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[1988] ZASCA 119
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Minister of Law and Order and Another v Bishop of Roman Catholic Church of Diocese of Port Elizabeth (165/87) [1988] ZASCA 119 (29 September 1988)
E du P Case no. 165/87
IN THE SUPREME COURT OF SOUTH (APPELLATE
DIVISION)
In the matter between:
THE MINISTER OF LAW AND ORDER
First Appellant
THE COMMISSIONER OF POLICE
Second
Appellant
THE HEAD OF THE SECURITY POLICE,
EAST LONDON
Third Appellant
THE COMMISSIONER OF PRISONS
Fourth
Appellant
and
THE BISHOP OF THE ROMAN CATHOLIC CHURCH OF
THE
DIOCESE OF PORT ELIZABETH
Respondent
Coram
: RABIE
ACJ, JOUBERT, HEFER, VIVIER et STEYN JJA
Heard:
Delivered:
16 September 1988.
2
JUDGMENT RABIE ACJ
:
The respondent in this appeal and Mrs Lizzie Leeuw, the
wife of Reverend E. E. Leeuw, brought an application in the
Eastern Cape
Division in which they sought an order in the
following terms against the
present appellants:
"2.1 Declaring that the detention of Father GRAHAM CORNELIUS and Reverend
LEEUW at the instance of and under the direction of members
of the South African
Police Force within the town of East London is unlawful and of no force and
effect; 2.2 Directing the Respondents
forthwith to take
all such steps as might be necessary to cause the release from detention of
the said Father GRAHAM CORNELIUS and the Reverend LEEUW;
2.3
Granting the Applicants
such further and/or alternative relief as this Honourable Court deems
fit;
2.4
Directing the Respondents to pay the
costs of this application jointly and severally, the one paying the other to be
absolved, in
the event of this application being
opposed."
The application was opposed by all four of
the
appellants. The Court (Kroon J) made the
following order:
"(1) The detention of Father Graham Cornelius purportedly effected in terms
of the
3
provisions of regulation 3(1) of the regulations contained in Proclamation R
109 of 12 June 1986 is declared to be unlawful. (2) The
respondents are directed
forthwith to take all such steps as may be necessary to cause the release from
detention of the said Father
Graham Cornelius.
(3)
The application, insofar as
it relates to the detention of Reverend Leeuw, is
dismissed.
(4)
The respondents are directed to
pay 50% of the applicants' costs jointly and
severally.
(5)
The applicants are directed to
pay 50% of the respondents' costs jointly and
severally."
The appellants now appeal, with the
leave of the Court
a quo
, against paragraphs 1, 2, 4 and 5 of this
order.
Father Graham Cornelius (hereinafter referred to as "Father
Cornelius"), a priest of the St Francis Xavier Roman Catholic church in
Duncan
Village, East London, was arrested and detained on the instructions of Captain
C.E.J. van Wyk of the South African Police
on 14 June 1986. Capt. Van Wyk states
in an affidavit which he made on behalf of the first, second and third
appellants, and to which
fuller reference will be made below, that in causing
Father Cornelius to be arrested and
4
detained, he acted in terms of regulation 3(1) of the regulations
made by
the State President in terms of section 3(1)(a) of the
Public Safety Act,
1953 (Act 3 of 1953) and promulgated in
Proclamation R 109 of 1986 on 12 June
1986. The said reg. 3(1)
provides as follows:
"3.(1) A member of a Force may, without warrant of arrest, arrest or cause to
be arrested any person whose detention is, in the opinion
of such member,
necessary for the maintenance of public order or the safety of the public or
that person himself, or for the termination
of the state of emergency, and may,
under a written order signed by any member of a Force, detain, or cause to be
detained, any such
person in custody in a prison."
The respondent made the following averments
regarding
Father Cornelius's work and character in
his founding affidavit:
"7.(a) Father GRAHAM CORNELIUS is an ordained priest who has been working in
my diocese for several years. As Bishop of the Diocese,
Father CORNELIUS has
been working directly under me.
8. I am aware that Father CORNELIUS is engaged
5
in projects aimed at the upliftment of the poor, needy and oppressed. His
involvement in community activities has always been to help
people, particularly
the underprivileged.
