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1989
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[1989] ZASCA 126
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Minister of Law and Order, Kwandebele and Others v Mathebe and Another (156/88) [1989] ZASCA 126; [1990] 4 All SA 98 (AD) (29 September 1989)
156/88
N v H
THE MINISTER OF LAW AND ORDER, KWANDEBELE and OTHERS
versus
JACOBSOHN MATHEBE AND ANOTHER
SMALBERGER, JA :-
156/88
N. v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
The Minister of Law and Order,
KwaNdebele
First
Appellant
The Commissioner of the
KwaNdebele Police Force
Second
Appellant
The State President of the
Republic of South Africa
Third
Appellant
The Minister of Law and Order
of the Republic of South
Africa
Fourth Appellant
and
Jacobsohn Mathebe
First
Respondent
Rapu Sydney Molekane
Second Respondent
CORAM: CORBETT, CJ, VAN HEERDEN,
SMALBERGER, KUMLEBEN, et F H GROSSKOPF, JJA
HEARD: 4 September 1989
DELIVERED: 29 September 1989
JUDGMENT
SMALBERGER, JA :-
It is common cause that in the early hours of
the morning of 18 November 1987 Messrs F Mathebe,
/2
2 A Sefothlelo and H Nkuna ("the detainees") were taken into
custody in their hotel rooms at Dawson's Hotel, Johannesburg. They were
in
Johannesburg to attend a national executive meeting of the South African Youth
Congress. The four policemen who apprehended them
were members of the KwaNdebele
police force. They had been seconded to that police force from the South African
police force. From
Johannesburg the detainees were taken to KwaNdebele, where
they were held in custody.
Consequent upon the aforegoing the respondents
brought an urgent application in the Transvaal Provincial Division for the
release
of the detainees. Their
locus standi
to do so has never been in
issue. The matter came before SPOELSTRA, J, who granted the application. He held
that the arrest and detention
of the detainees were unlawful on the
/3
3 ground that members of the KwaNdebele police force do not
have powers of arrest beyond the territorial boundaries of KwaNdebele.
The
appellants were, however, granted leave by the judge a
quo
to appeal to
this Court.
KwaNdebele is a self-governing territory, having been so
proclaimed in terms of s 26 of the National States Constitution Act, 21 of
1971,
with effect from 1 April 1981, by Proclamation R60 of 1981. It has its own
police force established under the KwaNdebele Police
Act, 11 of 1986. In terms
of s 3(a) of that Act, persons seconded to the KwaNdebele police force became
members of such for.ce. When
apprehending the detainees the policemen concerned
purported to act in terms of regulation 3(1) of the regulations promulgated
under
Proclamation R96 of 1987 in terms of s 3 of the Public Safety Act, 3 of
1953
/4
4 ("the Emergency Regulations").
The essential issue that
falls to be decided in the present appeal is whether, in the circumstances
outlined above, and assuming that
all the other prerequisites for a valid arrest
were present, the policemen who arrested the detainees had the necessary
authority
to do so. At the hearing of the appeal it was common cause that,
insofar as it was necessary to prove that the detainees were lawfully
arrested
and detained, the onus rested on the appellants. This would include the onus of
proving that the policemen concerned had
the requisite authority to arrest.
It can be accepted, for the purposes of the present appeal, that the arrest
of the detainees would have been lawful if carried out
by members of the South
African police force acting as such. It was contended, on behalf of the
appellants, that the
/5
5 policemen who carried out the arrest were empowered to act
in a dual capacity, i e both as members of the KwaNdebele police force
and as
members of the South African police force. This was so, it was argued, because
their secondment had taken place in terms of
s 14(3)(a) of the Public Service
Act, 111 of 1984, which provides that "an officer" may, subject to the
fulfilment of certain conditions,
be placed "at the disposal of another
government". "Officer" in terms of s 1 (the definition section) of the Public
Service Act,
read with the provisions of s 7(l)(a)(ii) and the definition of
"the services", includes a member of the South African police force.
