Momoniat v Minister of Law and Order and Others; Naidoo and Others v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Coetzee DJP, Goldstone J and Heyns J
• Judgment Date: 31 December 1985
• Citation: 1986 (2) SA 264 (W)
• Hearing Date: 20 December 1985
• Court: Witwatersrand Local Division

Goldstone J:

On 21 July 1985, acting under the provisions of s 2 (1) of the Public Safety Act 3 of 1953 ("the Act"), the State F President, by proclamation in the Government Gazette declared a state of emergency to exist in a number of magisterial districts within the Republic. On the same date and in the same Government Gazette, the State President by further proclamation, in terms of s 3 (1) (a) of the Act, made regulations applicable in the aforesaid magisterial districts. G For convenience I shall refer to those regulations as "the emergency regulations".

Regulation 3, as originally promulgated, contained the following provisions:

"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 H 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 detain, any such person in 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 I Minister in terms of subreg (3).

(3)

The Minister may by written notice signed by him and addressed to the head of a prison order that any person arrested be detained in terms of ss (1) be detained in that prison during the further period mentioned in the notice."

Subsequently, by proclamation dated 31 October 1985, ss (3) was substituted by the following:

"(3)

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

Goldstone J

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

The new subsection was in terms of the proclamation deemed to have come into operation on 21 July 1985.

B Pursuant to reg 3 (1) each of the 13 applicants were arrested and detained. Eleven of them have been in custody since July 1985 and the remaining two since September 1985. After they had been detained for 14 days, the Minister of Law and Order, in terms of reg 3 (3), by written notice, ordered their further detention until such time as the emergency regulations are withdrawn or until it pleased him to release them.

C The applicants contend that their detention is unlawful on the ground that reg 3 (3) is invalid and of no force or effect and on that account they seek their immediate release from custody. Twelve of the applicants joined together in one application and the thirteenth brought a separate application. D By agreement, and for convenience, the two applications were heard together. The same counsel appeared for all 13 applicants whilst different counsel appeared for the respondents in each application.

The applications originally came before the Court on Tuesday, 17 December 1985. Similar applications had been heard by the Full Court of the Eastern Cape Division and the Cape Provincial E Division of the Supreme Court. In the former case the application for the release of the detainees had been dismissed. In the latter case judgment had not yet been delivered. In those circumstances and after discussion with COETZEE DJP, in terms of s 13 (3) of the Supreme Court Act 59 of 1959, the hearing of the applications was discontinued and they were referred for hearing to a Full Court of this F Division. That Court was convened and heard argument on Friday 20 December 1985. The argument advanced on behalf of the applicants may be briefly stated. The provision for the detention of persons for as long as the emergency regulations are in force, ie for up to 12 months (s 2 (2) of the Act), without provision for representations to be made by such G persons to the Minister of Law and Order renders invalid that regulation and the detention orders issued pursuant thereto.

It is common cause that when the Minister issued the notices for the continued detention of the applicants, and at no time thereafter, were they informed of any facts or circumstances by H reason of which the Minister may have ordered such continued detention and they were and have not been afforded any opportunity of making representations to the Minister concerning their continued detention.

In Nkwinti v Commissioner of Police and Others, an as yet unreported judgment of the Full Court of the Eastern Cape I Division delivered on 4 November 1985, J [*] it was held that under the original reg 3 (3) a person arrested under reg 3 (1) was entitled to an opportunity of making representations to the Minister before he issued an order extending the period of such person's detention. That decision was based upon the finding that the original reg 3 (3) did not expressly or impliedly exclude the audi alteram partem principle.

Goldstone J

It would appear that it was in consequence of the application A made in the Nkwinti case that reg 3 (3) was substituted by a provision which, it is common cause, in effect does expressly exclude the audi alteram partem principle. Hence the present attack upon the substituted reg 3 (3).

It is necessary to consider, firstly, the statutory provision in terms whereof reg 3 (3) was made by the State President. It B is to be found in s 3 (1) (a) of the Act and reads as follows:

"(1) (a)

The Governor-General may in any area in which the existence of a state of emergency has been declared under s 2, and for as long as the proclamation declaring the existence of such emergency remains in force, by proclamation in the Gazette, make such regulations as appear to him to be necessary or expedient for providing for the safety of C the public, or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency."

In so far as the new reg 3 (3) was made to be retrospective, the power to do that is expressly conferred upon the State D President by s 3 (2) (b) of the Act.

It is necessary also to have regard to the following further provisions to be found in s 3 of the Act:

"(4)

Whenever any regulation made under ss (1) provides for the summary arrest and detention of any person, and any person is, in pursuance of such a regulation detained for a period of longer than 30 days, the E Minister shall, within 14 days of the expiration of such period of 30 days, if Parliament is then in ordinary session, or if Parliament is not then in ordinary session, within 14 days after the commencement of its next ensuing ordinary session, lay the name of such person on the Tables of both Houses of Parliament.

(4)bis

Whenever any regulation made under ss (1) provides for the summary arrest and detention of any person, and any person has been arrested in pursuance of such a regulation, he may be detained under that F regulation at any place within the Union, whether such place be within or outside the area in which the existence of the state of emergency has been declared under s 2, and any regulation made under ss (1) of this section and any order, rule or by-law made under any such regulation and which relates to the detention of any person arrested in the said area or to the place of detention of such a person, shall in relation to the G detention of such a person at a place outside the aforesaid area, apply at and in relation to the place where such person is detained as if that place were within the aforesaid area.

(Subsection (4)bis inserted by s 31 of Act 62 of 1955.)

(5)

Any regulation made under ss (1) shall be laid on the Tables of both Houses of Parliament within 14 days after promulgation thereof if Parliament is then in ordiniary session, or if Parliament is not then in ordinary session, H within 14 days after the commencement of its next ensuing ordinary session, and shall remain on the said Tables for at least 28 consecutive days, and if Parliament is prorogued before the necessary 28 days have elapsed, such regulation shall again be laid on the said Tables as aforesaid within 14 days after the commencement of its next ensuing ordinary session.

(6) (a)

If such regulation is not approved in both Houses of I Parliament by resolution passed in the same session (being a session during which such regulation has been laid on the Tables of both Houses of Parliament in terms ss (5)) such regulation shall cease to be of force and effect -

(i)

as from the date of any resolution of either House of Parliament disapproving thereof to the extent of such disapproval, or

(ii)

as from the date on which Parliament is prorogued at the end of any session during which such regulation has been on the Tables of both Houses of Parliament for J at least 28 days;

Goldstone J

A whichever is the earlier date.

(b)

The provisions of para (a) are without prejudice to the validity of anything done in terms of such regulation or any provision thereof up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such regulation or such B provision thereof."

The form of words used in s 3 (1) to confer powers to make regulations upon the State President, ie "as appear to him to be necessary or expedient", are by no means peculiar to the Act. They were used in the British Emergency Powers (Defence) C Act 1939. In that regard, SCOTT LJ said this in R v Comptroller-General of Patents; Ex parte Bayer Products Ltd [1941] 2 All ER 677 at 682:

"The effect of the words 'as appear to him to be necessary or...