9. No report has ever been forwarded to me that Father CORNELIUS has ever
been involved in any activities such as might even remotely
promote violence.
Nor have I ever heard or had any cause to believe that Father CORNELIUS has
behaved in any way contrary to the
teachings of the Church. On the contrary, his
work has only been to promote the teachings of the church and to discourage
violent
activities." As to Father Cornelius's arrest and detention, the
respondent
said:
"10.(a) I was most surprised and perturbed to learn that Father CORNELIUS had
been arrested and detained, as he has always been working
for
peace
(b) It is inconceivable to me that the arrest and detention of Father
CORNELIUS could ever be deemed necessary for the maintenance
of public order or
the safety of the public, or the safety of Father CORNELIUS himself, or for the
termination of the state of emergency.
If any member of the Force formed the
opinion that the detention of Father CORNELIUS was necessary, I am obliged to
conclude that
such opinion was formed hastily, without proper knowledge of the
true
6
factual situation or the man, and without the
application of the necessary
bona fides
in
making the decision. I believe it is likely
to have
been formed on the basis of
prejudicial and inaccurate information
given
to him, and motivated by the confrontations
which occurred in
August, 1985 between Father
CORNELIUS (and other persons,
including
Reverend LEEUW) and members of the South
African Police. These
events were the
subject of an application brought to this
Honourable Court
by Father CORNELIUS as First
Applicant in Case No. EL 481/1985 ".
The respondent's aforesaid conclusion that the decision to arrest
and
detain Father Cornelius was not taken with the necessary
bona
fides
, was repeated in paragraph 14 of the affidavit, in
which
he stated why, in his submission, the detention of Father
Cornelius
was unlawful. The paragraph reads as follows:
"Accordingly, I submit that the detention of Father CORNELIUS is unlawful
because the condition necessary to found a lawful detention
in terms of
Regulation 3(1) has not and cannot ever be satisfied, viz., that the member of
the Force had the
bona fide
opinion at the time of the arrest that his
detention was necessary for maintenance of public order or for any of the
reasons set
out in Regulation 3(1)".
In an affidavit
made in support of that of the
respondent, Father Thomas Fahy (hereinafter referred to as
7 "Father
Fahy"), a Roman Catholic priest working in the diocese of Port Elizabeth, stated
inter alia
that Father Cornelius was not involved in any activities
"which could be remotely aligned to causing violence, either in his private
capacity or in his capacity as a Minister of the Church", but that, on the
contrary, his "very presence" in the community acted as
"a necessary moderating
influence on what is an abnormal, violent and potentially revolutionary
situation." As to the arrest and
detention of Father Cornelius, he stated (in
paragraph 8 of his affidavit) that it was incomprehensible how any member of a
Force
could have held the opinion that the detention of Father Cornelius was
necessary for the maintenance of public order or the safety
of the public or of
Father Cornelius himself, or for the termination of the state of emergency,
unless (i) such opinion was motivated
by malice; or (ii) such opinion was formed
as part of a campaign to silence or victimize the Church and church ministers,
for some
unknown reason."
In a further supporting affidavit Reverend Paul
Arthur
8 In a further supporting affidavit Reverend
Paul Arthur Welsh (hereinafter referred to as "Reverend Welsh"), a Minister of
the Trinity
Methodist church in East London, stated
inter alia
that
throughout his association with Father Cornelius, which began in 1985, the
latter "never expressed any desire to disrupt public
order or safety", and never
condoned any "violent practices." "In fact", he said, "nothing could be further
from his attitude and
character", and he submitted that the detention of Father
Cornelius, "if it was done purportedly to maintain public order or safety",
could not have been ordered "in good faith in the circumstances."
I turn next
to the affidavit deposed to by Capt. van Wyk. He was, at the relevant time, the
head of a special police unit, known,
he says, as "die onlusondersoekspan, wat
betrokke is by die bekamping van onrus en met alle aangeleenthede wat verband
hou met onrussituasies."
