Nkwinti v Commissioner of Police and Others

• Jurisdiction: South Africa
• Citation: 1986 (2) SA 421 (E)

Nkwinti v Commissioner of Police and Others
1986 (2) SA 421 (E)

1986 (2) SA p421

Citation	1986 (2) SA 421 (E)
Court	Eastern Cape Division
Judge	Kannemeyer J, Smalberger J and Jennett J
Heard	October 1, 1985; October 17, 1985
Judgment	November 4, 1985

Flynote : Sleutelwoorde B

Internal security — Detention in terms of regulations made under s 3 (1) (a) of the Public Safety Act 3 of 1953 as contained in Proc R121 in Government Gazette 9877 of 21 July 1985 — Jurisdiction of Court not ousted by reg 11 (2) from C enquiring into legality of order, rule or notice under regulations — Court however bound by statement of arresting officer that he was of opinion that arrest was necessary for maintenance of public order.

Internal security — Detention in terms of regulations made under s 3 (1) (a) of Public Safety Act 3 of 1953 as contained in Proc R121 in Government Gazette 9877 of 21 July 1985 — D Regulation 3 (3) before amendment by Proc R207 of 31 October 1985 not excluding application of audi alteram partem principle — Detainee's detention extended in terms of reg 3 (3) and no opportunity given to make representations — Detention set aside notwithstanding that amendment made to regulation which excluded audi alteram partem principle with retrospective effect, where the amendment had taken place after issue had E been joined but before judgment granted.

Constitutional law — The State President — Powers, duties and functions — Section 19 (1) of Constitution Act 110 of 1983 requiring State President in regard to "general affairs" to act "in consultation with the Ministers who are members of F the Government" — Proclamation signed by State President and countersigned by Minister under words "By order of the State President-in-Cabinet" — Such meaning that State President acted in consultation with members of the Cabinet in terms of s 19 (1) (b).

Headnote : Kopnota

The applicant brought an application for the release of her G husband who had been detained under reg 3 of the regulations made in terms of s 3 (1) (a) of the Public Safety Act 3 of 1953 and as contained in Proc R121 published in Government Gazette 9877 of 21 July 1985. At the time of the hearing of the matter the applicant's husband was being detained in terms of reg 3 (2) in consequence of a written notice signed by the Minister, the initial period of detention of 14 days having expired. The respondents contended in limine that the jurisdiction of the H Court to hear the matter had been ousted by the provisions of reg 11 (2) which provided that:"No interdict or other process shall issue for the staying or setting aside of any order, rule or notice issued under these regulations or any condition determined thereunder, and no such order, rule, notice or condition shall be stayed on the grounds of an appeal against the conviction under these regulations." The Court took the view that any ouster provision which purported to curtail or I remove a Court's power to perform its important function of protecting the liberty of the subject had to be viewed with disquiet and only applied when its application was justified in law. The ouster created by reg 11 (2) could only apply if the order, rule or notice issued under the regulation was a lawful one. It did not prevent and could not be construed as preventing the Court from enquiring into the legality of the order, rule or notice.

The applicant based her application on a number of grounds, viz (1) that the declaration of the state of emergency by the State J President was a "general

1986 (2) SA p422

A affair" and as such the State President was required to act "in consultation with" and not "on the advice of" the Minister who are Ministers of the Government. The proclamation was signed by the State President and countersigned by the Minister of Law and Order whose signature appeared under the words "By order of the State President-in-Cabinet". Counsel contended that under the present Constitution (as brought about by the Republic of South Africa Constitution Act 110 of 1983) when it B came to "general affairs" the State President was required to apply his own and independent mind to the declaration of a state of emergency and the promulgation of appropriate regulations thereanent; (2) that the regulations in Government Notice R121 were made when no state of emergency had been declared in terms of the Public Safety Act - the state of emergency having been declared simultaneously with the C regulations - and that the jurisdictional fact necessary in terms of the Public Safety Act for the regulations to be made did not exist; (3) that the applicant's husband had been arrested by the sixth repondent who had not formed an opinion (as required by reg 3 (1)) that it was necessary for the maintenance of public order that he be detained and alternatively that no reasonable person properly and honestly applying his mind to all the relevant facts would have come to such a conclusion.

Held, as regards (1), that the State President was required to D act in consultation with the Cabinet and his executive act was in terms of Act 110 of 1983 to be contained in an instrument signed by him and countersigned by a member of the Cabinet and this was what in fact had been done: the words "By order of the State President-in-Cabinet" did not mean that the State President acted on the advice of the Cabinet but meant that he did so "in consultation with the Ministers who are members of the Cabinet" in terms of s 19 (1) (b) of Act 110 of 1983.

E Held, as regards (2), that the state of emergency came into existence and the regulations were made simultaneously and thus when the regulations were made a state of emergency existed: the objection to their validity could accordingly not be sustained on this ground.

Held, as regards (3), that the applicant had not made out a sufficient case in support of her contention that the sixth F respondent had not formed an opinion as required by the regulation and, as no mala fides on his part had been established, the Court was bound by his statement that he was of such an opinion and the Court could accordingly not interfere therein.

The Court, however, proceeded to examine whether the continued detention of the applicant's husband was lawful even though this matter had not been raised in the founding affidavit - the application having been brought before the expiry of the G initial 14-day period. The Court found that the applicant's husband was entitled to an opportunity to make representations before the Minister issued the order under reg 3 (3) which extended the period of his detention and, as he had not been afforded such an opportunity, the order was ultra vires and of no force or effect. Prior to the delivery of the judgment herein reg 3 (3) was amended expressly to preclude the operation of the audi alteram partem maxim. The Court H nevertheless held that the new reg 3 (3), despite its retrospective effect, did not apply to the present matter since it was promulgated after issue had been joined and argument had been heard. The application for the release of the applicant's husband was accordingly granted. I

Case Information

Application for the release of a detainee held under emergency regulations. The facts appear from the reasons for judgment.

I Mahomed SC (with him K Naidu) for the applicant.

J J Nepgen SC for the respondents.

Cur adv vult.

Postea (November 4). J

1986 (2) SA p423

Judgment

Kannemeyer J:

The applicant is the wife of Ernest Gugile A Nkwinti, hereinafter referred to as Nkwinti, who was arrested by the sixth respondent on 19 September 1985 at Port Alfred, purporting to act in terms of reg 3 of the regulations made in terms of s 3 (1) (a) of the Public Safety Act 3 of 1953, which are contained in Proc R121 published in Government Gazette 9877 B of 21 July 1985, and who was thereafter detained in terms of the said regulation, first at Alexandria, and subsequently at St Alban's prison, where he is still detained. His present detention is in consequence of a ministerial notice issued in terms of reg 3 (3) operative after the initial period of 14 days' detention authorised by reg 3 (2) had expired. Reference C to the notice will again be made later in this judgment.

Regulation 3 (1), (2) and (3) read:

"(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 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, D detain, or cause to be detained, 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 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 E arrested and detained in terms of ss (1) be detained in that prison during the further period mentioned in the notice."

By notice of motion dated 30 September 1985 the applicant applied for:

"A rule nisi calling upon the abovenamed respondents to show cause on a date to be determined by the above honourable Court why an order in the following terms shall not be made:

(a)

F Declaring that:

(i)

the arrest of the applicant's husband, Ernest Gugile Nkwinti ('the detainee'), by the sixth respondent on 19 September 1985 purportedly under the provisions of reg 3 (1) of Proc R121 of 21 July 1985 (published under Government Gazette 9877) is wrongful, G unlawful and of no force and effect in law;

(ii)

the detention of the said detainee at any prison controlled by or falling...