Minister of Law and Order and Others v Hurley and Another

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Trengove JA, Botha JA and Van Heerden JA
• Judgment Date: 22 May 1986
• Hearing Date: 13 March 1986
• Court: Appellate Division

Rabie CJ:

This is an appeal against the judgment of LEON ADJP, sitting in the Durban and Coast Local Division, in which he declared that the detention of Gerald Patrick Kearney, which I followed upon an arrest purportedly made in terms of s 29 (1) of the Internal Security Act 74 of 1982, was unlawful and of no force and effect. The facts of the case are set out in detail in the report of the judgment at 1985 (4) SA 709.

Colonel Ignatius Coetzee, who is an officer in the South African Police, caused the aforesaid Kearney to be arrested and detained on 26 August 1985. Coetzee states in an affidavit, J made on behalf of all three of the appellants (the respondents in the motion proceedings in the Court a quo),

Rabie CJ

A that, in causing Kearney to be arrested and detained, he acted in terms of the provisions of s 29 (1) of the aforesaid Act (hereafter referred to as "the Act"). As to his decision to have Kearney arrested and detained, Coetzee says the following in para 4 of his affidavit:

"(c)

Uit hoofde van die feite tot my beskikking, die aard B waarvan uiters vertroulik is en, derhalwe, nie openbaar gemaak kan word nie, het ek rede gehad om te vermoed dat die gemelde Kearney, wat hom toe en te alle wesenlike tye te Durban bevind het, 'n misdryf gepleeg het soos bedoel in art 54 (1) van die gemelde Wet, en dat hy inligting had aangaande die pleeg deur ander van gemelde misdryf, en dat hy sodanige inligting van die Suid-Afrikaanse Polisie weerhou het.

(d)

Ek het, gevolglik, gemelde Kearney in hegtenis laat neem C sonder lasbrief soos voormeld.

............

(f)

My besluit om die inligting op grond waarvan ek opgetree het kragtens art 29 (1) en die arrestasie en aanhouding van Kearney gelas het, te weerhou, is geneem na deeglike oorweging en ten volle bewus van die moontlike nadelige afleiding wat daaruit te maak is. Ek bevestig egter dat die D inligting van sodanige aard is dat dit nie openbaar gemaak kan word sonder om die handhawing van wet en orde en die regsadministrasie te benadeel nie. Voorts, sal openbaarmaking van gemelde inligting die polisie se inligtingsbronne in gevaar stel.

(g)

Ek beweer voorts dat ek die diskresie aan my verleen deur art 29 (1) bona fide en na deeglike besinning en oorweging van al die tersaaklike feite uitgeoefen het."

E Coetzee also says in his affidavit that statements appearing in the affidavits of the respondents (the applicants in the Court below) concerning Kearney and his activities - eg the statement that no person "having even the slightest F acquaintance with the said Kearney or his activities can have reason to believe that his conduct could fall within the said section" (ie, s 29 (1)) - do not accord with information at his (Coetzee's) disposal.

Section 29 (1) of the Act, in so far as relevant, provides as follows:

"29 (1) Notwithstanding anything to the contrary in any law or the common law contained..., any commissioned officer as defined in s 1 of the Police Act 7 of 1958 of or above the rank of lieutenant-colonel may, if he G has reason to believe that any person who happens to be at any place in the Republic:

(a)

has committed or intends or intended to commit an offence referred to in s 54 (1), (2) or (4),...; or

(b)

is withholding from the South African Police any information relating to the commission of an offence referred to in para (a)...

H without warrant arrest such person or cause him to be arrested and detained for interrogation in accordance with such directions as the Commissioner may, subject to the directions of the Minister, from time to time issue,..."

Section 29 (6) of the Act, which is also relevant to the present proceedings, reads as follows:

"(6) No I court of law shall have jurisdiction to pronounce upon the validity of any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section."

Mr Combrink, who appeared for the appellants, contended that the Court a quo erred in holding (A) that Coetzee's decision to have Kearney arrested and detained was objectively justiciable, J and also in finding (B) that s 29 (6) of the Act did not preclude the Court from reviewing Coetzee's decision.