In paragraph 10 of his affidavit he replied as follows
to the averments contained in paragraphs 8 and 9 of the respondent's affidavit,
which I quoted
9
above:
"Ek is nie in staat om kommentaar te lewer op al die beweringe in hierdie
paragraaf vervat nie. Ek voer egter met respek aan dat
sekere van hierdie
beweringe strydig is met die inligting wat tot my kennis gekom het, soos meer
volledig hieronder na verwys, en
vir soverre dit nodig mag wees ontken ek enige
beweringe wat nie ooreenstem met wat in paragraaf 11 hieronder uiteengesit is
nie."
In paragraph 11 of his affidavit, in which he
replied to the
allegations contained in paragraph 10 of the
respondent's
affidavit, quoted above, Capt. van Wyk said:
"11. (a) Dit is korrek dat Vader CORNELIUS gearresteer
is, aangehou is en
tans steeds aangehou word
ingevolge Regulasie 3 van die
Noodregulasies
afgekondig deur Proklamasie no. R 109, 1986.
Ek het Vader
CORNELIUS aanvanklik laat
arresteer en aanhou. Hy is in my
opdrag
gearresteer deur Adjudant Offisier NAUDE op
14 Junie 1986
(b)
Ek het Vader CORNELIUS op
14 Junie 1986 laat arresteer en aanhou omdat ek van oordeel was dat sy
aanhouding nodig was vir die handhawing
van die openbare orde en die veiligheid
van die publiek. Ek het tot sodanige gevolgtrekking gekom op grond van wat
hieronder uiteengesit
word.
(c)
Vader
CORNELIUS was tot en met sy arrestasie en aanhouding (en, sover ek weet, is tans
nog) die beskermheer van 'n organisasie
bekend
10
as die Duncan Village Residents Association. Hierdie organisasie of
vereniging is na wat ek in die algemeen kan verwys as 'n 'alternatiewe
struktuur'. Ek is daarvan bewus dat daar talle 'alternatiewe strukture'
dwarsdeur die Republiek van Suid-Afrika gestig is om die
plek in te neem van
verbode organisasies soos veral die African National Congress. Op grond van my
ondervinding en op grond van inligting
wat tot my beskikking gekom het, glo ek
dat die Duncan Village Residents Association 'n 'alternatiewe struktuur' van die
African
National Congress is. Die Duncan Village Residents Association het, soos
ander 'alternatiewe strukture', ten doel die ondermyning
van die Staatsgesag en
die daarstelling van 'n ander vorm van regering. Die bedrywighede van die Duncan
Village Residents Association
is veral gemik op Duncan Village self. Reeds voor
die afkondiging van die noodtoestand was die Duncan Village Residents
Association
daarvoor verantwoordelik en het dit daarin geslaag om al die
bestaande gemeenskapsraadslede uit Duncan Village uit te dryf. Die bedrywighede
van die lede van hierdie organisasie of vereniging was ook daarvoor
verantwoordelik dat geen nooddienste voor die afkondiging van
die noodtoestand
in Duncan Village beskikbaar was nie.
(d) Die aktiwiteite van die lede van die Duncan
Village Residents Association is van so 'n
aard dat dit tot geweld, onrus,
die
versteuring van die openbare orde en die
11
skepping van gevaar vir lede van die publiek aanleiding gee. Hulle is
verantwoordelik vir die afdwinging van byvoorbeeld verbruikersboikotte
en
wegbly-aksies. Laasgenoemde is optrede wat daarop gemik is om te verhoed dat
swart werkers op sekere tye gaan werk. Beide die
verbruikersboikotte en
wegbly-aksies gaan met grootskaalse intimidasie gepaard. Dit word afgedwing deur
die afbranding van huise,
die toediening van lyfstraf, en die moord van persone
deur die sogenaamde 'necklace' metode wat daaruit bestaan dat 'n persoon om
die
lewe gebring word deurdat 'n buiteband om sy nek geplaas word en aan die brand
gesteek word. Ek was en is daarvan bewus dat die
sogenaamde 'People's Courts'
ook in Duncan Village funksioneer. Tydens 'sittings' van hierdie 'People's
Courts' word persone 'gevonnis'
tot lyfstraf of 'tereggestel' deur die
toediening van 'n 'necklace' wanneer hulle 'n verbruikersboikot of 'n
wegbly-aksie verontagsaam
of probeer verontagsaam. Die Duncan Village Residents
Association is so georganiseer dat die lede daarvan toesien dat enige persoon
wat 'n verbruikersboikot of 'n wegbly-aksie vefontagsaam, gerapporteer en voor
die 'People's Courts' gebring word. Die afdwinging
van verbruikersboikotte en
wegblyaksies gaan ook met baie ander vorme van geweld gepaard.
