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[1989] ZASCA 83
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Visagie v State President and Others (553/87) [1989] ZASCA 83; [1989] 2 All SA 460 (A) (1 June 1989)
Case No 553/87
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
ABRAHAM JOHANNES VISAGIE
Appellant
and
THE STATE
PRESIDENT
1st Respondent
THE MINISTER OF LAW AND ORDER
2nd
Respondent
THE COMMISSIONER OF SOUTH AFRICAN POLICE
3rd Respondent
CORAM:
JOUBERT, HOEXTER, HEFER, VIVIER et KUMLEBEN,
JJA
HEARD:
8 May 1989
DELIVERED:
1 June 1989
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA,
Upon notice of motion in the
Eastern Cape Division the appellant during December 1986 sought certain orders
for relief against the
three respondents. The second respondent, the Minister of
Law and Order, resisted the application. After answering and replying affidavits
had been filed the matter was argued before EKSTEEN, J (as he then was). The
application was dismissed with costs. The appellant
appeals, with leave of the
Court below, against the whole of its judgment.
On 12 June 1986, and by
virtue of the powers vested in him by the Public Safety Act, No 3 of 1953, the
State President made regulations
("the regulations") providing,
inter
alia,
for the arrest, detention and release of certain persons. The
appellant is a minister of religion whose congregation is in Middelburg
in the
Cape Province. In terms of subreg 3(1) of the regulations the appellant was
arrested on 13 June 1986 and there-
after
3
after he was detained in the cells at the Schoombee police station. On 23
June 1986, and in terms of subreg 3(3), the second respondent
signed a written
notice addressed to the station commander of the South African Police at
Schoombee ("the station commander") ordering
the appellant to be further
detained "vir solank gemelde Regulasies van krag is." On 4 August 1986, and in
terms of subreg 3(6),
the second respondent signed a written notice to the
station commander ordering the appellant to be released upon certain conditions
("the conditions of release") which were set forth in para-graphs (1) to (4) of
an annexure to the notice. In terms of subreg 3(7)
a copy of the said notice was
duly delivered to the appellant.
In the annexure to the said notice it was stated that the appellant:-
" mag nie sonder die skriftelike
toestem-
ming...
4.
ming van die Minister van Wet en Orde of die
Afdelingskommissaris van die Suid-Afrikaanse Polisie vir die afdeling
Suid-Westelike
Distrikte, gedurende die tydperk vanaf die datum van sy
vry-lating, tot en met 11 Junie 1987 -
(1) afwesig wees uit die landdrosdistrik van Middelburg (Kaap) nie;
(2) op enige wyse deelneem aan die be-drywighede of sake van die volgende
organisasies nie :
Middelandse Raad van Kerke United Democratic Front Middelburg Youth Congress
Middelburg Residents Association
(3) (i) enige
publikasie soos omskryf
in artikel 1 van die Wet op Binnelandse Veiligheid, 1982 (Wet 74 van 1982) op
enige wyse hoegenaamd voorberei, saamstel, publiseer
of versprei nie; (ii) op
enige wyse hoegenaamd deel-neem aan of hulp verleen by die voorbereiding,
samestelling, publikasie of verspreiding
van enige publikasie aldus omskryf
nie;
(iii) Op enige wyse hoegenaamd enige stof bydra, voorberei of saam-stel vir
publikasie in enige
publikasie
5
publikasie aldus omskryf nie; (4) enige byeenkoms bywoon waar enige
staats-vorm of enige beginsel of beleid van, of optrede of voorgenome
optrede
deur die regering van die Republiek van Suid-Afrika aangeval, of gekritiseer
word nie."
In his notice of motion the appellant sought (a) an order de-
claring the
conditions of release to be invalid and (b) an
order that the costs of suit
(including the costs of two
counsel) be paid by the second respondent; and,
in the event
of opposition by tjhe first or third respondents, that the
costs be paid jointly and severally by those respondents so
opposing.
On appeal the contention that the conditions
of
release were invalid rested on a number of
separate arguments.
