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[1986] ZASCA 118
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State President and Others v Tsenoli Kerchff and Another v Minister of Law and Order and Others (124/86) [1986] ZASCA 118 (30 September 1986)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
( 1) In the matter between:
THE STATE PRESIDENT
1st Appellant
THE MINISTER OF LAW AND ORDER
.2nd Appellant
THE MINISTER OF JUSTICE
3rd Appellant
and
SOLOMON LECHESA TSENOLI
Respondent
( 2 ) In the matter between:
JOAN LYNETTE KERCHOFF
1st Appellant
PETER CAMPBELL KERCHOFF
2nd Appellant
and
THE MINISTER OF LAW AND ORDER.1st Respondent
THE MINISTER OF JUSTICE
2nd Respondent
THE/
THE COMMISSIONER OF POLICE
3rd Respondent
THE OFFICER COMMANDING
THE NEW PRISON, PIETERMARITZBURG..... 4th Respondent
Coram: RABIE CJ, JANSEN, CORBETT, JOUBERT et VILJOEN JJA.
Heard
:
Delivered
30 September 1986
10 September 1986
JUDGMENT
RABIE CJ
:
These two appeals are concerned with the validity of regulation 3(1) and (3)
of the regulations contained in Proclamation R 109 of
1986, promulgated in terms
of section 3(l)(a) of the Public Safety Act, No. 3
of/
3
of 1953
In the first case (to which I shall refer as
'Tsenoli's
case") it was held on 11 August 1986 in the
Durban and Coast Local Division (per Friedman J, with whom
Leon and Wilson JJ agreed) that reg. 3(1) was invalid for
being beyond the powers of the State President as set out
in sec. 3(1)(a) of the aforesaid Act (hereinafter referred
to as "the Act"), and that, without reg. 3(1), reg, 3(3)
had no practical effect. The Court accordingly ordered
the release of the applicant in that case (the respondent
in the first appeal), who had been arrested and detained
under the said regulations.
In the second matter (hereinafter referred to
as "Kerchoff's case"), which was concerned with the arrest
and/......
4
and detention of one Peter Campbell Kerchoff (the 2nd
appellant in the second appeal), a full Court of three
Judges (Kriek, Thirion and Law JJ "), sitting in the Natal
Provincial Division, held in a joint judgment, delivered on-
14 August 1986, that it had been wrongly decided in Tsenoli's
case that reg. 3(1) was
ultra vires
and invalid. (It does
not appear from the Court's judgment that it was contended
on the 2nd appellant's behalf that reg. 3(3) should be held
to be invalid even if it were found that reg. 3 (1) was
valid.) The Court accordingly refused to order the 2nd
appellant's release from detention on the ground that
reg. 3(1) was invalid. It also refused to do so on
the ground that, as was argued on his behalf, his
detention/.......
4(a)
detention was unlawful because it had not been preceded
by an "arrest" within the meaning of that term in reg,
3(1).
In Proclamation R 108 of 11 June 1986 the State
President, acting in terms of the powers conferred upon him by sec. 2(1) of
the Act, declared the existence of a state of emergency
in the Republic as from
12 June
1986. Sec. 2(1)
of the Act reads as follows:
2. (1) If in the opinion of the Governor-General it at any time appears that
-(a) any action or threatened action
by any persons or body or persons in the Union or any area within the Union
is of such a nature and of such an extent that the safety
of the public, or the
maintenance of public order is seriously threatened thereby; or (b)
circumstances have arisen in the
Union or any area within the Union which seriously threaten the
safety of the public, or the
maintenance/
5
maintanance of public order; and
(c) the ordinary
law of the land is
inadequate to enable the Government to ensure the safety of the public, or to
maintain public order,
he may, by proclamation in the Gazette,
declare that as from a date mentioned in the proclamation, which date may be a
date not more
than four days earlier than the date of the proclamation, a state
of emergency exists within the Union or within such area, as the
case may
be."
Sec. 3 (1) (a) of the Act empowers the State President to make regulations in
any area in which the existence of a state of emergency
has been declared. It
reads as follows:
"3. (l)(a) The Governor-General may in any area in which the existence of a
state of emergency has been declared under section two,
and for as long as the
proclamation
declaring the existence of such emergency remains in force, by proclamation
in the
Gazette
, make such regulations as appear to him to be necessary or
expedient for providing for the safety of the public, or
the/
6
the maintenance of public order and for making adequate provision for
terminating such emergency or for dealing with any circumstances
which in his
opinion have arisen or are likely to arise as a result of such emergency."
By Proclamation R109, dated 12 June 1986, the State President, acting in
terms of the powers conferred upon him by sec. 3(1)(a) of
the Act, made
regulations which came into operation on the date of the Proclamation.
Subregulations (1), (2), (3), (4), (5) and (6)
of reg. 3 of these regulations
read as follows:
"3. (1) A member of a Force may, without warrant of arrest, arrest or cause
to be arrested any person whose detention is, in the opinion
of such member,
necessary for the maintenance of public order or the safety of the public or
that person himself, or for the termination
of the state of emergency, and may,
under a written order signed by any
member/
7
member of a Force, detain, or cause to be detained,
any such person in custody in a prison.
(2)
No person shall be detained
in terms of subregulation (1) for a period exceeding fourteen days from the date
of his detention, unless
the period is extended by the Minister in terms of
subregulation (3).
(3)
The Minister may,
without notice to any person and without hearing any
person,
by written notice signed by him and
addressed to the head . of a prison, order that any person arrested and detained
in terms of subregulation
(1) , be further detained in that prison for the
period mentioned in the notice, or for as long as these Regulations remain in
force.
(4) A person detained in a prison pursuant
to an order referred to in
subregulation (1),
or a notice referred to in subregulation (3),
may be
removed in custody, if the Minister
or a person authorized by him in writing so directs, from that prison for
detention in any other prison, or for any other purposes
mentioned in such
direction.
