Minister of Law and Order and Another v Swart

• Jurisdiction: South Africa
• Citation: 1989 (1) SA 295 (A)

Minister of Law and Order and Another v Swart
1989 (1) SA 295 (A)

1989 (1) SA p295

Citation	1989 (1) SA 295 (A)
Court	Appellate Division
Judge	Joubert JA, Hefer JA, Vivier JA, Steyn JA, Viljoen AJA
Heard	September 19, 1988
Judgment	September 29, 1988

Flynote : Sleutelwoorde

Internal Security — Detention in terms of reg 3 of emergency regulations made in terms of s 3(1) of Public Safety Act 3 of 1953 and promulgated in Proc R109 of 12 June 1986 — Validity of — Sufficient and timeous notification of reason for arrest is a requirement in terms of reg 3 for valid arrest and detention — Absence of explanation for failure to inform detainee of reason for arrest despite ample opportunity and no conceivable reason for failure — No other conclusion possible than A that not informed sufficiently and timeously — Detention invalid.

Headnote : Kopnota

Respondent had been arrested and detained in terms of reg 3 of the emergency regulations issued in terms of s 3(1) of the Public Safety Act 3 of 1953 and promulgated in Proc R109 of 12 June 1986. Respondent's evidence, which was unchallenged, was that at no stage had he been B informed by the police of the reason for his arrest or of the legislation in terms of which he had been arrested. Finally, he had been informed by the prison authorities that he had been arrested in terms of reg 3 of the emergency regulations. He did not have any knowledge of the contents of the regulations, he was not given a copy of them nor were the contents read to him.

Held, that the failure to provide any explanation for this failure despite ample opportunity for respondent to have been so informed C by police and there being no conceivable reason for the police refraining from doing so meant that no other conclusion could be drawn than that respondent had not been informed sufficiently of the reason for his arrest as soon as was reasonably possible in the circumstances as was required by the regulations for a lawful arrest and therefore the detention and any extension thereof was unlawful.

The decision in the Cape Provincial Division in Swart v Minister of D Law and Order and Another confirmed.

Case Information

Appeal from a decision in the Cape Provincial Division (Selikowitz AJ). The facts appear from judgment of Hefer JA.

E W G Burger SC (with him R S van Riet ) for the first appellant referred to the following authorities: Brand v Minister of Justice and Another1959 (4) SA 712 (A); Minister of Law and Order and Others v Hurley and Another1986 (3) SA 568 (A); Kabinet van die Tussentydse Regering van Suidwes-Afrika en 'n Ander v Katofa1987 (1) SA 695 (A); Union Government v Union Steel Corporation (SA) Ltd1928 AD 220; Ngqumba F en Andere v Staatspresident en Andere1988 (4) SA 224 (A); Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill1987 (3) SA 859 (A) at 900F - H; Jaffer and Another v Minister of Law and Order and Others1986 (4) SA 1027 (C) at 1036E; Radebe v Minister of Law and Order and Another1987 (1) SA 586 (W) at 597B; S v Mapheele1963 (2) SA 651 (A) G at 655D;

1989 (1) SA p296

A Abbott v CIR 1963 (4) SA 552 (C) at 556E - F; S v Le Grange1962 (3) SA 498 (A); De Kock v Helderberg Ko-op Wijnmakerij Bpk1962 (2) SA 419 (A) at 426F; Kauluma en Andere v Minister van Verdediging en Andere1987 (2) SA 833 (A) 858B - E; State President and Others v Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others1986 (4) SA 1150 (A) at 1183H.

