Bloem and Another v State President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: M T Steyn J, Edeling J and Hattingh J
• Judgment Date: 18 July 1986
• Citation: 1986 (4) SA 1064 (O)
• Court: Orange Free State Provincial Division

M T Steyn J:

I. Introduction

D This matter relates to the state of national emergency declared by the State President with effect from 12 June 1986 and the regulations promulgated in connection therewith on the same date. It is an urgent application brought before Court pursuant E to the provisions of Rule 6 (12) respectively by the father and the mother of a husband and wife detained under the said regulations. Such a matter does not exist in vacuo, and cannot be properly considered in isolation, divorced from its socio-political milieu. For such purposes it must be placed in contextual perspective, and to do so requires a short F conspectual exposition of that milieu, which I will now endeavour to do.

South Africa is in the mid-1980's a society in travail, wherein constitutional, socio-economic, cultural and political change and reform are being accompanied by social turbulence and unrest generated mainly by resistance to that change and reform G not only as to its tempo but also to its ambit, nature and direction. Much of that resistance is violent and is directed not merely at the authorities of government and administration but also at certain sections of the private sector, at members of the security forces and other individuals, and also indiscriminately at the general public. So notorious have the facts and nature of this resistance and its effects become by H virtue of its on-going occurrence over many months and the wide publicity accorded thereto that a court of law can now take judicial notice thereof. And I will do so.

Much of the violent resistance consists of mob action and includes widespread damage to property and acts of gruesome cruelty such as the so-called "necklace" method of murder I whereby a petrol-soaked tyre is placed around a person's neck and then set alight, resulting in the victim's death by fire - a grim modern version of the medieval auto-da-fe. This mob violence is usually instigated by agitators and accompanied by widespread intimidation. But to a substantial degree the violent resistance also consists of acts of organised terror such as assassinations and the planting of land mines or placing of bombs whereby many private individuals, and members J of the security forces are killed and maimed or

M T Steyn J

A otherwise injured and private property or public installations destroyed or damaged. There is, however, also a socio-economic dimension to this resistance which consists, inter alia, in boycotts of classes at schools and lectures at universities and other institutions of tertiary education as well as trade boycotts. And for many a month this domestic B turbulence has been accompanied and intensified by a mounting political, psychological, socio-economic and terror onslaught upon the Republic of South Africa from beyond its borders. Much of all this inner and outer action is clearly a power struggle aimed at making the Republic ungovernable, subverting by violence the existing dispensation and C substituting an entirely different one therefor. And the South African community has already been gravely hurt by this domestic turbulence and foreign onslaught, inter alia materially contributing to the weakening of its unit of currency and the economic distress it is enduring.

During the course of 1985 this situation worsened in certain D areas of the Republic in consequence whereof the State President declared a state of emergency in a number of magisterial districts on 21 July 1985. That state of emergency was in due course extended but thereafter deproclaimed in certain of the affected districts and finally lifted entirely earlier this year. But thereafter the situation worsened once E more and it was generally feared that the tenth anniversary of the Soweto unrest on 16 June 1986 would be the occasion for a grave escalation and intensification of the aforesaid unrest and violence.

It is against this background and in this context that the present state of emergency was declared and that this application must now be considered.

II. The declaration of the present state of emergency, and its attendant and related measures.

F As stated above, the State President declared a national state of emergency as from 12 June 1986. He did so by way of Proc G R108 of 1986, promulgated on 12 June 1986 in Government Gazette 10279. That declaration is in these terms:

"PROCLAMATION

by the

State President of the Republic of South Africa

No R108, 1986

H DECLARATION OF A STATE OF EMERGENCY

Whereas in my opinion it appears that circumstances have arisen in the Republic which seriously threaten the safety of the public and the maintenance of public order, and that the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public and to maintain public order.

I therefore, in terms of s 2 (1) of the Public Safety Act 3 of I 1953, hereby declare that a state of emergency exists within the Republic as from 12 June 1986.

Given under my Hand and the Seal of the Republic of South Africa at Cape Town this Eleventh day of June, One thousand Nine hundred and Eighty-six.

P W BOTHA

State President

By Order of the State President-in-Cabinet:

L LE GRANGE

J Minister of the Cabinet."

M T Steyn J

On the same date and by Proc R109 of 1986, published in A Government Gazette 10280 of 12 June 1986, the State President also made regulations in terms of s 3 (1) (a) of the Public Safety Act 3 of 1953, relating to the present state of emergency.

Regulation 3 (1), (2) and (3), (9) (a) and (b) and (10) provide B as follows:

"Arrest and detention of persons

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, C 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, 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 D arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in the notice, or for as long as these regulations remain in force....

(9) (a) The Minister of Justice may make rules to regulate the detention of persons in terms of this regulation, or relating to the treatment of such persons.

(b) In case of a conflict between any such rule E and any provision of the Prisons Act 8 of 1959, and of a regulation or a Prisons Service Order made in terms of the said Act, or any official instruction, order or other act of or by the Commissioner of Prisons, the said rule shall apply...

(10) No person, other than the Minister or a person acting by virtue of his office in the service of the State:

(a)

shall have access to any person detained in terms of the provisions of this regulation, except with the consent of and subject to F such conditions as may be determined by the Minister or a person authorized thereto by him; or

(b)

shall be entitled to any official information relating to such person, or to any other information of whatever nature obtained from or in respect of such person."

In reg 1 (iii) "Minister" is defined as meaning the Minister of G Law and Order unless the context indicates otherwise.

Sections 2 and 3 of the Public Safety Act 3 of 1953 aforementioned, in terms whereof the state of emergency was declared and the emergency regulations made, provide inter alia as follows:

"2. The Governor-General may declare the existence of a state of emergency in any area - If in the opinion of the H Governor-General it at any time appears that:

(a)

any action or threatened action by any persons or body of persons in the Union or any area within the Union is of such a nature and of such an extent that the safety of the public, or the maintenance of public order is seriously threatened thereby; or

(b)

circumstances have arisen in the Union or any area within I the Union which seriously threaten the safety of the public, or the maintenance of public order; and

(c)

the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or to maintain public order,

he may, by proclamation in the Gazette, declare that as from a date mentioned in the proclamation, which date may be a date not more than four days earlier than the date of the proclamation, a state of emergency exists within the Union or J within such area, as the case may be.

M T Steyn J

A (2) No proclamation issued under ss (1) shall remain in force for more than 12 months: Provided that nothing in this subsection contained shall be construed as precluding the issue of another proclamation in respect of the same area at or before the expiration of the said period of 12 months.

(3) The Governor-General may at any time and in like manner withdraw any proclamation issued under ss (1).

B 3. Emergency regulations. (1) (a) The Governor-General may in any area in which the existence of a state of emergency has been declared under s 2, and for as long as the proclamation declaring the existence of such emergency remains in force, by proclamation in the Gazette, make such regulations as appear to him to be necessary or expedient for providing for the safety of the public, or the maintenance of public order C and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are...