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[1987] ZASCA 66
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Omar and Others v Minister of Law and Order and Another; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill (68/87) [1987] ZASCA 66; [1987] 4 All SA 556 (AD) (29 June 1987)
IN
THE SUPREME COURT OF SOUTH AFRICA
1987-06- 29
(APPELLATE DIVISION)
In the matter between:
(1)
ABDULLAH MOHAMED OMAR
1st Appellant
HOWARD SIKOLAKE MARAWU
2nd Appellant
MARCUS CHINNOSAMY SOLOMON
3rd Appellant
LESLIE ANDREWS
4th Appellant
DERRICK RABINDRANATH NAIDOO
5th Appellant
NEVILLE NAIDOO
6th Appellant
and
THE MINISTER OF LAW AND ORDER
.... 1st Respondent
THE MINISTER OF JUSTICE
2nd Respondent
OFFICER COMMANDING
,
VICTOR VERSTER PRISON
3rd Respondent
THE STATE PRESIDENT
4th Respondent
THE COMMISSIONER OF POLICE
5th Respondent
(2)
MARJORIE FANI & OTHERS
Appellants
and
THE MINISTER OF LAW AND ORDER
1st Responder
THE MINISTER OF JUSTICE
2nd Responder
THE OFFICER COMMANDING
ST ALBAN'S PRISON
3rd Responder
THE OFFICER COMMANDING
NORTHEND PRISON
4th Respondent
(3)
THE STATE PRESIDENT
1st Appellant
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA
2nd Appellant
THE MINISTER OF LAW AND ORDER
3rd Appellant
and
MARY CAMERON BILL
Respondent
2
Coram
: RABIE ACJ, JOUBERT, VILJOEN, HOEXTER JJA et
BOSHOFF AJA.
Heard:
Delivered
:
3 March 1987
JUDGMENT RABIE ACJ
:
These three appeals were heard on the same day and can conveniently be dealt
with in the same judgment. All three of the cases are
concerned with the
detention of persons in pursuance of regulations made by the State President in
terms of the Public Safety Act,
1953 (Act No. 3 of 1953). The judgments given in
the Courts below in the first and third of the cases have been reported: see
Omar and Others v
.
Minister/
3.
Minister of Law and Order and Others
1986(3) SA
306(C) and
Bill v. State President and Others
1987(1) SA 265 (W).
On
21 July 1985 the State President, acting in terms of sec. 2(1) of the aforesaid
Public Safety Act, 1953 (hereinafter referred to
as "the Act"), declared, in
Proclamation R 120 of 1985, the existence of a state of emergency in a number of
areas, including those
in which the detainees in
Fani's
case resided. On
the same date the State President, acting in terms of the powers vested in him
by sec. 3(1)(a) of the Act, issued
Proclamation R 121 of 1985, which contained
regulations which were to apply in the said areas. On 26 October 1985, in
Proclamation
R 200 of 1985, the State President, acting in terms of sec. 2(1) of
the Act, declared the existence of a state of emergency
in/
4
in a further number of areas, and the next day, in
Proclamation R201 of 1985, he declared that the aforesaid
regulations would also apply in these other areas as
from 26 October 1985.
One of these areas was the
magisterial district of the Cape, in whích
the applicants
in
Omar's
case resided.
Sec. 2 of the Act (reading "State
President" for "Governor-General" and "Republic" for
"Union") provides as follows:
"2. (1) If in the opinion of the State
President it at any time appears
that -
(a) any action or threatened action
by any persons or body of persons in the Republic or any area within the
Republic 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)/.........
5
(b)
circumstances have arisen
in the Republic or any area within the Re-public which seriously threaten the
safety of the public, or the
maintenance 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 proclamatic
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 Re-public or within such
area, as the case may be.
(2)
No proclamation issued
under sub-. section (1) shall remain in force for more than twelve months:
Provided that nothing in this sub-section
contained shall be construed as
precluding the issue of another proclamation in respect of the same area at or
before the expiration
of the said period of twelve
months.
(3)
The State President may at any
time
and in like manner withdraw any
proclamation
issued under sub-section (l)".
The/....
6
The declaration of a state of emergency
by the State President by Proclamation R 120 of 1985
read as follows:
"Whereas in my opinion it appears that circumstances have arisen in the areas
mentioned in the Schedule which seriously threaten the
safety of the public and
the manintenance of public order, and the ordinary law of the land is inadequate
to enable the Government
to ensure the safety of the public and to maintain
public order,
Therefore I, in terms of section 2(1) of the Public Safety Act, 1953 (Act 3
of 1953), hereby declare that as from 21 July 1985 a state
of emergency exists
within the areas mentioned in the Schedule.
The declaration of a state of emergency by Proclamation R 200 of 1985 was in
the same terms as
those/
7
those contained in Proclamation R 120 of 1985, save
that the emergency was declared to exist as from 26
October 1985.
Sec. 3(1)(a) of the Act empowers the State
President to make regulations
in an area in which a
state of emergency has been declared. It provides
as
follows (reading "State President" for "Governor-General")
"3. (l)(a) The State President 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/.........
8
providing for the safety of the public,
or the maintenance of public order and fbr 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."
Regulation 3 of the regulations which were
of application at the time of
Fani
's case and
Omar
's
case read, in so far as relevant, 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, ir the opinion
of such member,
necessary for the maintenance of public order or the safety of the public or
that person himseJ or for the termination
of the state of emergency, and may,
under a written order signed by any member of a Force, detain, (
cause/
9
cause to be detained, any such person in custody
in a prison.
(2) No person shall be detained in
terms of subregulation (l) for a
period
exceeding 14 days from the date of his
detention, unless that
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 an addressed to
the head of a prison,
order that any person arrested and detained in terms of subregulation (l), be
further detained in that prison
for the period mentioned in the notice, of for
as long as these Regulations remain in force.
(9)(a) The Minister of Justice may make rules to regulate the detention of
persons in terms of this regulation.
10/
10
(10) No person, other than the Minister or a person acting by virtue of his
office in the service of the State -
(a) shall. háve access to any person
detained in terms of the
provisions
of this regulation, except with the
consent of and subject to
such
conditions as may be determined by
the Minister or the Commissioner
od
the South African Police; or
(b) shall be entitled to any official
information relating to such
person
or to any information of whatever
nature obtained from such
person."