Section
14(3)(b) specifically provides that, notwithstanding secondment, such officer
remains subject to the laws applicable to officers
in the public service.
Accordingly, so the argument proceeded, in terms of the the.n applicable
/6
6 provisions of the Public Service Act, seconded members of
the South African police force remained subject to the provisions of the
Police
Act, 7 of 1958, and retained all their powers as members of such police force.
The policemen who arrested the detainees therefore
had a dual competence.
Whatever limitations there may have been on their powers of arrest as members of
the KwaNdebele police force,
as members of the South African police force they
had the necessary authority to arrest the detainees.
This argument, in my
view, lacks foundation. The allegations in the respondents' founding and
supporting affidavits, that the detainees
had been arrested and taken from their
hotel by members of the KwaNdebele police force, were never denied. The
appellants, in their
opposing affidavits, never claimed that the policemen
concerned had also acted as members
/7
7 of the South African police force. It is not without
significance that when enquiries about the whereabouts of the detainees were
directed at the South African police, the latter disclaimed all knowledge of
their arrest and detention. Irrespective, therefore,
of whether or not a
seconded policeman in law is, or may be, clothed with dual authority, it was
simply never the appellants' case
in the court a
quo
that the arresting
policemen acted as members of the South African police force. Nor is there any
proper factual foundation to support
such an argument in this Court. As the onus
of proving the lawfulness of the detainees' arrest was on the appellants, it was
incumbent
upon them to establish that the policemen who arrested the detainees
were members of the South African police force operating as
such at the time.
This they failed to do.
/8
8
Furthermore, in this regard, assuming the
appellants to be correct that the Public Service Act
regulates the
question of secondment, the applicable
provision would appear to be s
14(5)(a) rather than s
14(3)(a). Section 14(5)(a) provides:
"Notwithstanding anything to the contrary contained in any law,
an officer or employee
may, when the public interest so requires, with his consent and on the
recommendation of the Commission
and on such conditions as may be prescribed
on the recommendation of the Commission
, be transferred to the service of a
Black authority." (my underlining)
"Commission" in
terms of s 1 means the Commission for
Administration established under the
Commission for
Administration Act, 65 of 1984.
In terms of the definition section, "Black
authority" means,
inter alia
, the government of a self-
governing
territory. Any secondment of the policemen
/9
9 responsible for the arrest of the detainees would therefore
have been "on such conditions as may be prescribed on the recommendation
of the
Commission". Whether there were any such conditions attaching to the secondment
of the policemen concerned and, if so, what
they were, is not known. Such
conditions may conceivably have affected, or curtailed, their authority to act
as members of the South
African police force. The appellants' argument must
accordingly also founder for lack of evidence on this point.
It is necessary,
therefore, to proceed on the premise that the policemen who arrested the
detainees were members of the KwaNdebele
police force acting as such. Since the
appellants rely upon the provisions of the Emergency Regulations to justify the
arrest of
the detainees, the question arises whether, under those Regulations,
the powers of arrest of members of the
/10
10
KwaNdebele police force extend beyond the territorial
boundaries of
KwaNdebele. In order to answer this
question it will be convenient to first
determine what
jurisdictional limits exist on the normal powers of
arrest
of members of the KwaNdebeië police force,
before considering whether
such powers of arrest have
been extended in any way by the Emergency
Regulations.
The status of a self-góverning territory
has
been described as follows in the judgment of
RABIE, CJ,
in
Government of the Republic of South Africa
and
Another v Government of KwaZulu and Another
1983(1) SA
164
(A) at 206 B - D:
"It is clear that, while it is not an entity that is completely severed from the
State, it is also not a mere instrument, or representative,
of the State in its
government of KwaZulu, for, as KRIEK J pointed out in some detail in his review
of what he termed 'the significant
features' of the 1971 Act, Parliament has in
certain
/11
11
respects permitted it to act independently of the State. It is clear, too, that
a self-governing territory such as KwaZulu is recognised
by Parliament as a
territory which is entitled to have its own flag and its own national anthem,
and, also, as a territory which
can conclude conventiohs, treaties and
agreements with the South African Government. These are features which indicate
that Parliament
does not regard a self-governing territory created in terms of
the 1971 Act as a mere instrument, or representative, of the
State."
