Bongopi v Chairman, Ciskei Council of State, and Others

• Jurisdiction: South Africa
• Judge: Diemont JA, Galgut JA and Rabie JA
• Judgment Date: 04 December 1992
• Citation: 1993 (3) SA 494 (CkA)
• Hearing Date: 13 October 1992
• Court: Ciskei Appellate Division

Rabie, JA.:

The appellant (applicant in the Court a quo) brought an C application in the General Division of the Supreme Court of Ciskei for the release of her brother, Matela Soganga, who had been arrested and detained in terms of s 26 of the National Security Act 13 of 1982 (Ck). She also asked the Court to declare that this section was invalid and of no force and effect. The detainee had been released by the time the application was heard and, although only the question of costs then remained for decision, D the Court, consisting of Pickard CJ, Heath J and Claassen AJ, by agreement between the parties considered the question whether the aforesaid s 26 should be declared to be invalid and of no force and effect. Pickard CJ and Claassen AJ, in separate judgments, held that the application should be refused and ordered the applicant to pay the respondents' costs. Heath E J wrote a dissenting judgment. The judgments of the three Judges have been reported: see Bongopi v Chairman of the Council of State, Ciskei, and Others 1992 (3) SA 250 (Ck).

The aforesaid s 26 of the National Security Act 13 of 1982 (Ck) provides, inter alia, that a person may, in certain circumstances, be F arrested and detained by the police for the purpose of interrogation and, also, that no court of law has jurisdiction to pronounce on the validity of any action taken in terms of the section or to order the release of any person detained in terms thereof.

The appellant's case in the Court a quo was that the said s 26 was invalid for being in conflict with the provisions of Schedule 6 of the Republic of Ciskei Constitution Decree 45 of 1990 (the 'Constitution G Decree') which came into force on 5 February 1991. Schedule 6 is headed 'Fundamental Rights and Responsibilities'. In s 22(5) of the Constitution Decree it is referred to as a statement of 'rights and freedoms' and, in s 41(2), as a statement of 'fundamental human rights and freedoms'.

H In the case of African National Congress (Border Branch) and Mafuza Silverstone Sigabi v Chairman of the Council of State of the Republic of Ciskei and the Council of State of the Republic of Ciskei (case No 414/91, unreported) a Full Bench of the General Division of the Supreme Court of Ciskei held that s 26 of the National Security Act 13 of 1982 (Ck) was in conflict with the provisions of Schedule 6 of the Constitution Decree, and I counsel for the parties who appeared in the appeal before us accepted - rightly so, in my view - that that decision was correct. The respondents' contention is, however, that the fact of such conflict does not render s 26 of the National Security Act 13 of 1982 (Ck) null and void and inoperative. This is so, it is contended, because of what is stated in s 26 and s 37 of the Constitution Decree. Subsection (1) of s 37 reads as J follows:

Rabie JA

'37 (1)

A Subject to the provisions of this Decree, all laws which were in operation immediately prior to the commencement of this Decree, including all Acts of the National Assembly passed in terms of the Republic of Ciskei Constitution Act 20 of 1981 and all Decrees of the Council of State published in the Government Gazette between 4 March 1990 and the commencement of this Decree, shall continue to operate until repealed or amended by B the competent authority.'

The 'competent authority' referred to in this subsection is the Council of State, which is the legislative authority of Ciskei and which exercises its powers to make laws by issuing Decrees. It consists of the Head of State and councillors who are appointed by him and who hold office at his C pleasure. (See ss 17, 21 and 22 of the Constitution Decree.) Section 26 of the Constitution Decree reads as follows:

'26 (1)

The Supreme Court shall be competent to enquire into and pronounce upon the validity of a Decree in pursuance of the question:

(a)

whether the provisions of this Decree were complied with in connection with any law which is expressed to be decreed by the D Council of State; and

(b)

subject to the provisions of this Decree, whether the provisions of any such Decree abolish, diminish or derogate from any fundamental right as set out in Schedule 6.

(2)

When the Chairman or an aggrieved person has any doubt on the question whether any law or provision thereof which was in force E in the Republic before 4 March 1990 or of any draft Decree which is to be considered by the Council of State, abolishes, diminishes or derogates from any fundamental right as set out in Schedule 6, the Chairman or such person may cause such question to be submitted to the Supreme Court for argument and decision.

(3)

If the Supreme Court decides that any law, draft Decree or provision referred to in ss (2) abolishes, diminishes or derogates F from any fundamental right so referred to, the Chairman shall cause such law, draft Decree or provision to be submitted to the Council of State for decision as to whether such law, draft Decree or provision ought to be repealed, amended or...