Bungu v Minister of Justice

• Jurisdiction: South Africa
• Citation: 1985 (2) SA 219 (CkS)

Bungu v Minister of Justice
1985 (2) SA 219 (CkS)

1985 (2) SA p219

Citation	1985 (2) SA 219 (CkS)
Court	Ciskei Supreme Court
Judge	Erasmus AJ
Heard	September 17, 1984; September 18, 1984; September 19, 1984; September 20, 1984; September 21, 1984; September 22, 1984; September 23, 1984; September 24, 1984; September 25, 1984; September 26, 1984
Judgment	November 19, 1984

Flynote : Sleutelwoorde

Statute — Repeal of — Arrest made in terms of Proc R252 B of 1977 promulgated in terms of s 25 of Black Administration Act 38 of 1927 — Latter repealed by Republic of Ciskei Constitution Act 20 of 1981 — Proclamation R252 not repealed due to fact that Act 20 of 1981 contained a section analogous to s 25 of Act 38 of 1927 — Amendment to s 72 (1) of Act 20 of 1981 ruling out argument that Proc R252 C repealed by implication as being repugnant to chap III (the Declaration of Fundamental Rights) of Act 20 of 1981 in its reference to Blacks only — Section 19 (3) of Act 20 of 1981 in any case providing that no law in force in Ciskei invalid by reason only of fact that it contravened or was in conflict with any provisions of chap III — Such provision D indicating that Legislature had foreseen legislation which could be repugnant to chap III, as this was often necessary for proper government in a country — Arrest properly made.

Headnote : Kopnota

The plaintiff, a Black man, had during 1982 allegedly been shot, arrested and unlawfully detained by members of the E Ciskeian Police Force, acting within the course and scope of their employment with the defendant. As a result of these events the plaintiff claimed general damages from the defendant for pain and suffering and damages for unlawful arrest and detention. Apart from factual disputes as to the first claim for damages, it was alleged that the detention, which had been made in terms of Proc R252 published in the Government Gazette F of 30 September 1977, was unlawful by virtue of the following facts: (a) Proc R252 of 1977 had been promulgated by the State President of the Republic of South Africa by virtue of powers vested in him by s 25 of the Black Administration Act 38 of 1927; s 25 had been repealed by Act 20 of 1981, the Constitution Act of the Ciskei, with the result that any proclamation made in terms of the section had also been repealed, and (b) the proclamation had in any event been repealed by implication because its contents and its reference G to Blacks only was repugnant to the Constitution Act of Ciskei, more particularly s 9 thereof, which provided for equal dignity and equality before the law of all people, regardless of race.

Held, as to (a) and upon an application of the general principle that, where the enabling statute or section of it (which has been repealed) is re-enacted with a corresponding (ie similar or analogous) section, then proclamations made in terms of that section would not be regarded as repealed, that H Proc R252 had not been repealed by the Constitution Act due to the fact that s 72 (4) of the latter was analogous to s 25 of Act 38 of 1927 - the repeal of s 25 did not have the effect of repealing the laws (proclamations) proclaimed in terms thereof, but to substitute the party who could exercise the power to make such laws.

Held, as to (b), that the amendment to s 72 (1) of the Constitution Act ruled out this argument: it provided that, I notwithstanding anything contained in chap III but subject otherwise to the provisions of the Constitution, any rule of law which was in operation in Ciskei immediately prior to the commencement of the Constitution would continue in operation and continue to apply.

Held, further, that s 19 (3) of the Constitution Act in any event provided that no law made by the National Assembly or which continued in force in Ciskei under any provision of the J Constitution could be declared invalid by any

1985 (2) SA p220

A court of law by reason only of the fact that it contravened or was in conflict with any provisions of chap III, which was proof that the Legislature had clearly foreseen legislation which on a proper construction thereof could be repugnant to s 9, as this was often necessary for proper government, peace and stability in a country, and that it was clear that the same would apply to any Act or proclamation which remained in force B although it had been enacted prior to independence.

Held, further, that the factual disputes having been resolved in favour of the defendant, the action had to be dismissed.

Case Information

Action for damages. The facts appear from the reasons for judgment.

M Moerane for the plaintiff.

P J de Bruyn for the defendant. C

Cur adv vult.

Postea (November 19). D

Judgment

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...