Minister of Law and Order, Kwandebele, and Others v Mathebe and Another

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 114 (A)

Minister of Law and Order, Kwandebele, and Others v Mathebe and Another
1990 (1) SA 114 (A)

1990 (1) SA p114

Citation	1990 (1) SA 114 (A)
Court	Appellate Division
Judge	Corbett CJ, Van Heerden JA, Smalberger JA, Kumleben JA, F H Grosskopf JA
Heard	September 4, 1989
Judgment	September 29, 1989

Flynote : Sleutelwoorde B

Criminal procedure — Arrest — Legality of — Accused arrested in South C Africa by members of KwaNdebele police force — KwaNdebele police force do not in normal course have powers of arrest in South Africa — Reg 3(1) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R96 of 11 June 1987 does not provide KwaNdebele police with such power — Further detention of a detainee arrested unlawfully in South Africa by members of KwaNdebele police but D detained in KwaNdebele also illegal.

Headnote : Kopnota

Three persons were arrested in Johannesburg by members of the KwaNdebele police force and taken to KwaNdebele. The police had purported to act under reg 3(1) of the emergency regulations made in terms of s 3 of the E Public Safety Act 3 of 1953 as promulgated in Proc R96 of 11 June 1987. The detainees were, however, later released by a Judge in the Transvaal Provincial Division who held that their arrest and detention were unlawful as members of the KwaNdebele police force did not have powers of arrest beyond the territorial boundaries of KwaNdebele. In an appeal against this decision the appellants contended that the policemen were empowered to act in a dual capacity both as members of the South African police and as members of the KwaNdebele police by virtue of their having F been seconded to the latter force in terms of s 14(3)(a) of the Public Service Act 111 of 1984 which provided for 'an officer' to be placed 'at the disposal of another government'.

Held, that, irrespective of whether or not a seconded policeman in law was, or could be, clothed with dual authority, this had not been the appellants' case in the Court a quo nor was there any proper factual foundation to support such an argument.

Held, further, that assuming that the appellants were correct that the Public Service Act regulated the question of secondment, the situation G was governed rather by s 14(5)(a) which provided for secondment to a 'Black authority' on conditions described by Public Service Commission: in the absence of any evidence as to such conditions the appellants' arguments had to founder on this point as well.

Held, further, on the basis that the appellants were acting as members of the KwaNdebele police force, it had to be determined whether the emergency regulations gave the KwaNdebele police force powers beyond the territorial boundaries of KwaNdebele.

H Held, further, that a member of the KwaNdebele police force would not in the normal course have the power to effect an arrest outside the territorial limits of KwaNdebele, a view which was confirmed by certain provisions in the KwaNdebele police Act 11 of 1986 which made specific provision therefor.

Held, further, assuming for the purposes of the appeal that the State President had the power to make the emergency regulations applicable to KwaNdebele and that he did in fact exercise that power, in interpreting I reg 3(1) one had to take as the starting point that the normal powers of arrest of members of the KwaNdebele police force were limited to within the territorial boundaries of KwaNdebele and to extend their powers beyond such limits would constitute a radical departure from the norm and would have to be authorised in clear terms.

Held, further, that there was no such authorisation in the emergency regulations and the policemen who arrested the detainees were not empowered by the emergency regulations to do so and their arrest was J consequently unlawful.

1990 (1) SA p115

A Held, further, that the provisions of reg 2(1) which provided for a member of a security force to act in certain circumstances 'at any place in the Republic' did not detract from this conclusion: those words were not intended to signify the territorial limits within which every member of a security force could exercise the powers conferred by reg 2(1) but related rather to the words immediately preceding them: 'the presence or conduct of any person or persons', and were presumably introduced to render the provision linguistically capable of being understood.

B Held, further, that since the arrests were unlawful so were the subsequent detentions even though the detentions occured in a different place to the arrests. Appeal dismissed.

The decision in the Transvaal Provincial Division in Mathebe and Another v Minister of Law and Order, KwaNdebele, and Others confirmed. C

Case Information

Appeal from a decision in the Transvaal Provincial Division (Spoelstra J). The facts appear from the judgment of Smalberger JA.

