Minister of Law and Order and Another v Swart

• Jurisdiction: South Africa
• Judge: Joubert JA, Hefer JA, Vivier JA, Steyn JA, Viljoen AJA
• Judgment Date: 29 September 1988
• Citation: 1989 (1) SA 295 (A)
• Hearing Date: 19 September 1988
• Court: Appellate Division

Hefer JA:

This appeal is against an order granted by Selikowitz AJ in the Cape of Good Hope Provincial Division for respondent's release from Victor Verster prison, where he was detained purportedly in terms of the emergency regulations made by the State President in terms of s 3(1) of the Public Safety Act of 1953 and published on 12 June 1986 in Proc R109.

H The regulation relevant to the present enquiry is reg 3. Subregulations (1), (2) and (3) read as follows:

'3 (1) A member of a Force may, without warrant of arrest, arrest or cause to be arrested any person whose detention is, in the opinion of such member, necessary for the maintenance of public order or the safety of the public or that person himself, or for the termination of the state of emergency, and may, under a written order signed by any member of a Force, detain, or cause to be detained, any such person in I custody in a prison.

(2) No person shall be detained in terms of subreg (1) for a period exceeding 14 days from the date of his detention, unless that period is extended by the Minister in terms of subreg (3).

(3) The Minister may, without notice to any person and without hearing any person, by written notice signed by him and addressed to J the head of a prison,

Hefer JA

A order that any person arrested and detained in terms of subreg (1), be further detained in that prison for a period mentioned in the notice, or for as long as these regulations remain in force.'

It is common cause that respondent was arrested and detained by a member of the police force and that first appellant thereafter ordered that he be further detained for as long as the regulations remained B in force. Respondent challenged the validity both of the arrest and initial detention and of first appellant's order, and argument proceeded in the Court a quo on the basis that it was for the present appellants to justify both. Selikowitz AJ, without pronouncing on the validity of the arrest, found it not established that the order had properly been C made in terms of reg 3(3), nor that there was 'lawful cause' for respondent's detention at the time when the application for his release was launched. (It was launched about five months after the order had been made.)

It is against these findings that the submissions in the appellant's heads of argument in this Court were initially aimed. However, D shortly before the hearing of the appeal, respondent's counsel filed supplementary written heads of argument which contained a submission not made in the heads originally filed on respondent's behalf. Very briefly stated, the new submission was that the detention was unlawful simply beacuse the respondent had not been sufficiently and timeously informed of the reason for his arrest. In the event this was the only E submission on which counsel addressed us and I proceed to deal with it forthwith.

An examination of reg 3 reveals that there are, in effect, three stages in the process of detention. First there is the arrest by a member of a Force, which is followed by detention in prison under a F written order signed by a member of a Force, which is followed in turn by detention in prison under the Minister's order in terms of reg 3(3). As appears from the decision in State President and Others v Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others 1986 (4) SA 1150 (A) an arrest in terms of reg 3(1) can only be made if a member of a Force is of the opinion that the detention of the person concerned is G necessary for any of the purposes stated in that subregulation (at 1182G - H), whilst the Minister may only make an order extending the detention in terms of reg 3(3) if he is of the same opinion (at 1184F).

Respondent's counsel submitted, and I agree, that regs 3(1) and 3(3) do not operate independently since the Minister's power to extend a detention has been related to persons 'arrested and detained in terms H of subreg (1)'. From this it follows logically that, unless a detention can be brought within the ambit of reg 3(1), it cannot be said to be one which the Minister may extend...