Subregulation (3), in the form quoted
above,
was substituted for the subregulation as originally
promulgated by
Proclamation R 207 of 1985 (dated 31
October 1985), which made the new
subregulation
retroactive/
11
retroactive to 21 July 1985 in the case of the
regulations promulgated by Proclamation R121 of 1985, and to 26 October 1985 in
the
case of the regulations promulgated by Proclamation R 201 of 1985. The State
President is empowered to make regulations with retrospective
effect by sec.
3(2)(b) of the Act. Regulation 3(3) as originally promulgated did not contain
the words "without notice to any person
and without hearing any person", nor the
words "or for as long as these Regulations remain in force."
The Minister of Justice, acting in terms of
regulation 3(9)(a), made certain rules relating to
the the detention of persons detained in terms of/regulations.
Rule/....
12
Rule 5(1) and (3) of these rules (which were published
in
GN 2483 of 26 October 1985) provided as follows:
"5(1) No person detained under the Regulations shall during his detention be
visited by any person, except with the permission of
the person in command of
the prison in question, acting with the concurrence of the Commissioner of the
South African Police or any
person acting on his authority: Provided that if a
legal representative desires to visit such a detainee, the permission of the
Minister of Law and Order or the Commissioner of the South African Police
shall be obtained for such a visit.
(2)
(3) The person in command of the prison shall ensure that no physical contact
takes place between the detainee and a visitor and that
the interview between
the detainee and the visitor takes place within sight and hearing of a member of
the Prisons Service."
Fani's
case was an earlier case than
Omar's
/
13
Omar's
case, but it will be convenient to deal
with the latter case first.
Omar's
case
The applicants in this case (now the appellants) were arrested during the
last week of October 1985 in terms of reg. 3(1) of the aforesaid
regulations.
Thereafter, during the first week of November 1985, the Minister of Law and
Order (herein-after referred to simply as
"the Minister"), acting in terms of
reg. 3(3), ordered that they be further detained for as long as the regulations
remained in force.
It is common cause that they were not notified of the
Minister's intention to order their further
detention, and, also, that they were not given a
hearing/
14 hearing of any kind before their further detention was
ordered. They contended in the Court a
quo
, as they did in this Court,
that reg. 3(3) was
ultra vires
the powers of the State President and that
their detention was, therefore, invalid. They contended, also, that reg. 3(10)
and rule
5 were invalid. As to the latter contention, it should perhaps be said
that the appellants were not, in fact, denied access to their
attorney. Their
complaint was that they had to ask for permission to see him. They also
complained about having to consult with him
within sight and hearing of a member
of the Prisons Service as provided for in rule 5(3). As
a/
15 a result of their objection, they were allowed to consult with the
attorney within sight, but not within hearing, of a member of
the Prisons
Service.
Before dealing with the argument that reg. 3(3) was
ultra
vires
the powers of the State President, I should say that counsel's first
argument regarding this regulation was that it merely relieved
the Minister of
the obligation to give a person whom he intended detaining an opportunity of
making oral representations to him,
and not of the obligation to allow such
person to make written representations to him. Reg. 3(3), it was said, merely
provided that
the Minister could act "without hearing any person", and
not/
16
not that he could act without first having
considered
representations made to him in writing. The same
argument was
advanced in the Court a
quo
. It would
seem, however, that counsel was
rather doubtful of the
validity of the argument. (See 1986(3) SA at 309
I-
310 B.) In this Court he indicated that he now has
rather more
confidence in the argument than he had in the
Court a
quo
. I think,
however, that the diffidence
with which the argument was advanced in the
Court a
quo
was wholly justified. The same argument was advanced
in
the Court below in
Fani's
case. The Court (per
Zietsman J, with whose
judgment Cloete JP and Eksteen J
agreed) rejected the argument, and in the
course of
his judgment Zietsman J said:
" the/
17
".... the words used must be interpreted in the context in
which they are used. The phrase used here is 'without notice to any person
and
without hearing any person'. If the Minister is not obliged to give notice to
the detainee of his intention to consider an extension
of his period of
detention I cannot see how it can be intended that he must nevertheless furnish
the detainee with the opportunity
of submitting representations to him before he
can decide upon the possible extension of his detention period. In my opinion
the
words used in the subregulation, taken in their context, are unambiguous and
mean that the need to observe the
audi alteram partem
rule is entirely
excluded."
This was, in my ópinion, a short and
effective answer to the argument. I would merely add
that normally when
one says that someone is entitled
to be heard before a decision which may be prejudicial
to/
18 to him is taken, one does not refer only to the right to heard in
the literal sense of that word, but also to the right of making
written
representations.
With regard to the appellants' argument that reg. 3(3) was
invalid for excluding the need to observe the
audi alteram partem
rule, I
find myself, in view of the considerations mentioned below, in agreement with
the judgment of Vivier J, with which Munnik
JP agreed.
Sec. 2(1) of the Act,
quoted above, states when a state of emergency may be declared. It will be
observed that the decision as to
whether circumstances in the country are such
that a state of emergency should be declared, is that of the State President
-
and/
19
and of the State President alone. It is important to note, too, that such a
declaration may be made only if the State President is
of the opinion that "the
ordinary law of the land is inadequate to enable the Government to ensure the
safety of the public, or the
maintenance of public order." This indicates that
Parliament contemplated that the need to ensure the safety of the public or to
maintain public order might necessitate the taking of extra-ordinary measures
which might make drastic inroads into the rights and
privileges normally enjoyed
by individuals.
Sec. 3(1)(a) of the Act, quoted above, confers on the State President the
power to make
regulations/
20
regulations in any area in which a state of emergency has been
declared under sec. 2. It authorizes him, as stated in sec. 3(1)(a),
to make
such regulations "as appear to him to be necessary or expedient" to achieve the
purposes stated in the section. The power
is a most extensive one. It entitles
the State President to prescribe the methods or means to be employed for the
achievement of
the purposes stated in the section. See the judgment of this
Court in
State President and Others v. Tsenoli
1986(4) SA 1150 at 1182
C-E. It gives him, as was said in that case (at 1182 E-F), quoting from the
judgment of Lord Radcliffe in
Attorney
-
General for Canada and Another
v. Hallett & Carey Ltd
and
/
21
and Another
1952 AC 247
at 448, "the amplest possible
discretion in the choice of method." It will be observed that the power which
sec. 3(l)(a) confers
on the State President to make regulations for the
achievement of the purposes stated in the section is a power not only to make
such regulations as he considers to be necessary for those purposes, but also to
make such regulations as appear to him to be expedient
for achieving the said
purposes. The test of what is expedient is obviously a less stringent one than
that of what is necessary.