(5) A member of a Force may, with a view
to the maintenance of public
order, the
safety of the public or the termination of
the/
8
the state of emergency, interrogate any person arrested or detained in terms
of this regulation.
(6) The Minister may at any time by notice in writing signed by him order
that a person detained in terms of this regulation, be released
on such
condition or conditions, if any, as may in his discretion be determined' by the
Minister in such notice."
According to reg. 1, "Minister" means the Minister of Law and Order, while
"Force" means -
".... the South African Police referred to in the definition of 'the Force'
in section 1 of the Police Act, 1958 (Act 7 of 1958),
the South African Railways
Police Force established under section 43 of the South African Transport
Services Act, 1981 (Act 65 of
1981), The South African Defence Force referred to
in section 5 of the Defence Act, 1957 (Act 44 of 1957) or the Prisons Service
established by section 2(1) of the Prisons Act, 1959 (Act 8 of 1959.)"
Before/
9
Before I proceed to discuss the two
appeals,
I propose to refer to what has
been said by this Court
concerning the interpretation of a statute of the kind that
is in issue in the appeals, i.e. a statute which encroaches,
or authorises an encroachment, upon the liberty normally
enjoyed by the individual, but which is, at the same time,
aimed at the protection of the public in an emergency
situation. The approach to be followed by a Court in such
circumstances was considered in the case of Rossouw v. Sachs
1964(2) SA 551(A), where sec. 17 of Act 37 of 1963, the
predecessor of sec. 6 of the now repealed Terrorism Act, No.
83 of 1967, and of sec. 29 of the present Internal Security
Act, No. 74 of 1982, was in issue. Ogilvie Thompson JA, who
delivered the judgment of the Court, said (at 563 C-H):
.... as/.....
10
"......as the Acts mentioned in sec 17 and as various cases both in the
Provincial Courts and in this Court bear witness, subversive
activities of
various kinds directed against public order and the safety of the State are by
no means unknown, and sec. 17 is plainly
designed to combat such activities.
Such being the circumstances whereunder sec. 17 was placed upon the Statute
Book, this Court
should, while bearing in mind the enduring importance of the
liberty of the individual, in my judgment, approach the construction
of sec. 17
with due regard to the objects which that section is designed to attain. In this
connection I cite, as being, in my opinion,
very apposite to the present
enquiry, sufficiently heedful of the necessity for the Court to avoid any
'strained construction' in
favour of the Executive as elaborated by LORD ATKIN
at p. 361 of his dissenting judgment in
Liversidge'
s case, and in general
harmony with what was said in a somewhat similar, though not identical, context
by this Court in
R. v. Sachs
,
supra
at p. 399, the following
excerpt from the opinion of LORD WRIGHT in
Liversidge'
s case at p. 372 of
(1941) 3 All E.R., viz.:
' All the Courts to-day, and not least this House, are as jealous as they
have ever
been/....
11
been in upholding the liberty of the" subject. That liberty,
however, is a liberty confined and controlled by law, whether common
law or
statute ... If an Act of Parliament ... is alleged to limit or curtail the
liberty of the subject or vest in the executive
extraordinary powers of
detaining a subject, the only question is as to the precise extent of the powers
given. The answer to that
question is only to be found by scrutinising the
language of the enactment in the light of the surrounding circumstances and the
general policy and object of the measure.'"
The learned Judge stated his conclusion in the following terms (at
563H-564A):
"I accordingly conclude that in interpreting sec. 17 this Court should accord
preference neither to the 'strict construction' in favour
of the individual
indicated in Dadoo's case,
supra
, nor to the 'strained construction' in
favour of the Executive referred to by LORD ATKIN in
Liversidge's
case,
supra
, but that it should determine the meaning of the section upon an
examination of its wording in the light of the circumstances whereunder
it
was/....
12
was enacted and of its general policy and object."
(The decisions mentioned in the passages quoted above, are:
Liversidge v.
Anderson and Another
[1941] UKHL 1
;
(1941) 3 All ER 338
(HL);
R v. Sachs
1953(1) SA
392(A), and
Dadoo Ltd and Others v. Krugersdorp Municipal Council
1920
A.D. 530.)
As to determining the meaning of* a statutory-provision which
encroaches upon the liberty of the subject, it has often been said that,
if the
language thereof is uncertain or ambiguous, it should be interpreted in a way
which least interferes with the rights of the
individual. It is to be noted,
however, that such an approach to the task of interpretation is permissible only
if the language used
by the Legislature is indeed
ambiguous or open to doubt. If it is not, and the meaning
thereof/
13
thereof is clear, the Court must give effect thereto, no
matter how unfortunate the result may be for those who may be affected by
it.
See
Rossouw v. Sachs
,
supra
, and
R. v. Sachs
,
supra
,
at 399 G-H, where Centlivres CJ said:
"Courts of law do scrutinise such statutes with
the greatest care but where the statute under
consideration in clear terms confers on the
Executive autocratic powers over individuals,
courts of law have no option but to give
effect to the will of the Legislature as expressed
in the statute. Where, however, the statute is
reasonably capable of more than one meaning a
court of law will give it the meaning which
least interferes with the liberty of the individual"
In this connection I would also cite what was said by Lord Wilberforce and
Lord Diplock in the case of
Inland Revenue Commissioners and Another v.
Rossminster Ltd and Others
[1979] UKHL 5
;
1980 A.C. 952
(HL), where the issue was whether
search
warrants/.......
14
warrants were within the terms of the provision (sec.
20 of the Taxes Management Act 1970) under which they
had been issued. Lord Wilberforce said (at 998A):
"... while the courts may look critically at
legislation which impairs the rights of citizens
v and should resolve any doubt in interpretation
in their favour, it is no part of their duty, or power, to restrict or impede
the working of legislation, even of unpopular legislation
..."
