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[1988] ZASCA 83
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Attorney-General for Eastern Cape v Blom and Others (83/88) [1988] ZASCA 83; [1988] 2 All SA 592 (A) (30 August 1988)
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
)
In the matter between:
THE ATTORNEY-GENERAL FOR THE
EASTERN CAPE
appellant
and
NOLELE BLOM
1st respondent
THEMBILE BEVU
2nd respondent
CHRISTOF NYWEBA
3rd respondent
LULAMILE MJAVU
4th respondent
NONDOLOZA MERIKANA
5th respondent
MATTATI KLAAS
6th respondent
CORAM
CORBETT, HEFER, GROSSKOPP, VIVIER JJA et VILJOEN AJA.
DATE
OF HEARING
17 March 1988
DATE OF JUDGMENT
30 August 1988
J U D G MENT
CORBETT
JA:
The respondents in this appeal made application
to the Court a
quo
(the Eastern Cape Division), citing the
/ present
2
present appellant, the Attorney-General for the Eastern Cape, as respondent
and claiming,
inter alia
, an order declaring that the order made and
signed by the appellant, which pur-ported to prohibit the release on bail or
otherwise
of each of the respondents in terms of sec. 30(1) of the Internal
Security Act 74 of 1982 ("the Act"), was invalid and with-out force
and effect.
The Court a
quo
(
per
Mullins J, Jones J and Kroon J concurring)
granted an order substan-tially in these terms and ordered the appellant, in his
official
capacity, to pay the respondent's costs, including the costs of two
counsel. With leave of the Court a
quo
, the appellant appeals against the
declaratory order granted and the order as to costs.
The facts of the matter are hardly in dispute and, where they are, the usual
principles relevant to motion proceedings must be applied.
These facts are as
follows. The respondents were arrested by the police on 21 and 22
/ March
3
March 1986 in the Black residential township at Stutterheim on a charge of
having contravened sec. 54(2)(f) of the Act, it being alleged
that they had dug
trenches across a road-way in the township in order to impede or endanger the
free movement of traffic. After having
been charged with this offence on 22
March 1986, they were remanded in custody pending further investigation of the
case. On 11 April
1986 and in the Stutterheim magistrate's court the charges
against the respondents were withdrawn by the prosecutor at the request
of the
investigating officer, W 0 Stander of the South African Police, and immediately
thereafter Stander detained them in terms
of sec 50 of the Act. According to
Stander, the reason for the withdrawal of the charges was the fact that the
Attorney-General had
not given his written authority for the prosecution of the
respondents under sec 64 of the Act.
On 23 April 1986 discussions took place between
/
Stander
4
Stander and another representative of the police and the appellant and a
member of his staff at the offices of the appellant in regard
to the case
against the respondents. It was decided to charge the respondents under sec
54(2)(a) of the Act, with alternative charges
under sec 54(2)(c), sec 54(2)(e)
and sec 54(2)(f). Stander raised with the appel-lant the question of restricting
the grant of bail
to the respondents in terms of sec 30 of the Act. The
appellant indicated that he would consider doing so only if a "motivated
application"
for the necessary order were placed before him by the police.
On 25 April 1986 the respondents again appeared in the Stutterheim
magistrate's court. Before the hearing Stander, acting on instructions
from
appellant, spoke to the respondents in an office at the court and told them (a)
that their detention in terms of sec 50 of the
Act was being terminated, (b)
that they were being re-arrested
/ on
5
on various alternative charges in terms of sec 54(2) of
the Act by reason of their having dug the aforementioned
trenches across
the roadway, and (c) that an application
in terms of sec 30(1) of the Act was
to be laid before
the appellant with a view to his making an order
preventing
their release on bail. At the hearing before the magis-
trate
the case was postponed to 7 May 1986.
Thereafter Stander prepared an application
asking
that the appellant exercise his powers in
terms of sec 30(1)
of the Act and he presented this to the appellant
personally
at an interview on 29 April 1986. It consisted of an
affida-
vit in which Stander described the factual averments against
the
respondents, sketched the security situation in the Black
township at
Stutterheim and concluded —
"Indien die beskuldigdes op borgtog vrygelaat sou word, sal die Wet en Orde in
gevaar gestel word as gevolg van die feit dat hulle
met hul bedrywighede sal
voortgaan. Die beskuldigdes kan selfs vlug wat sal meebring dat hulle hul
ver-
/ hoor
6
hoor vryspring." At the interview there was a further full discussion of the
need for withholding bail from the respondents. The appellant
then indicated
that he needed time to further consider the matter.
On 2 May 1986 the appellant again read through all the papers and, having
done so, was satisfied that orders in terms of sec 30(1)
of the Act should be
made in respect of all the respondents. He accordingly, on the same day, signed
(i) an authorization permitting
the prosecution of the respondents in terms of
sec 64 of the Act, and (ii) separate orders in terms of sec 30(1) of the Act
prohibiting
each of the respondents from being released on bail or on
warning.