This illustrates how wide the discretion is which the
Act confers on the State President. It is clear from the terms of the section
that the State President is empowered to make such
regulations/
22
regulations for achieving the purposes mentioned in the
section as appear to him, i.e. in his subjective judgment, to be necessary
or
expedient. It follows from this that it is not open to a Court, when considering
a regulation, to substitute its assessment of
what would be necessary or
expedient to achieve the purposes mentioned in the section for that of the State
President and to hold
that the regulation is tnválid because the State
President could, in its judgment, have dealt with the matter in issue in
another, less harsh way. This does not mean, of course, that the exercise by the
State President of the powers conferred upon him
by the Act is immune from
attack. It need hardly be said that
he/
23
he must apply his mind to whatever matter may be in issue, that he must act
bona fide
and that he must exercise the powers conferred on him by sec.
3(1)(a) of the Act for the purposes mentioned in the section. See
Tsenoli's
case,
supra
, at 1187 B-C.
Counsel for the appellants
contended that reg. 3(3) was
ultra vires
because it was unrelated to the
tenor and policy of the Act, and served none of the purposes mentioned in sec.
3(1)(a) of the Act.
I do not agree with this contention. It is true, as stated
above, that the State President must, when he makes regulations, do so
with a
view to achieving the purposes mentiond in sec. 3(1)(a), but, as I
indicated/
24
indicated above, the Act confers upon him the power
to decide on the means
and methods to be adopted to
achieve the said purposes. Furthermore, and in
any
event, I do not think it can be said that reg. 3(3)
is not related to
the said purposes.
Counsel argued, next, that reg. 3(3) must
be held to be
ultr
a
vires
because it is so grossly
unreasonable that it must be concluded
that Parliament
could not have authorized it, wide though the powers
are which the Act confers on the State President. The
regulation, counsel submitted, quoting from a passage
in
Kruse v. Johnson
(1898) 2 QBD 91
which was approved
of/
25
of in
Rex v. Abdurahman
1950(3) SA 136 (A) at 143 C-E,
involves such "oppressive and gratuitous interference" with the rights of the
subject as can find
"no justifi-cation in the minds of reasonable men", and that
it should accordingly be said that Parliament could not' have intended
to give
the State President authority to make it. Counsel also referred us to the
judgment of Van den Heever JA in
Rex v. Pretoria Timber Co. (Pty) Ltd and
Another
1950(3) SA 163 (A) at 182 A. There is no doubt that reg. 3(3) is a
drastic provision, but I nevertheless find myself unable to accede
to counsel's
argument. I am of the opinion that when proper regard is had to the fact that
the regulation was made as an emergency
measure which was to be of
application/
26
application in an emergency situation in which - to use the words of sec.
2(1)(c) of the Act - "the ordinary law of the land is inadequate
to enable the
Government to ensure the safety of the public or to maintain public order", it
cannot be said that the regulation is
so grossly unreasonable as to justify the
conclusion that Parliament could not have intended to authorize it.
Counsel contended also, referring to
R v. Slabbert and Another
1956(4)
SA 18(T) at 21 G-H and
R v. Heyns and Others
1959 (3) SA 634
(A) at 637
D-E (see also
Mandela v. Minister of Prisons
1983 (l) SA 938 (A) at 959
G-A), that the
audi alteram partem
rule embodies a fundamental right and
that a subordinate
legislator/
27
legislator - such as the State President in the present case - cannot deprive
the subject of such a right unless he has expressly,
or by necessary
implication, been empowered by the enabling statute to do so. The submission
contains a correct statement of the
law, but I cannot accept the argument that
sec. 3(1)(a) of the Act does not empower the State President to make reg. 3(3).
It is,
as I said above, an emergency measure that was intended to apply in an
emergency situation where "the ordinary law of the land is
inadequate to enable
the Government to ensure the safety of the public, or to maintain public order"
(sec. 2(1)), and in my opinion
it falls within the power
given/
28
given to the State President to make such regulations as appear to him to be
necessary or expedient to achiev the ends mentioned in
sec. 3(1)(a) of the
Act.
Counsel's final argument with regard to reg. 3(3) is founded in a
passage on the affidavit made by the State President in which he
states why he.
amended reg. 3(3) - a matter to which I referred above - and made it
retrospective as set out in Proclamation R 207
of 1985. The passage (which is
quoted in the judgments given in the Court a
quo
but which I repeat for
the sake of easy reference) read as follows:
"Ek/
29
"Ek was van oordeel dat onder gegewe om-standighede voldoende feite vasgestel
mag wees of omstandighede mag bestaan om die voortgesette
aanhouding van 'n
persoon te magtig sonder dat hy die geleentheid gegee sou word om gehoor te
word. Ek is verder van mening dat die
bekendmaking van inlig-ting aan 'n
aangehoudene met betrekking tot die rede vir sy verdere aanhouding tot gevolg
mag hê dat
die bron van die inligting bekend mag word, en dit sal na my
mening nie in belang van die veiligheid van die publiek, die handhawing
van die
openbare orde of die beëindiging van die noodtoestand wees nie."
The argument is that this passage shows that the State
President did not
properly apply his mind to the
matter in issue, or that he had regard to
improper
or irrelevant considerations, or that he acted with
gross/
30
gross unreasonableness. The result is that reg. 3(3) is invalid. Thus the
argument. The first sentence of the passage shows, as counsel
correctly said,
that the State President realized that there might be individual cases where the
exclusion of the
audi alteram partem
rule would not be necessary, but I
do not agree with the submission that the
State President's decision nevertheless to make reg.
that 3(3) in the form/he did, shows that he acted improperly
in the respect, or respects, suggested by counsel.
Hecould reasonably have
thought, in my opinion,
that in view of the emergency situation seen as a
whole it would be advisable to authorize the Minister
to/
31 to exclude the rule in all cases, i.e. whenever the Minister
considered that it should be done. With regard to the State President's
statement that "die bekendmaking van inligting aan 'n aangehoudene met
betrekking tot die rede vir sy verdere aanhouding tot gevolg
mag hê dat
die bron van die inligting bekend mag word", and that such disclosure would not
be "in belang van die veiligheid
van die publiek, die handhawing van die
openbare orde of die beëindiging van die noodtoestand," I find myself quite
unable to
agree with the suggestion that it was not a proper consideration to
take into account. It may be, as
counsel/
32
counsel argued, that a hearing given to someone whose
detentïon is being considered need not necessarily, or always, result in
the disclosure of the source of information that ought not be disclosed, but
this is no justification for sayïng that the State
President went beyond
the powers given tp him by the Act when he decided to make a regulation which
was designed to avoid all danger
of the disclosure of potentially harmful
information.
