Bungu v Minister of Justice

• Jurisdiction: South Africa
• Judge: Erasmus AJ
• Judgment Date: 19 November 1984
• Citation: 1985 (2) SA 219 (CkS)
• Court: Ciskei Supreme Court

Erasmus AJ:

The plaintiff alleges that on 15 June 1982 and at Mdantsane, members of the Ciskeian Police force shot him in the leg. Thereafter he was arrested and detained, initially in the hospital until 6 July 1982 and thereafter at the Mdantsane E Police cells until 4 August 1982. He was not charged. He alleged that the aforesaid conduct was wrongful and unlawful and has claimed damages as follows:

(a)

General damages for shock, pain and suffering... R10 000.

(b)

Damages for unlawful arrest and detention... R10 000.

It is alleged that the policemen were acting within the course and scope of their employment as members of the Police force of F Ciskei and as such the Minister becomes liable. Plaintiff further alleges that he gave due notice of his intention to bring the proceedings.

Defendant's plea amounts to the following:

(a)

A denial that the plaintiff was shot by a member of the Ciskeian Police force.

(b)

G An admission that the defendant was arrested coupled with an allegation that the arrest was justified and lawful on the grounds as is set forth in the plea.

(c)

An admission of the detention coupled with an allegation that the detention was lawful by virtue of the fact that H the plaintiff had been detained in terms of a valid warrant issued in terms of the provisions of reg 8 of Proc 252 of 1977 which was then in existence.

[The learned Judge analysed the evidence, came to the conclusion that the defendant had discharged the onus resting on it of showing that the arrest was justified, and proceeded as follows.]

I The detention was in terms of Proc R252 published in the Government Gazette of 30 September 1977. Mr Moerane attacked the detention on various grounds. He alleged that the detention was unlawful by virtue of the following:

(a)

Proclamation R252 of 1977 was promulgated by the State President of the Republic of South Africa by virtue of J powers vested in him by s 25 of Act 38 of 1927. Section 25 had been repealed by Act 20 of

Erasmus AJ

1981, the Constitution Act of Ciskei. By virtue of the repeal A of the said section any proclamation which had been made in terms of the said section is also repealed.

(b)

He further alleged that the said proclamation in any event had been repealed because it was repugnant to the Constitution Act 20 of 1981 of Ciskei and as such had been B repealed by implication.

(c)

If the proclamation had not been repealed and if it was not repugnant to the Constitution Act, then in any event the warrant had not been properly obtained as the Minister could not have exercised his discretion judicially as he C had insufficient knowledge of what had transpired.

The general principle is that if an Act is repealed then any proclamation or regulation made in terms of the Act which had been repealed is also repealed by virtue of the fact that the enabling statute has been repealed and such proclamation would then cease to have any validity. See Hatch v Koopoomal 1936 AD 190 at 197; R v Madine 1961 (3) SA 29 (A) at 30; Steyn Die D Uitleg van Wette 5th ed at 177.

This is however not the case where the repealed statute or section of the statute is immediately substituted with a corresponding Act. Even should the terms of this corresponding Act or section to a certain extent differ from the original terms which had been repealed, then the old section will merely E be regarded as amended and any proclamation which had been issued in terms of the original section does not stand repealed. See Oranjeville Dorpsbestuur v Gulliver and Others 1970 (1) SA 554 (O).

If the enabling statute or section of the statute is re-enacted with a corresponding section, then proclamations made in terms of that section would not be regarded as repealed. F Corresponding does not mean identical but has a meaning of similar or analogous. See Parbhoo v Naidoo 1977 (1) SA 399 (D); Zantsi and Others v Odendaal and Others; Mtoba and Others v Sebe and Others 1974 (4) SA 173 (E); Oranjeville Dorpsbestuur v Gulliver and Others (supra); S v Khumalo and Others 1964 (1) SA 119 (N). The cardinal rule in the interpretation of a statute is of course to give effect to the intention of the G Legislature. In the present case s 25 of Act 38 of...