The first argument ("the
audi alteram partem
argument") was
to the effect that the second respondent had failed to observe
the principles of natural justice. It was common cause that
prior
6
prior to his signature of the notice dated 4 August 1986
the second respondent had not given the appellant an oppor-
tunity of
being héard in regard to the conditions of release
therein set forth.
It was submitted that the second re-
spondent was legally obliged to afford
the appellant
such a prior opportunity. . The second argument
("the
extraneous factors argument") was that in deciding upon
the
conditions of release the second respondent had taken into
account
against the appellant irrelevant and impermissible
considerations. The third
argument ("the inflexible period
argument") was that the conditions of
release were
ultra
vires
for the reason that they were made to
apply not merely
for the duration of the regulations but until 11 June
1987.
The fourth argument ("the gross unreasonableness argument")
was that
the first and fourth conditions of release were
so capricious, oppressive, uncertain and grossly unreasonable
that
7
that it was to be inferred that the second respondent had
not applied his
mind thereto properly or in good faith.
The correctness or otherwise of each
of these four argu-
ments is considered hereunder.
(1)
The audi alteram partem argument:
In the course of his judgment EKSTEEN, J re-
viewed
a number of decided cases dealing with the appli-
cation of the
audi
alteram partem
principle, and then
observed:-
"From these authorities it appears that the
rule of natural justice requires
that when-
ever an act will affect the property or
liberty of an
individual adversely or pre-
judicially, then he must be afforded
an
opportunity of submitting representations
in defence of his rights.
Where, however,
the proposed act will not affect him pre-
judicially or
adversely, but would benefit
or ameliorate his circumstances the
same
considerations would in all fairness seem
not to apply
but
8
but in any event, even if it be held that the principle of
audi alteram
partem
should apply, it seems to me that the applicant would always have the
opportunity of making representations to the Minister after
his release with a
view to the amelioration of the conditions imposed. That this would in certain
circumstances be an adequate compliance
with the rule has been
recognised in cases such as
Everett v Minister of Interior
1981 (2) SA
453
(C) and
Momoniat v Minister of Law and Order and Others
1986 (2) SA
264
(W). There is no allegation in the papers before me to suggest that the
applicant has been denied such a right, or that the second
respondent has
refused to consider any representations the applicant may wish to make, and the
circumstances of the present case
seem to me to favour a subsequent rather than
a prior opportunity being afforded. To hold that the second respondent, after
having
decided to release a detainee under certain conditions, should delay his
release until he placed the detainee in possession of all
the information which
had prompted him to impose the conditions he had decided on, and then to give
the detainee a reasonable time
to assemble what he may regard to be relevant
information and to prepare such representations as he may be advised, seems to
me to
import an unwarranted extension of the deprivation of that detainee's
liberty. On the other hand to release the detainee forthwith
and
9
and to consider representations on the ambit of the restrictions afterwards,
would seem to me to be in the general interest of the
detainee himself. I do not
think therefore, that this first objection can be sustained."
It is no doubt true that the conditional release of a detai-
nee in terms of subreg 3(6) represents a lesser infraction
of his right to liberty than that involved in his further
detention under subreg 3(3). I am nevertheless unable to
agree, with respect, with the suggestion contained in the
first portion of the excerpt from the learned Judge's
judgment quoted above to the effect that, since an order
for conditional release represents an amelioration in the
condition of a person detained, such detainee may in fact
have no right at all to be heard in regard to the conditions
for his release. The subject's liberty is his supreme
right; and true liberty is liberty unimpaired. In the
instant case the conditions of release involved very serious
invasions
10
invasions of the appellant's liberty. They drastically cur-
tailed
his right of freedom of movement; his rights of free
association; and his
right of free self-expression.
Subreg 3(3) expressly provides that in the case of
a
detainee who has been arrested and detained in terms of
subreg 3(1) the
Minister may -
"....without notice to any person and without hearing any
person...."
order the further detention of such
detainee. Subreg 3(6) reads:-
"The Minister may at any time by a notice in writing signed by him order that a
person de-tained 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."
