Minister of Law and Order and Another v Parker

• Jurisdiction: South Africa
• Citation: 1989 (2) SA 633 (A)

Minister of Law and Order and Another v Parker
1989 (2) SA 633 (A)

1989 (2) SA p633

Citation	1989 (2) SA 633 (A)
Court	Appèlafdeling
Judge	Joubert JA, Hefer JA, Vivier JA, M T Steyn JA, Viljoen AJA
Heard	November 1, 1988
Judgment	February 24, 1989

Flynote : Sleutelwoorde B

Internal security — Detention in terms of reg 3(1) of emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as promulgated in Proc R96 of 11 June 1987 — Validity of — C Requirement that detainee should be informed of reasons for his arrest — Detainee caught red-handed in the act of printing subversive pamphlets and confronted with their subversive character by arresting officer — Arrest made uno contextu with such confrontation — Nexus between the act of printing the subversive pamphlets and the arrest thereby furnished — Circumstances in which detainee was arrested made D it clear that reason for his arrest was the printing of subversive pamphlets — Detainee accordingly knew why he had been arrested — His detention accordingly valid.

Headnote : Kopnota

The respondent's husband had been arrested by the second appellant purportedly in terms of reg 3 of the emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 and promulgated in Proc R96 E of 11 June 1987. The respondent had thereafter successfully applied to a Provincial Division for an order declaring the arrest to have been unlawful and directing the immediate release of the respondent's husband. In an appeal against such order it appeared that the second appellant had searched the premises of the respondent's husband (such premises being a printing works) and found 9 000 copies of a subversive pamphlet. The respondent's husband was confronted with the F subversive character of the pamphlets and his reaction was that he associated himself fully with the contents and supported the objectives set forth in the pamphlets. The second appellant thereupon arrested the respondent's husband in terms of reg 3 of the emergency regulations. In supporting the judgment of the Court a quo, respondent's counsel contended that the second appellant should have informed the G respondent's husband that the pamphlets were subversive and that he could be arrested for printing them.

1989 (2) SA p634

A Held, that there was no substance in such contention in the light of the particular circumstances of the case: the contention overlooked the fact that the respondent's husband had been caught red-handed (in flagrante delicto ) in the very act of printing subversive pamphlets which constituted a security risk during the prevailing state of emergency and that he had forthwith been confronted with their subversive character by the second appellant.

Held, futher, that the respondent's husband's arrest had been made B uno contextu with the confrontation, thereby furnishing the nexus between his act of printing subversive pamphlets and his arrest.

Held, accordingly, that the particular circumstances made it clear that the reason for his arrest was the act of printing the subversive pamphlets and in the circumstances the respondent's husband necessarily knew why he had been arrested: it followed that the respondent had not been entitled to the relief granted her by the Court a quo. Appeal allowed.

C The decision in the Cape Provincial Division in Parker v Minister of Law and Order and Others reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (Rose-Innes J). The facts appear from the judgment of Joubert JA.

D L J L Visser SC (with him J L U van der Hoven ) for the appellants referred to the following authorities: As to the approach of the Judge a quo to the evidence concerning the arrest, see Ngqumba and Others v State President and Others 1988 (4) SA 224 (A) at 259D - 263D; Nqumba and Others v State President and Others 1987 (1) SA 456 (E) at 475C; E 476B. As to informing the detainee of the 'cause of the arrest', Fredericks v Minister of Law and Order and Others (unreported ECD case No 615/86, delivered July 1986); Itsweng v Minister of Law and Order and Another (unreported TPD case No 127421/86, delivered on 16 July 1986); Suttner and Kubheka v State President and Others (unreported TPD case No 13500/86, delivered on 5 August 1986); State President and Others F v Tsenoli; Kerchhoff v Minister of Law and Order 1986 (4) SA 1150 (A) at 1185A - B, 1185H - 1186G; Nqumba's case supra at 468D, 469I and 470F - H; Muller and Smiles v Minister of Law and Order and Others (unreported ECD case No 1315/86, delivered on 6 November 1986); Peters v Minister of Law and Order and Others 1987 (4) SA 482 (NC) at 488H; G Parker v Minister of Law and Order and Others (unreported CPD case No 6696/87, delivered on 3 July 1987); Melisiwe Queen Shamase v State President and Others (unreported NPD case No 1788/87, delivered on 1 October 1987); Mokwena v State President and Others 1988 (2) SA 91 (T) at 93D - H, 96G - 97A; Peters' case supra at 485C, 486B - D, 488H - H 499F; Minister of Law and Order and Another v Swart (unreported Appellate Division case No 260/87, delivered on 29 September 1988 [*] ); Ngqumba's case (AD) supra at 263 et seq, 266C, 267B - D, 268C - D, 271F - G. As to whether the circumstances surrounding the arrest can be considered in determining whether the detainee was aware of the cause of I his arrest, see Naidoo and Another v Regina 1953 (2) PH H138 (N); R v Markoes 1929 CPD 41 at 43; S v Mateza 1981 (4) SA 342 (Tk) at 344C; Brand v Minister of Justice 1959 (4) SA 712 (A) at 718A - C; R v Ndara 1955 (4) SA 182 (A); S v Ngidi 1972 (1) SA 733 (N) at 735G - 736B, 736D - E; S v Dladlha 1975 (1) SA 762 (T)

