer is, ignoreer die bedoeling van die wetgewer (of meer verkieslik in kontekstuele terme, die oogmerk en doel van die wetgewing). Die Bevolkingsregistrasiewet 30 van 1950 was die Grundnorm van die hele ideologie van apartheid; dit was die spil waarom die hele beleid gedraai het en die fondasie waaarop alle rasgebaseerde maatreels gerus het. Dit kon nouliks sewe jaar later - toe die Verdedigingswet gemaak is - die bedoeling van die wetgewer gewees het om in elke wet waarin afsonderlikheid ten opsigte van ras en etniese afkoms gespesifiseer is, artikel 1 van die Bevolkingsregistrasiewet deur midde! van verwysing te inkorporeer. Waar daar na die verskillende rasse verwys is, moes die betrokke bepaling bloot saam met artikel 1 gelees word.

Hierdie standpunt word versterk indien die Wet op Herroeping van die Bevolkingsregistrasiewet 114 van 1991 van naderby bestudeer word. Artikel 1 (1) herroep ’n aantal wette in geheel soos aangedui in die eerste bylae, terwyl artikel 1(2) (saamgelees met die tweede bylae) slegs sekere bepalings in ander wette herroep. Laasgenoemde wette het uitdruklike verwysings na die verskillende rasse bevat en nie bloot verwysings na artikel 1 van die herroepe Bevolkingsregistrasiewet nie. Artikel 2(1) (b) van die Verdedigingswet verskyn dus nie in die tweede bylae tot die herroepende wet nie. Indien artikel 1 van die Bevolkingsregistrasiewet deur inkorporasie deel geword het van die Verdedigingswet, sou dit tot absurde gevolge gelei het. Geen bevolkingsregistrasie na die inwerkingtreding van die herroepende wet dui die ras van die persoon aan nie. ’n "Nie-blanke" burger sou dus kon aanmeld vir registrasie kragtens artikel 63 van die Verdedigingswet, want volgens so ’n persoon se identiteitsdokument is hy bloot ’n burger van Suid-Afrika. Myns insiens sal die 'rasklassifikasie’ wat dan in die Verdediginswet opgeneem is, doelloos en kragteloos wees.

Indien die argument aanvaar word dat artikel 1 van die Bevolkingsregistrasiewet deur verwysing in artikel 3 (quare: art 2) van die Wet geinkorporeer is, moet dus by implikasie ook aanvaar word dat alle ander verwysings in die Wet na ander wetsbepalings ook outomaties deur verwysing geinkorporeer is (onder andere artikels 1,9, 16, 32, 36, 40, 67A, 83A, 89, 97, 103ter, 132 en 135). Dit kon nouliks die ’bedoeling van die wetgewer’ in 1957 gewees het.’ (emphasis and query added)

71. The court a quo, at page 7, lines 27 - 28, found that Section 2(1 )(b) of the Defence Act does not merely refer to the definition of a "white" person in the Population Registration Act but that the section incorporates the definition by reference.

72. It is submitted that the court below erred in fact and in law in failing to draw the distinction, either properly or at all, between "reference" and "incorporation by reference". At page 7, line 30 the court a quo stated:

"The adoption of the definition gives the force and content to Section 2(1 )(b) which it would, but for such incorporation, probably not have had." (emphasis added)

It is submitted that Section 2(1 )(b) of the Defence Act would, during the lifetime

of the Population Registration Act, have had the same force and content

regardless of whether the definition was merely referred to or whether the

definition was incorporated by reference. A finding in this case that there has been "incorporation by reference” means

(per Innes CJ in Malgas’ case) that the definition of a "white" person has, "in effect, been enacted (a second time) as (a) separate Act" in the Defence Act.

That, it is submitted, presupposes that the definition is a static one. Your

Petitioners refer to paragraphs 75 to 90 below, which deal with the question of a dynamic definition.

As soon as it is accepted that the definition of a "white" person in the

Population Registration Act and the definition referred to in Section 2(1 )(b) are not separate Acts, but that they are inextricably linked, it is submitted that it follows that Section 2(1 )(b) does not "incorporate" the definition within the meaning of Innes CJ’s dictum, but rather that the section "refers" to the definition, in whatever from the definition may be at any point in time.

THE ABOLITION OF A DYNAMIC DEFINITION

Section 2(1 )(b) of the Defence Act refers to ‘persons who are not white persons as defined in section one of the Population Registration Act’. This reference clearly alludes to a definition: but the question is, which definition? What

Parliament intended in enacting s 2(1 )(b) was either -

75.1 a reference to a definition as expressed and enacted in the original

statute in 1950; or 75.2 a definition as affected from time to time by amendments or other

changes in the parent statute.

76. It is submitted that the reference to the definition in s 2(1 )(b) of the Defence Act

must be construed as a reference to a definition as it existed from time to time

(i e a dynamic definition).

77. From 1950 to 1962 the definition of a "white person" in Section 1 of the

Population Registration Act read as follows:

"a person who in appearance obviously is, or who is generally accepted as a white person, but does not include a person who, although in appearance obviously a white person, is generally accepted as a coloured person."

78. On 25 May 1962 the definition as it had stood since 1950 was removed and a

new definition, as set out in paragraph 27 above, substituted.

Population Registration Amendment Act 61 of 1962 s 1

79. The effect of the new definition was to exclude a person from the group of

"white" persons who, although "generally accepted as a white person" was "not

in appearance obviously not a white person". Crudely put, certain darker

skinned persons who were formerly defined as "white" were, with effect from 25

May 1962, redefined as "coloured".

80. Although the Defence Act was not specifically mentioned in the 1962

amendment, the definition s 2(1 )(b) refers to was (it is submitted), with effect

Collection Number: AG1977

END CONSCRIPTION CAMPAIGN (ECC)

LEGAL NOTICES:

Copyright Notice: All materials on the Historical Papers website are protected by South African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright owner.

Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only.

People using these records relating to the archives of Historical Papers, The Library, University of the Witwatersrand, Johannesburg, are reminded that such records sometimes contain material which is uncorroborated, inaccurate, distorted or untrue. While these digital records are true facsimiles of paper documents and the information contained herein is obtained from sources believed to be accurate and reliable, Historical Papers, University of the Witwatersrand has not independently verified their content. Consequently, the University is not responsible for any errors or omissions and excludes any and all liability for any errors in or omissions from the information on the website or any related information on third party websites accessible from this website.

This document is part of a collection held at the Historical Papers Research Archive at The University of the Witwatersrand, Johannesburg, South Africa.