In terms of section 3(l)(a) of the National
States Constitution Act the legislative competence of a legislative assembly is
expressly
limited to the area for which it has been established. The KwaNdebele
Police Act was enacted by the KwaNdebele legislative assembly
under the powers
conferred upon it by s 30(1) (a) of that Act read with item 21B in Schedule 1
thereto. It established a police force
for
/12
12
KwaNdebele, and at the same time repealed the whole of the Police Act, 7 of
1958, and the amendments thereto. KwaNdebele is therefore
a separate and largely
independent political entity with its own police force, the powers and duties of
which are governed by the
provisions of the KwaNdebele Police Act. The police
force owes its existence and powers solely to the legislative capacitý
of
the KwaNdebele legislative assembly. That capacity is limited, as I have already
pointed out, to the area for which the KwaNdebele
legislative assembly was
established. Logically and legally it would follow that the exercise by members
of the KwaNdebele police
force of their powers and duties, including the power
of arrest, must be confined to within the territorial boundaries of KwaNdebele,
i e within the area in respect of which legislative competence exists. This is
in keeping with the
/13
13 principle that statutes are presumed not to operate
extra-territorially (cf.
Le Roux v Provincial Administration (0 F S)
1934
OPD 1
at 4;
Bishop and Others v Conrath and Another
1947(2) SA 800 (T) at
804). That the powers and duties of members of the KwaNdebele police force are
so confined is confirmed by
certain provisions in the KwaNdebele Police Act see
e.g. s 6(a) and s 7(4). Where duties are to be performed outside KwaNdebele
specific
provision is made therefor (see s 7(9) and s 8). Leaving aside the
Emergency Regulations, we were not referred to any statutory provision,
nor am I
aware of any, that authorises the members of the police force of a
self-governing territory to exercise powers of arrest,
or any other acts of
authority, outside the territorial limits of such territory, nor would one
expect to find such a provision.
It would amount to an invasion of
/14
14 territorial sovereignty and autonomy if members of the
police force of one self-governing territory were permitted to exercise
powers
in another self-governing territory. A
fortiori
this would be the case if
such powers were exercised in the Republic of South Africa. In the result,
therefore, a member of the KwaNdebele
police force would not, in the normal
course, have the power to effect an arrest in Johannesburg, which is beyond the
territorial
limits of KwaNdebele.
What next falls to be considered is whether
or not the Emergency Regulations have brought about any change to this
situation. Three
questions were debated: (1) Did the State President have the
power to make the Emergency Regulations applicable to KwaNdebele; (2)
if so, did
he exercise such power, and extend their operation to KwaNdebele; and (3) in the
event of both (1) and (2) being established,
did the
/15
15 State President in terms of the Emergency
Regulations
confer upon the members of the KwaNdebele police force the power
to effect arrests outside KwaNdebele's territorial limits?
I shall assume,
for the purposes of the present appeal, that the State President, in terms of s
30(3) of the National States Constitution
Act, had the necessary power to make
the Emergency Regulations applicable to KwaNdebele, and that he duly exercised
that power. What
remains to be considered is whether the Emergency Regulations
confer extended powers of arrest upon members of the KwaNdebele police
force.
Regulation 3(1) deals specifically with the arrest and detention of
persons. It provides:
"A member of a security force may, without warrant of arrest, arrest or cause to
be arrested any person whose detention is, in the
opinion of such member,
necessary for the
/16
16
safety of the public or the maintenance ofpublic order, or for the safety of
that person himself, or for the termination of the state
of emergency, and may,
under a written order signed by any member of a security force, detain or cause
to be detained any such person
in custody in a
prison."