I turn now to the appeal against the decision of the majority of the Court a
quo
that reg. 3(10)(a) and rule 5(1) and (3) of the rules published under
reg.
3(9)(A)/
33
3(9)(a) are not
ultra vires
. Friedman J, having found
that reg. 3(3) was invalid and that the detainees were, on that ground, entitled
to their release from
detention, did not deal with the question of the validity
of reg. 3(10)(a) and rule 5(1) and (3).
Counsel for the appellants commenced
his argument on this part of the case by saying that if reg. 3(10)(a) is to be
contrued as including
a reference to legal advisers, then it is
ultra
vires
. The regulatio it will be recalled, provides that "No person", save
the Minister or a person acting by virtue of his office in the
service of the
State, "shall have access to
any/
34 any person detained in terms of the provisions of this
regulation" except with the consent of and subject to such conditions as
may be
determined by the Minister or the Commissioner of the South African Police.
While submitting that the right of the indivïdual
to have access to his
legal adviser has been described by this Court as a fundamental right which
cannot be interfered with save
where interference in authorised in express
language or by necessary implication (see
Mandela v. Minister of Prisons
,
supra
, at 957 D and 1959 G-H), counsel did not contend in specïfic
terms, if I understood him correctly, that the regulation does
not apply to
legal advisers. Nor could it
have/
35
have been so argued, for even if one accepts what has been said in the cases
about the taking away of a fundamental right, it cannot
validly be said that the
words "No person" should be taken to mean "No person except a legal adviser".
See
Bloem and Another v. State President of the Republic of South Africa and
Others
1986(4) SA 1064(0), at 1093 H-I. It may be pointed out, too, that
rule 5 was made on the basis that access to detainees by legal
advisers is
prohibited save when permitted by the Minister or the Commissioner of
Police.
Counsel contended, as stated above, that if reg. 3(10)(a) is to be read as
being of application
to/
36
to legal advisers - as it must, in my opinion, be read -
then it is
ultra vires
because it cannot reasonably
be related to
the purposes mentioned in sec. 3(1)(a)
of the Act. The right of free and unconditional
access, it was argued,
cannot reasonably impinge
upon those purposes. It cannot in my opinion be
said that the regulation is not related to the purposes
mentioned in the
section, and I do not agree with
the submission.
It was contended, next, that the State President failed
properly to apply his mind to the matter and that he acted with gross
unreasonableness.
The/
36(a)
The affidavit made by the State President, counsel
submitted, shows that he did not apply his mind to the
matter. In his
affidavit the State President, after
stating that he had been advised that it was not
necessary for him to
mention "al die faktore ... wat ek
oorweeg het alvorens ek regulasies ingevolge artikel
3 van die Wet op
Openbare Veiligheid No. 3 van 1953
met betrekking tot die tansbestaande
noodtoestand
in sekere landdrosdistrikte uitgevaardig het", went
on to say the following about the question of access
to legal advisers:
"13.
Ek is bewus daarvan dat die reg op toegang tot 'n regsadviseur 'n basiese reg
is en dat die reg om mediese behandeling te ontvang
wanneer/
37
wanneer nodig ook 'n basiese reg is.
14.
Die omstandighede wat dit noodsaaklik ge-maak het om 'n noodtoestand af te
kondig bring egter na my mening mee dat dit nodig en raadsaam
mag wees om onder
gegewe om-standighede 'n spesifieke aangehoudene nie toe te laat om in aanraking
te kom met persone buite die plek
van aanhouding nie.
Daar is persone buite die plekke waar aan-gehoudenes aangehou word, wat die
openbare orde wil versteur, wat die veiligheid van die
publiek bedreig en wat
die omstandig-hede wat dit noodsaaklik gemaak het om 'n noodtoestand te verklaar
wil laat voortduur en vererger
en dus die beëindiging van 'n noodtoestand
wil teenwerk.
Gevolglik mag dit die veiligheid van die publiek, die handhawing van die
openbare orde en die beëindiging van die noodtoe-stand
bevorder as 'n
besondere aangehoudene onder gegewe omstandighedenie toegelaat word om kontak te
hê het sodanige persone
buite/
38
buite die gevangenis nie.
15.
Kontak tussen 'n aangehoudene en sodanige persone kan plaasvind deur
bemiddeling van 'n regsadviseur of private mediese praktisyn.
16.
Die vraag of 'n spesifieke aangehoudene kontak met persone buite die plek van
aan-houding geweier moet word aldan nie, kan slegs behoorlik
beslis word met
inagneming van inligting aangaande die aangehoudene se deelname en rol in die
oproer en geweld wat gepleeg is of
verwag kan word. Die KOMMISSARIS VAN POLISIE
en MINISTER VAN WET EN ORDE het toegang tot die bronne waar-uit bepaal kan word
of sodanige
inligting bestaan aldan nie en gevolglik het ek in Regulasie 3(10)
bepaal dat die aansoeke om toestemming tot toegang tot 'n aangehoudene
oorweeg
moet word deur die KOMMISSARIS VAN POLISIE of die MINISTER VAN WET EN ORDE en
dat hulle sodanige voorwaardes mag oplê
as wat hulle nodig ag. Ek herhaal
dat ek so-
danige/
39
danige Regulasie as nodig en raadsaam be-skou het om die oogmerk te bereik
soos in artikel 3 van die Wet op Openbare Veilig-heid vermeld."
Counsel relied on the contents of paragraph 14 for his
argument that the
State President did not properly
apply his mind to the question of access to
legal
advisers. I do not agree with the submission. The
passage shows that
the State President realised that
it might not always, or in all cases, be
necessary to
exclude access, but this does not justify the charge
that his
decision to make access in every case dependent
on permission being granted
by the Minister or the
Commissioner of Police is indicative of a failure
to apply his mind to the matter. The statements made
by/
40
by him in his affidavit show, in my view, that he gave
earnest consideration to the question of access to
detainees and to the manner in which it should be dealt
with. The same can be said, in my opinion, about
what the Minister of
Justice says in his affidavit regarding the
question of access in the case of legal advisers.
He states
inter alia:
"15.
