N and Another NO v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Munnik JP, Baker J and Vivier J
• Judgment Date: 06 December 1985
• Citation: 1986 (3) SA 921 (C)
• Hearing Date: 23 October 1985
• Court: Cape Provincial Division

Vivier J:

This is an application for an order declaring that the first applicant's detention under s 50 (2) of the Internal F Security Act 74 of 1982 ("the Act") is unlawful and that she be immediately released from detention. The application was launched on 23 October 1985. Subsequent thereto, on 29 October 1985, the first applicant was released from detention, so that only the question of costs remains in issue.

First applicant is a 15-year-old, std 7 schoolgirl at the A School. Second applicant is her father who lives with his G family at an address stated in the papers. First respondent is the Minister of Law and Order ("the Minister"). Second respondent is the Commissioner of the South African Police. Third respondent is the Divisional Commissioner of Police for the Boland. Fourth respondent is Mr P A Lourens, the assistant magistrate at M ("the magistrate").

H At 5.30 am on Wednesday 16 October 1985 the first applicant was taken by the police from her home to the A charge office, where she was questioned by Lieutenant Neethling, a detective in the South African Police, and then arrested by him in terms of s 50 (1) of the Act. Some two hours later the magistrate issued a warrant for first applicant's further detention in I terms of s 50 (2) (b) of the Act, and first applicant was detained at Pollsmoor Prison pursuant thereto until her release on 29 October 1985.

The facts and circumstances leading to first applicant's arrest and detention, insofar as they are relevant to a decision of the issues in this case, are the following. According to the founding affidavits school boycott activities as part of the J current state of unrest started at first applicant's school on about 20 August 1985, and from 3 September 1985 until her arrest no normal classes were conducted at the school. During

Vivier J

this time demands were made by pupils at the school who A indicated that they were not prepared to attend classes in what they perceived as an unjust educational system. The applicants' case was that no single pupil or group of pupils was responsible for the schools boycott, but that this took place pursuant to a decision taken by the whole body of pupils. During the week ending 6 September 1985 a Students' B Representative Council was elected by the pupils at the school. First respondent was also elected as a member. On Friday, 6 September 1985, schools in the Western Cape under the jurisdiction of the Department of Education and Culture were officially closed and were re-opened on 1 October 1985. The boycott of classes at first applicant's school, however, C continued. On 4 October 1985, Mr F, the school principal, telephoned second applicant and told him that first applicant should be advised to resign from the SRC. Second applicant discussed the matter with first applicant who refused to resign on the ground that "she had a duty towards the pupils in these difficult times and that she would be failing in her duty and D be regarded as a coward and a sell-out if she left the SRC".

From the applicants' own affidavits it is clear that in the days which followed the state of unrest at the first applicant's school worsened. On 9 October 1985 the SRC organised a march to the A school, some two to three kilometres away. Five hundred pupils took part in the march. Some scholars carried placards. The first applicant states that she was not E aware of what was written on the placards, but in an affidavit filed on behalf of the respondents, Detective-Sergeant Coetzee of the South African Police, stationed at A, states that he personally seized placards on which appeared slogans of an inciting nature and insulting to the State President. Coetzee stated that stones were thrown by some pupils at police vehicles when the police confronted the pupils and ordered them F to disperse.

Two incidents of intimidation at her school during this time, one before 9 October 1985 and the other on 15 October 1985, are mentioned by first applicant in her affidavit. On both occasions pupils in favour of the school boycott used a water hose to get children out of their classes. On the last occasion two cars parked at or near the school were smashed. First G applicant states that she had nothing to do with any of these activities, and that she is unaware of any SRC activities at the school after the aforesaid march.

Neethling states in his affidavit that his information was that no decision had been taken by the pupils as a whole to boycott classes, but that only a group of pupils, including the SRC, H was responsible for the boycott, and that other pupils at the school were being incited and intimidated to support the boycott. His information was that first applicant took an active part in organising the boycott. He obtained an affidavit from a responsible and reliable person to the effect that first applicant, amongst others, had addressed the pupils urging them I to boycott classes and not to write examinations. This resulted in pupils boycotting classes and others being prevented by intimidation from attending classes. According to his information the boycott would continue unless, amongst others, the first applicant was detained and thus prevented from going to the school. Neethling states that he told first applicant that the reason for her arrest was that she had been involved in the movement to boycott classes and to stay away J from the end-of-year examinations.

Vivier J

A Neethling's affidavit concerning conditions generally is supported by what is stated by Coetzee in his affidavit. Coetzee says that, being stationed at A, he has first-hand knowledge of conditions there. Since 20 August 1985 incidents of unrest, violence and intimidation have occurred regularly at B the school in question and in A itself there have been numerous incidents of unrest and public violence. He is the investigating officer in all the cases arising from these incidents.

The magistrate states that at 9.15 am on 16 October 1985, Neethling made an application before him in terms of s 50 (2) (b) of the Act for a warrant for the further detention of first C applicant. The application was supported by an affidavit deposed to by Neethling on 16 October 1985, in which he stated that he had received information on oath the previous day that the conduct of certain persons, including that of first applicant, contributed to the continuation of a state of public disturbance and disorder existing at A and that the detention D of these people would contribute towards the termination or combating of that state of public disturbance and disorder. In the alternative their detention would contribute towards the prevention of the resumption of that state of public disturbance and disorder. The magistrate sets out the information which had been submitted to him in Neethling's affidavit in some detail, including that first applicant had E been involved in persuading pupils at the school not to attend classes and not to write examinations.

The magistrate states that on the ground of the above information he was of the opinion that first applicant's further detention was justified and the said warrant was accordingly issued.

Mr Nicholson, who appeared on behalf of the applicants, F submitted firstly that the warrant issued by the magistrate was invalid and of no force and effect on the ground that first applicant had not been afforded a hearing or at least an opportunity to make representations to the magistrate before he issued the warrant for first applicant's further detention, in other words that the audi alteram partem rule had not been observed.

G There is no express provision in s 50 for a prospective detainee to state his case. It is obvious, however, that under circumstances such as the present the audi alteram partem rule will ordinarily by implication apply. The implication that the maxim should apply operates unless, on a proper construction of H the particular enactment in issue, the clear intention of the Legislature negatives and excludes the implication. See Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) where RUMPFF JA put it thus at 489C - D:

"One begins with a presumption that the kind of statute referred to impliedly enacts that the audi alteram partem rule is to be observed, and, because there is a presumption of an I implied enactment, the implication will stand unless the clear intention of Parliament negatives and excludes the implication."

In Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 STRATFORD ACJ said at 38:

"Fundamentally the argument advanced (that the audi alteram partem rule applied), must be answered by reference to the Act. Sacred though the maxim is held...