Minister of Law and Order v Kader

• Jurisdiction: South Africa
• Citation: 1991 (1) SA 41 (A)

Minister of Law and Order v Kader
1991 (1) SA 41 (A)

1991 (1) SA p41

Citation	1991 (1) SA 41 (A)
Court	Appellate Division
Judge	Hoexter JA, E M Grosskopf JA, M T Steyn JA, Kumleben JA and F H Grosskopf JA
Heard	September 10, 1990
Judgment	September 27, 1990

Flynote : Sleutelwoorde B

Criminal procedure — Arrest — Arrest without warrant — Legality of — Requirement of s 39(2) of Criminal Procedure Act 51 of 1977 that arrestee be notified of cause of arrest — Arresting officer informing arrestee (respondent) that he was being arrested 'for a contravention of C s 54 of Internal Security Act' 74 of 1982 — Respondent having previously given statement to police admitting his participation in an offence under s 54 and agreeing to testify on behalf of State against alleged co-conspirators — Respondent however subsequently refusing to testify — Respondent thereupon informed that a charge of contravening D of s 54 of Act 74 of 1982 was being investigated against him — Respondent later arrested — Court, in applying principle that nature and extent of information arrestor required to impart to arrested person depended on circumstances of case, particularly arrested person's E knowledge concerning cause of arrest, holding that respondent in casu sufficiently apprised of cause of arrest — Arrest accordingly lawful.

Criminal procedure — Arrest — Procedure after arrest — Detention under s 50(1) of Act 51 of 1977 — Respondent arrested for alleged F contravention of s 54 of Internal Security Act 74 of 1982 — Section 64 of Internal Security Act providing that in case of alleged contravention of s 54 'no prosecution... shall be instituted' without Attorney-General's written authority — Such authority not obtained — Magistrate ordering further detention of respondent at his first appearance in terms of s 50(1) — Court a quo holding that absence of Attorney-General's authority fatal to lawfulness of respondent's G detention under s 50(1) — On appeal, Court holding that s 50(1) did not contemplate putting of charge to an accused at his first appearance — Purpose of s 50(1) merely to ensure that aim of further detention in terms of said section was to secure attendance of accused at trial on charge eventually to be preferred against him — In light of such H purpose, no requirement in s 50(1) that order for further detention in terms thereof be preceded by institution of prosecution — 'Institution of prosecution' in context of s 64 of Internal Security Act not bearing wide meaning so as to comprise any step in criminal proceedings against accused — Order for further detention under s 50(1) not per se I amounting to institution of prosecution in the sense envisaged by s 64 of Internal Security Act — Immaterial in present case that Attorney-General's authority not granted — Detention lawful.

Headnote : Kopnota

The respondent had been arrested in terms of s 29 of the Internal Security Act 74 of 1982. After his arrest he had made a statement to the J police in which he admitted

1991 (1) SA p42

A participating in an offence under s 54 of the above Act. He also intimated that he was prepared to testify against his alleged co-conspirators on behalf of the State. When the time came, the respondent however refused to so testify, upon which he was informed that a charge of a contravention of s 54 was to be investigated against him. He was later arrested, the arresting officer informing him that he was arrested 'for a contravention of s 54 of the Internal Security Act'. The respondent appeared before a regional magistrate the following day. B He was not asked to plead, and the court ordered his further detention in terms of s 50(1) of the Criminal Procedure Act 51 of 1977. The respondent thereupon launched an application in a Provincial Division for an order directing the Minister of Law and Order (the appellant) to release him from custody. The application was granted by the Provincial Division on two grounds: Firstly, that the appellant had not shown that the arresting police officer had, when he had informed the respondent that he was being arrested 'for a contravention of s 54 of Internal C Security Act', properly complied with the requirement of s 39(2) of the Criminal Procedure Act that an accused must be informed of the cause of his arrest; and, secondly, that the respondent's further detention after his first appearance in the regional court had been unlawful because the Attorney-General had not, as required by s 64 of the Internal Security Act, authorised in writing the prosecution of the respondent for an offence referred to in s 54 of the Act. In an appeal,

D Held, that the basis for the requirement in s 39(2) that an arrested person should be told the cause of his arrest was that such a person was entitled to know the reason why he was being deprived of his freedom, the requirement being one of substance and not a technicality.