Met betrekking tot die reël wat bepaal dat niemand, gevolglik ook nie 'n
regsverteen-woordiger of private mediese praktisyn,
'n aangehoudene mag besoek
sonder die toe-stemming van die Minister van Wet en Orde of die Kommissaris van
Polisie nie moet in gedagte
gehou word dat 'n noodtoestand verklaar is na 'n
toestand van onrus wat 'n geruime tyd in die betrokke distrikte bestaan het. Die
onrus het gepaard gegaan met
geweld/
41 geweld, moorde, brandstigting, sabotasie en ander vorms van
geweld, op ongekende skaal, waardeur die veiligheid van die publiek
en die
handhawing van die openbare orde ernstig bedreig was en die veiligheid van die
Staat in gevaar gestel kon word. Tydens so
'n noodtoestand mag omstandighede
bestaan wat op 'n gegewe plek en onder gegewe omstandighede en plek dit
noodsaaklik of raadsaam
maak dat 'n spesifieke aangehoudene nie enige kontak
hoegenaamd moet hê met persone buite die gevangenis nie. Die reelings
wat
so 'n persoon se aanhouding reël, moet gevolglik bepalings bevat wat so 'n
persoon se aanhouding reël op 'n wyse wat
sy afsondering van die
buitewêreld mee-bring. Ongelukkig is die situasie ernstig genoeg dat die
reg om 'n regsverteenwoordiger
te mag spreek beperk moet word en onder ge-gewe
omstandighede, waar dit geregverdig is, vir 'n tydperk altans, geweier moet
word.
'n Versoek om 'n private mediese praktisyn te mag spreek sal ingelyks
oorweeg moet word in die lig van die tersaaklike feite en omstandighede.
16/
42
16.
Ek is gevolglik adviseer, en ek was van oordeel, soos bedoel in artikel 3 van
die Wet op Openbare Veiligheid No 3 van 1953, dat dit
raadsaam sou wees, as
gevolg van die bestaan van 'n noodtoestand, om die reg op toegang tot 'n
regsverteenwoordiger, onder-hewig
te maak aan toestemming. Dieselfde geld met
betrekking tot 'n versoek om 'n private mediese praktisyn te mag spreek. Omdat
die reg
op toegang tot 'n regsverteen-woordiger 'n basiese reg is en omdat ek
wil verseker dat sodanige toegang slegs beperk sou word as
daar goeie rede
daarvoor bestaan, het ek besluit dat aansoeke om 'n regsver-teenwoordiger te mag
spreek, slegs op hoogste vlak besleg
sou word naamlik deur die Minister van Wet
en Orde of die Kommissaris van Polisie. Daardeur het ek verseker dat die mees
verantwoordelike
persone die aan-soeke sou oorweeg. Om so 'n aansoek be-hoorlik
te kan oorweeg, moet inligting by die polisie bekom word aangaande
die be-trokke
aangehoudene en sy omstandighede.
Dit/
43
Dit was dus my oordeel dat die aansoeke deur die Minister van
Wet en Orde of die Kommissaris van Polisie oorweeg moes word."
It is the appellants' contention that it is grossly unreasonable that
detainees should be deprived of the fundamental right of access
to their legal
advisers and to be made to be dependent on "a discretionary licence", as their
counsel put it, to gain such access.
Detainees, counsel said, may urgently
require access to their legal advisers for a variety of reasons unrelated to
their detention
or the emergency. This is, of course, possible, but it is, at
the same time, not to be supposed that the Minister or the Commissioner
of
Police may, or will, refuse leave for the necessary access on just any ground
whatsoever.
Rule/
44 Rule 5(1) contemplates that leave may be asked to see one's
legal adviser, and although the rule does not expressly state on what
grounds
leave may be granted or refused, it must, in my opinion, be taken to be implied
that leave can be refused only on grounds
which are related to the emergency.
See
Tsenoli's
case,
supra
, where it was contended
inter
alia
that reg. 3(3) was invalid because it purported to empower the Minister
to order the further detention of a
person arrested and detained under reg.
3(1) on what-
grounds ever grounds he deemed fit, including/quite unrelated
to the purposes mentioned in sec. 3(1)(a) of the Act
or in reg. 3(1). (See at 1183 A-B of the report of the
judgment). This Court rejected the argument and held
that/
45 held that the Minister's power under reg. 3(3) must,
by necessary implication, be taken to be subject to
the limitation that he could order the further de-
tention of a person
already detained under reg. 3(1)
only if he was of the opinion that it was
necessary
to do so for the purposes stated in reg. 3(1). (See
at 1184 F of
the report.) In the same way, in the
present case, it is in my opinion not
correct to suggest
that access may be refused on a ground not related
to
the state of emergency. (This does not mean,of
course, that legal advisers need not comply with prison
regulations regarding access to persons held in a prison.)
Counsel contended also, with regard to his
submission as to the unreasonableness of reg. 3(10)(a)
and/
46
and rule 5(1), that the State President could have avoidedsecurity
risks arising from contact between a detainee and his legal adviser
by - I quote
from counsel's written heads of argument - "a spectrum of conditions ranging
from restrictions on physical contact,
to some form of supervising
consultations, and to the making of evenmore onenous stipulations in the case of
particular individuals."
This may, or may not have been, feasible. I do not
know. It may even be that the State President and the Minister of Justice
considered
measures of the kind suggested but decided against them on the ground
that they would be impracticable. As to the whole of counsel's
argument about
unreasonableness it should be borne in
mind/
47 mind, as I have said before, that the Act empowers the
State President to make such regulations as appear to him to be necessary
or
expedient to combat the emergency situation, and that the Court cannot
substitute its view of what measures would be necessary
or ex-pedient for that
of the State President. As to the question of reasonableness, also, I find
myself unable to accede to the
argument that reg. 3(10)(a) and rule 5(1) are so
unreasonable that they cannot be held to have been authorised by the
Act.
There is one further argument to which I must refer. It runs as follows.
The Minister of Justice, it is said, is given the power by
reg. 3(9)(a)
to/
48.
to "regulate the detention of persons in terms' of this regulation" (i.e.
reg. 3), and it is no such regulation of the "detention
of persons" to exclude
the
right
of access to legal representatives, rather than to seek to
regulate such access by virtue of practical considerations. I do not agree
with
the submission. The Minister of Justice has the power to regulate the detention
of persons, and this includes, in my view, the
power to regulate access to
persons in detention.
It was not argued before us that rule 5(2), (3) and (7) should be held to be
invalld even if it
were/
49
were found that rule 5(1) was not invalid.
In view of all the aforegoing I
am of the opinion that the appeal against the judgment of Vivier J concerning
the validity of reg.