Lord Diplock said the following (at 1008 D-E):
"So if the statutory words relied upon as authorising the acts are ambiguous
or obscure, a construction should be placed upon them
that is least restrictive
of individual rights which would otherwise enjoy the protection of the common
law. But judges in performing
their constitutional function of expounding what
words used by Parliament in legislation mean, must not be over-zealous to
search
for/
15
for ambiguities or obscurities in words which on the face of them are plain,
simply because the members of the court are out of sympathy
with the policy to
which the Act appears to give effect."
In
Tsenoli'
s case Friedman J,
reading
sec. 3(l)(a) of the English
version of the Act as if there were a comma after the word "order" (there is a
comma after the word "orde"
in the signed Afrikaans text), held that the section
was capable of two meanings. The learned Judge said:
"The first meaning is to the following effect. The first respondent is
empowered to make such regulations as appear to him to be necessary
or expedient
for one or more of the following purposes -
(a)
for providing for the
safety of the public;
(b)
for providing for
the maintenance of public order;
(c)
for
making adequate provision for terminating the state of
emergency;
(d)/
16
(d) for dealing with any circumstances which in his opinion
have arisen as a result of the state of emergency.
The second meaning is to the following effect The first respondent is
empowered to make such regulations as appear to him to be necessary
or expedient
for one or more of the following purposes -
(a)
for providing of the safety
of the public and for making adequate provision for terminating the state of
emergency;
(b)
for providing for the
maintenance of law and order and for making adequate provision for terminating
the state of emergency;
(c)
for dealing with
any circumstances which in his opinion have arisen or are likely to arise as a
result of the state of emergency."
The learned Judge
held that the second meaning was the correct one.
It will immediately be apparent that according to the learned Judge's
interpretation of sec.
3/......
17
3(1)(a) the words "and for making adequate provision
for terminating such emergency" constitute a qualification
of, or limitation upon, the State President's power to
make regulations "for providing for the safety of the
public, or the maintenance of public order", the effect
of which is that the State President is entitled to make
regulations which provide for the safety of the public or
the maintenance of public order, and which, at the same
time, also provide for the termination of the state
of emergency, but not regulations which provide only for
the safety of the public or the maintenance of public order
as independent purposes. According to this interpretation
of sec. 3(1)(a), as I understand it, reg. 3(1) would be
invalid because the State President, by using the word "or"
instead/.....
18
nstead of "and" before the words "for the termination
of the state of emergency", ignored the qualification,
or limitation,
which the words "and for making adequate
provision for terminating such
emergency" place upon his
power to make regulations for providing for the
safety of
the public or the maintenance of public order, and, in
the
result, went beyond the powers conferred on him by sec.
3(l)(a).
The learned Judge' s reasons for adopting
his aforesaid interpretation of
sec. 3(1)(a) of the
Act appear from the following passages in his
judgment:
"It seems to me, in the first place, that by far the most important single
factor in seeking to ascertain which of the two meanings
the section bears, is
the use of the word 'and' before the words 'for making adequate provision'.
Immediately
prior/
19
prior to that word the section lists two of the purposes of the regulations
to be 'for providing for the safety of the public' and
'for providing for the
maintenance of the public order.' These two purposes are linked by the use of
the word 'or'. The word 'or'
has clearly been used not to suggest that the first
respondent can make regulations for alternative purposes, and if he does it for
the one purpose it excludes the other, but rather to suggest that he can make
regulations for either or both of those purposes. Thus
the word 'or' is used by
the legislature before the phrase 'the maintenance of public order' so as to
indicate that an additional
power or purpose to that of 'providing for the
safety of the public' is being specified by it. The word 'or' is also used in
precisely
the same manner in the latter part of the section in order to add an
additional purpose for which regulations can be made, namely,
'for dealing with
any circumstances which in his opinion have arisen or are likely to arise as a
result of such emergency.' That
being so, if the words 'for making adequate
provision for terminating such emergency' were intended
by/......
20
by the legislature simply to add yet a further purpose for which the first
respondent may make regulations, one would have expected
it once again to have
used the word 'or' to introduce the phrase. The use of the word 'and' would
therefore tend to suggest that
the legislature intended to link or connect the
phrase following that word, to the phrase which preceded it. The use of the
commas
to which I have referred, tend to suggest that that phrase was being
linked to both and not simply one of the preceding purposes
which, as I have
said, is indicated by the positioning of the comma in the English version. This
object would be reached by giving
to the section the second, but not . the
first, meaning."
"The second meaning, and the emphasis to which I have just referred, appears
to accord with the reasons for the declaration of a state
of emergency as they
emerge from a consideration of the provisions of section , 2(1) of the Act. In
essence, a state of emergency
may be declared where the first
respondent/
21
respondent is of the opinion that, firstly,
there are either actions or
threatened actions
by persons or bodies of persons or there
are
circumstances which have arisen, which
seriously threaten the safety
of the public
or the maintenance of public order and,
secondly, that the
ordinary law of the land
is inadequate to enable the government to
ensure the safety of the public
or the
maintenance of law and order. In other words,
it is not the mere threat to the safety of
the public or the maintenance
of law and order
which gives rise to the state of emergency,
but also, the
circumstance that the ordinary
law is inadequate to deal with the problems
which have arisen. The object
of the declaration
of the state of emergency, therefore, is not
simply to bring about the elimination of
threats to public safety and law and order,
but also to bring about a situation where the
ordinary law once again will be adequate to
cope with such threats. In other words, it
might be said that an important purpose of
the declaration of a state emergency is to
bring an end to such emergency. If this
then is an underlying object of the declaration
of a state of emergency, as I believe it to
be upon a consideration of section 2(1), then
it/
22
it makes good sense to give to section 3(l)(a)
the second meaning ;
".