In terms of regulation 1 (the definition
provision), "security force" includes "any police force established by or under
a law of
a self-governing territory". Consequently the provisions of regulation
3(1) are applicable to any member of the KwaNdebele police
force.
In
interpretihg regulation 3(1) in relation to the present matter one must, in my
view, take as the starting point the fundamental
fact that the normal powers of
arrest of members of the KwaNdebele police force are limited to within the
territorial boundaries
/17
17 of KwaNdebele. To extend their powers beyond such
territorial limits would constitute a radical departure from the norm. Any such
departure would have to be authorised in clear terms. In the case of doubt the
norm must prevail. There is no apparent reason why
the State President should
have wanted to extend the powers of arrest and detention by members of the
police force of a self-governing
territory beyond recognised and accepted
boundaries to throughout the Republic. There are no clear, or sufficiently
clear, indications
in the Emergency Regulations that such was his intention, as
might have been the case had words such as "at any place in the Republic"
been
inserted in regulation 3(1). The omission of those words, or words to the same
effect, strongly suggests that it was not the
State President's intention to
extend powers of arrest and detention extra-territorially. A further
/18
18
indication of this being so is to be found in the definition of
"Commissioner" in regulation 1. While for the purposes of the application
of the
Emergency Regulations the Commissioner of the South African police is given
authority in a self-governing terri= tory, his
counterpart in such territory is
not given corresponding authority elsewhere in the Republic. By implication the
powers conferred
by regulation 7on a Commissioner of police of a self-governing
territory can only be exercised within such territory. It would be
somewhat
anomalous if the powers of a Commissioner were restricted to normal territorial
limits, but certain powers of the members
of his force were extended beyond such
limits. The fact that the definition of "security force" in regulation 1
provides for a combination
of forces takes the matter no further. It does not
follow that because joint
/19
19
operations are envisaged all participants must necessarily be clothed with
additional powers. No more may be envisaged than co-operation
between forces
with recognition of the limits of territorial jurisdiction. At best for the
appellants there is considerable doubt
whether the State President intended
regulation 3(1) to confer extra-territorial powers of arrest on members of the
police force
of a self-governing territory. As there is a presumption against
interference with an existing state of affairs, in the absence of
clear language
to the contrary regulation 3(1) must be interpreted in a manner consonant with
the normal position that members of
the KwaNdebele police force do not possess
extra-territorial powers of arrest (
Steyn
: Die Uitleg van Wette : 5th Ed,
p 98;
Protective Mining and Industrial Equipment Systems (Pty) Ltd (Formerly
Hampo Systems (Pty) Ltd) v Audiolens (Cape) (Ptv) Ltd
/20
20 1987(2) SA 961 (A) at 991 J - 992 A). Their
functions
under regulation 3(1) must therefore be
limited to the area where they can
effectively exercise
their powers. Accordingly the policemen who
arrested
the detainees were not empowered by the Emergency
Regulations to
do so, and their arrest was therefore
unlawful.
The provisions of regulation 2(1) do not
detract
from this conclusion. It provides:
"Whenever any member of a security force is of the opinion that the presence or
conduct of any person or persons
at any place in the Republic
endangers
or may endanger the safety of the public or the maintenance of public order, he
shall in a loud voice in each of the official
languages order such person or
persons to proceed to a place indicated in the order, or to desist from such
conduct, and shall warn
such person or persons that force will be used if the
order is not obeyed forthwith." (my
underlining)
/21
21 At first blush it would seem that the words underlined
authorise a member of the KwaNdebele police force to act extra-territorially
in
relation to matters falling within the purvlew of regulation 2(1). If this were
so it would create an anomalous situation, for
logically there could be no
reason why a member of the KwaNdebele police force should enjoy
extra-territorial powers in relation
to matters pertaining to the maintenance of
order in terms of regulation 2(1), but not in respect of the arrest and
detention of
persons in terms of regulation 3(1). The answer, however, would
appear to be that the words "at any place in the Republic" were never
intended
to signify the territorial limits within which every member of a security force
could exercise the powers conferred by regulation
2(1). They relate, in my view,
to the words immediately preceding them - "the presence or
/22
22
conduct of any person or persons" - and were presumably introduced to render
the provision linguistically capable of better understanding.
