Nkwentsha v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Citation: 1988 (3) SA 99 (A)

Nkwentsha v Minister of Law and Order and Another
1988 (3) SA 99 (A)

1988 (3) SA p99

Citation	1988 (3) SA 99 (A)
Court	Appellate Division
Judge	Rabie ACJ, Van Heerden JA, Hefer JA, Grosskopf JA and Vivier JA
Heard	February 23, 1988
Judgment	March 30, 1988

Flynote : Sleutelwoorde

Internal security — Detention in terms of reg 3(1) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Detainee not precluded by C reg 3(10) from giving viva voce evidence in Court — Rule 6(5) (g) of Uniform Rules of Court containing implied power in Court to grant an order to produce a prisoner in Court to give viva voce evidence — In any event, being a purely procedural matter, power to grant such an order is authorised under the Court's inherent jurisdiction to regulate its procedure in the interests of the proper administration of justice D — Court accordingly competent to grant an order that detainee appear personally before it for the purpose of giving viva voce evidence.

Headnote : Kopnota

A detainee, who has been detained in terms of reg 3(1) of the emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as E promulgated in Proc R109 of 1986 and published in Government Gazette 10280 of 12 June 1986, is not precluded by reg 3(10) of the emergency regulations from giving viva voce evidence in Court.

Rule 6(5)(g) of the Uniform Rules of Court is of wide import and empowers the Court, whenever an application cannot properly be decided on affidavit, to 'make such order as to it seems meet with a view to ensuring a just and expeditious decision'. The Court is further F empowered 'in particular, but without affecting the generality of the aforegoing', to direct that oral evidence be heard on specified issues, and to that end the Court 'may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed'. The power to grant an order to produce a prisoner in Court to give viva voce evidence is impliedly contained in Rule 6(5)(g). It is a purely procedural matter, and such power is in any event authorised under the Court's inherent jurisdiction to regulate its procedure in the interests G of the proper administration of justice.

The Court accordingly held that it was competent for the Supreme Court to grant an order that a person detained in terms of the emergency regulations appear personally before it for the purpose of giving viva voce evidence in Court.

The decision in the Eastern Cape Division in Nkwentsha v Minister of Law and Order and Another reversed. H

Case Information

Appeal from a decision in the Eastern Cape Division (Eksteen J). The facts appear from the judgment of Vivier JA.

P A M Magid SC (with him T L Skweyiya) for the appellant (the heads of argument having been prepared by H Shakenovsky SC and T L Skweyiya): I This appeal raises the question of the Court's powers in terms of Rule 6(5)(g) of the Uniform Rules of the Supreme Court to order a person, detained in terms of reg 3 of the regulations made in terms of s 3(1)(a) of the Public Safety Act 3 of 1953, contained in Proc R109 published in Government Gazette 10280 of 12 June 1986 (hereinafter referred to as 'the emergency regulations'), to appear personally before it for the J purpose of giving viva voce evidence. Consideration of the above

1988 (3) SA p100

A question in turn involves the interpretation of reg 3(10) of the emergency regulations. The sole issue for decision by this Court in this matter is whether reg 3(10) precludes a Court from ordering a detainee to appear personally before it for the purpose of giving viva voce evidence in circumstances where the point in issue is the legality of his (the detainee's) detention. B