"There is a further important consideration which
leads me to believe that the second meaning is the correct one. The
legislature in enacting section 3(1)(a) no doubt had in mind that
the
regulations made by the first respondent might, for example, make provision for
not only the arrest but also for the detention
of persons, otherwise than in
accordance with the ordinary law of the land (cf. for example sections 3(4) and
3(4)
bis
). Such detention might, and probably would be, summary or
without what is often referred to as, due process of law. If, therefore,
the
first respondent were to be empowered to make regulations for not only the
arrest but also the summary detention of persons believed
to be a threat to the
safety of the public or a threat to the maintenance of law and order, such
detentions might continue even if
the detention of such persons in no way
accelerated or might even be thought to be in any way relevant to the
acceleration of, the
termination of the state of emergency. In order to obviate
such an undesirable result, it seems logical to suppose that the legislature
inserted the words 'and for making adequate provision
for/
23
for terminating such emergency' as an additional
requirement of, or qualification to, the power of the first respondent to make
regulations
for the detention of persons believed to be a threat to the safety
of the public or a threat to the maintenance of law and order.
To look at the
matter somewhat differently, if the first meaning of sec. 3(1)(a) is the correct
meaning, persons whose activities,
actual or potential, were in no way related
to either the existence or continuance of the state of emergency, might be
subject not
only to arrest but also to summary detention for as long as the
state of emergency exists. Thus, for example, every common criminal,
at any rate
those with a propensity for violence, might be considered a threat to the safety
of the public and liable as such to
be detained summarily for the duration of
the state of emergency, a result which does not seem to accord with the object
of the Act
insofar as the declaration of a state of emergency is concerned."
In my opinion the learned Judge's interpretation of sec. 3(1)(a) of the Act
is forced and strained, and
not/.....
24
not supported by the language used by the Legislature. The
Afrikaans text of the section - the punctuation of which the learned Judge
adopted when considering the meaning of the section - reads as follows:
"3. (l)(a) Die Goewerneur-Generaal kan in 'n gebied waar die bestaan van 'n
noodtoestand kragtens, artikel
twee
verklaar is, en vir solank die
proklamasie wat die bestaan van so 'n noodtoestand verklaar, van krag bly, by
proklamasie in die
Staatskoerant
die regula-sies uitvaardig wat hy nodig
of raadsaam ag om voorsiening te maak vir die veiligheid van die publiek of die
handhawing
van die openbare orde, en om voldoende voorsiening te maak vir die
beëindiging van die noodtoestand, of om te handel met omstandighede
wat na
sy oordeel as gevolg van so 'n noodtoestand ontstaan het of waarskynlik sal
ontstaan."
In what follows, I refer to the Afrikaans version of the section, not because
I believe that it has a meaning which is in any way
different from that of the
English version,
but/.....
25
but because I consider that the relevant part of the section
in the Afrikaans version is grammatically so constructed as to reveal
immediately what the Legislature intended to say. On reading the Afrikaans text
of the section, I find myself quite unable to construe
the words "en om
voldoende voorsiening te maak vir die beëindiging van so 'n noodtoestand"
(my emphasis) as constituting a qualification
of, or limitation upon, the power
mentioned in the earlier part of the section, viz. to make regulations
"
om
voorsiening te maak vir die veiligheid van die publiek of the
handhawing van die openbare orde". The section empowers the State President
to
make regulations "om voorsiening te maak vir die veiligheid van die publiek of
die handhawing van die openbare orde, en om
voldoende voorsiening te maak vir die beëindiging van so
'n/
26
'n noodtoestand", and in my view it is clear that
the
words "en om voldoende voorsiening te maak vir die
beëindiging van so 'n noodtoestand" refer to a power
additional to that referred to in the words "om voorsiening
te maak vir die veiligheid van die publiek of die hand-
hawing van die openbare orde". There is nothing in the
words "en om voldoende voorsiening te maak vir die be-
eindiging van so 'n noodtoestand" which, as a matter of
language, qualifies or limits the power "om voorsiening
te maak vir die veiligheid van die publiek of die hand-
hawing van die openbare orde". The power to make
regulations "om voorsienig te maak vir die veiligheid van
die publiek of die handhawing van die openbare orde, en om
voldoende voorsiening te maak vir die beëindiging van so 'n
noodtoestand/....
27
noodtoestand" relates to two concepts, the one being the
safety of the public and the maintenance of public order, and the other the
termination of the state of emergency. It is no doubt likely that measures which
are designed to ensure the safety of the public
or the maintenance of public
order will often contribute to the termination of the state of emergency, but
this does not detract
from the fact that the protection of the public or the
maintenance of public order, on the one hand, and the termination of the state
of emergency, on the other, are not the same concept. In
Kerchoff's
case
the
Court a
quo
said the following in this connection: "It seems to us
that section 3(l)(a)
contains/......
28
contains two distinct notions which are
joined by the word 'and'. The first
envisages
regulations which appear to the State President
to be necessary
or expedient for providing
for the safety of the public or the
maintenance
of public order while the second
envisages regulations which appear to
him
to be necessary or expedient for making
adequate provision for
terminating the
emergency or for dealing with any circumstances
which have
arisen or are likely to arise as
a result of such
emergency ".
In a recent appeal heard in the Eastern
Cape Division (
Phila Nqumba and Another v. The State President and Three
Others
; case no. M1173/89) Kannemeyer J (with whom Jennett and Wilshire
Jones JJ agreed) expressed a similar view regarding the meaning
of sec. 3(1)(a).
The learned Judge said:
"In/....
29
"In my view the above envisages two groups of situations which
are linked together with the word 'and'. The first two are the situations
envisaged in section 2(1)(a) and (b) of the Act. Regulations may be necessary in
order to provide for the safety of the public or
the maintenance of public order
or both, because the ordinary law of the land is inadequate for this purpose.
Apart from this, powers
are given to the State President to make regulations
designed to end the emergency or for dealing with circumstances which have
(arisen)
or may arise because of the emergency- These are the second group of
situations again conjoined with an 'or'".