(e) Ek is daarvan bewus, op grond van inligting wat ek ontvang het, dat Vader
CORNELIUS gereeld sy kerkperseel beskikbaar gestel het
12
vir vergaderings van die Duncan Village Residents Association. By hierdie
vergaderings, wat met sy toestemming en klaarblyklike goedkeuring
gehou is, is,
onder andere, verbruikersboikotte en wegbly-aksies beplan. Algemene bespreking
in verband met die voortsetting van
die aktiwiteite van die Duncan Village
Residents Association het ook op sodanige vergaderíngs plaasgevind.
(f) Op 10 Junie 1986, na 'n verbod op alle
vergaderings wat op 16 Junie
1986 gehou sou
word om die 1976 geweld in Soweto te herdenk,
het vader
CORNELIUS 'n vergadering in
Mdantsane bygewoon waar aanbevelings
bespreek
is om die verbod op vergaderings en
herdenkingsdienste te
omseil,
deur sodanige dienste op Sondag 15 Junie 1986 te hou. As gevolg van Vader
CORNELIUS se bywoning van hierdie vergadering en sy betrokkenheid
by die Duncan
Villiage Residents Association het ek geglo dat hy van voorneme was om so 'n
diens te lewer op Sondag 15 Junie 1986.
(g) 0p grond van al die voorafgaande het ek die
mening gevorm en was ek
van oordeel dat Vader
CORNELIUS se aanhouding nodig was om die
aktiwiteite
van die Duncan Village Residents
Association te beeindig en ook om te
verhoed
dat 'n herdenkingsdiens, soos hierbo na
verwys, op 15 Junie 1986
gehou word. Ek kan
net meld dat ek op grond van my jare-lange
ondervinding
in die polisie daarvan oortuig
is dat die hou van sodanige diens
aanleiding
13
sou gegee het tot geweld wat die openbare orde sou versteur en die veiligheid
van die publiek in gevaar sou stel. Ek was van mening
dat indien Vader CORNELIUS
toegelaat sou word om 'n herdenkingsdiens op 15 Junie 1986 te hou die publieke
veiligheid bedreig sou
word. Ek was verder van mening dat die handhawing van die
openbare orde en die veiligheid van die publiek ondermyn sou word deur
die
verdere beskikbaarstelling van persele vir vergaderings van die Duncan Village
Residents Association in Vader CORNELIUS se kerk.
Ek het gevolglik opdrag gegee
vir Vader CORNELIUS se arrestasie en aanhouding ingevolge Regulasie 3 (1) van
die Noodregulasies.
(h) Ek het hierbo verwys na die feit dat ek
opgetree het op grond van sekere inligting wat ek ontvang het, afgesien van
die feite wat binne my kennis was. Die inligting wat ek
ontvang het was
afkomstig van betroubare en geloofwaardige bronne en ek glo dat ek geregtig was
om op hierdie inligting staat te
maak. Ek kan nie die bronne van my inligting
aan hierdie Agbare Hof openbaar nie omdat ek geen twyfel het nie dat indien ek
die identiteit
van enige van my informante of beriggewers sou openbaar sodanige
persoon in lewensgevaar sou verkeer en heelwaarskynlik om die lewe
gebring sou
word.
(i) Ek ontken uitdruklik die beweringe in
sub-paragraaf (b) van hierdie paragraaf en beweer eerbiediglik dat ek te
goeie trou en na behoorlike oorweging van alle relevante
gegewens die oordeel
gevorm het dat Vader
14
CORNELIUS se aanhouding nodig was vir die handhawing van die openbare orde en
die veiligheid van die publiek. Ek is bewus van die
feit dat Vader CORNELIUS
gedurende 1985 betrokke was by die bring van 'n aansoek teen, onder andere, die
Minister van Polisie. Ek
is nie van voorneme om op die meriete van die aansoek
enigsins kommentaar te lewer nie, maar ek ontken uitdruklik dat daardie
aangeleentheid
enigsins aanleiding gegee het tot my besluit om Vader CORNELIUS
te laat arresteer en aanhou."