In contrast to subreg 3(3), subreg
3(6) embodies no specific negation or renunciation of the
audi alteram
partem
principle. Counsel for the appellant submitted that subreg 3(6),
viewed in its contextual setting, indicated neither expressly nor
by implication
a clear intention on the part of the subordinate .
legislator
11
legislator to exclude a detainee's right to be heard in relation to the
matter of the conditions governing his release. See:
Omar and Others v
Minister of Law and Order and Others; Fani and Others v Minister of Law and
Order and Others; State President and
Others v Bill
1987
(3) SA 859(A)
at
893E;
Attorney-General, Eastern Cape v Blom and Others
1988(4) SA 645(A)
at 662G/I. In my view this submission is well-founded.
Accepting then that
the maxim
audi alteram partem
applied in this case, one turns to the next
limb of the inquiry. This is to determine, with reference to the particular
circumstances
encountered in this appeal, what the ambit of the appellant's
right to be heard was. The Court
a guo
considered that, even if the maxim
did apply, a hearing after the detainee's release would represent sufficient
recognition thereof.
Counsel for the appellant,
on
12
on the other hand, forcibly argued that an application
of
the maxim usually required a prior rather than a subsequent
hearing of
the person affected; and that in the instant
case the appellant should have
been accorded a prior hearing.
The
audi alteram partem
principle is a
malleable
one. As has been stressed by H Corder,
"The content of the
audi alteram partem
Rule in South African
administrative law"
1980 THRHR 156
at 159:-
" it is well-nigh impossible to lay
down any rigid rules as regards the content of audi alteram partem, as practical
circum-stances vary so much from case to case."
In
practice our Courts have recognised that in certain
situations the precepts
of natural justice may have to be
accommodated by giving an affected party a
hearing only
after the prejudicial order has already been made. In
the
case cited in the judgment of the Court below,
Everett v
Minister
13
Minister of the Interior (supra),
FAGAN, J points out
(at 458D/E) that such a situation may arise where time is
of the essence
and prompt action is necessary -
"The more usual application of the rule in
quasi
-iudicial decisions is
for a hearing to take place, or representations to be received, prior to the
decisipn being arrived at. But
that is not always the position. Where
expe-dition is required, it might be necessary not to give the affected person
the opportunity
of presenting his case prior to the decision, but only after. He
thus obtains the oppor-tunity of persuading the official to change
his
mind."
Counsel for the appellant urged upon us that
in the circum-
stances of the present case there had been no real need
for
expedition. I cannot assent to that proposition.
Subreg 3(6) creates a
procedural device for the release from
prison of persons who have been
summarily detained without
trial. There can, I consider, be few examples of a
ministerial order in
which the need for expedition would
be
14
be more pressing than it is in the situation contemplated by subreg 3(6).
Prompt implementation of the ministerial
order so manifestly promotes both
the public good and the
welfare of the detainee concerned that the contrary
argu-
ment must be rejected as unrealistic. In so saying I
do not overlook
that upon the detainee's conditional re-
lease the conditions imposed become immediately effective;
and (see subreg
3(8)) that non-compliance with them
renders the detainee liable to
prosecution. Making full
allowance for these substantial factors it
nevertheless
appears to me that where the Minister has decided to make
an
order in terms of subreg 3(6), whether for unconditional
or conditional
release, the speedy setting free from prison
of the detainee is a matter of
paramount importance. Any
construction of subreg 3(6) which encumbers and retards
its procedure for conditional release by requiring that
the
15
the Minister's order should be preceded by a hearing of the
detainee
would, in my opinion, be alien to the purview and
spirit of its provisions.
It would involve, in the words of
the Court
a quo
"an unwarranted extension of the depriva-
tion of
that detainee's liberty."