B G Joubert (with him R Mulder ) for the second appellant referred to the following authorities: State President and Others v Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others1986 (4) SA 1150 (A); Kabinet van die Tussentydse Regering van Suidwes-Afrika en 'n Ander v Katofa1987 (1) SA 695 (A); Omar and Others v Minister of Law and C Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill1987 (3) SA 859 (A); Ngqumba en Andere v Staatspresident en Andere1988 (4) SA 224 (A); Minister of Law and Order and Others v Hurley and Another1986 (3) SA 568 (A); D Nkondo and Others v Minister of Law and Order and Another 1986 (2) SA 756 (A); Minister of Law and Order and Another v Dempsey1988 (3) SA 19 (A); Efie Steenkamp v Minister of Law and Order (unreported, case No 191/87, delivered on 31 March 1987 (ECD)); ; Moroale v Minister of Law and Order (unreported, Case No 24475/86, delivered on (WLD)); 12 Desember 1986 (W); Visagie v State President (unreported, case No. 1815/86, delivered on 5 February 1987 (ECD)); Bobrow v Meyerowitz1947 (2) SA 885 (T) E ; Castel NO v Metal and Allied Workers Union1987 (4) SA 795 (A); SA Defence and Aid Fund and Another v Minister of Justice1967 (1) SA 31 (C); R v Sachs1953 (1) SA 392 (A); Liversidge v Anderson[1941] 3 All ER 338; Shidiack v Union Government (Minister of the Interior)1912 AD 642; Brand v Minister of Justice and Another1959 (4) SA 712 (A) F ; Muller/Smiles v Minister of Law and Order and Others (unreported, case No 1315/86 and 1316/86, delivered on 6 November 1986 (ECD)); Suttner/Kubheka v State President and Others (unreported case No 13500/86 and 13501/86, delivered on 5 August 1986 (TPD); Peters and Others v Minister of Law and Order and Others1987 (4) SA 482 (NC); Parker v Minister of Law and Order (unreported, case No 6696/87, delivered on 3 March 1987 (CPD)); Ngqumba and Others v State G President and Others1987 (1) SA 456 (E); Ngqumba and Others v State President and Others (unreported, case No M1173/86, delivered 14 November 1986 (ECD)); R v Ndara1955 (4) SA 182 (A).

J J Gauntlett (with him L A Rose-Innes ) for the respondent referred to the following authorities: Wood and Others v Ondangwa Tribal H Authority and Another1975 (2) SA 294 (A); Minister of Law and Order and Others v Hurley and Another1986 (3) SA 568 (A) at 589D - E; Kabinet van die Tussentydse Regering van Suidwes-Afrika en 'n Ander v Katofa1987 (1) SA 695 (A); Minister of Home Affairs and Another v Austin and Another 1986 (4) SA 281 (ZS); Kauluma en Andere v Minister van Verdediging en Andere1987 (2) SA 833 (A) at 866H et seq ; Nqumba and I Others v The State President and Others1987 (1) SA 456 (E); Radebe v Minister of Law and Order and Another1987 (1) SA 586 (W) at 596I - 597; MacKenzie v Minister of Law and Order and Another (unreported decision of CPD); United Technical Equipment Co v Johannesburg City Council1987 (4) SA 343 (T); Jaffer and Another v Minister of Law and Order and Others1986 (4) SA 1027 (C) at 1036E; S v Mapheele1963 (2) SA 651 (A) J at 655D - C; Momoniat and

1989 (1) SA p297

Naidoo v Minister of Law and Order and Others1986 (2) SA 264 (W); Hurley and Another v Minister of Law and Order and Another1985 (4) SA 709 (D); Nkwinti v Commissioner of Police and Others1986 (2) SA 421 (E); Dempsey v Minister of Law and Order and Others1986 (4) SA 530 (C); Ismail and Another v Durban City Council1973 (2) SA 362 (N); Goldberg and Others v Minister of Prisons and Others1979 (1) SA 14 (A); Bill B v State President and Others1987 (1) SA 265 (W); Castel NO v Metal & Allied Workers Union1987 (4) SA 795 (A); Administrator, Cape v Associated Buildings Ltd1957 (2) SA 317 (A); Pieters v Administrateur, SWA en 'n Andere 1972 (4) SA 127 (SWA); Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of SWA 1987 (1) SA 614 (SWA); Beaufort West Club v Beaufort West Licensing Court and Others 1928 C CPD 317; Patel v Witbank Town Council 1931 TPD 284; Johannesburg City Council v Sohn 1933...