Having said this, Kannemeyer J proceeded to reject the suggestion that "every
regulation made to provide for public safety or the
maintenance of public order
must also have the ingredient of making adequate provision for terminating the
emergency."
There/
30
There is only one further point in the
judgment in
Tsenoli's
case to which I wish to refer, viz
the learned Judge's suggestion that if sec. 3(1)(a) were
given the first of the two possible meanings mentioned'
by him (as quoted above) , persons whose activities were
in no way related to either the existence or continuance
of the state of emergency - such as those of common
criminals, "at any rate those with a propensity for
violence" - might be subject not only to arrest but also
to detention for as long as the state of emergency
exists. The suggestion is ill-founded. The power
which sec. 3(l)(a) confers on the State President is one
to make regulations for providing for the safety of
the public or the maintenance of the public order during
a/.....
31
a state of emergency, or for the termination of the
state of emergency. It is not a power which includes
the power to control (or curtail) the movement of persons,
such as common criminals, whose conduct is not related to
the existence or continuance of the state of emergency.
In view of the aforegoing I am of the
opinion that the judgment in
Tsenoli's
case was wrong,
In addition to contending that reg. 3(1) is
invalid for the reasons stated by Friedman J in Tsenoli's
case, counsel submitted that it is
ultra vires
on certain other grounds, which I set out below. This
further argument was, it would seem, raised in
Tsenoli'
s
case/.....
32
case, but Friedman J did not discuss it or give a
decision thereon. It was not advanced in the Court
a
quo
in
Kerchoff'
s case. Counsel's argument may be
summed up as follows:
(a) The State President is entitled to make regula-
tions in which he provides for the arrest and detention
of persons (see sec. 3(4) and 3(4)
bis
of the Act), but
he may make such regulations only for the purposes set
forth in sec. 3(1) (a) of the Act. The regulations must,
therefore, be confined in their terms to the purposes
for which the State President is entitled to make
regulations. The State President, however, in
conferring powers of arrest and detention in reg. 3(1)
did so in terms which permit those powers to be used
for/......
33
for purposes other than those set forth in sec. 3(1)(a)
of the Act. He has accordingly exceeded his powers to
make regulations. The powers of arrest and detention,
it is said, are conferred in such wide terms that they may
be used for any purpose which the member of a Force who
arrests, or orders the detention of, a person, may wish,
Reg. 3(1) is accordingly invalid.
Counsel also submitted in this connection
that a member of a Force who orders the detention of a
person "is not required to have any opinion at all as
to any matter and (that) the validity of the detention
is determined by the existence of a written order.'
(The quotation is from counsel's heads of argument.)
(b)/......
34
(b) It is admitted that the function of arresting
a person is clearly to be carried out by someone other
than the State President, but it is contended that the
State President failed to set forth in the regulations
the circumstances in which, in his view, an arrest and
detention will be necessary to achieve the purposes
contemplated by sec. 3(1)(a) of the Act, and that he
delegated to others the task of determining what is
necessary to provide for the purposes mentioned in the
section. No guidelines or criteria, it is said, are
laid down in the regulations for the exercise of the
powers of arrest and detention, with the result
that members of the Forces have to form an opinion on
the/......
35
the very matters in regard to which Parliament vested
the responsibility for forming an opinion in the
State President. The State President, it is submitted,
should have laid down the necessary criteria in objective
terms, and should not have left it to the subjective
judgment of members of the Forces as to whether it is
necessary to arrest and detain someone in order to achieve
the purposes mentioned in reg. 3(1). He should also,
it is said, have circumscribed the sort of conduct which
is liable to lead to arrest and detention.
With regard to the argument set out in
paragraph (a) above, it is no doubt correct, as counsel
submitted, that the State President, in making regulations
under/.....
36
under the powers conferred upon him by sec. 3(1)(a) of
the Act, must do so for the purpose of achieving the
purposes mentioned in the section. I do not, however,
agree with the submission that the powers conferred in
reg. 3(1) are so wide that they may be used for any
purpose which the member of the Force who effects an
arrest, or orders a detention, may wish. There is
nothing in the wording of reg, 3(1) which justifies
the submission. A member of a Force who arrests, or
causes the arrest of, a person and who detains, or
orders the detention of, a person may do so only if he
is of the opinion that it is necessary to do so for the
safety of the public, or the maintenance of public order,
or/....
37
or the termination of the state of emergency. These purposes are
mentioned in reg. 3(1) , and it can accordingly not be said that
reg. 3(1)
empowers, or permits, a member of a Force to arrest, or order the detention of,
a person for a purpose not envisaged by
sec. 3(1)(a) of the Act. (I leave out of
account the power, mentioned in reg. 3(1), to arrest and detain a person when it
is considered
necessary "for .... the safety of that person himself." Friedman
J, in his judgment in
Tsenoli'
s case, raised, in passing, the question
of the validity of this provision, but it was not relevant to the case with
which he was
concerned and he gave no decision on it. I, too, do not propose to
discuss the point, and would merely say that, even if this provision
could be
said not to fall within a purpose envisaged in
sec/
37(a)
sec. 3(1)(a) of the Act, it would clearly be severable
from the other provisions in reg. 3(1) and not affect
their validity.
The argument, mentioned in paragraph (a)
above, that the detention of a person may be ordered
by a member of a Force who is "not required to have any
opinion at all as to any matter and (that) the validity
of the detention is determined by the existence of; a
written order", is without substance. Reg. 3(1) does
not contemplate the detention of a person without a
member of a Force having formed the opinion that it is
necessary/.....
38
necessary that he should be arrested and
detained. It
is true that reg. 3(1) contemplates that a "written
order
11
as mentioned therein may be signed by a member
of a Force who did not form the opinion that the person
concerned is one whom it is necessary to. arrest and
detain ' for any of the purposes mentioned in the
regulation, but in such an event the member who signs the
order would merely be performing an administrative, or
secretarial, task - probably at the request of the member
who formed the required opinion, but who can, for some
reason, not himself sign the order. The order is, it
would seem, intended to authorise the officer in charge
of a prison to detain the person in question. (Cf. reg.