It follows, in my judgment, that when the
Minister
orders the conditional release of a
detainee in terms of
subreg 3(6) the detainee cannot assert any legal right to a
prior hearing. The requirements of fairness are sufficient-
ly met by a hearing afforded the detainee after the notice in
question has
been delivered to him. In my view the Minister is
at that stage legally obliged to give due consideration to such
representations as the conditionally released detainee may wish
to make in regard to the conditions of release imposed. In
the instant case the appellant preferred not to avail himself
of that right. Inasmuch as the right to a hearing was
thus
circumscribed
16 circumscribed, it follows that the
audi alteram
partem
argument was rightly rejected by the Court below.
(2)
The extraneous factor argument:
This argument was based on
certain averments in the answering affidavit filed by the second respondent
("the answering affidavit"),
and for a proper assessment of the argument it is
necessary to quote at some length from
the answering affidavit. Paragraphs 3,
4, 5 and 6 of the
answering affidavit are quoted hereunder, and for the
sake
of easy reference three of the sub-paragraphs in paragraph
3 have been underlined by me:-
"3. Voordat ek die voorwaardes in die bylae tot die skriftelike kennisgewing
vervat, bepaal het, het ek deeglik oorweging geskenk
aan die feite wat toepaslik
was en wat aan my voorgelê is. Die volgende feite is aan my voorgelê
en deur my oorweeg:
3.1 Dat
17
3.1 Dat die Applikant die voorsitter
van die Middellandse Raad van
Kerke
is en dat hy as voorsitter
I die dryfveer agter die Middellandse Raad van Kerke is;
3.2
Dat die Middellandse Raad van Kerke fondse, wat afkomstig was van die
Suid-Afrikaanse Raad van Kerke, deur middel van die Applikant
se leidinq
gekanaliseer het na "alter-natiewe strukture" soos die De Aar Residents
Association en die Cradock Advice Office, welke
"alter-natiewe strukture" as
doel het die diskreditering van bestaande ge-meenskapsorganisasies wat as
re-geringsinstellings beskou
word;
3.3
Dat die Middellandse Raad van Kerke verskeie aksies koordineer wat daarop
gemik is om die beleid van die huidige regering te diskredi-teer;
3.4 Dat die Applikant h organiseerder van die United Democratic Front is en dat
hy as sulks betrokke is by die beplanning en loodsing
van United Democratic
Front-aksies wat gemik is op die omverwerping van
die
18
die huidige staatsbestel in Suid-
Afrika;
3.5 Dat die Applikant gereeld toegelaat
het dat die Middelburg
Residents
Association by sy huis vergader en
by sulke vergaderings leiding
gegee
het;
3.6 Dat die Middelburg Residents Associa-
tion verantwoordelik is vir
agitasie
betreffende kwessies soos hoë huis-
huur; die
teenwoordigheid van die
Suid-Afrikaanse Polisie en die Suid-
Afrikaanse
Weermag in swart woonbuurte;
en afdreiging van verbruikersboikotte;
3.7 Dat die Applikant 'n orgahiseerder van
die Middelburg Youth Congress
is,
welke organisasie gereeld by die
Applikant se woning vergader het.
3.8 Dat die Middelburg Youth Congress
h organisasie is wat deur middel
van
geweld, intimidasie, brandstig-
ting, verbruikersboikotte,
skool-
boikotte, ens. die owerheid teen-
staan;
3.9, Dat die Middelburg Youth Congress by verskeie voorvalle van onrus en
geweldpleging betrokke was;
3.10 Dat
19
3.10 Dat die Middelburg Youth Congress
vanaf die Middellandse Raad van
Kerke
finansiele steun kry, welke finansiële
steun deur die Applikant
belowe is en
deur hom aan die Middelburg Youth
Congress gekanaliseer
is;
3.11
Dat die Applikant groot aansien en
status as predikant van die
N G Sen-
dingkerk geniet en dat hy van sy
aansien misbruik
maak om organisasies
en mense te beïnvloed teen die
huidige staatsbestel in Suid-Afrika.