When the respondents appeared before the
magis-
trate of Stutterheim on 7 May 1986 the case
was once more
postponed, this time to 21 May 1986. At the same time
/ Stander
7
Stander told the respondents that an order had been granted in terms of sec
30(1) of the Act. At some stage there-after the respondents
instructed an
attorney, Mr van Heerden, to act on their behalf. On 16 May 1986 he approached
the prosecutor with a view to obtaining
bail for his clients, but was told that
appellant had prohibited bail in terms of sec 30(1) of the Act.
Eventually, on 11 August 1986, the respondents
were
arraigned in court on a charge under sec 54(2)(a)
and on various alternative
charges. They pleaded not
guilty.' Their cases were remanded. On 25 November
1986
the aforementioned application for a declaration as to the
validity
of the appellant's order in terms of sec 30(1)
was launched, The judgment of
the Court a
quo
was deli-
vered on 9 December 1986. At that stage the
case against
the respondents was due to commence in the Regional Court
in King William's Town on 12 January 1987.
/ In
8
In the Court a
quo
counsel for the respondents advanced three grounds
for the invalidity of the orders made in terms of sec 30(1). The Court concluded
that the first ground was well-founded and did, therefore, not deem it necessary
to deal with the other two. This first ground was,
put briefly, to the effect
that in exer-cising his powers under sec 30(1) an Attorney-General is obliged to
observe the principle
of
audi alteram partem
and that in the present case
the appellant failed to do so. This was the main point argued before us on
appeal and I turn now to
consider it.
The maxim
audi alteram partem
pithily
expresses
a principle of natúral justice
which is part of our law
(see
Perumal and Another v Minister of Public. Health
and
Others
1950 (1) SA 631
(A), at p 640;
Pretoria
City
Council v Modimola
1966 (3) SA 250
(A), at p 261 C;
S v
Moroka en Andere
1969 (2) SA 394
(A), at p 398 B).
/ It
9
It has ancient origins. When Nicodemus, the Pharisee, asked
"Does our law permit us to pass judgment on a man unless
we have first
given him a hearing and learned the facts?"
he was obviously speaking
rhetorically. (See New English
Bible, John vii.51.) The principle (which for
the sake
of brevity I shall call "the
audi
principle") has
been
variously formulated by this Court. In
R v Ngwevela
1954 (1)
SA 123
(A) Centlivres CJ referred (at p 127 F)
to —
" the numerous judicial decisions
in which it has been held that, when a statute empowers a public official to
give a decision prejudicially affecting the property
or liberty of an
individual, that individual has a right to be heard
before action is taken against him,
unless the statute expressly or by necessary implication indicates the
contrary".
The learned Chief Justice
went on (at p 131 H) to emphasize
the importance of the
audi
principle
and said —
/ "The
10
"The maxim should be enforced unless it is clear that Parliament has expressly
or by necessary implication enacted that it should
not apply or that there are
excep-tional circumstances which would justify the Court's not giving effect to
it".
This formulation appears to lay
down that in the circumstances
postulated, viz. a statutory power vested in a
public
official to give a decision prejudicially affecting the
property or
liberty of an individual, the individual has a
right
to be heard,
unless the statute expressly or by im-
plication excludes it or unless
exceptional circumstances
justify the court in not giving effect thereto. The
for-
mulation was adopted in
Laubscher v Native Commissioner,
Piet
Retief
1958 (1) SA 546
(A), at p 549;
Minister of
the
Interior and Another v Mariam
1961 (4) SA 740
(A), at p
751
A; and
Administrateur van Suidwes-Afrika en n Ander v
Pieters
1973 (1) SA 850
(A), at p 860 F-H.
In
South African Defence and Aid Fund and Another v Minister of
Justice
1967 (1) SA 263
(A) Botha JA,
/ delivering
11
delivering the main majority judgment, placed the
audi
principle
upon a statutory implication, rather than a
substantive right. He stated (at
p 270 C) that the
incorporation of the maxim
audi alteram partem
could
only
be implied where a statute empowered a public official to
give a
decision prejudicially affecting the property or
liberty of an individual;
and went on to explain (at p
270 F-G):
"The question whether Parliament has in any particular case either expressly or
by clear implication excluded the incorpora-tion
of the maxim
audi alteram
partem
can only arise where, upon the true construction of the enactment
concerned, the incorpora-tion of the maxim is implied, for, where
it cannot be
implied, there is obviously no need to exclude it. The first question to be
determined must, therefore, always be whether
the enactment concerned impliedly
incorporates the maxim. The answer to that question must, as indicated above,
primarily depend
upon whether the enactment is one em-powering a statutory
official or body to give a decision affecting the rights of
another".