3/.......
39
3(3), quoted above.) An argument similar to the one advanced
by counsel with regard to the "written order" was also advanced in the
case of
Phila Nqumba and Another v. The State President and Three Others
, to
which I referred earlier on. It was rejected by Kannemeyer J on the same grounds
as those mentioned by me above.
As to counsel's argument as summarized in
paragraph (b) above, it is essential to have regard to the powers which sec.
3(1)(a) of
the Act confers on the State President. As has been shown above, the
section empowers him, when a state of emergency has been declared,
to make such
regulations "as appear to him to be necessary or expedient" for providing for
the safety of the public,
the/......
40
the maintenance of public order, or the
termination of
the state of emergency, etc. It is obvious that the
power is a most extensive one. (As to the words "as
appear to him to be necessary or expedient", see R. v.
McGregor
1941 A D 493
;
R v Beyers
1943 A D 404
;
Momoniat
& Naidoo v. Minister of Law and Order 1986(2) SA 264(W) at
268-272;
R v Comptroller-General of Patents;
Ex
parte Bayer Products Ltd
(1941) 2 All E R 677
at 681.)
The State President can, it is clearly stated in sec. 3
(1)(a), make such regulations as appear to him to be
necessary or expedient for the purposes mentioned in the
section. He can, in regulations made by him, prescribe
the method and means to be employed for the achievement
of/......
41
of the purposes stated in the section. (See
Attorney
-
General for Canada and Another v. Hallet & Carey Ltd and
Another
1952 AC 427
, where the Court said (at 448, per Lord Radcliffe), with
regard to the power of the Governor in council to do such things and to
make
such regulations in a time of emergency as he may "deem necessary or advisable"
for certain stated purposes, that those words
gave him "the amplest possible
discretion in the choice of method.") There is no doubt that the State President
was entitled to delegate
powers with a view to achieving the purposes mentioned
in sec. 3(l)(a). This is not disputed. The complaint is, as indicated above,
that the regulations do not provide proper guidelines to members
of/......
42
of the Forces, and, more particularly, that reg. 3(1)
leaves it to the subjective opinion of members of the
Forces as to whether it is necessary to detain an individual
It is not correct to say that no guidelines are laid down
for the direction of members of the Forces • It is clear
from reg. 3(1) that a member may arrest a person only
if he has formed the opinion that the detention of that
person is necessary for one or more of the purposes
mentioned in reg, 3(1). As to the fact that reg. 3(1)
entrusts the decision as to whether someone should be
detained to the subjective judgment of members of the
Forces, it may be pointed out that in ordinary - i.e.
non-emergency -legislation the fact that a decision is left
to the discretion of an official is not per se sufficient
to/........
43
to invalidate the regulation permitting the delegation. A
complaint of a lack of guidance in a regulation, it has been held, is valid
only
if such lack offends against the enabling statute. See e.g.
R v Zondo
1942 TPD 187
at
192;
R v Ngati and Others
1948(1) SA 596(C) at 602-604;
Arenstein v
Durban Corporation
1952(1) SA 279(A) at 297 A-C.. The ultimate inquiry is,
therefore, what powers the enabling Act confers. In the present case I am
of the
opinion that the powers conferred on the State President by sec, 3(1) (a) of the
Act are so wide as to include the power to
make a regulation as contained in
reg. 3(l).
Counsel also contended that reg. 3(3) is
invalid. His submission is that reg. 3(3) goes beyond the powers conferred on
the State President by sec. 3(1)(a) of the Act in that
it empowers the Minister
to
extend/
44
extend the detention of* a person arrested and
detained
under reg. 3(1) without confining that power to the
purposes stated in sec. 3(1). Reg. 3(3), it is said,
leaves the Minister free to order the further detention
of a person for whatever reasons he deems fit, including
reasons quite unrelated to the purposes mentioned in
sec. 3(l)(a) or reg. 3(1), and it is accordingly
ultra
vires and invalid.
The argument cannot be sustained. It is
true that reg. 3(3) does not state in express terms on
what grounds, or for which purposes, the Minister can
extend the detention of a person arrested under reg. 3(1),
but that is not the end of the matter. Reg. 3(3) should
not be read in isolation. It is one of a number of
subregulations/........
45
subregulations which comprise regulation 3, and it should
be read together with such other subregulations as have a
bearing on the question of detention. Subreg. (1) provides
that a member of a Force may arrest a person if it is, in
his opinion, necessary to detain that person for the
purposes mentioned in subreg. (l), i.e. for the
maintenance of public order, or the safety of the public,
or the termination of the state of emergency. Subreg.
(2) provides that no person shall be detained in terms
of subreg. (l) for a period of more than 14 days unless that
period is extended by the Minister in terms of subreg,
(3). Subreg. (3) refers, in terms, to subreg. (l),
and provides that the Minister may, by written notice
signed by him, order that a person arrested and detained
in/....
46
in terms of subreg. (l) be further detained for the period
stated in the notice, or for as long as the regulations remain in force.
Subreg.
(4), which also refers in terms to subreg. (1), provides that a person who is
detained in terms of subreg. (1), or in terms
of a notice under subreg. (3), may
be removed from one prison to another if the Minister so directs. Subreg. 5
provides that a member
of a Force may, "with a view to the maintenance of public
order, the safety of the public or the termination of the state of emergency,
interrogate any person arrested or detained in terms of this regulation", i.e.
regulation 3, which includes subregulations (1) and
(3). Subreg. (6) provides
that the Minister may at any time order that "a person detained in terms of this
regulation"
(i.e./
47
(i.e. reg. 3, which includes subreg. (1) and
subreg. (3))
be released on such conditions as he, the Minister, may
determine.