Rabie CJ

As to (A), counsel, starting from the premise that it is of A vital importance to determine what s 29 (1) of the Act means when it says that a commissioned officer of or above the rank of lieutenant-colonel may, without warrant, arrest a person "if he has reason to believe" that that person is a person as described in para (a) or (b) of the subsection, accepted the proposition - put to him by a member of the Bench - that B the officer must have grounds for his belief before he is entitled to effect an arrest. It is essential also, counsel conceded, that there must in fact exist grounds which cause him to have the required belief. This does not mean, however, counsel submitted, that the Court is entitled to make an objective inquiry into the existence of such grounds, or to C determine objectively whether they provide justification for the officer's belief and decision to arrest. The Legislature's intention is, counsel contended, that the officer concerned should be the sole judge of these matters. Consequently, it was argued, if the officer who made an arrest states that he did so because he had reason to believe that the person concerned was a person as described in s 29 (1) (a) or D (b), it is not open to the Court to inquire into the matter. When asked whether it was his contention that there is no real difference in meaning between the expressions "if he has reason to..." in s 29 (1) and "if in his opinion there is reason to..." in s 28 (1) (c) of the Act, counsel's reply was "yes". Both these expressions, counsel said, provide for a purely E subjective test. Counsel submitted, furthermore, that, if Courts of law could objectively inquire whether reasonable grounds existed for the belief held by an officer who made an arrest under s 29 (1), the police would be forced to disclose the information on the strength of which such arrest was made. The disclosure of such information, counsel argued, could be F harmful to the security of the State and it should, therefore, be held that the Legislature's intention was that action taken in reliance on the provisions of s 29 (1) should not be objectively justiciable.

As to counsel's argument with regard to s 29 (6) of the Act (see (B) above), the contention is that the subsection contains a clear expression of intention that an arrest by an officer of G the required rank should not be objectively justiciable. Consequently, counsel says, when such an officer states with regard to an arrest effected by him that he acted in terms of s 29 (1), the arrest is to be regarded as "action taken in terms of this section", ie as action which is not subject to review. Section 29 (6), counsel contends, would be a superfluous H provision if the Court were entitled to inquire into the grounds which moved an officer to effect or cause an arrest.

With regard to Mr Combrink's submissions as set out under (A) above, I think it is clear that the words "he has reason to believe" imply that there are grounds, or facts, which give I rise to, or form the basis of, the belief of the officer concerned. In London Estates (Pty) Ltd v Nair 1957 (3) SA 591 (D) the Court, dealing with the meaning of the words "if... there is reason to believe that it will be to the advantage of the creditors of the debtor if his estate is sequestrated" in s 10 (1) of the Insolvency Act 24 of 1936, said (at 592E - F):

"'Reason to believe', in my opinion, is constituted by facts J giving rise to such belief."

Rabie CJ

A This view, although expressed in connection with words occurring in an Act of a kind different from the one with which we are concerned in this case, seem to me to apply also to the words "has reason to believe" in s 29 (1).

If, then, one accepts that the officer who contemplates B arresting a person in terms of the provisions of s 29 (1) must have grounds which cause him to believe that the person concerned is a person as described in para (a) or para (b) of the subsection, the next question which arises is, it seems to me, whether it can be said that the Legislature intended that those grounds should be reasonable grounds. As to this question, I do not think it can be doubted that it was the C Legislature's intention that the grounds on which the officer's belief is based must be reasonable grounds. When regard is had to the serious consequences which an arrest and the subsequent detention under s 29 (1) have for the individual concerned, it is, I think, inconceivable that the Legislature could have intended that a belief based on grounds which cannot D pass the test of reasonableness would be sufficient to provide justification for such arrest and detention.

In this connection it is relevant to note, also, that the provisions of the Criminal Procedure Act 51 of 1977, which empower a peace officer to arrest someone without a warrant on the strength of a belief or suspicion held by him, require that E the belief, or suspicion, should be founded on reasonable grounds. (See ss 40, 41, 46 and 48 of that Act.) The corresponding provisions of the Criminal Procedure Act 31 of 1917 and the Criminal Procedure Act 56 of 1955 were to the same effect. This being so, and considering the consequences which an arrest under s 29 (1) has for the person concerned, it is most unlikely, in my opinion, that the Legislature could have F intended that the belief which is required for an arrest under s 29 (1) need not be founded on reasonable grounds.

This conclusion leads me to the important question whether the Court is entitled to inquire into the existence of grounds which could reasonably found a belief as required by s 29 (1). The...