/This
12
This formulation differs, in form at any rate, from that
adopted in
R v
Ngwevela
,
supra,
and was founded largely
on what was stated by
Stratford ACJ in the case of
Sachs
v Minister of Justice
1934
AD 11
, at p 38, where he indi-
cated that where the
audi
principle had
been invoked this
had been justified on the ground that "the enactment
im-
pliedly incorporated it". In his dissenting judgment in
the
Defence
and Aid
case,
supra
, Williamson JA, having
referred to this
statement by Stratford ACJ, commented.(at
p 276 H - 277 A);
"That does not necessarily mean that, before the maxim is applicable, the Court
must seek and find an express or implied incorporation
of the principle or maxim
in the statute in question. If a deprivation of rights or of liberty is provided
for, the enquiry commences,
in my view, from the opposite angle; has there been
express-ly or by necessary implication a removal of the basic right to know that
a penalty is proposed and to make representations there-anent? That this is so
is made clear, I think, by the remarks of CENTLIVRES
CJ in
Ngwevela
's
case quoted above after referring to this particular quotation from
Sachs
' case".
13
Nevertheless, in
Winter and Others v
Administrator-in-Executive
Committee and Another
1973 (1) SA 873
(A) Ogilvie Thompson CJ
(at p 888H - 889 A) adopted the implied incorporation for-
mulation
enunciated by Botha JA in the
Defence and Aid
case,
supra
. This
was in contrast to a judgment delivered the same
day in the case of
A
dministrateur van Suidwes-Afrika en 'n
Ander v Pieters
,
supra
, in which Botha JA stated the
audi
principle thus (at p
860 G):
"Dit is egter algemeen gesproke duidelik dat waar n openbare liggaam of gesag
statutêr gemagtig word om n be-slissing te gee
wat die goed, vryhede of
bestaande regte van n ander nadelig kan raak, of waar die beslissing bestaande
regte kan aantas of regsgevolge
vir andere mag inhou, daardie ander persoon of
persone die reg het, tensy die teendeel uit die magtigende bepaling blyk, om
toegelaat
te word om sy saak te stel voordat daar so 'n beslissing teen hom
geneem word".
Prior to
this Rumpff JA had, in
Publications
Control Board v Central News Agency Ltd
1970 (3) SA 479
(A)
formulated the
audi
principle in terms of a presumption.
/ He
14
He said (at p 488 H - 489 A):
"It is, of course, firmly established in our law that when a statute gives
judi-cial or
quasi
-judicial powers to affect prejudicially the rights of
person or pro-perty, there is a presumption, in the ab-sence of an express
provision or of a clear intention to the contrary, that the power so given is to
be exercised in accordance with the fundamental
principles of justice. One of
these principles is that the person affected should be given an opportunity to
defend himself or of
being heard. If, how-ever, on a proper construction of the
statute, it appears that the Legislature did not in-tend the person affected
to
have the right of being heard, the implied right will be held to be
excluded".
With reference to the phrase
"by necessary implication",
appearing in the formulation of Centlivres CJ in
Ngwevela
's
case,
supra
, Rumpff CJ said (at p 489 C-D):
"The words 'by necessary implication' con-vey a degree of inferential compulsion
that goes further, linguisticaily at any rate, than
an inference of clear
intent. That, with respect, seems unwarranted. One begins with a presumption
that the kind of statute referred
to impliedly enacts that the
audi alteram
partem
rule is to be observed and, because there is a presumption of
an
/ implied
15
implied enactment, the implication will stand unless the clear intention of
Parliament nega-tives and excludes the
implication."
(See also
Winter
's
case,
supra
, at p 889 B-C.)
In the most recent decision of this Court
on the
audi
principle it was accepted by Rabie ACJ that the principle
embodied "a fundamental right"and that a subordinate legis-lator could
not
deprive the subject of such a right unless the legislator had been, either
expressly or by necessary implication, empowered by
the enabling statute to do
so (see
Omar and Others v Minister of Law and Order and Others
1987 (3)
SA 859
(A), at p 893 E).
The differences between these various formulations of the
audi
principle are, in my opinion, ones of form rather than substance. Logically and
in principle, however, I prefer the approach which
holds that in the
circumstances postulated, viz. a statute empowering a public official to give a
decision which may prejudicially
affect the property
/ or
16
or liberty of an individual, there is a right to be heard, unless the statute
shows, either expressly or by implication, a clear intention
on the part of the
legislature to exclude such a right. The "implied incorporation" formulation
appears to contemplate an incorporation
of the right by implication, followed by
the possibility of the exclusion thereof by implication. It is true that, as I
understand
the position, the incorporation would be based merely on the
circumstances postulated above and the exclusion by implication upon
a
consideration of the statutory enact-ment as a whole, but nevertheless I find
this formulation logically less satisfactory.
