Metal and Allied Workers Union and Another v State President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Kumleben J, Didcott J and Thirion J
• Judgment Date: 16 July 1986
• Court: Durban and Coast Local Division

Didcott J:

We would all have preferred to consider the issues raised in this application at greater length, not because we needed more time to make up our minds, but because we would J have welcomed the opportunity

Didcott J

A of preparing a judgment which explained the reasons for the view we take more fully and informatively and which went into the law more deeply than will prove possible this afternoon. The urgency of the case is such, however, that we believe we should decide it once we have come to a firm conclusion on these issues, as indeed we have.

B Four separate issues arise in the case. The first and second call into question the validity of the entire Emergency Regulations. The third and fourth focus on the particular provisions of a couple alone.

There is no challenge whatsoever to the locus standi of either applicant to bring these proceedings or to seek the relief C claimed under any of the four headings. It is indeed common cause that the two applicants have a sufficient interest in the grant of such relief to entitle them to approach this Court for it.

The attack upon the regulations as a whole is based entirely upon procedural grounds. The question raised is not whether a state of emergency should have been declared. Nor is it whether D regulations of the general sort which have been issued pursuant to the declaration of the state of emergency should have been made. It is merely whether that was done the right way, with the possible result that, if it was not, all that happens once we say so will be the doing of it again, this time the right way. That possibility has, of course, no bearing on E our decision. But I mention it because it gets into perspective the limited function we are asked to perform with regard to the first and second points taken. The reasons for this limited attack are no doubt the following. The Public Safety Act 3 of 1953 authorises in clear terms the declaration of a state of emergency, once the State President forms the opinion that certain conditions which are then described have F come to pass and exist. Equally clearly, the Act authorises the making of regulations pursuant to the declaration of a state of emergency. As matters stand under our constitution Parliament is sovereign, with the result that neither this Court nor any other in the land has the power to review its legislation. And we cannot substitute our opinion for the one G Parliament has entrusted to the State President. I proceed therefore to deal only with the narrow procedural points taken.

The first point arises from the wording used in s 3 (1) (a) of the Act, which provides that the State President may:

"... in any area in which the existence of a state of H emergency has been declared..., and for as long as the proclamation declaring the existence of such emergency remains in force, by proclamation... make such regulations as appear to him to be necessary or expedient for providing for the safety of the public or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency."

The important words, as far as the first point goes, are the I disarmingly simple words "has been declared" and their counterpart in the Afrikaans text, "verklaar is". A verb is used in both versions, one notices, in its past tense.

We shall assume in favour of the applicants that the declaration of the state of emergency and the making of the Emergency Regulations occurred simultaneously. They were J certainly published on the same day in two Government Gazettes bearing the same date, 12 June 1986, and

Didcott J

they purported to come into operation at the same moment. I A describe the assumption as one favouring the applicants because there is nothing at all in the evidence or material before us to suggest that the regulations were in any sense "made" before the state of emergency was declared. Perhaps the regulations were signed after the declaration, and perhaps that means they were "made" afterwards. But we shall assume that B they were not and that the two events occurred simultaneously.

The point taken by the applicants is a very narrow one. It is that the State President had no power to make the regulations because, at the time when he made them, the state of emergency had not yet been declared. The state of emergency had to be C declared first, so the argument ran. Only then could the Emergency Regulations be made. And this contention rests entirely upon what is said to be the grammatical construction of these words "has been declared" in English, "verklaar is" in Afrikaans.

In the ordinary sense, to my mind, when two things are done simultaneously the one has been done when the other is, and D vice versa. There may be contexts in which "has been" followed by an English verb, "is" preceded by an Afrikaans verb, would not be so interpreted. There may be contexts giving clear enough indications that, for some or other reason, the one step must precede the other and not be merely simultaneous with it. E There is nothing whatsoever to suggest any such reading of s 3 (1) (a). The applicants' counsel conceded in argument that, if the declaration of the state of emergency had preceded the making of the regulations by five minutes, nay by five seconds, this would have made all the difference and the point would not have been available. The declaration of the state of emergency F and the making of the regulations have unquestionably serious consequences in all sorts of respects. They have consequences obviously serious to persons detained under the regulations. They have further consequences which are serious because deep inroads are made into the ordinary rights of all the people of this country. This is therefore a case in which, were there any G real doubt about the language used, one would interpret it in a way favouring the liberty of the individual. But, given the situation in which the state of emergency and these regulations have the consequences of which I have spoken and undeniably have those consequences, it is quite impossible to believe, or to suggest for one moment, that the consequences are more H severe still because the declaration of the state of emergency happened not to precede the making of regulations by five minutes or five seconds. There is nothing in short, even in the wide-ranging and far-reaching implications of the legislation, to indicate that the step of making regulations must follow the step of declaring the state of emergency rather than occur simultaneously. In my view, the first point has no real I substance and must be rejected. The view I take is much the same as the one of the Full Bench of the Eastern Cape Division in Nkwinti v Commissioner of Police and Others 1986 (2) SA 421 (E) at 430F.

The second point, also attacking the regulations as a whole, has to do with and arises from s 3 (5) of the Act, as recently amended, which must be read with s 3 (6) (a), as likewise J amended. Section 3 (5) goes thus:

Didcott J

A "Any regulation made under ss (1) shall be laid on the tables of the respective Houses of Parliament within 14 days after promulgation thereof if Parliament is then in ordinary session or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ensuing ordinary session."

Section 3 (6) (a) explains why this must be done. It says:

"A regulation referred to in ss (5) or any provision thereof B may be annulled by Parliament by resolution passed during the same session during which it was tabled and, if the regulation or provision thereof has been so annulled, that regulation or provision thereof shall cease to be of force or effect from the date on which it was annulled by the last of the three Houses of Parliament."

What constitutes tabling for the purposes of these two subsections need not be considered, because it is common cause C that, whatever was meant, the Emergency Regulations were not tabled within 14 days after promulgation, and indeed had not been by the latest date which the evidence covered.

Before the 14 days expired, however, Parliament adjourned until 18 August 1986, two of its Houses having done so on 24 June D 1986 and the third having followed suit on 25 June 1986. An issue much debated in the case was whether after the adjournment Parliament was still in ordinary session and due to remain in ordinary session until it re-assembled on 18 August, or whether it was not in ordinary session after the adjournment, with the result that the next ordinary session E will not start until 18 August. What the question boils down to is this. The applicants say that Parliament, though it is not physically sitting at present and though it has not been physically sitting since 24 or 25 June, is nevertheless in ordinary session. The 14 days continued therefore to run and the regulations had to be tabled, with the result that the F period during which tabling had to take place has now passed without tabling ever having been effected. The respondents say this is not the case. When Parliament adjourned, and there was a day or two left before the 14 days expired, the ordinary session came to an end. Parliament is not in session, ordinarily or otherwise, at present. When the session resumes G on 18 August, Parliament will again be in ordinary session, and under the subsection you start counting days again. There will then be 14 days from the beginning of the next ordinary session.

The issue is not altogether an easy one. What mainly causes difficulties is the lack of any precision of which we are aware H in the meaning of the word "session", which is defined in neither this legislation nor any other in point. The question is complicated by the fact that the Afrikaans...