3(10)(a) and rule 5(1) cannot succeed. It follows, too,
that in my view the decision in
Metal and Allied Workers Union and Another v.
State President of the Republic of South Africa
1986(4) 358 (D&CLD), to
which we were referred in argument, that reg. 3(l0)(a) and rule 5(1) are
ultra vires
, is incorrect. (See at 373 C- 375 G of the report of the
judgment.)
Fani's
/...
50
Fani's c
ase.
Fani's
case was an application for the release
from detention of six persons who had been arrested and detainéd in terms
of reg.
3(1) of the aforesaid emergency regulations and who were thereafter
further detained in terms of the provisions of reg. 3(3). Their
further
detention was ordered without their having been given an opportunity of making
re-presentations to the Minister, and the
issue which the Court was called upon
to decide was whether reg. 3(3) was
ultr
a
vires
on the ground that
the State President did not have the power to make a regulation which
deprivêd persons who had been arrested
and detained
under/
51 under reg. 3(1) of the right of being heard before their
further arrest was ordered. The Court (per Zietsman J, with whom Cloete
J P and
Eksteen J agreed) held that reg. 3(3) was not invalid and dismissed the
application with costs. The appeal is against this
judgment.
In arguing the
appeal, counsel relied on the same arguments as those advanced by him in
Omar's
case. It follows from what I háve said above regarding
Omar's
case that in my view the decision of the Court in
Fani's
case was correct and that the appeal against it can accordingly not succeed.
Bill's/.....
52
Bill's
case
The state of emergency which was declared by the State President on 21 July
1985 (Proclamation R 120 of 1985) was lifted after some
months and the
regulations and rules which were in force at the time were repealed. On 12 June
1986 the State President, acting in
terms of sec. 2(1) of the Act, by
Proclamation R108 again declared the existence of a state of emergency, this
time not within certain
areas only, but within the whole of the Republic. On the
same date, regula-tions made by the State President in terms of sec. 3(1)(a)
of
the Act were promulgated by Proclamation
R 109/
53
R 109. On the same date, too, rules made by the Minister of Justice in terms
of reg. 3(9)(a) of the new regulations were published
in GN 1196. The
regula-tions and rules which have a bearing on the present case are, save in a
few immaterial respects, in the same
terms, and also have the same numbers, as
those which were in force during the earlier state of emergency. They need not
be quoted
again.
The husband of the applicant (now the respondent)was
arrested and detained in terms of reg. 3(1) on 20 June 1986. The Minister,
acting
in terms of reg. 3(3), thereafter ordered his detention to be
extended/
54 extended for as long as the emergency lasted. The
detainee had not been given a hearing before the order was made. The respondent
thereupon made an application to the Witwatersrand Local Division. The
appellants filed no affidavits but were represented by counsel
at the hearing.
The main relief claimed by the respondent was, according to the notice of
motion, an order directing the Minister
of Law and Order to furnish her (or the
detainee) "with the reasons for and the information upon which the order was
issued" and
"to allow the detainee's legal representatives to interview him with
a view to making representations to the Minister of Law and
Order for his
release."
In/
55
In her affidavit supporting the notice of motion the
respondent stated that if the Court held that she was not entitled to be
furnished
with the reasons for and the information upon which the Minister's
order had been issued and that the detainee was not entitled to
be interviewed
by his legal representative with a view to making representations to the
Minister, she would contend that the relevant
regulations and rules were
ultra vires
the State President's powers under sec. 3 of the Act. If the
detainee was not entitled to the relief claimed, she said, it would
mean that he
had been deprived of "his common law right to be heard" even after the order
under reg. 3(3) had been made. Public safety
and the maintenance of public
order, she
added/
56
added, could not conceivably be prejudiced by the
exercise of such a right. The Court a
quo
(Leveson J)
made the
following order:
"1. That the Minister of Law and Order is
to furnish the detainee in writing with the grounds for his continued detention
in terms of reg 3 of the emergency regulations.
2. That the detainee is entitled to consult
his legal representatives
(lawyers)
who shall have access to him in terms
of and in accordance with the Prisons Act and the regulations promulgated
thereto, for the purpose of advising with regard to the
representations which he
has the right to make to the Minister of Law and Order.
3. The detainee is to be furnished with such writing materials as will enable
him to make such representations.
4. The respondents are ordered to pay the costs of this
application."
As/
5
As to this order, it may. be said at once
that paragraph 2 thereof was, in
my opinion, wrongly made. It appears from the learned Judge's judgment (1987(1)
SA 265 at 275 H-I)
that he granted that part of the order because of his finding
that reg. 3(10)(a). and rule 5(1) are
ultra vires
. In coming to that
conclusion, he differed from the judgment of Vivier J in
Omar's
case on
the question of the validity of reg. 3(10)(a) and rule 5(1), and agreed with
that of Didcott J in
Metal and Allied Workers Union and Another v. State
President of the Republic of South Africa and Others
,
supra
, at 373
C-375 G, on the same issue. As I stated above in my discussion of
Omar
's
case, I am of the opinion that the judgment of Vivier J was correct
and,/. ....
58
and that of Didcott J incorrect. I consider, therefore, that
Leveson J erred in holding that reg. 3(10)(a) and rule 5(1) abe
ultra
vires
and that the
detainee's legal advisers are, for that reason,
entitled
only to have access to him, subject/to the provisions of
the Prisons Act and the regulations made thereunder.
As to paragraph 1 of the order, it orders
the Minister to furnish the
detainee in writing with
the grounds on which he (the Minister) decided
to
order the further detention of the detainee in terms
of reg. 3(3). In
concluding that the Minister was
obliged to furnish the detainee with the
grounds for
his order, the Court a
quo
reasoned as follows:
(a)/
59
(a)
Reg. 3(3)
deprives a detainee of the right of being heard before an order is made by the
Minister, but does not exclude the right
- being part of the right embodied in
the
audi alteram partem
rule - of a detainee to make written
representations to the Minister after the order has been
made.
(b)
Counsel for the Minister conceded -
rightly so, the learned Judge said - that a detainee is entitled to make written
representations
"to be released from further detention at some time after the
further order pursuant to reg, 3(3) is made by the Minister". (See
at 270 D of
the report of the judgment.)