4. In my
destydse hoedanigheid as Minister van Wet en Orde is ek gereeld op hoogte gehou
en in kennis gestel van al die tersaaklike
inligting betreffende die
onrustoestand wat in groot dele van die land geheers het voor en na af-kondiging
van die noodtoestand op
12 Junie 1986. Ek was te alle tersaaklike tye bewus van
die intimidasie, geweld, georganiseerde verset-aksies en ander algemeen
georganiseerde
optredes wat dit uitsluitlik ten doel gehad het om die
staatsgesag te ondermyn en mettertyd met geweld omver te werp. Die aard en
intensiteit van die onrustoestand is ook gereeld gemonitor. Ek was ook daarvan
bewus dat die onrustoestand ook in die swart woongebiede
van Middelburg (Kaap)
en omringende dorpe posgevat het en dat daar georganiseerde intimidasie, geweld
en verset-
aksies,
20
aksies, (soos wegbly-aksies), boikot-aksies,
ens.) plaasgevind het.
5. Ek het al die bogenoemde inligting in die
konteks van die tersaaklike
omstandighede sorg-
vuldig oorweeg en tot die gevolgtrekking gekom
en die
oordeel gevorm dat dit noodsaaklik is
vir die handhawing van die openbare
orde, vir
die veiligheid van die publiek en vir die
beëindiging van
die Noodtoestand om die voor-
waardes, waarna hierbo verwys word, vir
die
Applikant se vrylating te bepaal.
6. By die neem van die besluit om gemelde voor-
waardes te bepaal, het ek
onafhanklik opgetree,
my diskresie behoorlik en
bona fide
uitgeoefen
nadat ek alles deeglik oorweeg het."
In paragraph 3 of the answering affidavit the
second respondent says that before imposing the conditions
of release he
considered the facts submitted to him. These
facts are catalogued in the
eleven sub-paragraphs in paragraph 3.
The contention advanced on behalf of
the appellant is that
the facts set forth in sub-paragraphs 3.2, 3.3, and 3.11
represent matters
quite improper for the second respondent's
consideration
21
The gist of the submission made in this connection in the
Court below was
summarised thus by EKSTEEN, J in his
judgment:-
"Mr Selikowitz submitted that there was nothing unlawful in anyone setting out
to discredit the government or any of its institutions
or even the prevailing
con-stitutional system. This was after all the democratic right of any
law-abiding citizen. In relying on
these irrelevant considerations, he
submitted, the second respondent had failed properly to apply his mind to the
matter under consideration."
From the tenor of the judgment of the Court
a
quo
it would seem that EKSTEEN, J dealt with the
extraneous
factors argument on the footing that the facts mentioned
in the aforementioned three sub-paragraphs might not have
been germane to tqe second respondent's decision to impose
conditions of release. EKSTEEN, J considered, however,
that, in the light of the further facts detailed in paragraph
3
22
3 of the answering affidavit, the matters whereof the appel-lant complained
paled into insignificance; and, according-ly, that it
could not be said that the
second respondent's decision had been substantially affected thereby.
Mr
Gauntlett
contended that in so reasoning the Court below had erred by
substituting its own opinion
(namely, that the' facts stated in 3.2, 3.3 and
3.11 were of trivial significance) for the opinion of the second re-spondent. I
do
not propose to consider this particular objection any further for the reason
that in my view there is a fatal flaw to the whole extraneous
factors argument.
It is trite, of course, that the second respon-dent, as the person to whom the
duty was delegated, could not exercise
his discretion under subreg 3(6) in an
arbitrary or capricious fashion. He had to apply his mind to the issue before
him (whether
to release the appellant, and, if
so,
23
so, whether to do so conditionally or unconditionallý)
honestly and in good faith. In the answering affidavit
the second
respondent said that he had done so; and counsel
for the appellant disavowed
any imputation of
mala fides
on
the part of the second respondent. It
is to be noticed
at once, however, that subreg 3(6) prescribes no rules
for
the guidance of the Minister in the exercise of his discre-
tion. His
discretion is a general one. In a situation
such as this, so it seems to me -
"It is quite beyond the powers of a Court of Law to say on what evidence the
Minister should be satisfied and on what he should
not."
(per STRATFORD, JA in
Union Government
(Minister of Mines
and Industries) v Union Steel Corporation (South Africa)
.