Held, further, that by applying the principle that the nature and extent of the information the arrestor was required to impart to the arrested person depended on the circumstances of the case, particularly the E arrested person's knowledge concerning the cause of his arrest, that the respondent was in casu sufficiently apprised of the cause of the arrest: he had long before the arrest given a statement to the police implicating himself in the alleged conspiracy and had, after having refused to testify, also been informed that a charge of a contravention of s 54 was being investigated against him.

Held, accordingly, that the arrest was lawful.

Held, further, that it was often impractical or impossible to make a F final disposition at the stage of an accused's first appearance under s 50(1) of the Criminal Procedure Act on whether and, if so, in what court and on what charge(s) to prosecute.

Held, further, that s 50(1) did not contemplate that a properly formulated charge had to be put to the accused at his first appearance, but that its purpose was merely to ensure that the aim of further detention in terms of the said section was to secure the attendance of the accused at his trial on a charge eventually to be preferred against G him.

Held, further, that, in the light of the purpose of s 50(1), it was not required that an order for further detention had to be preceded by the institution of a prosecution.

Held, further, that the institution of a prosecution in the context of s 64 of the Internal Security Act did not bear a wide meaning which would include any step in the criminal proceedings against an accused.

Held, further, that proceedings under s 50(1), or an order for further H detention made pursuant to such proceedings, did not by themselves amount to the institution of a prosecution in the sense envisaged by s 64 of the Internal Security Act.

Held, further, that it was therefore immaterial to the lawfulness of the respondent's detention that the Attorney-General's authority had not been granted. Appeal allowed.

The decision in the Cape Provincial Division in Kader v Minister of Law and Order and Another 1989 (4) SA 11 reversed. I

Case Information

Appeal from a decision in the Cape Provincial Division (Seligson AJ), reported at 1989 (4) SA 11. The facts appear from the judgment of E M Grosskopf JA.

F D J Brand SC (with him J A le Roux) for the appellant referred to the following authorities: Duncan v Minister of Law and Order 1986 (2) J SA 805

1991 (1) SA p43

A (A); R v Priest 1931 AD 492; R v Friedman 1948 (2) SA 1034 (C); Ex parte Prokureur-generaal, Transvaal 1980 (3) SA 516 (T); Hiemstra Suid-Afrikaanse Strafproses 4th ed at 110 - 11 and 172; Attorney-General, Transkei v Additional Magistrate, Umtata, and Others 1988 (3) SA 229 (Tk); Nhlabathi v Adjunk Prokureur-generaal, Transvaal, en Andere 1978 (3) SA 620 (W); Du Toit et al Commentary on the Criminal Procedure Act B at 5; S v Hlopane 1990 (1) SA 239 (O) at 242B; Snyman and Morkel Strafprosesreg at 92 - 6.

J J Gauntlett SC (with him D O Delahunt) for the respondent referred to the following authorities: Principal Immigration Officer and Minister of Interior v Narayansamy 1916 TPD 274 at 276; C Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A) at 309G - H; Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 539E - F; Kabinet van die Tussentydse Regering vir SWA en 'n Ander v Katofa 1987 (1) SA 695 (A) at 739G - H; Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A) at 36A - B; D Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 285E - I; Minister of Home Affairs and Another v Austin and Another 1986 (4) SA 281 (ZSC) at 288G - H; Brand v Minister of Justice and Another 1959 (4) SA 712 (A); Christie and Another v Leachinsky [1947] 1 All ER 567 (HL) at 572 - 5; Ngqumba v Staatspresident 1988 (4) SA 224 (A); Minister of Law and Order and Another v Swart 1989 (1) SA 295 (A) at 299; Minister of Law and Order and Another v Parker 1989 (2) SA 633 (A) at 641 and 638A - C; R v Ndara E 1955 (4) SA 182 (A) at 184; Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 657C - E; S v Ramgobin and Others 1985 (3) SA 587 (N) at 593A; Kentridge 'Habeas Corpus Procedure in South Africa' (1962) 79 SALJ 283.

F Cur adv vult.

Postea (September 27).

Judgment

E M Grosskopf JA:

The respondent, who was an awaiting trial prisoner in Pollsmoor Prison near Cape Town, applied as a matter of urgency to the G Cape Provincial Division for an order, inter alia, directing the Minister of Law and Order (the present appellant) and the Officer Commanding Pollsmoor Prison to release him from custody forthwith. The appellant opposed the application. After a hearing before Seligson AJ, the release of the respondent was ordered and the appellant was directed to pay the respondent's costs. With leave of the Court a quo the H ...