The last two sentences of paragraph ll(i) contain Capt.
van Wyk's reply to the respondent's statement (in paragraph 10(b)
of his
affidavit) that he believed it to be likely that the
opinion that it was
necessary to arrest and detain Father
Cornelius had been "motivated by the
confrontations which
occurred in August 1985 between Father Cornelius (and
other
persons ) and members of the South African Police", which
events
gave rise to an application to Court in which Father
Cornelius was the first
applicant. The said application is
referred to in an affidavit by Mr Ian
Sholto-Douglas, which was
filed by the appellants. Mr Sholto-Douglas represented the
15 respondents
in the application. He states in his affidavit that there was a conflict of fact
which could not be resolved on the
papers; that the matter was postponed for the
hearing of oral evidence; that some time before the date appointed for the
hearing
of such evidence the attorney acting for Father Cornelius suggested to
him (Mr Sholto-Douglas) that, because of the considerable
costs involved, the
matter should be settled on the basis that the application be withdrawn and that
each party pay his own costs;
and that the matter was so settled.
As to the
affidavit of Father Fahy, Capt. van Wyk denied any suggestion therein contained
that the detention of Father Cornelius was
intended to serve any purpose other
than those set out in reg. 3(1) of the aforesaid regulations. He specifically
denied the submission
contained in paragraph 8 of the respondent's affidavit,
referred to above, that no member of a Force could have held.the opinion
that it
was necessary to arrest and detain Father Cornelius unless such opinion "was
motivated by malice" or "was formed as part
of a campaign to
16 silence or
victimize the Church and church ministers, for some unknown reason."
In his
reply to the affidavit of Reverend Welsh, Capt. van Wyk denied the allegation
that he had not acted in good faith in ordering
the arrest and detention of
Father Cornelius.
There was no reply to Capt. van Wyk's affidavit.
The
Court
a quo
held, for reasons which are discussed below, that the grounds
relied on by Capt. van Wyk when he formed his opinion that the detention
of
Father Cornelius was necessary,"were not such as to constitute an opinion as
required by regulation 3(1)" and that the detention
of Father Cornelius was,
therefore, unlawful.
It is clear from the affidavits of the respondent,
Father Fahy and Reverend Welsh that it was the respondent's case in the Court
a quo
that the person who formed the opinion that it was necessary to
arrest and detain Father Cornelius had acted
mala fide
or that he had
been actuated by an ulterior motive, and that the detention of Father Cornelius
was, for that reason,
17 unlawful. In essence there is no difference between
the concepts of
mala fides
and acting with an ulterior motive, and it can
therefore be said, having regard to the facts of the present case, that the
charge
made against Capt. van Wyk was one of
mala fides
.
It appears to
have been common cause between counsel in the Court
a quo
that the
onus
was on the present respondent to establish the charge of bad faith
made against Capt. van Wyk, and it was so held by the learned
Judge. This was a
correct view of the law as to the
onus
of establishing a charge of
mala fides
: see
Minister of Law and Order and Another v. Dempsey
1988(3) SA 19 (A) at 38F-39B.
The judgment of the Court
a quo
on
the issue of the opinion formed by Capt. van Wyk begins with a discussion of the
second of the grounds on which Capt. van Wyk
states that he considered it to be
necessary to detain Father Cornelius. The two grounds are mentioned in brief in
the first sentence
of paragraph ll(g) of Capt van Wyk's affidavit. The sentence
reads
18
as follows (I have underlined the words relating to the second
of the
grounds):
"Op grond van al die voorgaande het ek die mening gevorm en was ek van oordeel
dat Vader CORNELIUS se aanhouding nodig was om die
aktiwiteite van die Duncan
Village Residents Association te beeindig
en ook om te verhoed dat 'n
herdenkingsdiens, soos hierbo na verwys, op 15 Junie 1986 gehou
word.
