Bill v State President and Others

• Jurisdiction: South Africa
• Judge: Leveson J
• Judgment Date: 04 August 1986
• Citation: 1987 (1) SA 265 (W)
• Hearing Date: 01 August 1986
• Court: Witwatersrand Local Division

Leveson J:

This is one of several urgent applications heard by F me towards the end of last week. Because of the importance of the matter and the complex questions of law involved, I was compelled (as I was with another of the applications) to reserve judgment so that I could consider the issues over the week-end. I would have preferred to have given the issues in this matter still further consideration, but the importance of G the matter (at least to the parties) is such that I have concluded that I can delay this judgment no further.

The main relief sought by the applicant is for an order directing the Minister of Law and Order:

(a)

to furnish the applicant with the reasons for, and H information upon which, the order issued under reg 3(3) of the regulations made under Proc R109 of 12 June 1986, pursuant to s 3(1) of the Public Safety Act 3 of 1953, in terms of which Jean Francois Bill (referred to in this judgment as 'the detainee') is being detained, was issued;

(b)

to allow the detainee's legal representatives access to him at all reasonable times to take instructions and provide I advice with a view to making representations to the Minister of Law and Order for his release.

The applicant is the wife of the detainee who has been detained, as already stated, under the provisions of Proc R109 of 1986, described as the 'regulations in terms of the Public J Safety Act of 1953', promulgated by the State President by virtue of the powers vested in him by s 3(1)(a) of the

Leveson J

Public Safety Act 3 of 1953. He was arrested on 20 June 1986 A and, since the arrest, the Minister of Law and Order has ordered that he be detained, according to a supporting affidavit filed by the detainee himself, 'for as long as the state of emergency lasts', ie for an indefinite period. The 'state of emergency' referred to is the declaration of the state of emergency by the State President under Proc R108 of 1986.

The Minister of Law and Order is empowered to extend a period B of detention under the provisions of reg 3(3) of the regulations. That regulation reads as follows:

'The Minister may, without notice to any person and without hearing any person, by written notice signed by him and addressed to the head of a prison, order that any person arrested and detained in terms of subreg (1) be further C detained in that prison for the period mentioned in the notice, or for so long as these regulations remain in force.'

It was accepted by Mr Kuny, who appeared for the applicant, that, on a proper construction of the section, the detainee had no right to a hearing when the Minister determined the extension of his detention and that the exclusion of the rule D audi alteram partem was intra vires the provisions of the Act - that is, the enabling statute. Cf in that regard Omar and Others v Minister of Law and Order and Others 1986 (3) SA 306 (C); see also Sachs v Minister of Justice 1934 AD 11 at 38.

Ordinarily the right to make representations and to be heard in relation to a matter affecting one's liberty or interest, whether it be proprietary or otherwise, is considered E fundamental and is jealously protected by the Courts. Cf Sachs v Minister of Justice (supra); Loxton v Kenhardt Liquor Licensing Board 1942 AD 275; Minister of the Interior v Bechler and Others ; Beier v Minister of the Interior and Others 1948 (3) SA 409 (A). For present purposes the principle could not be better expressed than it is in the following passage from the F judgment of Kannemeyer J in Nkwinti v Commissioner of Police and Others 1986 (2) SA 421 (E) at 426H - I:

'While it is appreciated that the security of the State is a matter of grave concern, sight must never be lost of the importance of the liberty of the subject and the duty of the Court in this regard. In Ganyile v Minister of Justice and Others 1962 (1) SA 647 (E) at 653, De Villiers JP said:

"In Plato's Republic where one has the res politica the G judiciary often has to state that action taken by the Executive is justified on the principle salus republicae suprema lex est. On the other hand the Supreme Court is the protector of the rights of the individual citizen, and will protect him against unlawful action by the Executive in all its branches in the same way as in England the Supreme Court will protect the British even from the Crown."'

That judgment was delivered before reg 3(3) of the current H regulations took its present form. The section has since been amended so that the decision in that case is no longer apposite.