Ltd
1928 AD 220
at 237.)
As long as the Minister
bona fide
considers
a
fact
24
fact to be relevant no Court may disturb his exercise of discretion simply
because the Court itself regards that fact as being unhelpful
or indeed entirely
irrelevant. Whether in the result, in the instant case, the second respondent
exercised the discretion entrusted
to him wisely or unwisely is a matter with
which the Court has no concern. It seems to me that in terms of subreg 3(6) it
is for
the Minister, and for him alone, to ponder and weigh those facts which
appear to him in the honest exercise of his discretion, to
bear upon a
particular
detainee's case. A succinct statement of the legal
principle here involved is to be found, I think, in the following passage in
the judgment of LORD BRAMWELL in
Allcroft v Lord Bishop of London; Lighton v
Lord Bishop of London
1891 Appeal Cases 666 HL(E) at 678 -
"Then it was said that there was something
he
25
he had considered which he ought not have considered, and something he had not
con-sidered which he ought to have, and so he had
not considered the whole
circumstances and them only. It seems to me that this is equivalent to saying
that his opinion can be reviewed.
I am clearly of the opinion that it cannot be.
If a man is to form an opinion, and his opinion is to govern, he must form it
himself
on such reasons and grounds as seem good to
him."
In my view the extraneous factors argument
cannot succeed.
There is nothing on the affidavits before us to show
that
the second respondent failed to apply his mind to the
issue before
him, or that he improperly exercised the dis-
cretion entrusted to him in
terms of subreg 3(6).
(3)
The inflexible period argument:
There is no merit in this
argument, and it cannot be sustained. The regulations were promulgated in terms
of sec 3(1) (a) of the Public
Safety Act No 3 of
1953. Sec 3(1 )(a)
reads
26 .
reads as follows:-
"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
proclama-tion in the
Gazette,
make such rêgulations as appear to
him to be necessary or expedient for providing for the safety of the public, or
the maintenance
of public order and for making adequate provision for
terminating such emer-gency or for dealing with any circumstances which in
his
opinion have arisen or are likely to arise as a result of such
emergency."
In rejecting the inflexible period
argument EKSTEEN, J
remarked as follows:-
"Once the state of emergency is terminated the regulations automatically fall
away, and once the regulations fall away the authority
of the second respondent
to enforce the con-ditions imposed in terms of those regulations ceases. I
cannot agree with Mr Selikowitz's
submission that the restrictions imposed on
the applicant may apply for a longer period than the duration of the state of
emergency
as I have indicated, the conditions cannot,
as
27
as a matter of law, endure beyond the period of the state of emergency. This
objection to the validity of the conditions cannot,
therefore, at this stage
when the state of emergency still exists, be
sustained."
Suffice it to say in regard to the
inflexible period
argument that I agree with both the reasoning and
the
conclusion reached by the learned Judge.
(4)
The "grossly unreasonable" argument:
In his founding affidavit the appellant
says,
inter alia:-
"I say that in framing the first condition of my release, the Second Respondent
mani-festly failed to apply his mind, or to act within
his powers, and acted
capriciously and grossly unreasonably and oppressively.
I submit that condition four is similarly invalid. I submit that it is in the
first instance void for vagueness, in that it lacks
any substantial core of
certainty. Furthermore, it is grossly
unréasonable,
harsh.......
28
harsh and oppressive, and the Second Re-
spondent. could never have properly
applied
his mind in making the condition "
The
first condition prohibits the appellant from absenting
himself from the
magisterial district of Middelburg without
the written consent of the second
respondent or the Divi-
sional Commissioner of the SAP for the South-Western
Dis-
tricts. Although the appellant's congregation is in
Middelburg some
members of his flock live beyond the magi-
sterial district. The appellant
occupies various eccle-
siastical offices in the Dutch Reformed Church
circuits
of Middelburg, Cradock, Steynsburg, Molteno, Aliwal
North,
Adelaide and Bedford, and his clerical duties require his
presence
from time to time beyond the Middelburg magisterial dis-
trict. The appellant
suffers from a heart condition
known as hypertrophic cardiomyopathy and this
requires him
to pay regular visits to his cardiologist who practices in
Cape
29
Cape Town.