Through the centuries the Courts in democratic countries have jealously guarded the rights of the individual to his liberty and their own jurisdiction in respect of such matters. Katofa v Administrator-General for SWA and Another 1985 (4) SA 211 (SWA) at 220J - 221E where Levy J summarises all the authorities. The provisions C of reg 3(10) do not oust the jurisdiction of the Courts to protect detainees and, indeed, the Courts have a duty to protect them by appropriate relief. Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618C and 623F - G; Ngxale v Minister of Justice of the Ciskei 1981 (2) SA 554 (E) at 557F. The Court's duty includes protecting detainees against D any unlawful detention where the detainee challenges the lawfulness of his detention and this involves ensuring that the detainee is given every opportunity of proving the unlawfulness of his detention, including making an appropriate order to enable such detainee to appear personally before it for the purpose of giving viva voce evidence. Regulation 3(10) does not preclude the Court, when it deems it necessary, from ordering viva voce evidence by a detainee held in terms E of reg 3 of the emergency regulations. There is nothing in reg 3(10) which expressly or by necessary implication precludes a Court from requiring a detainee to appear personally before it for the purpose of giving viva voce evidence in appropriate circumstances. There is a presumption that the Legislature does not wish to interfere with the F Judicature. Steyn Uitleg van Wette 3rd ed at 79; Maxwell Interpretation of Statutes 11th ed at 79. While it is possible to encounter an Act that takes away the right of a person to make an approach to the Courts to redress a wrong, such a result can be achieved only in the clearest language. Further, it is a well-recognised rule in the interpretation of statutes and it has been stated in various cases that: 'The curtailment G of the powers of a Court of law is, in the absence of an express or clear implication to the contrary, not to be presumed.' Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618A; Lenz Township Co (Pty) Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A) at 455A - C; R v Padsha 1923 AD 281 at 304. For the meaning of the word 'access', see Theron v Theron 1939 WLD at 361. A reasonable construction can be given to the word H 'access' by excluding the notion that the Court has 'access' to a detainee when such person is brought before the Court to be examined or to give evidence. It is not in consonance with the ordinary connotation of the word, nor with the dignity of the Court, to say that the Court has 'access' to a witness when he appears before it to give evidence. In circumstances where, as in the present case, the issue is the lawfulness I of the detention of a detainee, fairness and justice require that the detainee be allowed to appear personally before the Court to give viva voce evidence when this becomes necessary. To hold otherwise presupposes that the detention is lawful. Schermbrucker v Klindt NO (supra at 622G and 626M - 627A). The Court a quo erred in finding that the decision in Schermbrucker v Klindt NO (supra) is authority for refusing to permit a J detainee to appear personally

1988 (3) SA p101

A before it for the purpose of giving viva voce evidence in the circumstances of the present case. The Schermbrucker case is distinguishable from the present. Although the issue in that case was whether the Court could in terms of Rule 9(a) of the Transvaal Rules of Court order that a person who was being detained under the provisions of s 17 of the General Law Amendment Act 27 of 1963 be brought before it B for the purpose of giving viva voce evidence, it was common cause between the parties in that case that the detention of the said person was lawful, whereas in the present case the very point in issue is the lawfulness of the detention; the purpose of s 17 (which was to induce a detainee to speak and to give information about terroristic activities (Rossouw v Sachs 1964 (2) SA 551 (A))) is different to that of the C emergency regulations, the latter being aimed at the detention of any person who may pose a threat to the maintenance of public order and/or the safety of the public or of that person himself or for the termination of the state of emergency. Accordingly, the Court a quo erred in finding that it was precluded from ordering that the detainee D be brought to Court for the purpose of giving viva voce evidence.

The interpretation given by the Court a quo to reg 3(10) has the effect of denying the appellant's husband (the detainee) access to the Court where the very issue is the legality of the detainee's detention. The right of access to the Courts, like the right of access to one's legal representative, is a basic or fundamental common law right. Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D - G; Omar and E Others v Minister of Law and Order and Others 1986 (3) SA 306 (C) at 316J. The clearest language in the enabling statute is required to abolish this right. R v Slabbert and Another 1956 (4) SA 18 (T) at 21H; Mandela's case supra at 959G - H. Regulation 3(10), in purporting to deprive a detainee of his right of access to the Courts, is ultra vires F the powers conferred on the State President by s 3(1) of the Public Safety Act 3 of 1953, alternatively it is void for uncertainty or vagueness. Courts of law scrutinise with the greatest care statutes which give the Executive the power to invade the rights and liberties of the individual. They can and do intervene when someone, adversely affected by such legislation, challenges it on the basis of it being G ultra vires. R v Pretoria Timber Co (Pty) Ltd and Another 1950 (3) SA 163 (A) at 181G - 182B. If the legislation is reasonably capable of more than one meaning, a Court will give it the meaning which least interferes with the basic common law rights of the individuals. The regulations made by the State President under s 3(1)(a) of the Public Safety Act 3 of 1953 amount to subordinate...