There are, of course, circumstances where the operation of the audi alteram partem rule can be specifically excluded. That can be done in clear and express language and it could not have been more clearly stated than in the section with which I am I present concerned, which prescribes that the Minister may make the order for the extension of the detention without notice to the detainee and without hearing the detainee. Cf Nkwinti v Commissioner of Police (supra); R v Ngwevela 1954 (1) SA 123 (A). The amendment of the regulation to its present form caused Goldstone J to say in Momoniat v Minister of Law and Order and J Others ;

Leveson J

A Naidoo and Others v Minister of Law and Order and Others 1986 (2) SA 264 (W) at 275G:

'... the exclusion of the right to notice and the right to be heard prior to the Minister making an order for the continued detention of a detainee cannot be said to be so grossly unreasonable that it must have been made by the State President otherwise than bona fide or that Parliament could not have countenanced it.'

B Confronted with the difficulty created by these words, Mr Kuny then proceeded to argue that the regulation makes no reference to the rights of the detainee after the Minister has issued an order for his continued detention and that it was still left open to the detainee at some stage after the extension to make representations for his release. He then C argued that there were obiter dicta in the judgments of the Full Court in Momoniat's case, the effect whereof was that the detainee has the right to make written representations relating to his continued detention after the extension of the order for his committal by the Minister. Some support for this proposition is to be found in the work of Baxter Administrative Law where the author, after stating the general principle that D the failure to observe natural justice before a decision is taken leads to invalidity, says at 587:

'There are two exceptions to this general principle:

(i)

Where a statute authorises emergency ex parte action, it might be implicit in the statute that, unless natural justice is excluded altogether, a hearing need only be given after the decision is taken. If there is no urgency, however, the Court will require natural justice to be observed beforehand; E

(ii)

a Court may accept as sufficient compliance with natural justice a hearing held after the decision has been taken where -

there is sufficient interval between the taking of the decision and its implementation to allow for a fair hearing;

a decision-maker retains a sufficiently open mind to allow himself to be persuaded that he should change his decisions and F the affected individual has not thereby suffered prejudice.

These are concessions to the demands of administrative efficiency, but they are limited. A hearing held after the decision can only be acceptable if, in all the circumstances, it was sufficiently fair as to have the effect of curing the failure to hold one before.'

A good deal of authority is cited for the proposition that G there is compliance with natural justice after the decision is taken if there is a sufficient interval between its taking and its implementation to allow for a fair hearing. At the foot of the page the author cites the cases of Sachs v Minister of Justice (supra); Urban v Minister of the Interior 1953 (3) SA 544 (C); Hooper v Superintendent, Johannesburg Gaol, and Another (2) 1958 (2) SA 157 (W); S v Shangase 1962 (1) SA 543 (N) H ; Cape Town Municipality v Abdulla 1974 (4) SA 428 (C) and Kenana v Mangope and Others 1978 (2) SA 322 (T). In the time available I have not been able to look at all of those cases, but those which I have looked at appear to confirm the correctness of the proposition made by the author.

The passage quoted by me enjoys the approval of Goldstone J, I who delivered the principal judgment in Momoniat's case at 274. After quoting it, the learned Judge dealt with the proposition at 275. I propose to read in full what the learned Judge there said because I agree with his view and expressly adopt it (at 275A - 276C):

'As authority for the first exception, the author cites, inter alia, Sachs v Minister of Justice (supra) and the following J passage from the judgment of Fagan J in Everett v Minister of the Interior 1981 (2) SA 453 (C) at 458D - E:

Leveson J

"The more usual application of the rule (audi alteram A partem) in quasi -judicial decisions is for a hearing to take place, or representations to be received prior to the decision being arrived at. But that is not always the position. Where expedition is required, it might be necessary not to give the affected person the opportunity of presenting his case prior to the decision, but only after. He thus obtains the opportunity of persuading the official to change his mind."

Those, then, appear to me to be the principles of our law which are relevant to the consideration of the validity or invalidity B of reg 3(3). For that purpose a closer analysis of that regulation is required.

The initial arrest and detention provided for in reg 3(1) may be made by any member of "a force", ie the South African Police, the South African Defence Force, the South African Railway Police or the South African Prison Service. As counsel pointed out, a raw recruit is given this awesome power. One...