Dempsey v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Marais J
• Judgment Date: 09 July 1986
• Citation: 1986 (4) SA 530 (C)
• Hearing Date: 09 July 1986
• Court: Cape Provincial Division

Marais J:

This is an application for the release of a detainee held in terms of the emergency regulations which are currently in force. The applicant is the acting regional superior of the Dominican Order of South Africa. The detainee is a nun, Sister Harkin, who is a member of that order. There has been no J objection taken to the locus standi of the applicant to bring this application, nor indeed in the light of the

Marais J

authorities could there have been any such objection. The A circumstances in which Sister Harkin came to be detained, will emerge from the facts which I shall recite in due course in this judgment. The respondents are the Minister of Law and Order, the Minister of Justice, the Commissioner of Police and the Officer Commanding Pollsmoor Prison.

In the nature of things, the application is an urgent one. It B raises some difficult questions of law which I would have liked more time to consider, but it is necessary that judgment be given as soon as possible in matters of this kind and consequently I must make the decisions which seem to me to be correct in the light of the law as I understand it. Whether Sister Harkin's present detention is lawful or unlawful depends C upon whether her arrest and detention was the consequence of a bona fide exercise of the power of arrest and detention conferred by reg 3 (1) of the regulations which were promulgated in terms of the Public Safety Act 3 of 1953 on 12 June 1986 in Government Gazette 10280. I shall refer to them hereafter as the emergency regulations. Regulation 3 (1), (2) and (3) read:

"(1)

A member of a Force may, without warrant of arrest, D 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, 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 E 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 arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in the F notice, or for as long as these regulations remain in force."

The power of arrest and detention which reg 3 (1) creates is not an unfettered power which may be capriciously or arbitrarily exercised, nor is it a power which may be exercised for any reason whatsoever which may commend itself as being sufficient to a member of a Force. The limitations upon its G exercise, perhaps more accurately the pre-conditions for its exercise, are the following.

Firstly, an opinion must be held. It is hardly necessary to add that it must be an honestly held opinion.

Secondly, it must be an opinion of a particular kind, namely that it is necessary for the maintenance of public order, or H the safety of the public, or that person himself, or for the termination of the state of emergency, that such a person be arrested and detained. In this connection certain things require emphasis:

1.

The question to which a member of a Force must apply his mind is not whether such detention is desirable or expedient, but whether it is necessary. That is a far I more stringent criterion than mere desirability or expediency.

2.

It is not the arrest in isolation which must be considered necessary. It is primarily the ensuing detention under the emergency regulations which must be considered necessary.

3.

Such detention must be considered necessary for one or more of the purposes stated in reg 3 (1). Thus, a J member of a Force who wishes

Marais J

A to arrest and detain under the emergency regulations a person who has committed some or other offence simply because he is of the opinion that the offender should be punished in that manner will not have power to do so in terms of reg 3 (1). He may, of course, have the power to arrest such a person in terms of the ordinary law of the land, but then such person's subsequent B fate will be governed, not by the emergency regulations, but by the ordinary law of the land. If he is not released on bail or on his own recognisance, he will be entitled to enjoy the status of a prisoner awaiting trial with all the rights which that implies.

C The next question which must be considered is whether the exercise, or purported exercise, of the power of arrest and detention conferred by reg 3 (1) is justiciable in a court of law and amenable to judicial review. I have no doubt that it is and I did not understand Mr Viljoen, who appeared for the respondents, to contend the contrary. What he did contend was that, although the Court has the power to review, its power is D a restricted one and confined to enquiring whether or not the arrest and detention was effected in good faith. I shall return to this submission presently.

I shall not catalogue again the developments which have taken place over the years in the broadening of the remedy of judicial review. I think it is sufficient to say that I agree, E with respect, with the view of the Full Bench of the Eastern Cape Division in Nkwinti v Commissioner of Police and Others 1986 (2) SA 421 (E) at 430I that the holding by a member of a Force of the opinion described in reg 3 (1) is akin to a jurisdictional fact which must exist before an arrest and detention thereunder may lawfully take place, and that the F Court is entitled to enquire into whether or not such an opinion was indeed held. I accept, too, that, if such an opinion was held, the mere fact that the Court would not have been of the same opinion does not entitle the Court to substitute its own opinion. However, I think it is reasonably plain that, if an opinion is not only wrong, but so G unreasonable (and this obviously entails a value judgment) that it can be inferred, or if there is other evidence that shows, that it was not bona fide, or that it was prompted by an ulterior motive, or was the result of a failure to apply the mind to the matter, the Court may interfere notwithstanding the strongly subjective element inherent in the holding of an opinion. In Northwest Townships (Pty) Ltd v The Administrator, Transvaal and Another 1975 (4) SA 1 (T) at 8F - G COLMAN J H pointed out that included under the rubric of failure to apply the mind to the matter are capriciousness, a failure to appreciate the nature and limits of the discretion to be exercised, a failure by the person concerned to direct his thoughts to the relevant data or the relevant principles, reliance on irrelevant considerations, an arbitrary approach, I and an application of wrong principles.

I return now to Mr Viljoen's submission that the Court's reviewing role in the circumstances of this particular case is confined to enquiring whether or not the arrest or detention was effected in good faith. The contention is founded upon the terms of reg 16 (1) and 16 (4). They read:

"16 (1)

No civil or criminal proceedings shall be instituted or continued in any court of law against:

(a)

J the State;

Marais J

(b)

A the State President;

(c)

any member of the Cabinet of the Republic;

(d)

any member of a Force;

(e)

any person in the service of the State; or

(f)

any person acting by direction or with the approval of any member or person referred to in the preceding paragraphs of the subregulation, by reason of any act in good B faith advised, commanded, ordered, directed or performed by any person in the carrying out of his duties or the exercise of his powers or the performance of his functions in terms of these regulations, with intent to ensure the safety of the public, the maintenance of public order or the termination of the state of emergency in any area where the existence of a state of emergency has been declared in pursuance of s 2 (1) of the Act, or in order to deal with C circumstances which have arisen or are likely to arise as a result of the aforementioned state of emergency.

16 (4)

If in any proceedings instituted against any member or person referred to in subreg (1) or the State, the question arises whether any act advised, commanded, ordered, directed or performed by any person was advised, commanded, ordered, directed or performed by him in good faith, it shall be presumed, until the contrary is proved, that such act was advised, commanded, ordered, directed or performed by him in D good faith."

I should also mention that, in terms of reg 16 (2) (a), whenever the Court in which any proceedings have been instituted is of the opinion that by virtue of subreg (1) the proceedings may not be continued, the Court shall make a finding to that effect and whenever the Court has made such a E finding such proceedings shall lapse and be deemed to be void.

The contention, as I understood it, was that good faith in a purely subjective sense is a "cure-all" and that, unless it is found to be wanting, the Court has no power to declare an arrest and detention unlawful, even although it may be plain that the arrest and detention were ultra vires. If the argument F is accepted, it would have the result that even an admittedly irrelevant opinion, which is not the kind of opinion which reg 3 (1) envisages, will suffice to render an arrest and detention lawful provided that the member of a Force concerned honestly believed that he was entitled to arrest and detain if he held such an opinion. It is tantamount to saying that, if he G genuinely believed that he had the power to arrest and detain, the circumstance that he did not in...