I proceed now to consider the application of
these
principles to sec 30 of the Act. It reads as
follows:
"30 (1) Whenever any person has been arrested upon a charge of having committed
any offence referred to in
/ Schedule
3,
17
Schedule 3, the attorney-general may, if he considers it necessary in the
interests of the security of the State or the mainte-nance
of law and order,
issue an order that such person shall not be released on bail or on warning as
contemplated in the Criminal Procedure
Act, 1977 (Act No 51 of 1977).
(2) (a) Notwithstanding the
provisions of any other
law, but subject to the provisions of subsection (3), no person shall be
released on bail or on warning contrary
to the provisions of an order issued
under subsection (1).
(b) Whenever any person
arrested for an offence referred
to in subsection (1) applies
to be released on bail or
on warning and the public
prosecutor informs the judge,
court or magistrate to whom
or to which the application
is made that the matter has
been referred to the attorney-
general concerned with a
view to the issue of an order
under subsection (1), such
person shall, pending the
decision of the attorney-
general, not be released
on bail or on warning;
Provided that if no such
/ order
18
order is issued within the period of fourteen days imme-diately following
upon the date on which such judge, court or magistrate is
so informed, such
person may again apply to be released on bail or on warning and may, subject to
the provisions of any law, be so
released.
(3) The attorney-general may
at any time before its expiration withdraw any order issued under subsection
(l).
(4) Any telegraphic copy purporting
to be a copy of an order under
subsection
(1) transmitted by telegraph shall for all purposes be
prima facie
proof
of the facts set forth in such
copy."
The offences listed in Schedule
3 to the Act are: sedition;
contravention of the provisions of sec
13(l)(a)(iv) of
the Act (taking part in the activities of an
unlawful
organization); any offence referred to in sec 34 (ie
terrorism,
subversion and sabotage) or sec 55 (ie offences
relating to communism) of the
Act; any conspiracy, incite-
ment or attempt to commit any of these offences;
and
treason. In relation to these offences, the Attorney-
/ General
19
General is given the power to prohibit the granting of
bail (I shall ignore for present purposes release on warning)
to an
arrested person charged with one of these offences
if he considers this necessary in the interests of the
security of the State or the maintenance of law and order
(sec 30(1) ); and where such an order has been issued
the person concerned
may not be released on bail, either
by the court or any other authority (sec
30(2)(a)). Moreover,
prior to the issue of such an order, an application
for
bail can, in terms of sec 30 (2) (b) be effectively thwarted
for a maximum period of 14 days pending the decision of
the
Attorney-General as to whether or not to issue an
order under sec 30(1).
The question as to whether the
audi
principle
applies to the decision of the
Attorney-General to issue
an order prohibiting the release of an arrested
person
on bail in terms of sec 30(1) has been decided in two
/ divisions
20
divisions of the Supreme Court. In
S v Baleka and Others
1986 (1) SA
361
(T) it was held by the Transvaal Provin-cial Division by a majority
(
per
Eloff DJP, Preiss J concurring and Stegmann J dissenting) that in
such circum-stances the Attorney-General is not required to observe
the
audi
principle. And in
Buthelezi and Others v Attorney-General, Natal
1986 (4) SA 377
(D)
the Durban and Coast Local Division came to the opposite
conclusion and held (
per
Kumleben J, Didcott J and Friedman J concurring)
that the
audi
principle did apply to a decision to grant an order in
terms of sec 30(1). Faced with these two conflicting decisions the Court a
quo
chose to follow that arrived at in
Buthelezi'
s case,
supra
.
I have no doubt that a decision by the Attorney-General to make an order
prohibiting an arrested person from obtaining bail is one
which prejudicially
affects the liberty of an individual and that, therefore, the
/
audi
21
audi
principle applies unless the Act shows, either expressly or by
implication, a clear intention that the individual's right to be heard
is to be
excluded. Nor did I understand appellant's counsel to argue otherwise. Indeed
his argu-ment was directed towards showing
that such a clear inten-tion to
exclude was to be deduced from the Act by impli-cation, there being no express
provision to that
effect.
Before this argument is considered, there is
one
general observation to be made. In the past, with
certain minor exceptions,
the power to grant bail has
always been vested in the court, which naturally
has heard
both parties, ie the accused and the prosecutor, before
deciding
whether or not to grant bail. The
audi
principle
was thus
automatically observed as part of the court's
normal procedure. Sec 30
represents a radical departure
from the traditional procedure in that, in the case of
persons arrested
upon certain charges, it effectively
vests in the Attorney-General the power to decide whether
/ or
22
or not bail should be granted. The charges in question
all relate to
offences involving the security of the State
and it was, I presume, felt by
the Legislature that the
traditional system of leaving it to the courts to
decide
questions of bail would in such cases be likely to cause
problems.
Some of the information available to the Attorney-
General relevant to the
refusal of bail might well be
of so sensitive a nature that he would not wish
to reveal
it, either in its entirety or at all, to the court.