(c)
Because the
detainee has the right to make written representations to the Minister, he also
has the right to be furnished with writing
materials which
would
60
enable him to accomplish this objective. (d) Because he has the right to make
representations to the Minister, the detainee must be
put in possession of such
information by the Minister as would make the right to make representations a
real one. Without such information,
the right will be an illusory one. With
regard to what is said in (a) above, it is clear that reg. 3(3) does not say
that a detainee
is not entitled to make written representations to the Minister
after an order for his further detention has been made. This does
not, however,
justify the conclusion that a detainee can, after such an order has been made,
call upon the Minister to furnish him
with/
61
with the grounds on which the order was made. I do not wish to
be understood as saying that a detainee may not, after his further
detention has
been ordered, make written representations to the Minister concerning such
detention, for it seems to me that he would
be entitled to do so. I do
not,however, agree with the view that, because he may make such representations,
the Minister is obliged
to furnish him with the grounds on which his further
detention was ordered. The regu-lation empowers the Minister to order the
further
detention of a person within 14 days after such person's arrest and
detention in terms of reg. 3(1) without having to inform him
of the grounds on
which he may
possibly/
62 possibly be further detained, and without having to
give
him an opportunity of being heard as to why he
should not be further
detained. This being so, I
find it difficult to accept that it was
nevertheless
the intention that the Minister would be obliged,
aftêr
he has made an order, to inform the detainee
of the grounds on which he made
the order. The order
which the Minister makes when he orders the
further
detention of a detainee is an order which becomes
effective immediately on being made, and which determines
the period of the further detention ordered. It
seems to me, therefore, that when the Minister makes
an order for a person's further detention in terms of
reg. 3(3), the order is a final one, and that there
is/
63
is thereafter no obligation on the Minister to inform the detainee of the
grounds on which it was made and then, after considering
such representations as
the detainee may wish to make in regard to such grounds, to reconsider the order
previously made by him.
I appreciate that this view of the matter involves that
reg. 3(3) does away completely with the
audi alteram partem
rule, and
that this is not a view which one should lightly entertain. I think, however,
that this is what reg. 3(3) entails. The
question which then arises is whether a
regulation which has this effect is
intra vires
the powers conferred on
the State President by sec. 3(1)(a) of the Act. There
is/
64 is no doubt that if this is the effect of reg. 3(3), as I consider
it to be, it is a very harsh provision, but it nevertheless
seems to me that,
when regard is had to the extremely wide powers (discussed earlier in the
judgment) which the Act confers on the
State President to make such regulations
as appear to him to be necessary or expedient for coping with the emergency
situation, it
cannot be said that the regulation in issue is
ultra
vires
.
The Court a
quo
, in holding that reg. 3(3) does not exclude
the right of a detainee to make written representations to the Minister after
the latter
has ordered his further detention, and that a detainee is, for the
purpose of making such representations, entitled
to/
65
to be furnished with the grounds on which the Minister's
order was made, adopted (at 269 G-H of the report of
the case) what is stated in the following passage in the judgment of
Goldstone J in the case of
Momoniat v. Minister of
Law and Order 1986(2) SA 264 (W) at 276 B-C:
"Public safety and the maintenance of public order could conceivably be
prejudiced if the Minister is obliged in the case of every
detention to allow a
hearing prior to his making an order within a specified period after the initial
arrest. That would depend
inter alia,
upon the period and number of
detainees in question. However, after such order has been made I can conceive of
no prejudice at all
in the exercise of a right by such a detained person to make
written representations to the Minister."
(The view that practical considerations may justify the
exclusion of the
audi alteram partem
rule when the
Minister/
66
Minister has to make a decision as to a person's further detention within 14
days after such person's initial arrest and detention
in terms of reg. 3(1), but
that there could be no prejudice to the safety of the public or the maintenance
of public order if a detainee
were allowed to make written representations to
the Minister thereafter (i.e. after he has been furnished with the grounds for
the
order made agaihst him), is also expressed in the judgment of Coetzee J in
Momoniat
's case,
supra
, at 278 I- 279 A.)) In my view it cannot be
accepted, as seems to have been done in
Momoniat
's case, that it was only
because of practical considerations that the State President
decided/
67
decided, when making reg. 3(3), that a detainee should not be entitled to be
heard when the Minister considers whether he should make
an order for the
detainee's further detention. It is quite conceivable that it was thought that
the
audi alteram partem
rule should be excluded in order to avoid the
danger of sensitive information, or the sources of such information, being
disclosed
to detainees. (In fact, in
Omar
's case, as was indicated above,
counsel for the appellants based part of his argument on a passage in the
affidavit of the State
President in which he says that he amended reg. 3(3), as
originally worded, to its present form, which provides for the exclusion
of the
audi alteram
partem
/
68
partem
rule, because of the danger of the
disclosure
of sources of information that ought not to be disclosed.)
A
consideration of this kind could be of application
to the whole period of a
detainee's detention.
With regard to counsel's concession in the Court a
quo
, as referred to
in paragraph (b) above, concerning the right of a detainee to make written
representations to the Minister concerning
his further
detention, the position appears to be that counsel (Mr
such
Kruger
) conceded that a detainee could make/represen-
tations, but that he did not concede that a detainee
would, for the purpose of making such representations,
be entitled to be informed of the grounds on which
his/
69
his further detention was ordered. I should add, also, that it was a matter
of dispute between the parties in the Court a
quo
as to whether a person
who had been further detained in terms of reg. 3(3) was entitled to be apprised
of the grounds for the order,
and, this béing so, it is unlikely that
counsel for the Minister would have made a concession which would have been in
conflict
with the case he was presenting to the Court. It may be said in this
connection that counsel contended
inter alia
that reg. 3(10)(b) precludes
a detainee from being informed of the reasons for his detention. (This argument,
I may add, was also
advanced in this Court. I do not propose to
deal/
70
deal with it, save to say that, on the wording of the regulation, the words
"No person" cannot be read as including the detainee himself.)
With regard to
the question of making written representations to the Minister, it may be said
at this point that it was not alleged
by respondent that the detainee had been
refused writing materials for the purpose of making such representations. (See
paragraph
(c) above, and paragraph (3) of theCóurt a
quo
's
order.)
Leveson J was of the opinion that the decisions of this Court in
Turner v.
Jockey Club of South Africa
1974(3) SA 633 and
Minister of Law and Order
v. Hurley and Another
1986(3) SA 568 provide support for his view that in
the present case the
Minister/
71.
Minister is obliged to inform a detainee of the grounds
on which he ordered his further detention. (See at
271-272 of the report of the judgment.)
Turner
's case was the case of jockey (Turner)
who was alleged to have bribed another jockey to induce to
the lattërcleliberately to-lose a race. Turner was charged with
corrupt practice under the respondent club's rules,
which were held by the Court to constitute the terms
of a contract between jockeys and the respondent.
