Hurley and Another v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Leon ADJP
• Judgment Date: 11 September 1985
• Citation: 1985 (4) SA 709 (D)
• Hearing Date: 05 September 1985
• Court: Durban and Coast Local Division

Leon ADJP:

The first applicant is the Archbishop of Durban and the second applicant is a journalist and the wife of Gerald Patrick Kearney, who is the subject of this application. The F first respondent is the Minister of Law and Order, the second respondent the Minister of Police and the third respondent the Divisional Commissioner of Police for Port Natal. Kearney is the director of Diakonia which is an organisation of eight Christian churches in the greater Durban area and has its offices at the Ecumenical Centre Trust building, 20 St Andrews G Street, Durban. The first applicant is the chairman of Diakonia which he has stated is a church agency established to encourage and facilitate Christian social concern among the congregations of its member-churches.

On 26 August 1985, as a result of a telephone call which he received, the Archbishop went to the offices of Diakonia and H found that the Security Branch of the South African Police were searching the offices occupied by Kearney. A thorough search was being conducted and the Archbishop was ordered to leave. Kearney had, at that time, allegedly been arrested in terms of s 29 (1) of the Internal Security Act 74 of 1982. The first applicant has stated under oath, as the Archbishop of I Durban and with full appreciation of his position and authority, that no person acting reasonably could come to the conclusion that Kearney had committed an offence in terms of s 54 of the Act, which is referred to in s 29 (1). The reasons for the opinion of the Archbishop are as follows:

(i)

He has known Kearney since his birth and has followed his progress through school, university and during his J ten years as a brother in the church.

Leon ADJP

(ii)

He has seen him, on average, three times a month over A the last ten years and has had regular weekly telephone conversations with him.

(iii)

Kearney is a committed Christian with deeply held convictions.

(iv)

Kearney is opposed to violence as a means of attaining B any purpose whatsoever.

(v)

He knows that Kearney is an opponent of the "separate development" policy of the present Government of South Africa but his opposition to it has always been expressed in a constitutional and lawful manner.

The Archbishop has further stated that he has read the provisions of s 54 of the Act which may conveniently be C described as sections relating to the offences of terrorism or subversion and he is appalled that any person having had the slightest acquaintance with Kearney or his activities could have any reason to believe that his conduct could fall within the section.

D The application is supported by Kearney's wife, Carmel Patricia Rickard, who has also stated in her affidavit that a search was conducted of the flat in which she and Kearney reside. The police took away from the flat a cassette on which was taped a number of BBC programmes containing recordings from the BBC programme "Network Africa". It appears from her affidavit that E Kearney is a highly educated person, that she has known him for ten years, that he has deeply held religious convictions and that he is totally opposed to the use of violence to achieve political aims and is a universal pacifist but he holds views which are contrary to those espoused by the Government of South Africa.

The second applicant has been advised that s 29 of the Intrnal F Security Act provides for the arrest and detention of any person

(a)

who has committed or intended to commit an offence referred to in s 54 (1), (2) or (4) or

(b)

a person who is withholding from the South African Police any information relating to the commission of G an offence referred to in para (a) above.

She alleges that, had Kearney participated in any activity set out in the section or had he refused to supply information, she would have been aware of the fact but that to her knowledge he has not done so. She has also stated that, from her intimate knowledge of his character and personality, he would not have H engaged in any secret subversive activities. She has said further that, although the South African Police are purporting to act in terms of s 29, such action is not in fact pursuant to the section because Kearney does not fall within the provisions set out therein.

I The application is brought on the grounds that:

(i)

the requisite jurisdictional fact required in terms of the section to justify Kearney's detention could not even on a balance of probabilities be said to exist; and therefore

(ii)

the Court's common law jurisdiction to protect the subject from deprivation of liberty and freedom against his will has not been excluded in terms of s J 29 (6) of the Act.

