Minister of Law and Order and Another v Dempsey

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Joubert JA, Viljoen JA, Hefer JA and Nestadt JA
• Judgment Date: 11 March 1988
• Citation: 1988 (3) SA 19 (A)
• Hearing Date: 23 November 1987
• Court: Appellate Division

Minister of Law and Order and Another v Dempsey
1988 (3) SA 19 (A)

1988 (3) SA p19

Citation	1988 (3) SA 19 (A)
Court	Appellate Division
Judge	Rabie ACJ, Joubert JA, Viljoen JA, Hefer JA and Nestadt JA
Heard	November 23, 1987
Judgment	March 11, 1988

Flynote : Sleutelwoorde

Internal security — Detention in terms of reg 3(1) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Opinion of member of Force making the arrest in terms of reg 3(1) that detention of person G necessary for any of purposes mentioned in reg 3(1) — Correctness of this opinion cannot be questioned once formed, but validity of arrest can be challenged on one of well-known grounds on which performance of functions by statutory functionary endowed with discretionary powers could be challenged — Onus of proof as regards proper exercise of this H discretion — Where repository of power has himself been entrusted with function of deciding whether jurisdictional facts existing, as in instant case, there are two separate and distinct issues, each having its own Onus — First issue whether opinion actually formed and burden of proof resting on detaining authority — Second issue is whether I opinion properly formed — Burden of proof in this regard on party alleging that opinion not properly formed — Court a quo holding that arresting officer had not applied his mind to necessity for detention in terms of emergency regulations as he had not explicitly stated in his affidavit that he had considered such issue — Adverse inference should J not lightly be drawn from

1988 (3) SA p20

A deponent's silence in opposing affidavit on points not specifically raised in applicant's founding affidavits — Arresting officer in present case had not been called upon, in respondent's affidavits, to deal with questions on which Court a quo found his affidavit to be lacking — No justification for an inference that arresting officer did B not consider conventional arrest nor whether detainee posed potential future threat merely because he did not say so in his affidavit — Court a quo erring in declaring arrest and detention of detainee invalid and in ordering her release — Appeal upheld.

Headnote : Kopnota

The respondent had applied in a Provincial Division for the release of a C detainee, a nun, who had been detained in terms of reg 3(1) of the emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 and promulgated in Proc R109 in Government Gazette 10280 of 12 June 1986. The detainee had been arrested during a procession after a funeral in a Black township. The appellants filed affidavits from the arresting officer involved and in terms of which the latter set out in detail the circumstances surrounding the arrest. The Court a quo granted the application for release, holding that the arresting officer had not D properly applied his mind to the question of the necessity for the detention in terms of reg 3, and that this omission was so fundamental that it vitiated his opinion that the detention had been necessary. The arrest and detention were accordingly declared invalid. In an appeal,

Held, that once a member of a Force, in the exercise of his power of arrest in terms of reg 3(1), had formed the opinion that the detention E of a person was necessary for any of the purposes mentioned in the regulation and an arrest was made, the correctness of his opinion could not be questioned, but that the validity of the arrest could be challenged on one of the well-known grounds on which the performance of his functions by a statutory functionary endowed with discretionary powers could be challenged.

Held, further (Nestadt JA dissenting), as regards the onus of proving the proper exercise of the discretion, that in a case such as the F present, where the repository of the power had himself been entrusted with the function of deciding whether the jurisdictional fact or facts existed, there were two separate and distinct issues, each having its own onus : the first was whether the opinion had actually been formed; the second, which arose only if the onus on the first has been discharged or if it was admitted that the opinion had actually been formed, was whether it had properly been formed.

G Held, further, that the burden of proof on the first issue rested on the detaining authority and the onus as regards the second issue rested on the party alleging that the opinion had not been properly formed.

The Court in the instant matter found further that the sole reason for the Court a quo's finding that the arresting officer had not applied his mind to the necessity for detention in terms of the emergency regulations was that the officer had not explicitly stated in his H affidavit that he had considered the relevant questions, viz whether the arrest was called for and also whether the ensuing detention under the emergency regulations was called for.

Held, that an adverse inference should not lightly be drawn from a deponent's silence in an opposing affidavit on points not specifically raised in an applicant's affidavits.

Held, further, that the arresting officer, in the present case, had not, in the respondents affidavits, been called upon to deal with the questions on which the Court a quo found his affidavit to be lacking, I and, this being so, there was no justification for an inference that he had not considered a conventional arrest nor whether the detainee posed a potential future threat merely because he did not say so in his affidavit.