It is not difficult to imagine that observance of the first
condition of release, to an appreciable extent, dislocated the appellant's'
work
as a cleric; and that in other respects it caused him to suffer frustration and
in-convenience. From the affidavits filed it
appears, however, that the
appellant on more than one occasion did in fact seek and obtain from the SAP
permission to travel far
beyond the confines of the Middelburg magisterial
district. In the judgment of the Court
a quo
the whole history of the
appellant's applications to the SAP for permission to travel elsewhere, and the
manner in which the SAP
responded thereto, is carefully explored.
The appellant's personal circumstances are fully detailed in the affidavits
before us. Suffice it to say that upon an examination
of the full circumstances
of the
appellant's
30
appellant's case it cannot be said, in my judgment, that in determining the
first condition of release the second re-spondent failed
to apply his mind to
the matter. Nor, in my view can it be said that in its operation the first
condition is grossly unreasonable
and oppressive. I think that EKSTEEN, J was
right in concluding that the objection
to the first condition of release
could not be sustained.
I turn to a consideration of the fourth condition -
of release. For the
sake of convenience I quote again here
(but without recapitulation of the preamble) the terms of
that condition:-
"(4) ...enige byeenkoms bywoon waar enige
staatsvorm of enige beginsel of beleid van, of optrede deur die regering van
die Republiek van Suid-Afrika aangeval, of gekritiseer
word nie."
Stressing that any breach of the conditions of release
entailed
31
entailed penal consequences, and that the subject should not be put in peril
for ambiguity, counsel for the appel-lant attacked the
fourth condition as being
so vague and uncertain in its terms as to be legally void. It need hardly be
said, of course, that conditions
of release should be stated in plain and
intelligible language; and that a detainee conditionally released should not be
exposed
to the risk of criminal liability without knowing with cer-tainty how
and to what extent his daily existence is con-strained thereby.
It seems to me,
however, that the fourth condition of release cannot be declared void for
uncertainty unless upon an interpretation
of its terms this Court is quite
unable to reach any conclusion as to what was in the mind of its draftsman. Such
a declaration would
involve a finding that the meaning of the prohibitions
therein contained cannot be determined at all. In my view the prohibitions
listed in
the
32
the fourth condition, although they are extremely broad in their compass, do
not defy construction; and they have an ascertainable
meaning. Accordingly the
complaint based upon their vagueness and uncertainty is not well-founded. This
last conclusion does not,
however, end the inquiry. Although the Minister's
discretion under reg 3(6) is a general one, this does not mean that he enjoys
án
uninhibited freedom of choice to impose whatever conditions of release
may take his fancy. The power conferred upon the Minister
is not an unlimited
one. It is a limited power conferred only for the statutory purposes stated in
sec 3(1) of Act 3 of 1953. The
conditions of release imposed by the Minister
must be fairly and reasonably re-ferable to those statutory purposes. The
conditions
must relate either to the safety of the public, or to the
main-tenance of public order, or to the ending of the state
of
33
of emergency. It is with these fundamental considerations in mind that the
propriety or otherwise of the prohibitions set forth in
the fourth condition of
release must be scrutinised.
The Court below considered that the restrictions
in
the fourth condition seemed to be directed to the main-
tenance of public
order and to the termination of the
emergency; and that they could not be
said to be
ultra
vires
. For the reasons which follow I am, with
respect,
unable to share that view. In my judgment the scope
of the
prohibitions in the fourth condition is so mani-
festly extravagant that the condition is legally
impeachable in its entirety.
The first limb of the prohibition forbids
atten-
dance at any gathering at which "enige
staatsvorm" is sub-
jected to attack or criticism.
