Buthelezi and Others v Attorney-General, Natal

• Jurisdiction: South Africa
• Judge: Kumleben J, Didcott J and Friedman J
• Judgment Date: 24 July 1986
• Citation: 1986 (4) SA 377 (D)
• Hearing Date: 07 July 1986
• Court: Durban and Coast Local Division

Buthelezi and Others v Attorney-General, Natal
1986 (4) SA 377 (D)

1986 (4) SA p377

Citation	1986 (4) SA 377 (D)
Court	Durban and Coast Local Division
Judge	Kumleben J, Didcott J and Friedman J
Heard	July 7, 1986
Judgment	July 24, 1986

Flynote : Sleutelwoorde

Internal security — Internal Security Act 74 of 1982 — Order by Attorney-General under s 30 (1) prohibiting granting of bail — E Attorney-General not observing audi alteram partem rule — Court holding that application of rule not excluded by implication in s 30 of Act 74 of 1982 — Inflexible "all or nothing" approach to s 30 (1) criticised by Court — Both unreasonable and illogical to conclude F that Legislature would wish to deprive individual of fundamental right in all cases simply because in certain cases audi alteram partem rule impossible of full application — Attorney-General therefore obliged to observe audi alteram partem rule before issuing orders in terms of s 30 (1) and such orders made in instant case declared invalid G for lack of compliance with rule.

Headnote : Kopnota

There is no evidence, in 30 of the Internal Security Act 74 of 1982, of a clear intention on the part of the Legislature to exclude by implication the audi alteram partem rule in regard to an order by the Attorney-General refusing bail for a detainee. There is little to be H said for the "all or nothing" argument in the construction of s 30 - in some cases the rule is perforce to be restrictively applied (where, for instance it would be contrary to the interests of the State for certain information to be disclosed). But for that reason it cannot be said that something less than its full import has been incorporated or enacted. In such a situation it simply means that in that particular case its provisions cannot be fully applied. It appears to be both unreasonable and illogical to conclude that the law-maker would wish to I deprive an individual of a fundamental right in all cases simply because in certain cases it may not be possible for it to be exercised fully. When all is said and done, the application of the rule in any particular case involves balancing the interests of the individual against the interests of the State. If its application or partial application is in the interests of the former, and cannot conceivably prejudice the latter, there can be no sound reason for not acknowledging it. After all, at a court hearing of a bail application it often happens that the Attorney-General opposes the grant of bail and states that he J relies upon certain

1986 (4) SA p378

A information which cannot be disclosed. In such a case the court, with this restriction, continues to observe the rule. It does not discard it and terminate the hearing. It is not unreasonable to suppose that the Legislature intended the Attorney-General to do likewise.

The Court therefore held that the Attorney-General's failure to apply the audi alteram partem rule before issuing orders in terms of s 30 (1) of Act 74 of 1982 rendered those orders invalid.

B The majority decision in S v Baleka and Others 1986 (1) SA 361 (T) not approved and not followed.

Case Information

Application for a declaratory order. The facts appear from the reasons for judgment.

I Mahomed SC (with him L Gering) for the applicants. C

B J Schönveldt (with him C van Schalkwyk) for the respondent.

[The Court granted the application on 7 July 1986 and handed down the following reasons for judgment on 24 July 1986.] D

Judgment

Kumleben J:

The applicants were arrested on a charge of contravening s 54 of the Internal Security Act 74 of 1982 ("the Act"). After their arrest the Attorney-General (Natal) issued in respect of each applicant an order in terms of s 30 (1) of the Act to the effect that they could not be released on bail or warning.

E The section reads as follows:

"30 (1) Whenever any person has been arrested upon a charge of having committed any offence referred to in Schedule 3, the Attorney-General may, if he considers it necessary in the interests of the security of the State or the maintenance of law and order, issue an order that such person shall not be F released on bail or on warning as contemplated in the Criminal Procedure Act 51 of 1977.

(2) (a) Notwithstanding the provisions of any other law, but subject to the provisions of ss (3), no person shall be released on bail or warning contrary to the provisions of an order issued under ss (1).

(b) Whenever any person arrested for an offence referred to in ss (1) applies to be released on bail or on warning and the G public prosecutor informs the Judge, court or magistrate to whom or to which the application is made that the matter has been referred to the Attorney-General concerned with a view to the issue of an order under ss (1), such person shall, pending the decision of the Attorney-General, not be released on bail or warning: Provided that if no such order is issued H within the period of 14 days immediately following upon the date on which such Judge, court or magistrate is so informed, such person may again apply to be released on bail or on warning and may, subject to the provisions of any law, be so released.

(3) The Attorney-General may at any time before its expiration withdraw any order issued under ss (1).

(4) Any telegraphic copy purporting to be a copy of an order under I ss (1) transmitted by telegraph shall for all purposes be prima facie proof of the facts set forth in such copy."

Before the issue of the order none of the applicants was told that this step was contemplated and, it follows, no information, facts or reasons relied upon for its issue were disclosed to any of them. In short, and this is common cause, the audi alteram partem rule (which I for J convenience will simply call "the rule" or "the principle") was not observed.

1986 (4) SA p379

Kumleben J

Applicants contended that this principle of natural justice is A implicitly incorporated in s 30 (1) and thus the failure on the part of the Attorney-General to observe it invalidated the orders. At the conclusion of the hearing of the application the Court upheld this submission and granted the...