Attorney-General, Eastern Cape v Blom and Others

• Jurisdiction: South Africa
• Judge: Corbett JA, Hefer JA, Grosskopf JA, Vivier JA and Viljoen AJA
• Judgment Date: 30 August 1988
• Hearing Date: 17 March 1988
• Court: Appellate Division

Corbett JA:

The respondents in this appeal made application to the Court a quo (the Eastern Cape Division), citing the present appellant, the Attorney-General for the Eastern Cape, as respondent and claiming, inter H alia, an order declaring that the order made and signed by the appellant, which purported to prohibit the release on bail or otherwise of each of the respondents in terms of s 30(1) of the Internal Security Act 74 of 1982 ('the Act'), was invalid and without force and effect. The Court a quo (per Mullins J, Jones J and Kroon J concurring) granted an order substantially in these terms and ordered the appellant, in his I 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 J and

Corbett JA

A 22 March 1986 in the Black residential township at Stutterheim on a charge of having contravened s 54(2)(f) of the Act, it being alleged that they had dug trenches across a roadway 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 On 11 April 1986 and B in the Stutterheim magistrate's court the charges against the respondents were withdrawn by the prosecutor at the request of the investigating officer, Warrant Officer Stander of the South African Police, and immediately thereafter Stander detained them in terms of s 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 C written authority for the prosecution of the respondents under s 64 of the Act.

On 23 April 1986 discussions took place between 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 s 54(2)(a) D of the Act, with alternative charges under s 54(2)(c), s 54(2)(e) and s 54(2)(f). Stander raised with the appellant the question of restricting the grant of bail to the respondents in terms of s 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.

E 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 s 50 of the Act was being terminated, (b) that they were being rearrested on various alternative charges in terms of s 54(2) of the Act by reason of their having dug the F aforementioned trenches across the roadway, and (c) that an application in terms of s 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 magistrate the case was postponed to 7 May 1986.

G Thereafter Stander prepared an application asking that the appellant exercise his powers in terms of s 30(1) of the Act and he presented this to the appellant personally at an interview on 29 April 1986. It consisted of an affidavit in which Stander described the factual averments against the respondents, sketched the security situation in the Black township at Stutterheim and concluded: H

'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 verhoor vryspring.'

At the interview there was a further full discussion of the need for I 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 s 30(1) of the Act should be made in respect of all the respondents. He accordingly, on the J same day, signed (i) an authorisation permitting the prosecution of the

Corbett JA

A respondents in terms of s 64 of the Act, and (ii) separate orders in terms of s 30(1) of the Act prohibiting each of the respondents from being released on bail or on warning.

When the respondents appeared before the magistrate of Stutterheim on 7 May 1986 the case was once more postponed, this time to 21 May 1986. B At the same time Stander told the respondents that an order had been granted in terms of s 30(1) of the Act. At some stage thereafter 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 s 30(1) of the Act.

C Eventually, on 11 August 1986, the respondents were arraigned in court on a charge under s 54(2)(a) and on various alternative charges. They pleaded not guilty. Their cases were remanded. On 28 November 1986 the aforementioned application for a declaration as to the validity of the appellant's order in terms of s 30(1) was launched. The judgment of the D Court a quo was delivered 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 the Court a quo counsel for the respondents advanced three grounds for the invalidity of the orders made in terms of s 30(1). The Court E 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 exercising his powers under s 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.

F The maxim audi alteram partem pithily expresses a principle of natural justice which is part of our law (see Perumal and Another v Minister of Public Health and Others 1950 (1) SA 631 (A) at 640; Pretoria City Council v Modimola 1966 (3) SA 250 (A) at 261C; S v Moroka en Andere 1969 (2) SA 394 (A) at 398B). It has ancient origins. When Nicodemus, G 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 H audi principle') has been variously formulated by this Court. In R v Ngwevela 1954 (1) SA 123 (A) Centlivres CJ referred (at 127F) 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,. I .. unless the statute expressly or by necessary implication indicates the contrary'.

The learned Chief Justice went on (at 131H) to emphasise the importance of the audi principle and said:

'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 exceptional circumstances which would justify the J Court's not giving effect to it.'

Corbett JA

A 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 implication excludes it or unless exceptional circumstances justify the Court in not giving effect thereto. The B formulation was adopted in Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) at 549; Minister of the Interior and Another v Mariam 1961 (4) SA 740 (A) at 751A; and Administrateur van Suidwes-Afrika en 'n Ander v Pieters 1973 (1) SA 850 (A) at 860F - H.

In South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A) Botha JA, delivering the main majority C judgment, placed the audi principle upon a statutory implication, rather than a substantive right. He stated (at 270C) 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 270F - G):

'The question whether Parliament has in any particular case either D expressly or by clear implication excluded the incorporation of the maxim audi alteram partem can only arise where, upon the true construction of the enactment concerned, the incorporation 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, E 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 empowering a statutory official or body to give a decision affecting the rights of another.'

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; Diamond v Minister...