Nkondo and Others v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Nestadt J
• Judgment Date: 10 September 1984
• Citation: 1985 (2) SA 720 (W)
• Hearing Date: 09 September 1984
• Court: Witwatersrand Local Division

Nestadt J:

This is an application, brought and argued yesterday as a matter of urgency, for an order that the respondents forthwith release the eight applicants from detention at the H New Johannesburg Prison. Each are, and have been since 21 August 1984, in detention under the authority of a notice issued by the first respondent in terms of s 28 of the Internal Security Act 74 of 1982. The application is based on the contention that the notices are invalid.

I Section 28, insofar as it is presently relevant, provides:

"Detention of certain persons in a prison in order to prevent commission of certain offences or endangering of security of State or of maintenance of law and order:

(1)

Notwithstanding anything to the contrary in any law or the common law contained, the Minister may:

(a)

if in his opinion there is reason to apprehend that a particular person will commit an offence referred to J in s 54 (1), (2) or (3);

Nestadt J

(b)

A if he is satisfied that a particular person engages in activities which endanger or are calculated to endanger the security of the State or the maintenance of law and order or that he propagates or promotes or is likely to propagate or promote such activities; or

(c)

if he had reason to suspect that a particular person who has been convicted of an offence specified in Schedule 2, engages or is likely to engage in activities which endanger or are calculated to B endanger the security of the State or the maintenance of law and order, or propagates or promotes or is likely to propagate or promote such activities,

by a written notice signed by him and addressed to a member of the Prisons Service, as defined in s 1 of the Prisons Act 8 of 1959, who is in charge of a prison referred to in s 20 (1) (a) of the said Act, direct that the said person be detained in that prison.

(2)

A notice referred to in ss (1) shall be deemed to be a warrant referred to in s 27 (2) (e) of the Prisons Act 1959, and the person to whom the notice relates shall be detained, in accordance with the provisions of regulations made by the Minister of Justice, in the prison in question for the period during which the notice is in force.

(3)(a)

A copy of the notice referred to in ss (1), signed by the Minister or certified by any officer acting under D his authority to be a true copy, shall be delivered or tendered by a police officer to the person concerned and shall serve as a warrant for his arrest and removal to the prison in question (if he is not already in detention in the said prison) by that police officer;

(b)

a copy referred to in para (a) shall be accompanied by a written statement by the Minister setting forth the reasons for the detention of the person concerned and so much of the information which induced the Minister E to issue the notice in question as can, in the opinion of the Minister, be disclosed without detriment to the public interest."

In the case of each of the applicants, the notices are in the same terms. They provide for detention in prison until 28 February 1985. The first respondent's written statement, provided for in s 28 (3) (b), reads:

"Statement by the Minister of Law and Order in terms of s 28 F (3) (b) of the Internal Security Act 74 of 1982.

(a)

Reason for the detention of Ephraim Curtis Nkondo in accordance with a notice issued in terms of s 28 (1) of the Internal Security Act 1982:

I am satisfied that the said Ephraim Curtis Nkondo engages in activities which endanger the maintenance of law and order.

(b)

Information which induced me to issue the said notice:

By acts and utterances the said Ephraim Curtis Nkondo did G himself and in collaboration with other persons attempt to create a revolutionary climate in the Republic of South Africa thereby causing a situation endangering the maintenance of law and order."

(I have quoted from the notice relating to first applicant.)

In fact, the notices in these terms, by the time the matter H came to be argued, had been rendered academic (save possibly in relation to the question of costs) because, after the application had been prepared, and more particularly in the early hours of Sunday morning, 8 September 1983, there was served on each applicant a fresh notice, issued under s 28 (1). By consent they, or rather one, typical of them, was placed before me. They are in identical terms to the earlier ones, I save for the addition of the following sentence, in the form of a new paragraph, at the end of the statement:

"No other information can, in my opinion, be disclosed without detriment to the public interest."

It is therefore clear, and was accepted by Mr Mahomed, on their behalf, that applicants are now being detained in custody in J terms, not of the original notices, but of the later ones. Counsel's approach was

Nestadt J

however, that the contention of invalidity applied to these as A well. On behalf of respondents, Mr Streicher, in opposing the application, was content to allow the matter to proceed on this basis. Whilst not disputing that, if the notices were invalid, the applicants would be entitled to their release, his submission was that neither set were other than...