Nkwinti v Commissioner of Police and Others

• Jurisdiction: South Africa
• Judge: Kannemeyer J, Smalberger J and Jennett J
• Judgment Date: 04 November 1985
• Court: Eastern Cape Division

Kannemeyer J:

The applicant is the wife of Ernest Gugile A Nkwinti, hereinafter referred to as Nkwinti, who was arrested by the sixth respondent on 19 September 1985 at Port Alfred, purporting to act in terms of reg 3 of the regulations made in terms of s 3 (1) (a) of the Public Safety Act 3 of 1953, which are contained in Proc R121 published in Government Gazette 9877 B of 21 July 1985, and who was thereafter detained in terms of the said regulation, first at Alexandria, and subsequently at St Alban's prison, where he is still detained. His present detention is in consequence of a ministerial notice issued in terms of reg 3 (3) operative after the initial period of 14 days' detention authorised by reg 3 (2) had expired. Reference C to the notice will again be made later in this judgment.

Regulation 3 (1), (2) and (3) read:

"(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, D detain, or cause to be detained, any such person in custody in a prison.

(2)

No person shall be detained in terms of subreg (1) for a period exceeding 14 days from the date of his detention, unless that period is extended by the Minister in terms of subreg (3).

(3)

The Minister may, by written notice signed by him and addressed to the head of a prison, order that any person E arrested and detained in terms of ss (1) be detained in that prison during the further period mentioned in the notice."

By notice of motion dated 30 September 1985 the applicant applied for:

"A rule nisi calling upon the abovenamed respondents to show cause on a date to be determined by the above honourable Court why an order in the following terms shall not be made:

(a)

F Declaring that:

(i)

the arrest of the applicant's husband, Ernest Gugile Nkwinti ('the detainee'), by the sixth respondent on 19 September 1985 purportedly under the provisions of reg 3 (1) of Proc R121 of 21 July 1985 (published under Government Gazette 9877) is wrongful, G unlawful and of no force and effect in law;

(ii)

the detention of the said detainee at any prison controlled by or falling within the jurisdiction of the fifth respondent is wrongful, unlawful and invalid in law;

(b)

directing the fifth respondent to release the said detainee from any prison or place of custody falling H within the jurisdiction of the fifth respondent or the Department of Prisons of the Republic of South Africa;

(c)

directing the fifth and second respondents to take all steps necessary to facilitate the release of the said I detainee in terms of subpara (a) hereof;

(d)

interdicting and restraining the fifth and second repondents (or any member of the South African Police acting within the scope of his employment and in the course of his duties as such) from taking any steps to hinder or interfere with the release of the said detainee in terms of subpara (a) hereof;

(e)

against such of the respondents that might seek to J oppose this application to pay the costs thereof;

Kannemeyer J

(f)

A further and/or alternative relief."

When the matter came before my Brother MULLINS on 1 October 1985, it was postponed, by consent, until 17 October 1985, costs to be costs in the cause. When the matter came before us on that date, the respondent's answering affidavits and the B applicant's replying affidavit had been filed. The need for a rule nisi therefore fell away and the matter was argued as an opposed motion seeking a final order in the abovementioned terms.

Mr Mahomed, for the applicant, based his argument on six different submissions which may be briefly summarised as follows:

(a)

The abovementioned regulations published in terms of s 3 of Act 3 of 1953 are invalid as they were made when C a state of emergency did not exist;

(b)

the declaration of the state of emergency is itself invaliid as it was proclaimed by order of the State President-in-Cabinet whereas, under the Constitution, the State President should have acted on his own as Executive State President;

(c)

D the arrest of Nkwinti by the sixth respondent and his subsequent detention was unlawful as the sixth respondent was not of the opinion that the detention of Nkwinti was necessary for the maintenance of public order or the safety of Nkwinti himself;

(d)

alternatively to (c) above, if the sixth respondent E was of the opinion that the detention of Nkwinti was necessary for the abovementioned purposes, it was invalid as it was so unreasonable an opinion that no-one could subjectively have held it;

(e)

the respondents had failed to justify the detention of Nkwinti after the initial period of 14 days;

(f)

F if the further detention had in fact been authorised by the Minister in terms of reg 3 (3), such authorisation was invalid as the audi alteram partem rule applies to an order for the further detention of a detainee and Nkwinti was not afforded an opportunity to make representations or to be heard thereanent.