The power given to the Minister under subreg,
(3) is a power to extend the period of detention of a
person "arrested and detained in terms of subregulation
(1)", and it seems to me to follow as a matter of necessary
inference that it was intended by the State President
that the Minister should, when considering whether he should
act under subreg. (3), decide whether the person concerned
should, in his opinion, be further detained for the
purposes for which he was previously arrested and detained,
I find it impossible to accept that the State President,
after/........
48
after providing in subreg. (1) that a person may
be arrested
and detained if it were thought necessary that it be done
for the purposes mentioned in subreg. (1), would have
intended to provide in subreg- (3) that the Minister should
be free to extend such person's detention without having
regard to the purposes for which he was previously detained,
and without forming an opinion as to the necessity for his
further detention for those same purposes. If, as was
contended, the State President intended that the Minister
could order the further detention of persons without having
regard to the purposes stated in reg. (3), it would seem
that the reference in the subregulations to persons detained
in terms of subregulations (1) and (3) would be a reference
not only to persons detained for the purposes mentioned
in/.......
49
in subreg. (1), but also to persons whose detention may-have
been ordered by the Minister under subreg. (3) for purposes not connected
with
those stated in subreg. (1). This is wholly unlikely. Subreg. (5) contains a
strong indication, I think, that detentions under
subreg, (3) are required to be
for the same purposes as those mentioned in subreg. (1). It provides that a
member of a Force may
"with a view to the maintenance of public order, the
safety of the public or the termination of the state of emergency" - i.e. for
the purposes mentioned in subreg. (l) - interrogate "any person arrested or
detained in terms of this regulation", i.e. regulation
3, which includes
subregulations (1) and (3). Subreg. (5) therefore contemplates that a person
detained under subreg. (3) is
a/
50
a person who has been detained for the purposes mentioned
in subreg. (l), which indicates, in turn, that a detention
under subreg. (3) is a detention that was ordered for the
same purposes as those mentioned in subreg. (1). It is
hardly conceivable that subreg. (5) was intended to provide
for the interrogation of persons "with a view to the main-
tenance of public order, the safety of the public or the
termination of the state of emergency", if their detention
was ordered for purposes other than those stated in reg.
3(1).
In view of the aforegoing I consider that
the Minister's power under reg. 3(3) must, by necessary
implication, be taken to be subject to the limitation
that/......
51
that he may order the further detention of a person
already detained under
reg.
3(1) only if he is of the opinion
that it is necessary to do so for the purposes stated in
reg. 3(1). If reg. 3(3) is so construed, as I think it must
be, it is not ultra
vires
the State President.
In the appeal in Kerchoff's case the legality
of the detention of the 2nd appellant (to whom I shall
refer as "the appellant" in the paragraphs that follow) was.
attacked on a further ground, viz. that he was not arrested
as required by reg. 3(1). Counsel's argument on this point
is to the following effect: (a) on a proper construction of
reg. 3(1) and reg. 3(3) an arrest is a necessary prerequisite
to/.......
52
to detention, and according to the affidavits filed the
appellant was not formally arrested; (b) no one had the requisite intention
to
arrest the appellant; and (c) , alternatively to (a) and (b), Brigadier Beukes
(who caused the appellant to be detained) could
not
bona
fide
have been of the opinion that the detention of the appellant
was necessary for the safety of the public or the maintenance
of public
order.
The facts relating to this argument are as follows. The appellant was
arrested in the early hours of 12 June 1986 under the provisions
of sec. 50 of
the Internal Security Act, No. 74 of 1982, on the instructions of Brig. B J
Beukes, the Commanding
Officer/
53
Officer of the Security Branch of the South
African Police
in Pietermaritzburg. He was lodged in the New Prison
in Pietermaritzburg. Later on the same day Brig. Beukes
directed that the appellant be detained under the provisions
of reg. 3(1), and a written order for the appellant's
detention was signed by an officer in the Security Branch
of the South African Police. The appellant was on the
same day, while still in custody in the New Prison,
Pietermaritzburg, informed that he was no longer being
detained under the provisions of sec. 50 of the Internal
Security Act, but would be kept in detention under
the provisions of reg. 3(1). On 21 June
1986 the Minister, by a written notice signed by him,
ordered in terms of reg. 3(3) that the appellant be further
detained/.....
54
detained in the New Prison, Pietermaritzburg, for as long as
the regulations remained in force.
Sec. 50 of the Internal Security Act, No. 74 of 1982, in so far as relevant,
reads as follows:
"50. (1) If a police officer of or above the rank of warrant officer is of
the opinion -
(a) (i) that the actions of a particular
person contribute towards the continuation of a state of public disturbance,
disorder, riot or public violence which exists at any
place within the Republic;
and
(ii) that the detention of that person
will contribute towards the termination or combating of that state of public
disturbance, riot or public violence: or
(b) that the detention of a particular person
will contribute towards the
prevention of
the resumption, at the same place or at any
other place in
the Republic, of such a state
of public disturbance, disorder, riot
or
public violence,
he/....
55
he may without warrant arrest that person or cause him to be arrested and,
subject to the provisions of this section, cause him to
be detained in a prison
referred to in section 20 (l)(a) or (b) of the Prisons Act, 1959 (Act No. 8 of
1959), or a police cell or
lock-up.
2 (a) Any person arrested in terms of the
provisions of subsection (1) may at any time be released from detention, but
shall at the
expiration of a period of forty-eight hours as from the time of his
arrest be released from detention unless a warrant for his further
detention has
in terms of the provisions of paragraph (b) been issued before the expiration of
the said period: Provided that no
such person shall on any particular occasion
when he is being detained in terms of the provisions of this section be so
detained
for a period exceeding fourteen days as from the date of his
arrest.
(b) Whenever a magistrate is of the opinion, on the ground of information
submitted to him upon oath by a police officer, that the
further detention of
any person arrested in terms of subsection (1) is justified on the ground of a
consideration contemplated in
paragraph
(a)/.....