"
In dealing with this issue, the learned
Judge, adopting the
approach followed by Marais J in
Dempsey v. Minister
of Law and
Order and Others
1986(4) SA 530(C) at 541H-542H, held
that Capt.
van Wyk should have endeavoured to have the commemoration
service
prohibited in terms of sec. 46 of the Internal Security Act, 1982
(Act 74 of 1982). The prohibition of the church service in
terms of sec. 46 of the said Act, the learned Judge said, would
have been
a much less drastic measure than the detention of
Father Cornelius. The
learned Judge pointed out that Capt. van
Wyk made no mention of the said sec.
46 in his affidavit, and
held that it was to be inferred from Capt. van Wyk's silence
on the point that he "did not apply his mind to the question of
19
this alternative being adopted at all ....". It must accordingly be held, the
learned Judge said, "on the basis of the
principles discussed earlier in the
judgment that when he
(i.e., Capt. van Wyk) formed the opinion he did he
failed to properly apply his mind to the matter and his opinion was therefore
not
one as envisaged in regulation 3(1)". Earlier in his judgment the learned
Judge had said, referring to the judgment of Marais J in
Dempsey v. Minister
of Law and Order and Others, supra
, that in his view "it cannot be said that
an arrest and detention is necessary for the purposes set out in regulation 3(1)
unless
there is no other viable alternative and accordingly there can be no
opinion that such arrest is necessary unless alternatives to
such action are
considered and opined to be not feasible or practicable."
In my view the
Court erred in its reasoning and in the conclusion to which it came. As I have
pointed out, the case made in the affidavits
of the respondent, Father Fahy and
Reverend Welsh was that the detention of Father Cornelius was
20
unlawful because the person who decided that he was to be detained must have
been
mala fide
or have been actuated by an ulterior motive, and that the
charge which Capt van Wyk was called upon to meet was therefore essentially
one
of
mala fides
. He denied that he had acted
mala fide
, and he
denied the suggestion of having been actuated by an improper motive, as set out
in the affidavits of the respondent, Father
Fahy and Reverend Welsh. He was not
called upon to deal with the question whether he had considered the possibility
of having the
church service prohibited in terms of sec. 46 of the Internal
Security Act, and his silence on the point cannot therefore justify
the
inference drawn by the Court - much less an inference of
mala fides
,
which was the only charge that was made against Capt. Van Wyk. As to this, see
the judgment of this Court in
Minister of Law and Order and Another v.
Dempsey, supra
, at 41 E-H. The Court also erred in its view, stated earlier
in its judgment, that "it cannot be said that an arrest and detention
is
necessary for the purposes
21
set out in regulation 3(1) unless there is no other viable alternative and
accordingly there can be no opinion that such arrest and
detention is necessary
unless alternatives to such action are considered and opined to be not feasible
or practicable." Reg. 3(1)
empowers a member of a Force to arrest a person if
the detention of such person is, "in the opinion of such member", necessary for
the maintenance of public order or the safety of the public, etc. The relevant
question is, therefore, not whether a detention "is",
on an objective view of
the matter, necessary to achieve the stated ends, but whether it is, in the
opinion of the member of the
Force concerned, necessary for the purpose. The
test is a subjective one. It follows that it is incorrect to say that a
detention
is lawful only when there is "no viable alternative". See more fully
as to this the judgment of this Court, delivered on 25 March
1988, in
Phila
Ngqumba and Another v. The State President and Three Others,
at pages 36-38
of the typewritten copy of the judgment.
22
The Court
a quo
found further justification for its view that Capt.
van Wyk failed to apply his mind to the matter when he formed the opinion that
it was necessary to order the detention of Father Cornelius "om te verhoed dat
'n herdenkingsdiens .... op 15 Junie 1986 gehou word,"
in the fact that Capt.
van Wyk did not explain why he thought it necessary that the detention of Father
Cornelius should extend to
a date beyond the day on which the church service was
to be held. The Court found that Capt. van Wyk clearly did not consider this
question, and, adopting an expression used by Marais J in
Dempsey v. Minister
of Law and Order and Others
,
supra
, the Court concluded that "so
fundamental an omission prevents his opinion from qualifying as the kind of
opinion he was required
to hold before he became entitled to exercise powers of
arrest and detention in terms of regulation 3(1)".