He would
thus be placed in the invidious position of having
possibly to weaken his
opposition to the bail application
by revealing too little or of having to
prejudice State
security by revealing too much. The solution hit upon
by
the Legislature was to give the Attorney-General himself
the power in effect
to decide whether or not bail should
be granted. (I say "in effect" because
of course the
Attorney-General cannot himself grant bail, he can
only
prevent bail being granted by the court.)
/ Whether
23
Whether the solution is a happy one need not be considered (see in this
connection the remarks of Milne JP in
S v Ramgobin and Others
1985 (4) SA
130
(N), at p 130-1); nevertheless I am of the view that the Legislature must
not be understood to have intended to disturb the traditional
procedure for the
granting of bail more than was necessary to achieve the above-mentioned general
purpose. In other words, the Legislature,
having taken the power of decision
concerning bail in such cases from the courts and giving it to the
Attorney-General, must, in
my view, not lightly be taken to have intended to
abolish the
audi
principle as well.
Appellant's counsel prefaced his argument by emphasizing (i) that the basis
of the
audi
principle is natural justice or fundamental fairness and that
conse-quently a mere pretence of giving a person a hearing will not
suffice; and
(ii) that the
audi
principle involves
/ informing
24
informing the person concerned of the substance of the prejudicial
allegations against him, giving him a reasonable opportunity to
assemble the
relevant information in order to state his case and allowing him to make his
representa-tions in writing. Counsel then
proceeded to indicate various factors
which would make it impractical or unpolitic for the Attorney-General to afford
the arrested
person such a hearing and argued that this showed an intention on
the part of the Legislature to deny the arrested person a right
of hearing.
Before I consider the various factors mentioned by counsel, it is appropriate
to examine the general thesis that because circumstances
might prevent an
arrested person from being fully accorded his right to a hearing it must be
inferred that no right at all was intended.
This is sometimes referred to as
"the all-or-nothing" argument. It was rejected by the Court in
Buthelezi
's case,
supra
,
/ (see pp 380 B
25
(see pp 380 B - 381 A) and by Stegmann J in
Baleka
's case,
supra
, (see pp 388 E - G, 390 C - 391 F). I am generally in agreement
with what was said in those judgments in this regard. In
Ngwevel
a's case,
supra
, at p 129 B - F Centlivres CJ quoted a passage from the judgment of
Tindall ACJ in
Minister of the Interior v Bechler and Others
1948 (3) SA
409
(A), at p 452, which included the following comment on the application of
the
audi
principle:
"Exceptions may have to be made in very special circumstances, e.g. in the case
of an emergency such as is referred to in
de Verteuil v Knaggs and
Another
,
1918 A.C. 557
, or possibly in a case where the disclosure of the
information might result in the disclosure of its source and the disclosure of
the source would be in conflict with public policy or de-trimental to the public
interest. In such cases the proper way of putting
it would be that, very
exceptionally, the requirements of natural justice might be departed from, not
that a weaker brand of fairness
would still be legitimately describable as
natural justice".
/ Commenting
26
Commenting on this passage Centlivres CJ stated (at p
129 E-F):
"I do not read the remarks of TINDALL, A.C.J. as meaning that where the refusal
to disclose information to a person likely to be
affected is justified on ground
of public policy that person is not entitled to be given an opportunity of
stating his case before
action is taken against him. In the hypothetical case I
am now con-sidering he would not have in his possession the information on
which
the public official proposes to act but he might be able to satisfy that
official that action should not be taken against
him."
This interpretation of what was
stated by Tindall ACJ
was questioned by Ogilvie Thompson CJ in
Winter
's case,
supra, at p 890 A. With great respect to the
latter,
I incline to the view that the interpretation of Centlivres
CJ is
correct. Be that as it may, the above-quoted
passage from the judgment in
Ngwevela's case
(which inciden-
tally was concurred in by Greenberg,
Schreiner and Hoexter
JJA and De Beer AJA) seems to me to constitute
clear
authority destructive of the "all-or-nothing" line of
/ argument
27
argument. And on general principle it seems to me that
the argument must
be unsound. The relevant points were
well expressed by Kumleben J in
Buthelezi
's case when
he stated (at p 380 E-H):
"If these considerations are borne in mind there is little to be said for the
'all or nothing' argument in the con-struction of s
30. It appears to me to be
both unreasonable and illogical to con-clude that the law-maker would wish to
deprive an individual of
a fundamental right in all cases simply because in
cer-tain cases it may not be possible for it to be exercised fully. Even if for
reasons of State security no information can be furnished to an accused he may,
as the illustrations in
S v Baleka and Others
1986 (1) SA 361
(T) at 391
C-G show, have other facts at his disposal which bear upon the issue and which
would be helpful to the Attorney-General
in reaching a just decision. When all
is said and done the
application
of the rule in any parti-cular case
involves balancing the interests of the individual against the interests of the
State. If its
application or partial application is in the interests of the
former, and cannot conceivably prejudice the latter, there can be no
sound
reason for not acknowledging it. After
all
/ at
28
at a court hearing of a bail application
it often happens that the Attorney-
General opposes the grant of bail and
states that he relies upon certain infor-
mation which cannot be disclosed. In
such a case the court, with this restriction,
continues to observe the rule. It does
not discard it and terminate the hearing.