Leon ADJP

A The applicants have further submitted that there is an onus upon the respondents to prove that the person who arrested Kearney did so within the context of the existence of the said jurisdictional facts.

The relevant provisions of s 29 (1) read as follows:

"Detention of certain persons for interrogation.

(1)

Notwithstanding anything to the contrary in any law or the B common law contained but subject to the provisions of ss (3), any commissioned officer as defined in s 1 of the Police Act 7 of 1958, of or above the rank of lieutenant-colonel may, if he has reason to believe that any person who happens to be at any place in the Republic -

(a)

has committed or intends or intended to commit an offence referred to in s 54 (1), (2) or (4), excluding, in the case of an offence referred to in s C 54 (4), such an offence which the suspect committed or intends or intended to commit in connection with a person suspected of having intended to commit or having committed the offence of sabotage; or

(b)

is withholding from the South African Police any information relating to the commission of an offence referred to in para (a) or relating to an intended commission of such offence or relating to any person D who has committed or who intends to commit such offence,

without warrant arrest such person or cause him to be arrested and detain such person or cause him to be detained for interrogation in accordance with such directions as the Commissioner may, subject to the directions of the Minister, from time to time issue,..."

Section 54 (1) reads as follows:

E "Terrorism and related offences, and penalties therefor.

(1)

Any person who with intent to -

(a)

overthrow or endanger the State authority in the Republic;

(b)

achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the Republic;

(c)

induce the Government of the Republic to do or to abstain from doing any act or to adopt or to abandon a particular standpoint; or

(d)

F put in fear or demoralize the general public, a particular population group or the inhabitants of a particular area in the Republic, or to induce the said public or such population group or inhabitants to do or to abstain from doing any act,

in the Republic or elsewhere -

(i)

commits an act of violence or threatens or attempts to do so;

(ii)

G performs any act which is aimed at causing, bringing about, promoting or contributing towards such act or threat of violence, or attempts, consents or takes any steps to perform such act;

(iii)

conspires with any other person to commit, bring about or perform any act or threat referred to in para (i) or act referred to in para (ii), or to aid in the commission, bringing about or performance thereof; or

(iv)

H incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about or perform such act or threat,

shall be guilty of the offence of terrorism and liable on conviction to the penalties provided for by law for the offence of treason."

Section 54 (2) provides,

Any person who with intent to achieve any of the objects specified in paras (a) to (d), inclusive, of ss (1) -

(a)

I causes or promotes general dislocation or disorder at any place in the Republic, or attempts to do so;

(b)

cripples, prejudices or interrupts at any place in the Republic any industry or undertaking, or industries or undertakings generally, or the production, supply or distribution of commodities or foodstuffs, or attempts to do so;

(c)

interrupts, impedes or endangers at any place in the Republic the manufacture, storage, generation, J distribution, rendering or supply of fuel, petroleum products, energy, light, power or water or of sanitary, medical, health,

Leon ADJP

educational, police, fire-fighting, ambulance, postal or A telecommunication services or radio or television transmitting, broadcasting or receiving services or any other public service, or attempts to do so;

(d)

endangers, damages, destroys, renders useless or unserviceable or puts out of action at any place in the Republic any installation for the rendering or supply of any service referred to in para (c), any prohibited place or any public building, or attempts to do so;

(e)

prevents or hampers, or deters any person from assisting B in, the maintenance of law and order at any place in the Republic, or attempts to do so;

(f)

impedes or endangers at any place in the Republic the free movement of any traffic on land, at sea or in the air, or attempts to do so;

(g)

causes, encourages or foments feelings of hostility between different population groups or parts of population groups C of the Republic, or attempts to do so;

(h)

destroys, pollutes or contaminates any water supply which is intended for public use in the Republic, or attempts to do so;

(i)

in the Republic or elsewhere performs any act or attempts, consents or takes any steps to perform any act which results in or could have resulted in or promotes or could have promoted the commission of any of the acts or the bringing about...