Prima facie,
so it seems
to
34
to me, "staatsvorm" does not refer to the "staatsvorm" of the Republic of
South Africa. Had that been the inten- tion of the draftsman
the word
"staatsvorm" would hardly have been preceded by the word "enige", since the
Republic of South Africa has now, and had on
4 August 1986, but one
"staatsvorm". Upon a literal construction of the fourth condition the words
"enige staatsvorm" would seem
to sig-nify the abstract notion of any
constitutional system of any state at any time, whether past, present or future.
Due observance
of the terms of the fourth condition would therefore have
prevented the appellant's attendance at a purely academic constitutional
law
lecture devoted to a critical analysis of such a topic as, for example, the
forms of government in ancient Greece, or in mediaeval
Italy, or in modern
Switzerland; and this would have been the consequence despite the fact that in
the course of
the
35
the lecture there was made not the slightest reference, however oblique, to
the constitutional system in South Africa or the government.
It is apparent
at once, I consider, that a prohibition having such an effect represents a
glaring absurdity. It is at once entirely
repugnant to ordinary common sense and
wholly unrelated to any of the statutory purposes envisaged by sec 3(1) of Act 3
of 1953.
The second leg of the prohibition is in my opinion . likewise
objectionable. It prohibits attendance at any gathering at which
any
principle or policy or action of the government of the Republic of South Africa
is subjected to attack or criticism. A moment's reflection
will show, I think,
that few if any topics of commonplace and daily discussion do not directly or
indirectly touch
upon
36
upon either the principles or the policies or the actions of the government.
To reguire a clergyman with a congre-gation to observe
a condition such as this
is to consign him to an existence of intolerable and near-monastic seclu-sion.
So drastic an inhibition
of the appellant's rights of freedom of association and
freedom of expression cannot, I consider, be fairly and reasonably related
to
the aforementioned statutory purposes of sec 3(1) of Act 3 of 1953. In my view
the inordinate latitude of the fourth condition
of release vitiates it. An
examination of its sweeping and indiscriminate terms sustains the clear
inference that in framing it the
second respondent overlooked the tenor and
policy of the statute which gave him his discretion under subreg 3(6). In
formulating
the fourth condition the second respondent was no doubt honestly
acting in what he conceived to be the interests
of
37
of public security; but the fact remains that instead of exercising his
discretion for a proper purpose he abused it by an insupportable
abridgement of
the appellant's rights. In framing the condition of release in excessively wide
terms the second respondent travelled
beyond the precincts of his legitimate
powers. See:
Broadway Mansions Ltd v Pretoria City Council
1955(1) SA
517(A) per VAN DEN HEEVER, JA at 522B. Such an exercise of discretion is in
breach of the law and impeachable in our Courts.
It follows that the fourth
condition of release was bad in law and void. To this limited extent the appeal
must succeed.
In the Court below the appellant attacked the yalidity of all
four conditions of release. The appel-lant's complaint has been sustained
in
regard to the fourth
condition only. It remains to consider, in the light
of
38
of the appellant's limited success on appeal, what order of costs would be
fair and appropriate.
In the Court below either side was represented by two
counsel. On appeal Mr
Gauntlett
alone appeared for the appellant.
Although the appellant's success on appeal is a relatively modest one, his case
concerns a matter
of importance, the liberty of the subject; and it raises
issues of some difficulty. In all the circumstances it seems to me that
justice
will be met by awarding the appellant the costs of the appeal but only one half
of the costs of the application in the Court
below.
In the result the following orders are made:-
(1)
The appeal succeeds. Thé costs of the appeal
will be paid by the second respondent. The
appellant will pay the costs of the application
for condonation.
(2) The
39
(2) The orders made by the Court
a quo
are set aside and the following
orders are substituted
therefor:-
"(a) The application succeeds to the limited extent that the fourth condition
of release imposed by the second respondent on the applicant
is declared
void.
(b) Save that the applicant will bear the wasted costs on Friday 5 December
1986 the second respondent is ordered to pay one-half
of the costs of the
application, including the costs consequent upon the employment of two
counsel."
G G HOEXTER, JA
JOUBERT, JA )
KUMLEBEN, JA )