It is not unreasonable to suppose that
the Legislature intended the Attorney-
General to do likewise".
This, in my
view, sums up the position admirably.
I turn now to the various factors which, so
it was
contended by appellant's counsel, militated against
the notion that an
arrested person was intended to have
a right to be heard before the
Attorney-General issued
an order under sec 30(1). The first was that there
would
be many instances where it would be prejudicial to the
interests of
both the State and the public for an Attorney-
General to disclose details of
his information in regard
to the accused, or the source of such information, or
both. Having regard to the nature of the offences to
/ which
29
which sec 30(1) relates (as listed in Schedule 3) and the criteria upon which
the Attorney-General would rest a decision to grant
an order in terms of sec
30(1) - viz. necessity in the interests of the security of the State or the
maintenance of law and order,
it must be accepted that in many instances an
Attorney-General would not wish, for reasons of State security, to reveal
certain of
the information available to him. Secrecy in regard to matters of
security should, however, not be allowed to become a fetish. And
in many
instances, 1 would think, it would be possible to reveal to an arrested per-son
much of the information available to the
Attorney-General which is relevant to
the question of bail being withheld. (Indeed the affidavit which was laid before
the appellant
by Stander on 29 April to "motivate" his "application" for an
order under sec 30(1) seems, on the face of it, to contain little or
no
information which
/ could
30
could not have been revealed to the respondents or their legal adviser.)
Where it would genuinely not be in the public interest to
reveal certain
information, then na-turally the Attorney-General would be not only entitled,
but also under a duty not to disclose
it to the arrested person. Each case would
depend on its own facts. Where relevant information prejudicial to the arrested
person,
in the sense that it
prima facie
provided grounds for making an
order in terms of sec 30(1), could not be dis-closed then,
pro tanto
,
full effect would not be given to the
audi
principle, but this would not
justify a total denial of the right to be heard — for the reasons stated
when the all-or-nothing
argument was considered.
The second factor relied on by appellant's coun-sel was that, so it was
submitted, the provisions of sec 30(1) constitute a measure
of "preventive
justice" and that the section contemplates prompt and unfettered action
/ on
31
on the part of the Attorney-General. Observance of the
audi
principle
would cause delay and would consequent-ly frustrate the intention of the
Legislature or reduce or defeat the cardinal purpose
of prompt and preventive
action.
Ergo
the
audi
principle was not intended to apply. There
is, in my view, no substance in this line of argument. As was pointed out by
Stegmann
J in
Baleka
's case,
supra
, at p 386 E, the concept of
preventive justice relates to a legislative measure directed not to the
punishment of offences committed,
but to restraining a man from committing a
crime he may commit but has not yet committed or from doing some act injurious
to members
of his community which he may do but has not yet done (
Sachs v
Minister of Justice
,
supra
, at p 36).
Sachs
's case, which
concerned a notice issued by the Minis-ter of Justice in terms of sec 1(12) of
the Riotous Assem-blies Act 27 of 1914,
as amended, prohibiting a person
/ from
32
from being in specified areas for a defined period, on the ground that his
presence there would create feelings of hostility between
races, provides a
typical example of such a legislative measure. In such a case observance of the
audi
principle before the notice is issued would "defeat the cardinal
purpose of prompt and preventive action" (
per
Stratford ACJ at p 38). But
under sec 30(1) of the Act the position is different. The indivi-dual concerned
is, ex
hypothesi
, incarcerated and not able to commit the kind of crime
or do the kind of in-jurious act which an order under sec 30(1) is designed
to
prevent. The question is whether the arrested person should be released on bail.
Delay in deciding this ques-tion cannot prejudice
preventive justice because in
the meanwhile the arrested person remains in custody. More-over the
Attorney-General need not be placed
under undue pressure while considering his
decision. In practice there
/ is
33
is usually a substantial lapse of time between an accused
person's arrest and the making of an application for bail (in the present
case,
after the arrest of the res-pondent, nearly two months passed before Mr Van
Heerden broached the question of bail); and when
a bail applica-tion is made the
Attorney-General can in terms of sec 30(2)(b) ensure that he has a further 14
days within which to
make his decision. Should he nevertheless find that there
is insufficient time for him to give the arrested person an opportunity
to be
heard before making his decision, he can simply apply to the court hearing the
bail application for the further postponement
of the matter for this purpose. In
such circumstances it is difficult to conceive of the arrested person not
agreeing to a reasonable
request in this regard or of the court refusing to
grant such a postponement. (Cf remarks of Kumleben J in
Buthelezi
's case,
at p 382 E-G.)