S Maritz SC (with him P Kemp ) for the appellants referred to the following authorities: Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618C - 619H per Botha JA and at 624F - 625G per Trollip AJA; Apleni v Minister of Law and Order and Others (unreported: South Eastern Cape D Local Division, Case No 2315/86) per Mullins J at pp 4 and 7; Ngxale v Minister of Justice, Ciskei 1981 (2) SA 554 (E) at 559E and following; Mkele v Minister of Law and Order and Others (unreported: South Eastern Cape Local Division Case No 228/86) per Jennett J at p 7; Spruyt v Minister of Law and Order and Others (unreported: Witwatersrand Local Division Case No 16711/86) per Van Niekerk J at pp 2 - 4 and at pp 7 and E 20; Nkwentsha v Minister of Law and Order (unreported: Eastern Cape Division, Case No 1028/86) per Eksteen J at pp 16, 20, 23 and 24; Apleni v Minister of Law and Order and Others 1989 (1) SA 195 (A); Wiesner v Molomo 1983 (3) SA 151 (A) per Viljoen JA at 159B - F; Macu v Du Toit en 'n Ander 1983 (4) SA 629 (A) per Cilliè JA at 633G - H and per Botha JA F at 647D - F; May v Union Government 1954 (3) SA 120 (N) per Broome JP at 124H - 125A and 128H - 129A; Ingram v Minister of Justice 1962 (3) SA 225 (W) per Vieyra AJ at 227B - E and 230H; Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) per Schreiner JA delivering the judgment of the Court at 133H - 134A, 134C - D and 134G - H, 136D; Brand v Minister G of Justice and Others 1959 (4) SA 712 (A) per Ogilvie-Thompson JA delivering the judgment of the Court at 714F - H; Divisional Commissioner of the SA police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd and Another 1966 (2) SA 503 (A) per Beyers ACJ at 511A and 511D - H and 512A - B; Groenewald v Minister van Justisie 1972 (3) SA 596 (O) H per Kumleben AJ at 599D - H; Newman v Prinsloo and Another 1973 (1) SA 125 (W) per Margo J at 126F - H; 127E - H and 129C - D; Newman v Prinsloo 1974 (4) SA 408 (W) per Nicholas J at 410A - C; Donono v Minister of Prisons 1973 (4) SA 259 (C) per Van Winsen J at 262A - C; Mabaso v Felix 1981 (3) SA 865 (A) per Wessels JA at 871E - 874H and at 875G - H; Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A) per Jansen JA at 807D - G and 810G - H and per Botha AJA at 817F - 818B; I Whittaker v Roos and Bateman 1912 AD 92 per Innes JA at 124 - 5; Thompson and Another v Minister of police and Another 1971 (1) SA 371 (E) per Eksteen J at 373E - 374A; 374G - H and especially at 375F - G; Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) per Rabie CJ at J 586J - 589G; Radebe v Minister of Law and Order and Another

1990 (1) SA p116

A 1987 (1) SA 586 (W) per Goldstone J at 591C - H; Tussentydse Regering vir Suidwes-Afrika v Katofa 1987 (1) SA 695 (A) per Rabie CJ at 730E - F and per Trengove JA at 739H; Gumede v Minister of Law and Order 1987 (3) SA 155 (D) per Booysen J at 158F - 159I; State President v Dempsey 1988 (3) SA 19 (A); Bloem and Another v State President and Others 1986 (4) SA 1064 (O) per M T Steyn J at 1075I - 1079C; State President and Others v B Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others 1986 (4) SA 1150 (A) per Rabie CJ at 1175B - 1176F; Chotabhai v Union Government and Another 1911 AD 13 at 28; R v Vlotman 1912 AD 136 at 141; SA Estates and Finance Corporation Ltd v Commissioner for Inland Revenue 1927 AD 230 at 236; R v Venter 1907 TS 910; R v Jopp and Another 1949 (4) SA 11 (N) at 13 - 14; Omar and Others v Minister of Law and Order and C Others 1986 (3) SA 306 (C) at 314G; United Democratic Front v State President and Others 1987 (3) SA (N) at 307I - 308D; Abrahams v Minister of Justice and Others 1963 (4) SA 542 (C); Nduli and Another v Minister of Justice and Another 1978 (1) SA 893 (A).

D J Unterhalter SC (with him G J Marcus ) for the respondents referred to the following authories: Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A) at 310G - H; Kauluma and Others v Minister of Defence and Others 1984 (4) SA 59 (SWA); Dempsey v Minister of Law and Order and Others 1986 (4) SA 530 (C) at 530J - 531A; Bozzoli v Station E Commander, John Vorster Square, Johannesburg 1972 (3) SA 934 (W) at 935H; Deary NO v Acting President, Rhodesia 1979 (4) SA 43 (R) at 45G; Swart v Minister of Law and Order 1987 (4) SA 452 (C) at 455I and at 455F - H; Voet 43.29; Principal Immigration Officer v Narayansamy 1916 TPD 274 and at 276; In re Cakijana and Robela (1908) 29 NLR 193 at 197 and at 202; Brand v Minister of Justice 1959 (4) SA 712 (A) at 714F - H; Minister of Law and Order v Hurley 1986 (3)...