Kantolo and Others v Attorney-General, Transkei

• Jurisdiction: South Africa
• Judge: Mitchell J and Davies J
• Judgment Date: 19 June 1987
• Citation: 1987 (4) SA 529 (TkS)
• Hearing Date: 12 June 1987
• Court: Transkei Supreme Court

Mitchell J:

On 12 June 1987 this Court made the following Order:

The order purporting to prohibit the release on bail or on G warning of the applicants in terms of s 48 of the Public Security Act 30 of 1977 signed by the respondent on 5 January 1986 is declared to be invalid.

The reasons for this decision follow.

The applicants sought to set aside the 'order' mentioned in the Court order referred to (which I shall call 'the certificate') on three grounds, namely:

(a)

H The respondent was not entitled to issue a certificate in terms of s 48(1) of the Public Security Act 1977 ('the Act') because there was no proof that any of the applicants had 'been arrested on a charge of having committed' any of the offences referred to in that section. Proof, it was submitted, that the applicants I had been arrested on such a charge was an essential jurisdictional fact which had to be satisfied before a certificate could be issued in terms of the section.

(b)

Before issuing the certificate the respondent failed to comply with the audi alteram partem rule, proper compliance with which, it was submitted, was also an J essential jurisdictional fact before a certificate could be issued in terms of the section.

Mitchell J

(c)

In exercising his powers the respondent applied the A wrong principles and the wrong test in law.

The relevant parts of the certificate in question signed by the Deputy Attorney-General read as follows:

'Order in terms of s 48(1) of Act 30 of 1977

B Whereas

Leo Rubusana Kantolo

Salakatya Villiers Simuku

Sigqiba Agreement Mpendulo

Synod Madlebe

Nomtandazo Lusizi C

Vivienne Mzimkulu Swartbooi

Victor Ntsokolo Zamela

are persons who have been arrested on charges of having committed offences under s 7 and/or 9 and/or 27 of the Public Security Act No 30 of 1977,

And Whereas I, Johannes Hendrik Stefanus Hiemstra, Deputy Attorney-General for the Republic of Transkei, consider it D necessary in the interests of the safety of the State,

Therefore I herewith order in terms of s 48(1) of the said Act that the above persons shall not be released on bail or otherwise before sentence has been passed or they have been charged.

Given under my hand at Umtata this 5th day of January 1987.'

Section 48 of the Act reads as follows:

'48 (1) Whenever any person has been arrested on a charge of E having committed -

(a)

the offence of treason or sedition; or

(b)

any offence under s 2, 3, 4, 5, 6, 7, 9, 22(2)(a) or 27; or

(c)

any offence which the President may by proclamation in the Gazette declare to be an offence to which the provisions of F this section and s 49 shall apply; or

(d)

any conspiracy, incitement or attempt to commit any offence referred to in para (a), (b) or (c),

the Attorney-General may, if he considers it necessary in the interest of the safety of the State or the maintenance of public order, issue an order that such person shall not be released on bail or otherwise before sentence has been passed G or he has been discharged.

(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 otherwise contrary to the terms 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 otherwise and the public prosecutor informs the Judge, Court or magistrate to H whom or to which the application is made that the matter has been referred to the Attorney-General concerned with a view to the issuing of an order under ss (1), such person shall, pending the decision of the Attorney-General, not be released on bail or otherwise: Provided that if no such order is issued 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 otherwise I and may, subject to the provisions of any law, be so released.

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

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

Mitchell J

A The language of the section...