/ Appellant's
34
Appellant's counsel further submitted that it was unlikely
that the Legislature would have intended that the Attorney-General should
hold a
hearing, even in a limited sense, when it took away the right of the court to
enter-tain applications for bail in such cases.
Had the Legislature merely
wished to provide for secrecy (while retaining the idea of hearing both sides)
it could have enacted that
the application be heard in
camera
. I do not
agree. Even if a hearing is in
camera
the infor-mation which the
Attorney-General might wish to keep secret would, if disclosed to the court,
necessarily be revealed to
a range of persons, including the arres-ted person.
This presumably would be contrary to the object sought to be achieved by the
Legislature. Ac-cordingly it does not follow that because the Legislature,
instead of providing for in
camera
hearings, vested in the
Attorney-General the power in such cases to decide
/ whether
35
whether or not an arrested person should be granted bail, it intended at the
same time to exclude the
audi
principle.
Next it was argued that it would be "unrealistic" to conclude that the
Legislature contemplated that an ac-cused person should be
given a limited
hearing by an Attorney-General because of the "notional possibility" that this
may have some effect; and in this
regard reference was made to what was stated
by Eloff DJP in
Baleka
's case, at pp 407 J - 408 B. I am by no means
convinced that the arrested person's right to be heard is as illusory as counsel
seemed
to suggest, even where much of the prejudicial information at the
disposal of the Attorney-General could not be revealed. (Cf. the
remarks of
Stegmann J in
Baleka
's case at p 391 B-D.) Nor is it possible, in my
view, given the infinite variety of cir-cumstances which individual cases may
produce,
to so generalize about the arrested person's right of hearing
/ and
and to draw inferences therefrom as to the intention
of the Legislature.
Appellant's counsel made the further point that an accused would, in any
event, always have the right to make representations after
the issue of the
order by the Attorney-General and he referred in this connection to the
provisions of sec 30(3) of the Act. In my
opinion, the point is devoid of merit.
If the correct interpretation of sec 30(1) is that the arrested person has no
right to be
heard before the Attorney-General makes his decision, what basis is
there for concluding that the Legislature intended that he has
such a right
subsequent to the making of such a decision? In my view, none. Indeed several of
the earlier argu-ments raised by appellant's
counsel would, if sound, be just as
subversive of a right to be heard after the decision as of one before the
decision. And, in any
event, a right to be heard after the event, when a
/ decision
37
decision has been taken, is no adequate substitute for
a right to be heard
before the decision is taken.
There is, as Van Winsen J pointed out in
Davies and
Others v Administrator, Cape Province and Another
1973
(3) SA 804 (C), at p 809 B a "natural human inclination
to adhere to a
decision once taken". (See also
Buthelezi
's
case,
supra
, at p
383 C-E.)
Appellant's counsel also referred to the pro-visions of
sec 61
of the
Criminal Procedure Act 51 of 1977
and argued that in relation to the offences
covered by that section the
audi
principle was clearly excluded, once the
Attorney-General objected, in terms of
sec 61(1)
, to the grant of bail. I do not
propose to con-sider whether, in relation to
sec 61(1)
, there is a total
exclusion of the
audi
principle for I fail to see what relevance this has
to the interpretation of sec 30(1) of the Act, which, significantly, is in
totally
different terms and relates to different offences. The
/ argument
38
argument carries appellant's case no further.
Finally, appellant's counsel submitted that this Court should have regard to
the Report of the Commission of Enquiry into Security
Legislation, whose
investigations shortly preceded thé passing of the Act, in order to
ascertain the intention of the Legislature;
and that the report supported
appellant's contention as to the meaning of sec 30(1). Relevant extracts from
the report were attached
to counsel's heads of argument. In this connection
counsel refer-red to the judgment in the case of
Westinghouse Brake &
Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555
(A) at pp
562 H - 563 A and the minority judgment of Galgut AJA in
S v Mpetha
1985
(3) SA 702
(A), at p 712 H - 713 E. In the former judgment I referred to certain
English cases of high authority in which it had been held that
—
/ " in
39
"...in construing a statute where the words are not clear and unambiguous the
Court may have regard to the report of a Royal Commission
or committee appointed
by the Government which shortly preceded the pas-sing of the statute in order to
ascertain the mischief aimed
at and the state of the law as it was then
understood to be, but not to determine the meaning attached by the commission or
committee
to any draft bill recommended in the report which formed the basis of
the statute passed by Parliament."
The judgment referred to certain South African and other
authorities and then proceeded:
"In my opinion, our Courts too are entitled, when construing the words of a
statute which are not clear and unambiguous, to refer
to the report of a
judicial commission of en-quiry whose investigations shortly preceded the
passing of the statute in order to ascertain
the mischief aimed at, provided
that there is a clear connection between, on the one hand, the subject-matter of
the enquiry and
recommendations of the report and, on the other hand, the
statutory pro-visions in question."