Held, consequently, that the Court a quo had erred in declaring the arrest and detention of the detainee invalid and in ordering her release. Appeal upheld.

Per Nestadt JA: The requirement in reg 3(1) that the detention be (in the opinion of the member of a Force effecting the arrest) 'necessary' does not mean that it should have been regarded by him as the only or J exclusive or unavoidable course. The

1988 (3) SA p21

A existence of another option (conventional arrest), even though it be regarded by the member as a viable one, does not necessarily preclude him from acting under reg 3(1). The option of a conventional arrest is, therefore, not axiomatically part of the relevant data which have to be taken into account.

The decision in the Cape Provincial Division in Dempsey v Minister of Law and Order and Others 1986 (4) SA 530 reversed.

Case Information

B Appeal from a decision in the Cape Provincial Division (Marais J) reported at 1986 (4) SA 530. The facts appear from the judgment of Hefer JA.

H P Viljoen SC (with him J A le Roux) for the appellants: Die Verhoorregter het fouteer waar hy beslis het dat die onus op respondente C was om op 'n oorwig van waarskynlikhede te bewys dat kaptein Oosthuizen se opinie wel 'n opinie van die soort deur reg 3(1) vereis was. Hierdie benadering is in ooreenstemming met die algemene beginsel, naamlik dat hulle wie 'n arres uitvoer en 'n persoon aanhou, moet bewys dat dit op regmatige wyse geskied het. Sien bv Brand v Minister of Justice and Another 1959 (4) SA 712 (A) op 714H - F; Minister of Law and Order v D Hurley and Another 1986 (3) SA 568 (A) op 589D - E; Kabinet van die Tussentydse Regering vir Suidwes-Afrika en 'n Ander v Katofa 1987 (1) SA 695 (A) op 730E. Regulasie 16 beïnvloed hierdie onus wesenlik en die korrekte benadering behoort te wees soos uiteengesit in Radebe v Minister of Law and Order 1987 (1) SA 586 (W) op 596B - C. Sien ook Abram Sello Morolong v State President of the Republic of South Africa and E Others, ongerapporteerd, saak 17427/86 (WPA), onderaan bl 6; MacKenzie v Minister of Law and Order (KPA, ongerapporteer op 18). Op die oog af wil dit voorkom asof die benadering in Dempsey gevolg word deur Kannemeyer R in Nqumba v State President and Others 1987 (1) SA 456 (OK) op 468C waar F hy dit stel dat hy saamstem met die gevolgtrekking in die Dempsey saak, naamlik dat die onus op respondente is om die applikant se aanhouding te regverdig. Die Regter kwalifiseer egter hierdie standpunt deur uitdruklik te meld dat ingeval mala fides beweer word die onus op applikant is om dit te bewys. Insoverre betoog word dat Nqumba se saak stawing is vir die benadering in Dempsey ten opsigte van onus, is dit G nie korrek nie. Die kern van die Verhoorregter se uitspraak met betrekking tot kaptein Oosthuizen se opinie is geleë in 'n interpretasie van die feite soos getoets aan die hand van beginsels in Northwest Townships Ltd v Administrator of the Transvaal 1975 (4) SA 1 (T) op 8F - G uiteengesit. Die gemelde gedeelte waarop die Verhoorregter hom in hierdie saak beroep bevat nie in alle opsigte 'n korrekte uiteensetting H van ons regsbeginsels nie. Die volgende uitgangspunt van die uitspraak van Colman R in die Northwest -saak is korrek: 'It is well settled that when, by statute, a public official has been vested with jurisdiction to decide a matter affecting members of the public in the light of his own opinion of the relevant facts, or in the exercise of his own discretion, a court is not entitled to interfere with that decision merely because I it considers it to be wrong, or even if, in its view, the decision was an unreasonable one.' Sien op 8. Hierdie is 'n korrekte uiteensetting van die regsbeginsels in die tipe van sake waar dit gaan oor die interpretasie van 'n Wet, regulasie of ander ondergeskikte wetgewing en J waar 'n suiwer subjektiewe

1988 (3) SA p22

A diskresie aan 'n amptenaar toegeken word. Die onderskeid tussen hierdie tipe suiwer subjektiewe diskresie wat verleen word teenoor 'n diskresie wat vereis word redelikerwys uitgeoefen te word, moet baie duidelik onderskei word en moet nie verwar word soos gebeur het in die beslissing van Katofa v Administrator-General for South West Africa and Another 1985 (4) SA 211 (SWA) op 221I - 222E nie...