G However, before addressing us on the above aspects of the case, Mr Mahomed dealt with two preliminary matters. The first concerned the locus standi of the applicant to bring the application. Mr Nepgen, for the respondents, did not suggest that she did not have the right to bring the application and I H am satisfied that the applicant has the right by reason of her relationship to Nkwinti and the fact that, while he is in detention, it is difficult, if not impossible for him to bring the application himself. See Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A) at 310 - 312. In this regard it is necessary to refer to the rules made under I reg 3 (9) of the regulations published in Proc R121, which are contained in Government Notice 1674 of 21 July 1985 published in Government Gazette 9878 of that date. Rule 5 (1) reads:

"No person detained under the regulations shall during his detention be visited by any person, except with the permission of the person in command of the prison in question, acting with the concurrence of the Commissioner of the South African Police: Provided that, if a legal representative desires to visit such detainee, the permission of the Minister of Law and J Order or the Commissioner of the South African Police shall be obtained for such a visit."

Kannemeyer J

On 23 September 1985, Nkwinti's attorneys dispatched a telegram A to the Commissioner of the South African Police concerning his detention. Paragraph 5 reads: "We ask permission to have access to him as his legal representatives."

When the applicant signed her founding affidavit on 29 September 1985 she stated in para 31 (b) that no reply to the B telegram had been received. This telegram is not mentioned in any of the opposing affidavits filed by or on behalf of the respondents, and, when the matter came before us, there was still no suggestion that the request had been granted. Indeed, the request does not appear to have evoked any reaction at all. Accordingly, it is clear that Nkwinti could not have brought the application himself as his legal advisers were, and C apparently still are, denied access to him. Thus the applicant's locus standi is clearly established.

The second preliminary point dealt with by Mr Mahomed concerned the ambit and effect of reg 11 (2) which provides that:

"No interdict or other process shall issue for the staying or setting aside of any order, rule or notice issued under these D regulations or any condition determined thereunder, and no such order, rule, notice or condition shall be stayed on the grounds of an appeal against the conviction under these regulations."

The first submission was that this regulation could only be relied upon by the respondents if the regulations as a whole are valid. If they are invalid for either of the two reasons mentioned in (a) or (b) above, reg 11 (2) itself must be E invalid. Next it was submitted that, even if the regulations, including 11 (2), are valid, an arrest and detention under the regulations is still open to attack if a jurisdictional fact necessary for the justification of the arrest, detention or further detention of a detainee is not satisfied. It was argued that both the opinion of the arresting officer referred to in F reg 3 (1) and the necessity for a detainee to be given an opportunity to be heard before a further detention order was issued by the Minister under reg 3 (3) were jurisdictional facts and that, should either of these jurisdictional facts not be satisfied, the defect cannot be rectified by reliance on reg 11 (2). In Union Government v Fakir 1923 AD 466 at 469 - 470, G INNES CJ, in discussing the wide ouster provisions contained in s 3 (1) of the Immigrant's Regulation Act 22 of 1913, said:

"No Court of law is to have jurisdiction to interfere with the proceeding of an immigration authority under the Act relating to the restriction, detention or removal of a person who is being dealt with as a prohibited immigrant. I do not propose here to discuss the policy of such a provision. We are bound to give effect to the clear directions of the statute. But, wide though the language may be, it does not exclude the H jurisdiction of the Courts under every circumstance. Cases can be conceived in which interference would be justified. If there were a manifest absence of jurisdiction or if the order were made or obtained fraudulently, a competent court would be entitled to interfere and would interfere...

... The fact that an order purports to be done under the Act will not exclude the interference of the Courts where there is no jurisdiction to deal with...