The Board of Inquiry which found Turner guilty was, under the respondent's
rules,obliged to conduct an
investigation into the truth of the allegations made against him. The Board
was in possession of certain
affidavits which contained allegations against Turner, but it
showed/
72 showed these to him at such a late stage
of the proceedings that he did not have time to read them or to prepare a
defence to the
allegations made against him. The Court held that Turner had not
been given the fair and impartial hearing to which he was entitled
under the
respondent's rules (see 1974(3) SA at 653 G-H and 658 G-H), and that the finding
made against him could, therefore, not
stand.
Turner
's case provides no
support for the learned judge's finding that in a case such as the one with
which we are here concerned, a detainee
is entitled to be informed of the
grounds on which the Minister ordered his further detention. It was a case where
allegations which
affected the question of the
guilt/
73
guilt of the person charged had, by reason of the terms of the contract which
existed between him and the respondent, to be disclosed
to him at the inquiry
into the question of his guilt, and the Court's decision affords one no basis
for saying that, in the present
case, the Minister is obliged to inform the
detainee of the grounds on which he (the Minister) ordered his further detention
under
reg. 3(3).
With regard to the judgment of this Court in
Hurley
's
case,
supra
, Leveson J relied on the following passage therein for his
view that in the present case the Minister was obliged to inform the detainee
of
the grounds on which he made the order in terms of reg. 3(3):
74
"I turn now to counsel's final argument in support of his contention that the
Legislature did not, when using the words 'if he has
reason to believe....' in s
29(1) of the Act, intend that the decision of the officer who arrested or caused
the arrest of someone
should be subject to objective inquiry by the Court. Such
an inquiry, counsel says, could result in the police being forced to disclose
in-formation which, if divulged, could endanger the security of the State, and
the Legislature could not have intended such a result.
It must be accepted that
occasions may arise when the police will, for security reasons, not be able to
disclose information available
to them, and it must be acknowledged, in my view,
that there is force in counsel's argument. At the same time it should not, I
think,
be assumed thatoccasions of the kind mentioned will frequently arise. It
is, also, not to be assumed that the police will on such
occasions necessarily
have to disclose all the information of which they are possessed, or the sources
of their information. Sec.
29(1) requires merely that it be shown that there
were grounds
on/
75
on which the officer concerned could reasonably have held the belief that the
person whom he arrested or caused to be arrested was
a person as described in
the subsection. I would sum up my view of counsel's argument by saying that,
while it must be recognized
that it has some force, it does not outweigh the
conside-
rations, discussed above, which indicate, in my opinion, that the words 'if
he has reason
to believe ' in s 29(1) should be construed
as constituting an objective criterion."
(See 1986(3) SA at 583 D-H and 1987(1) SA at 272 B-D.)
What is stated in
this passage cannot, in my opinion,
be regarded as authority for the view
expressed by the
learned Judge. In
Hurley
's case, which was
concerned
with the validity of an arrest made under sec. 29(1) of
the Internal Security Act, 1982, this Court held that
the Minister of Law and Order had to establish that the
police-officer who caused the arrest to be made had
reason/
76 reason to believe that the person concerned was a person as
described in sec. 29(1) of the said Act. Counsel for the Minister contended
that
the police-officer's decision to have the respondent in that case (Hurley)
arrested was not objectively justiciable, and in
the course of his argument he
submitted that if the Courts
could objectively inquire into the question
whether
existed reasonable grounds/for the belief held by a police-
officer who caused an arrest to be made under sec. 29(1)
of the said Act,
the police might be forced to disclose
the information on the strength of
which the arrest was
made. The disclosure of such information, counsel
submitted, could be harmful to the security of the
State/
77
State, and the Court should therefore hold that action taken in reliance on
the provisions of sec. 29(1) was not objectively justiciable.
The Court, while
of the view that the argument had some force, held that, since the Minister had
to establish that the police-officer
concerned had reason to believe that the
person whom he caused to be arrested was a person as described in the section,
and since
the Court was entitled to inquire into that question, the test of
reasonable belief being an objective one, the Ministêr was
obliged - i.e.
if he wished to discharge the said
onus
- to disclose information
possessed by the police. As to the quantum of information to be disclosed, the
Court said that the
disclosure/
78 disclosure need go no further than to show that there were
grounds on which the police-officer concerned could reasonably have
held the
belief that the person whom he caused to be arrested was a person as described
in the section. Leveson J said (at 272 E-F
of the re-port of the judgment): "In
my opinion, in the same way as the officer concerned has to show grounds (but
not the evidence)
for his belief, so also must the Minister reveal the grounds
(again, not the evidence) for the continued detention of the detainee."
In
Hurley
's case the Minister was obliged to show grounds for the
police-officer's belief, as required by sec. 29(1) of the Internal Security
Act,
1982. That ohligation,
which/
79
which arose from the provisions of the said section, is not authority
for the view that in the present case the Minister is obliged
to reveal the
grounds for his decision to order the further detention of the detainee. The
question in the present case is whether
the
audi alteram partem
rule
obliges the Minister to inform a detainee of the grounds on which he ordered his
further detention, or whether the rule is inapplicable
because of the provisions
of reg. 3(3)).
In view of the aforegoing I consider that the decision of the
Court a
quo
was incorrect. It follows that in my opinion Kannemeyer J,
too, erred when he held in
Nqumba and Others v. State President and
Others
1978(1) SA 456 (E) at 481, agreeing with
the/
80
the judgment of Leveson J, that the Minister is obliged to furnish the
grounds for an order made by him under reg. 3(3) when requested
to do so by the
detainee.
It is unnecessary to discuss Mr
Kruger
's argument that sec.
5B of the Act precludes a Court from considering the validity of reg. 3(3).
The following orders are made:
(1) In the case of
Omar and Others v. The
Minister of Law and
Order and Others
:
The appeal is dismissed with costs, including the costs of two counsel.
(2) In the case of
Marjorie Fani and Others v.
The Minister of
Law and Order and Others
:
The appeal is dismissed with costs, including
the/.
81
the costs of two counsel.
(3) In the appeal of
Bill v. State
President
and Othérs
:
(a)
The appeal is upheld with
costs, including the costs of two counsel.
(b)
The order of the Court a
quo
is set aside, and the following
order is substituted therefor: "The application is dismissed with costs,
including the costs of two
counsel."
P J RABIE
ACTING CHIEF JUSTICE JOUBERT JA
VILJOEN JA Concur. BOSHOFF AJA