56
(a) or (b), as the case may be, of that subsection, he may on
the application of the said police officer issue a warrant for the further
detention of such person.
(c)
(d)
(3) Any
person being detained in terms of the provisions of this section shall be so
detained in accordance with the provisions of
the Prisons Act, 1959, which
relate to un-convicted prisoners awaiting trial for an alleged offence.
As to the contention referred to in (a)
above, counsel's argument was
that, after the appellant had been informed that he was no longer being detained
under the provisions
of the aforesaid sec. 50, he should again have been
arrested since arrest is a prerequisite to detention under reg. 3(1) and reg.
3(3) , and that he
was not so arrested. It was, rightly in my view.
not/.......
57
not contended that an arrest as contemplated in reg. 3(1)
is an arrest as provided for in sec. 39 of the Criminal
Procedure Act, No. 51 of 1977. (An arrest as contemplated
in sec. 39 of the latter Act is an arrest that is intended
to bring a person before a Court of law to answer a criminal
charge. See
R. v. Malindisa
1961(3) SA 377(T) at 380 C;
Wiesner v. Molomo
1983 (3) SA 15l(A)
at 158 E-F.) The
submission is, however, that the appellant should have
been "formally arrested" and that, because he was not so
arrested, his subsequent detention was unlawful - The
same argument was advanced in the Court a quo. The Court
dealt with it at some length in its judgment and, correctly
in my view, rejected it. As to the argument that the
appellant should have been "formally arrested" after he
had/......
58
had been told that he was no longer being detained under the
provisions of sec. 50 of the Internal Security Act,
but would be detained
under the provisions of reg. 3(1), it was not suggested that a member of a
Force should actually have touched' the appellant's body.
Nor could it
reasonably have been so suggested. The appellant was informed that his detention
under the said sec. 50 had come to
an end, and that he would remain in detention
under reg. 3(1). Having been thus kept in prison, he was, in my view, under
arrest.
As Hoexter J said in
R. v. Mazema
1948(2) SA 152 (E) at 154, "A
person is under arrest as soon as the police assume control over his movements."
The suggestion seems
to be, however, that, to effect the arrest of the
appellant, he should have been told, in so many words,
that he was being arrested. It is common cause that
he/.....
59
he was not told in express terms that he was being arrested, but I
cannot accept the argument that the fact that he was not so informed
means that
there was not an arrest as contemplated in reg. 3(1). An arrest under reg. 3(1)
is, in my view, intended to be a means
to secure the detention of a person whose
detention is considered to be necessary for any of the purposes stated in reg.
3(1), and
where, as happened in the present case, the person whom it is sought
to detain is already confined in prison, and is, in addition,
informed that he
is being detained in terms of reg. 3(1), it can hardly serve any purpose to
require that he should also be told
that he is under arrest. To hold that the
failure to inform the appellant in express terms that he was being
arrested/
60
arrested has the effect of rendering his detention under
reg. 3(1) invalid, would, therefore, in my opinion, be
to pay undue reverence to formalism.
As stated above, it was also contended that
the appellant's detention was unlawful because there was
no intention to arrest him. In the light of what I have said
above, I consider this argument to be unsound, and I do not
propose to discuss it.
It remains, finally, to consider the argument
that the appellant's detention is invalid because Brig.
Beukes could not
bona fide
have been of the opinion
that his detention was necessary for the safety of the
public or the maintenance of public order. The argument
is/.....
61
is that, since the appellant was already in
detention
for the relevant period (i.e. 14 days as from 12 June
1986) under the provisions of sec. 50 of the Internal
Security Act, Brig. Beukes could not
bona fide
have held
the opinion he alleges that he did, and that it was
'accordingly not competent for him to order the detention
of the second appellant in terms of reg. 3(1)".
(Quotation from counsel's heads of argument.) The
submission is - to quote from counsel' s heads of argument -
that "the only
bona fide
approach which Beukes could have
adopted would have been to continue the second appellant's
detention under sec. 50 and then to reconsider the
entire position on the 26th June, 1986 ". The
argument/.....
62
argument has no merit. I can see no reason why Beukes'
decision to detain the appellant under reg. 3(1) rather than
under sec. 50 of the Internal Security Act should be
considered to afford proof of
mala fides
on his part
Detention under reg. 3 is intended as a means of
providing for the safety of the public, the maintenance
of the public order or the termination of the state of
emergency, and Brig. Beukes, who states that he was of
the opinion that the appellant' s detention was necessary
for the safety of the public and the maintenance of
public order, would have been fully entitled to think
that detention under reg. 3 was a more effective means of
achieving the purposes mentioned by him than detention
under/.....
63
under sec. 50 of the Internal Security Act. It may be
pointed out in this connection that reg. 3(5) provides
that a member of a Force may, "with a view to the maintenance
of public order, the safety of the public or the termination
of the state of emergency, interrogate any person arrested
or detained in terms of this regulation." Sec. 50 of the
Internal Security Act does not provide for the interrogation
of a detainee. According to subsection (3) thereof a
person detained under the provisions of the section is
to be detained as if he were an unconvicted prisoner
awaiting trial for an alleged offence.
In/......
64
In view of all the aforegoing I am of the
opinion
(a)
that the appeal in
Tsenoli
's case must succeed, and
(b)
that the appeal in
Kerchoff'
s case must be
dismissed.
The following orders are made:
(A) In
the first appeal (
Tsenoli's case)
:
(1)
The appeal is upheld with
costs, including the costs of two counsel.
(2)
The order made by the Court a
quo
is set aside and the
following order is substituted therefor, viz.: "The application is dismissed
with costs, including the costs
of two counsel."
(B) In the second appeal (
Kerchoff's case)
:
The appeal is dismissed with costs, including the costs of two counsel.
JANSEN JA
P J RABIE CORBETT JA
JOUBERT JA CONCUR CHIEF JUSTICE
VILJOEN JA