I do not agree with the
conclusion to which the Court came. Capt. van Wyk's affidavit should not, in my
opinion, be read as saying
that he regarded the need to prevent
23
Father Cornelius from conducting the church service as a separate, or
independent, reason which, by itself, required his detention
beyond the day on
which the service was to be held. In my view there can be little doubt that it
was Father Cornelius's involvement
with the Duncan Village Residents Association
which caused Capt. van Wyk to form the opinion that the detention of Father
Cornelius
should extend beyond the said date.
I turn now to the Court
a
quo
's discussion of Capt. van Wyk's allegation that he was of the opinion
that the detention of Father Cornelius was necessary "vir die
handhawing van die
openbare orde en die veiligheid van die publiek", and that he was of the opinion
"dat Vader Cornelius se aanhouding
nodig was om die aktiwiteite van die Duncan
Village Residents Association te beëindig." The learned Judge's finding on
the issue,
as set out in the last paragraph of his judgment on the matter, reads
as follows:
"In my judgment the grounds on which Capt. van
Wyk
24
formed the opinion that by reason of what Capt. van Wyk termed the involvement
of Father Cornelius with the Duncan Village Residents
Association, the detention
of Father Cornelius was necessary for the maintenance of public order or the
safety of the public are
so flimsy that no reasonable man could have formed that
opinion; the opinion is so unreasonable that it is explicable only on the
basis
that Capt. van Wyk acted
mala fide
or was actuated by an ulterior motive
or that he failed to properly apply his mind to the
matter.
The Court
a quo
held that "on the
allegations made by Capt. van Wyk, the activities of the Duncan Village
Residents Association were and would have
been such that (he) could legitimately
have formed the opinion that the arrest of any person active in such activities
was necessary
for the purposes referred to in reg. 3(1)." It found, however,
that Capt. van Wyk's opinion that it was necessary to order the detention
of
Father Cornelius because of his involvement with the organisation was vitiated
by
mala fides
, etc., as set out in the paragraph quoted immediately
above. The Court's reasoning was as follows. On the papers, the Court said,
the
only
25
"involvement" of Father Cornelius with the Duncan Village Residents
Association was that "he lent his name as patron" and that he
allowed his church
building to be used for meetings of the organisation at which, according to
Capt. van Wyk, plans were made for
the activities referred to by him. There is,
the learned Judge said, no hint in the papers that Father Cornelius took any
part in
those activities, or even that he was aware of them. It is quite
acceptable, the learned Judge continued, that a patron of an organisation
may be
quite unaware of any nefarious activities of that organisation, and that, in the
light of the character references given to
Father Cornelius in the affidavits
filed by the respondent, that was "by no means improbable" in the case of Father
Cornelius. Furthermore,
the learned Judge said, he failed to understand "how it
could be thought that the detention of Father Cornelius would put an end
to the
activities of the organisation". He added: "If all the members of the
organisation had already been detained, such detention
would
26
already have achieved that purpose. If not all the members had been detained,
the detention of Father Cornelius, even if it did have
the result of making his
church unavailable for meetings of the organisation, which is debatable, would
hardly have inhibited those
members still at large from continuing with their
activities." Having said this, the learned Judge proceeded to state his
conclusion
(quoted above) that the grounds on which Capt. Van Wyk formed his
opinion that it was necessary to detain Father Cornelius were so
flimsy as to
justify the inference that he acted
mala fide
, etc. In my opinion the
Court erred. It is no doubt conceivable, as the learned Judge said, that the
patron of an organisation may
be ignorant of nefarious activities carried on by
the organisation. (This presupposes, of course, that the organisation also
carries
on legitimate activities, of which one would expect the patron to be
aware. As for the Duncan Village Residents Association, there
is nothing on the
papers which shows that it was engaged in any activities
27
other than those described by Capt. van Wyk,) The question
in the present
case is, however, whether it can justifiably
be found that Capt. vah Wyk was
mala fide
in believing that
Father Cornelius's association with the
Duncan Village Residents
Association was not an innocent one. Capt. van Wyk
stated
in his affidavit that some of the allegations in the
affidavits
made by the respondent, Father Fahy and Reverend Welsh
concerning
Father Cornelius's character and activities did not accord
with
the information possessed by him,and that it was clear
to him that the
deponents did not have the same knowledge
and information as he had.