Presence, at
least, must relate to a given place, and regulation 2(1) makes it clear that it
is only the presence or conduct of any
person or persons "at any place in the
Republic", with the envisaged consequences, that would justify action in terms
of regulation
2(1). The presence or conduct of persons beyond the borders of the
Republic would not. In my view the words "at any place in the
Republic" do not
signify a departure from the fundamental principle that the powers of members of
the KwaNdebele police force are
limited territorially. The powers conferred by
regulation 2(1) must therefore also be exercised within normal territorial
limits.
/23
23
The final contention advanced on behalf of the appellants was that even if
the arrest of the detainees was unlawful, their detention
was not, the reason
being that their detention, in contradistinction to their arrest, actually took
place in KwaNdebele. The detainees
were purportédly arrested in terms of
the Emergency Regulations. Regulations 3(1) and (3) envisage three distinct
steps :
the arrest of a person, the detention of such person following arrest
(for a period not exceeding 30 days - regulation 3(2)), and
the extension of the
period of detention by the Minister of Law and Order. There cannot be a lawful
extension of the period of detention
by the Minister without a preceding lawful
arrest and detention (
Minister of Law and Order and Another v Swart
1989(1) SA 295 (A) at 298 H - I;
Radebe v Minister of Law and Order and
Another
1987(1) SA 586 (W) at 597 B).
/24
24
By parity of reasoning there cannot be a lawful detention of any person in
terms of regulation 3(1) if there has not been a preceding
lawful arrest. An
arrest in terms of regulation 3(1) is only authorised where the detention of the
person arrested is, in the opinion
of the arrestor, necessary for one of the
stated purposes. It is only the person so arrested whom the arrestor may detain
or cause
to be detained. Even though arrest and detention are separate steps
there is a strong correlation between the one and the other.
If the arrest is
tainted by illegality, the detention will be as well. In my view the Emergency
Regulations clearly postulate a lawful
arrest under regulation 3(1) before there
can be a lawful detention. The decisions in
Abrahams v Minister of Justice
and Others
1963(4) SA 542 (C) and
Nduli and Another v Minister of Justice
and Others
1978(1) SA 893
/25
25 (A), on which the appellants sought to rely, are not in
point. The facts and principles involved in those cases differ from the
present.
I do not consider it necessary to deal with them. In both cases, whatever
improper or unlawful conduct preceded them, the
arrests were lawful as they were
made within the arrestor's competence. The statement in
Abraham's
case
(at 545 H) that once there is a lawful detention, the circumstances of an
accused person's arrest and capture are irrelevant,
is founded upon the
principle that once an accused person is brought before a court of competent
jurisdiction the court will not
enquire into the circumstances giving rise to
his appearance. It does not apply to a situation such as the present where the
lawfulness
of the detention is dependent upon the lawfulness of the arrest. It
follows that not only the arrest, but also the detention of the
detainees
was
/26
26
unlawful. The court a
quo
was accordingly correct in ordering their
release from custody.
This judgment deals specifically with the position of
members of the KwaNdebele police force. It does not follow of necessity, because
the members of such police force do not have extra-territorial powers of arrest,
that members of the South African police force do
not have powers of arrest in
self-governing territories. Their position may be different having regard to the
provisions of the
Criminal Procedure Act, 51 of 1977
, the Police Act, 7 of 1958
and the Emergency Regulations. I deliberately refrain from expressing any view
on the extent of their
powers of arrest, as it is not necessary to do so for the
purposes of the present appeal.
/27
27
The appeal is dismissed, with costs, such costs to include the costs
consequent upon the employment of two counsel.
JUDGE OF APPEAL J W SMALBERGER
CORBETT, CJ )
VAN HEERDEN, JA ) KUMLEBEN, JA ) CONCUR
F H GROSSKOPF, JA )