Gumede and Others v Minister of Law and Order

• Jurisdiction: South Africa
• Judge: Booysen J
• Judgment Date: 05 February 1987
• Citation: 1987 (3) SA 155 (D)
• Hearing Date: 04 December 1986
• Court: Durban and Coast Local Division

Booysen J:

The applicants in these three applications, which, for reasons of convenience were heard together, seek orders that their detention in terms of reg 3(1), (2) and (3) of the emergency regulations be declared unlawful and that they be released with immediate effect. The regulations were published by Proc R109 of 12 June 1986, and promulgated in terms of s 3(1)(a) of the Public Safety Act 3 of 1953. Regulation 3(1) C authorises any member of the South African Police Force to 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 for the termination of the state of emergency and may detain or cause to be detained such person. Regulation 3(2) limits such detention to D 14 days, but in terms of reg 3(3) the Minister of Law and Order may by written notice order that such a person be further detained.

Each applicant avers in effect that he is not and has not been involved in any activities that would or could affect the maintenance of public order; prejudice the safety of the public E or State, or affect the termination of the state of emergency. In each of the applications, the relevant members of the Force have stated in affidavits that they had formed the opinion that the particular applicant's detention had been and was necessary for the maintenance of public order, the safety of the public and for the termination of the state of emergency. Each arresting officer has stated that he did at the relevant time F have certain information which he had obtained from reliable sources whose identity could not be disclosed without endangering those sources. They also gave particulars of some of the information. It was stated, for example, that the applicant Gumede had been a leading member of an organisation which had, at a meeting chaired by him, resolved to assault G workers who tried to go to work on 16 June and to burn their vehicles. It was further proposed that two members of the Security Police should be killed by the 'necklace' method; that applicant had personally taken part in attacks upon the homes of policemen; that the organisation had been responsible for the murder of an alleged informer and a member of the Security Police and for bomb-explosions in the Durban area.

H Whilst Gumede admitted membership of the organisation, he denied that its activities were anything but innocent and denied any involvement on his part in any activities other than innocent ones.

Mr Nicholson, who appeared for the applicants, submitted, inter alia:

(a)

that the respondent bore the onus of proving that the relevant policemen honestly held the relevant opinion;

(b)

that 'in order for an opinion to be honestly held, the relevant policeman must have relied on truthful and reliable information';

(c)

that the affidavits of the policemen must be considered as if the deponents were about to give evidence viva voce in which event they would not be J entitled to give evidence of what other persons had told them;

Booysen J

(d)

that the principle or rule that the identities of A informers should not be disclosed is subject to an exception which occurs when disclosure is necessary in favorem innocentiae and accordingly 'the respondent ought to have furnished the names and provided affidavits from the persons who had knowledge of the facts and, in the absence of this, all other evidence B is hearsay and inadmissible';

(e)

that 'if the refusal to divulge the identity relates to the security of the State, then the respondent can only refuse to divulge it if a certificate is produced by the Minister in terms of s 66 of the Internal Security Act 74 of 1982';

(f)

that 'if the Court is prepared to consider "hearsay" material put up by the respondent... there are C irreconcilable conflicts of fact' and the matter should be sent for oral evidence.

(The quotations are from the heads of argument.)

Mr Nicholson's argument seems to have been based to an appreciable extent upon a misconception as to the true nature of the enquiry which is before me. The main question for D decision is not whether each applicant has been guilty of activities which could have affected the maintenance of public order, the safety of the public or the termination of the state of emergency. The question is in essence whether the relevant policemen and the Minister honestly held and hold the opinion that arrest or detention of each applicant was or is necessary E for the purposes mentioned in reg 3(1). When such a policeman or the Minister states his opinion, that statement is obviously not hearsay, but direct evidence of the fact. When he is challenged as to the bona fides of the opinion and he states what information, obtained from other persons, he relied upon to form his opinion, he is not giving inadmissible hearsay evidence. He is giving direct evidence of the information F relied upon by him. I can thus not agree with the suggestion that those portions of the affidavits dealing with the information obtained by the policemen from what may be termed informers constituted inadmissible hearsay evidence.

Does it have to be disregarded because the identity of the 'informers' or co-members of the organisation has not been G disclosed and their affidavits placed before me?

The principle that the identities of informers should not be disclosed in a criminal or civil case is well established in our law. (See eg R v Van Schalkwyk 1938 AD 543; Ex parte Minister of Justice: In re R v Pillay 1945 AD 653.)

The rule is designed to protect the informer from the enmity or H revenge of those against whom he has informed and such protection is afforded to encourage persons to inform in cases in which the State is especially concerned. (Pillay's case supra at 668.) That there are exceptions to this rule is clear. One such exception has been stated to be 'when disclosure is necessary in favorem innocentiae '. (Pillay's case supra at I 669.) If upon trial of an accused, the Judge should be of the opinion that the disclosure of the name of the informant is necessary in order to show the prisoner's innocence, the rule may, of course, be relaxed, but this is not such a case. The question is not whether the applicants are in fact guilty of the conduct mentioned. It is thus not necessary or essential for the proper decision of this case to relax the rule against J disclosure. It follows that it cannot

Booysen J

A be said that failure to disclose the sources renders the information inadmissible.

The incidence of the onus in applications such as these is clearly of vital importance. The power to arrest and detain in terms of reg 3(1) has been couched in subjective terms. The B repositories of the power have been entrusted with the sole and exclusive function of determining whether in their opinion the detention was necessary for the purposes stated in the regulation. Whether it was in fact necessary is, however, not objectively justiciable in a Court of law. (See eg South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C) at 35A - C; and cf Minister of Law and C Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 579A - B.)

It does not, however, follow that the exercise of these powers is unassailable. A purported exercise of these powers of detention may be declared invalid on the ground that the repository of the power had not applied his mind to the matter; D that he had not in fact formed the requisite opinion; that he had acted mala fide or from ulterior motive. (See eg the SA Defence and Aid Fund case supra at 35C - D.)

A court is not entitled to interfere with the decision to exercise this power merely because it considers it wrong or unreasonable. If it considers, however, that it is not only E wrong but so unreasonable as to give rise to the inference of mala fides, ulterior motive or a failure to apply the mind, the Court may set aside the exercise of the power. (See eg Union Government (Minister of Mines and Industries) v Union Steel Corporation (South Africa)...