Information at his disposal showed,
he said, that the Duncan Village
Residents Association was
an "alternatiewe struktuur" (alternative
structure); that
many such alternative structures had been establised
throughout
the country to take the place of prohibited organisations,
especially the
African National Congress; and that the Duncan
Village Residents Organisation
was an alternative structure
of the African National Ccngress. The Duncan Village Residents
28
Association, he said, "het, soos ander 'alternatiewe strukture', ten doel die
ondermyning van die Staatsgesag en die daarstelling
van 'n ander vorm van
regering." There was, as I have said, no reply to Capt. van Wyk's affidavit. In
the circumstances one must
accept that Capt. van Wyk believed that the Duncan
Village Residents Association was an organisation of the kind mentioned by him.
All this being so, and having regard to the fact that this organisation operated
in the same area (viz. Duncan Village) in which
Father Cornelius served as a
priest, I find myself quite unable to hold that Capt. van Wyk's belief that
Father Cornelius's association
with the Duncan Village Residents Association was
not an innocent one was so unreasonable as to justify the inference that he was
mala fide
, or, as the learned Judge also said, that he was actuated by an
ulterior motive or that he failed properly to apply his mind to the
matter. On
the contrary, I would find it difficult to hold that his belief was at all
unreasonable.
The learned Judge, as stated above, found it
29
incomprehensible that Capt. van Wyk could have thought that the detention of
Father Cornelius "would put an end to the activities"
of the Duncan Village
Residents Association, and said that such detention would hardly have inhibited
members of the organisation
who had not already been detained from continuing
with their activities. I do not think that Capt. van Wyk's statement should be
read as meaning that he thought that Father Cornelius's detention "would put an
end to the activities of the organisation", i.e.,
that it would in fact put an
end to its activities, but rather that he thought that Father Cornelius's
detention was necessary if
one intended to achieve such a result. Capt. van Wyk
did not say that he believed that the detention of Father Cornelius would put
an
end to the activities of the organisation. If he had intended to say that, he
would, I think, have said that he believed that
"die aanhouding van Vader
Cornelius die aktiwiteite van die organisasie sou beeindig", and not, as he did
say, that he thought that
the detention was necessary "om die
30
aktiwiteite van die Duncan Village Residents Association te beeindig." In any
event, it seems to me that even if one were to read
Capt. van Wyk's statement as
meaning that he thought that the detention of Father Cornelius would put an end
to the activities of
the organisation, it would not justify the inference of
mala fides
etc. drawn by the Court
a quo
.
In view of all the
aforegoing I consider that the Court
a quo
erred in holding that Capt.
van Wyk's opinion that it was necessary to detain Father Cornelius was not an
opinion as required by
reg. 3(1) of the aforesaid regulations.
It remains to
deal with the order that should be made regarding the costs of the application
in the Court a
quo
. Mrs Leeuw's application was dismissed by the Court
a quo
, and in my view the application of the present respondent should
also have been dismissed. One cannot, however, now make an order
which would
give the appellants all their costs in the Court
a quo
. Mrs Leeuw is not
a party to the appeal
31
and one cannot, therefore, make an order which would impose on her a heavier
burden than was done by the Court
a quo
. Counsel who appeared before us
were agreed that, if the appeal succeeded, paragraphs (4) and (5) of the order
made by the Court
a quo
(quoted above) should be replaced by orders in
the terms set out in paragraphs (3) and (4) of the order of this Court, as set
out
below.
It is ordered as follows:
(1) The appeal is upheld with costs, including the costs of two
counsel.
(2)
Paragraphs (1) and (2) of the order of the
Court
a quo
are set aside and the following paragraph
is substituted therefor:
"The application relating
to the detention of Father Graham Cornelius is dismissed."
(3) Paragraph (4) of the order of the Court
a quo is
set aside and the following paragraph is substituted therefor:
32
"The respondents are directed to pay
50% of the second applicant's costs jointly
and severally."
(4) Paragraph 5 of the order of the Court
a quo
is
set aside and the foHowing paragraph is substituted
therefor:
"The first applicant is directed to pay
the respondents' costs, with second applicant being jointly and severally liable
with the
first applicant for 50% of such costs."
P J RABIE
ACTING CHIEF JUSTICE.
JOUBERT JA
HEFER JA Concur.
VIVIER JA
STEYN JA