Nkondo and Others v Minister of Law and Order and Another; Gumede and Others v Minister of Law and Order and Another; Minister of Law and Order v Gumede and Others

• Jurisdiction: South Africa
• Judge: Rabie CJ, Trengove JA, Hoexter JA, Botha JA and Van Heerden JA
• Judgment Date: 20 March 1986
• Citation: 1986 (2) SA 756 (A)
• Hearing Date: 18 February 1986
• Court: Appellate Division

Rabie CJ:

This judgment is concerned with three appeals which B were argued in this Court on the same day. The judgments given by the Courts a quo in the three matters, which came before them by way of urgent applications, have all been reported. See (1) Nkondo and Others v Minister of Law and Order C and Another 1985 (2) SA 720 (W); (2) Gumede and Others v Minister of Law and Order 1985 (2) SA 529 (N) and (3) Gumede and Others v Minister of Law and Order and Another 1984 (4) SA 915 (N). The issue in the first and third of these cases was the validity of notices which the Minister of Law and Order, purporting to act in terms of s 28 (1) of the Internal Security Act 74 of 1982, had caused to be served on the various D applicants. In both these cases an order setting aside the notices and ordering the release of the applicants from detention was sought. (The second respondent in these cases was the member of the Prison Service who was in charge of the prison in which the applicants were detained.) In the second case the applicants challenged the validity of notices which E the Minister had issued under the provisions of s 28 (1) of the Act, but which had not yet been served on the persons for whom they were intended. The order sought in that case was that the notice be set aside.

The applicants in the first and third cases have long since been released from detention, but it remains necessary to decide whether the notices which were issued in those cases F - and also the notices in the second case - were validly issued and, depending on the outcome of the appeals, to make appropriate orders as to costs.

Section 28 (1) of the aforesaid Act reads as follows:

"28 (1) Notwithstanding anything to the contrary in any law or G 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 in s 54 (1), (2) or (3);

(b)

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 has reason to suspect that a particular person H 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 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 I 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."

Subsection (2) of the section provides that a notice issued under ss (1) shall be deemed to be a warrant as referred to in s 27 (2) (e) of the Prisons Act 8 of 1959 and that the person to whom the notice relates "shall be detained, in accordance with the provisions of regulations made by the Minister of J Justice, in the prison in question for the period during which

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A the notice is in force". Section 28 (3) (a) provides that a copy of a notice issued by the Minister under s 28 (1) is to be delivered or tendered by a police officer to the person concerned, and that it "shall serve as a warrant for his arrest and removal to the prison in question... by that police officer." The copy of the notice that is served on a person has to be accompanied by a written statement by the Minister as B provided for in ss (3) (b) of s 28, which reads as follows:

"(3) (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 to issue the notice in question as can, in the opinion of the Minister, be disclosed C without detriment to the public interest."

Subsection (9) of the section provides that a person who has been detained by virtue of a notice issued by the Minister m y make representations and submit information to the Minister. It reads as follows:

"(9) Any person detained by virtue of the provisions of ss (2) may at any time within a period of 14 days as from the date upon which the copy of the notice in question, referred to in ss (3), was delivered or tendered to him, make representations D in writing to the Minister relating to his detention or release, and may within the said period in writing submit to the Minister any other information relating to the circumstances of his case."

Subsection (10) provides that the Minister may at any time withdraw a notice issued by him in terms of ss (1).

The statements by the Minister which accompanied the notices in E issue in the first and second case mentioned above were, save for the names of the persons concerned, all in the same terms. They read as follows:

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

(a)

Reason for the detention of (name of person) in accordance with a notice issued in terms of s 28 (1) of the Internal F Security Act 1982:

I am satisfied that the said (name of person) 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 (name of person) did 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 G maintenance of law and order.

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

The statements in issue in the third case were the same as in the first and second case, save that they did not contain the final sentence thereof, viz "No other information can, in my opinion, be disclosed without detriment to the public H interest."

Mr Mahomed, who appeared for the appellants in the first two appeals and for the respondents in the third appeal - ie for all the persons against whom notices of detention were issued by the Minister - attacked the notices issued by the Minister on several grounds. The first of these grounds - a ground which pertains to all three of the appeal - is that I the statement by the Minister which accompanied each of the notices issued by him did not comply with the provisions of s 28 (3) (b) and that the notices were accordingly invalid. Counsel for the Minister conceded that, if the Minister's statement which accompanied the notices did not comply with the requirements of s 28 (3) (b), the notices would be invalid. The concession was, in my opinion, rightly made. Section 28 (1) J confers very wide powers on the Minister. He can, under para (b) of s 28 (1) - the

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paragraph in issue in this case - order the detention of a A person if, in his judgment, that person is a person as described in the said paragraph, and it is to be noted that he can issue such an order without first giving the person concerned an opportunity of answering accusations that might have been made against him. That no duty of audi alteram partem rests on the Minister appears clearly, in my opinion, from the B opening words of s 28 (1), and also from the fact that s 28...