1989 (2) SA p635

A at 764H - 765A; Macu v Du Toit en 'n Ander 1982 (1) SA 272 (C) at 274A - C, 275F - G, 275H - 276A, 277H - 278A; Minister van Wet en Orde v George 1985 (4) SA 390 (C) at 394G - H, 395B - C; Nqumba's case supra at 469F - H. As to whether 'other alternatives' to an arrest should have been considered, see Dempsey v Minister of Law and Order and Others 1986 (4) SA 530 (C); Nqumba's case supra at 470I - J, 472F - 473C; B Mhlom and Another v Minister of Law and Order and Others (unreported CPD case No 6056/87); cf as to the purpose of an arrest under s 40(1)(b) of the Criminal Procedure Act 51 of 1977, Tsose v Minister of Justice 1951 (3) SA 10 (A); Duncan v Minister of Law and Order and Others 1985 (3) SA 1 (A); Tsenoli's/Kerchhoff's case supra at 1185I; and as to the factors to be taken into account by the arresting officer in deciding whether C to make an arrest under reg 3(1), Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A) at 35D, 44A; Ngqumba's case (AD) supra at 250D - 254C.

P A L Gamble for the respondent referred to the following authorities: As to the correct approach by the Court to disputes of fact in motion proceedings, see United Technical Equipment Co (Pty) Ltd v D Johannesburg City Council 1987 (4) SA 343 (T) at 348C - D; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 524 (A) at 634E - 635C. As to the incidence of burden of proof on the issue of the lawfulness or otherwise of the arrest under reg 3(1) and the initial detention under reg 3(1), see Wood and Others v Ondangwa Tribal Authority and Others 1975 (2) SA 294 (A) at 309E; Mabaso v Felix 1981 (3) SA 865 (A) E at 873H - 874A; Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E - F; Kabinet van die Tussentydse Regering vir Suidwes-Afrika en 'n Ander v Katofa 1987 (1) SA 695 (A) at 730E - F and 739G - 740C. As to the proper approach to interpreting provisions such as reg 3(1) and whether there has been F compliance with the regulation, see Jaffer and Another v Minister of Law and Order and Others 1986 (4) SA 1027 (C) at 1035A - B; Katofa's case supra at 740G - 741B and 737C - D; Swart v Minister of Law and Order 1987 (4) SA 452 (C) at 472B - G; Momoniat v Minister of Law and Order and Others; Naidoo and Others v Minister of Law and Order and Others 1986 (2) SA 264 (W) at 227E - F; Hurley v Minister of Law and Order G 1985 (4) SA 709 (D) at 715G - J; Nkwinti v Commissioner of Police 1986 (2) SA 421 (E) at 439G - J and 426H - 427D. As to the requirements of a lawful arrest in terms of reg (1), see State President and Others v Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others 1986 (4) SA 1150 (A) at 1184G - H, 1185A - B, 1185H - 1186C, 1186D - H E; Abrahams v State President and Others (unreported decision of the CPD, given on 19 June 1987, under case No 9309/86); Muller and Smiles v Minister of Law and Order and Others (unreported decision of the ECD in case Nos 1315/86 and 1316/86); Peters and Others v Minister of Law and Order and Others 1987 (4) SA 482 (NC); Kerchhoff and Another v Minister I of Law and Order and Others (unreported decision of the NPD given in case No 1912/86); R v Mazema 1948 (2) SA 152 (E) at 154; R v Malindisa 1961 (3) SA 377 (T) at 380C; Wiesner v Molomo 1983 (3) SA 151 (A) at 158E - F; Nqumba and Others v State President and Others 1987 (1) SA 456 (E) at 468I - 469H; Steyn Uitleg van Wette 5th ed at 127; Du Plessis The Interpretation of Statutes at 68; S v Le Grange 1962 (3) SA 498 (A) J at 502H; S v Mapheele 1963 (2) SA 651 (A) at 655D - E; Hiemstra Suid-Afrikaanse Strafproses 4th

1989 (2) SA p636

A ed at 81; Van Zyl The Judicial Practice of South Africa 4th ed vol 1 at 207; Christie v Leachinsky (1947) AC 573 ([1947] 1 All ER 567 (HL)) at 587 - 8, 573B - F, 575A - 576A, 578H - 579E, 591 - 2, 600 - 1; R v Markoes 1929 CPD 41; Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 716; S v Ngidi 1972 (1) SA 733 (N); Minister van Wet en Orde v George 1985 (4) SA 390 (C) at 393. As to whether the detainee was B informed of the reasons for his arrest, see Nqumba's case supra at 469; Macu v...