It is clear that this Court approved of reference
to the report of a judicial commission of enquiry, in
the circumstances postulated, only in order to ascer-
/ tain
40
tain the mischief aimed at by the statutory enact-ment in
question. It did
not
approve of such a report being used in order to
determine the meaning attached by the commission to any draft legislation
recommended
in the report, which formed the basis of the statute passed by
Parliament. Indeed the English authorities referred to in the judgment
expressly
dis-approve of a report being used for this latter pur-pose; and I agree with
that approach. I have read the extracts from
the report attached to counsel's
heads of argument. As I see it, counsel is endea-vouring to use the report in
order to demonstrate
the interpretation placed by the Commission upon the draft
sec 30 — and its predecessor, sec 12A of the Internal Security Act
44 of
1950 (as amended by secs 6 and 8 of the Internal Security Amendment Act 79 of
1976) — as an aid to the construction of
sec 30 of the Act, as passed by
Parliament. This is precisely the
/ purpose
41
purpose for which such a report may not be used. This
argument, therefore, falls to the ground.
To sum up the position, I do not find in the factors advanced by appellant's
counsel, or indeed in any of the matters mentioned in
the ma-jority judgment in
the case of
S v Baleka
,
supra
, taken either individually or
collectively, any clear indication that Parliament intended to exclude the right
of an arrested person
to be heard before the Attorney-General makes an order in
terms of sec 30(1) of the Act denying him the grant of bail. I, therefore,
conclude that the
audi
principle applies to sec 30(1). It may well be
that in individual cases constraints imposed by the time factor and/or the
sensitive
nature of the information, prejudicial to the arrested person, which
is in the possession of the Attorney-General will result in
the arrested
person's right to be heard being more attenuated than is normally the case where
the
/
audi
42
audi
principle applies, but the residual right remains
and must be respected.
In the present case the respondents were not allowed to be heard before the
appellant made orders in terms of sec 30(1). Indeed in
his opposing affi-davit
the appellant specifically denied the existence of any such right.
It follows that the Court a
quo
correctly made the declaratory order
referred to at the beginning of this judgment and the appeal against that order
must fail. I
would just add that in view of this finding it is not necessary to
examine the alternative grounds upon which it was contended by
respondents that
the orders under sec 30(1) made by appellant in this case were invalid.
Appellant appeals also against the order as to costs, contending that, even
if the declaratory
/ order
43
order was correctly made, the appellant, a public official, should not be
mulcted in costs since his attitude, though mistaken, was
bona fide
.
Appel-lant's counsel relied for this contention on the case of
Coetzeestroom
Estate and Gold Mining Company v Registrar of Deeds
1902 TS 216
at p
223.
On this aspect the judgment of the Court
a
quo
reads as follows:
"In regard to the question of costs, despite respondent having acted in
goodfaith and in his official ca-pacity, the Court nevertheless
has a discretion
to award costs against him. Applicants have succeeded in establish-ing an
important principle relating to their
possible release from custody. Respondent
was further presumably aware of the aforementioned decisions when íhe
decided to
oppose this application. The applicants have succeeded in
es-tablishing an important principle re-lating to their liberty. We are
therefore disposed, in the exercise of our discretion, to award the applicants
t'heir costs".
In awarding costs the court of first instance exercises
44
a judicial discretion and a court of appeal will not readily interfere with
the exercise of that discretion. The power of interference
on appeal is limited
to cases of vitiation by misdirection or irregularity, or the absence of grounds
on which a court, acting reasonably,
could have made the order in question. The
court of appeal cannot interfere merely on the ground that it would itself have
made a
different order. (See
Protea Assurance Co Ltd v Matinise
1978 (1)
SA 963
(A), at p 976 H;
Minister of Prisons and Another v Jongilanga
1985
(3) SA 117
(A), at p 124 B and the authorities cited in these two cases.)
I am not convinced that the rule laid down in the
Coetzeestroom
case,
supra
, in relation to appli-cations against the Registrar of Deeds
arising on mat-ters of practice is applicable to a case such as the
present one;
and in any event the rule should not be elevated into a rigid one of universal
application which
/ fetters
45
fetters the judicial discretion (see
Potter and Another v Rand Townships
Registrar
1945 AD 277
, at pp 292-3;
Commissioner for Inland Revenue v
Ropes and Mattings (SA) Ltd
1945 AD 724
, at p 731-2;
Die Meester v
Jou-bert en Andere
1981 (4) SA 211
(A), at p 218 B-H).
In my view, no good ground has been advanced for interfering with the Court a
quo
's exercise of dis-cretion in regard to the costs of the
application.
The appeal is dismissed with costs.
M M CORBETT
HEFER JA)
GROSSKOPF JA) CONCUR
VIVIER JA)
VILJOEN AJA)