Nqumba and Others v State President and Others

• Jurisdiction: South Africa
• Judge: Kannemeyer J, Jennett J and Jones J
• Judgment Date: 04 September 1986
• Citation: 1987 (1) SA 456 (E)
• Court: Eastern Cape Division

Kannemeyer J:

These four matters involve applications for the release of seven persons detained in terms of regs 3(1) and G 3(3) of the regulations contained in Proc R109 of 1986 promulgated in terms of s 3(1)(a) of the Public Safety Act 3 of 1953 ('the Act') and other relief. The relief sought in the various cases is as follows:

In cases M1173/86, MI 174/86 and 1175/86 an order is sought that:

'1.

The matter is dealt with as one of urgency in terms of Rule 6(12);

2.

H regs 3(1) and 3(3) of the emergency regulations proclaimed in Government Gazette 10280 of 12 June 1986 are declared invalid;

3.

the arrest of each of the applicants is declared unlawful;

4.

the detention of each of the applicants is declared unlawful;

5.

the third respondent is directed to secure the release of each of the applicants from custody forthwith;

6.

I alternatively to 2, 3, 4 and 5,

the third respondent is directed to furnish his written reasons for the continued detention of the applicants within four days of service of any order made herein and to hear and consider submissions made thereafter by the J applicants for the termination of their detention;

Kannemeyer J

7.

the third respondent is ordered to pay the costs of A this application.'

In cases 1174/86 and 1175/86 an order is also sought requiring the provision of adequate bedding facilities and adequate and suitable food for the various applicants. For reasons which will appear later in this judgment the need for these orders has fallen away.

In case 1221/86 the relief claimed is similar to that in case B 1173/86 but the basis upon which it is sought is confined to the submission that reg 3(1) is ultra vires the powers of the State President as contained in s 3(1)(a) of Act 3 of 1953.

It must also be mentioned that in case M1174/86 the first applicant applies for the release of his minor son Gareth C Damons. In this judgment I shall refer to Gareth Damons as one of the applicants.

The matters were all set down for hearing together, as matters of urgency, as it was understood, before the papers became available, that the sole question that would be in issue was whether regs 3(1) and 3(3) were ultra vires the provisions of s 3(1)(a) of the Act. It was apparent that it would be necessary D to determine whether the judgment of the Full Bench of the Durban and Coast Local Division in Tsenoli v State President and Others [*] case No 4988/86 delivered on 8 August 1986, declaring the regulations in question ultra vires, should be followed. The learned Judge President decreed that the matters E should be heard by a Full Bench of this Division.

When argument was heard it became apparent that other legal issues, concerning both the validity of the regulations and the validity of the arrests of various of the detainees were being placed in issue in three of the applications. While the matters were being argued before us, judgment of the Full Bench of the F Natal Provincial Division in Kerchhoff and Another v The Minister of Law and Order and Others (case No 1912/86) [*1] was delivered, in which the decision in the Tsenoli case supra was not followed and reg 3(1) was held to be intra vires the powers conferred upon the State President by the Act.

We are aware that the judgment in the Tsenoli case is on appeal to the Appellate Division [*2] but, as all the matters heard by us G concern the freedom of the respective detainees, we consider it our duty to deal with the matters without the benefit of the Appellate Divisions judgment, particularly in view of the fact that matters not dealt with in the Tsenoli case also fall to be decided by us.

Mr De Villiers, for the applicants in the first three cases, did H I not commence his argument by submitting that regs 3(1) and 3(3) were ultra vires the powers of the State President. His argument in the main was directed towards an attack on the validity of the action taken against the various applicants assuming the validity of the regulations themselves. He dealt with the validity of the regulations thereafter. In my opinion this is not the logical order to adopt in the present cases. The primary point is whether regs 3(1) and 3(3) are intra vires or not; if not, cadit quaestio ; an enquiry as to the validity of the action taken as opposed to that of the validity of the regulations themselves would become a work of supererogation.

Kannemeyer J

A Thus I intend to consider the validity of the regulations themselves, which, in its turn, involves a consideration of the effect of the ouster provision contained in s 5B of Act 3 of 1953 as inserted by s 4 of Act 67 of 1986. Section 3(1)(a) of Act 3 of 1953 provides that:

'The State President may in any area in which the existence of a state of emergency has been declared under s 2, and for so B long as the proclamation declaring the existence of such emergency remains in force, by proclamation in the Gazette, make such regulations as appear to him to be necessary or expedient for providing for the safety of the public, or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency.'

It was in terms of this section that regs 3(1) and 3(3) were C promulgated. They read, with the inclusion of reg 3(2) for the sake of completeness, as follows:

'3 (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 D a written order signed by any member of a Force, 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, without notice to any person and without hearing any person, by written notice signed by him and E addressed to the head of a prison, order that any person arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in the notice, or for as long as these regulations remain in force.'

Section 5B of Act 3 of 1953, introduced by s 4 of Act 67 of 1986, reads:

'No interdict or other process shall issue for the staying F or setting aside of any proclamation issued by the State President under s 2, any regulation under s 3, any notice issued by the Minister under s 4 or 5A(1) or (2) or any regulation made under s 5A(4), and no court shall be competent to enquire into or give judgment on the validity of any such proclamation, notice or regulation.'

The present enquiry relates to the validity of a regulation made by the State President purporting to act in terms of the G powers granted to him by s 3 of the Act. The Court, as appears above, is precluded from inquiring into the validity of a regulation 'made under s 3'. Non constat that a Court is precluded from inquiring into the question as to whether the regulation is one authorised by the section for, if it is not so authorised, it is not made under it. In my view there is H ample authority for this proposition. Authorities in this regard are collected at p 4 of the yet unreported judgment of Kroon J in Bishop of the Roman Catholic Church of the Diocese of Port Elizabeth and Another v Minister of Law and Order and Three Others (ECD) case No 1101/86. In Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) the I effect of s 29(6) of the Internal Security Act 74 of 1982 fell to be considered. This section provided that:

'No court of law shall have jurisdiction to pronounce upon the validity of any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section.'

The judgment of the learned Chief Justice makes it clear that J action J which is not authorised by the section cannot be said to have been taken

Kannemeyer J

in terms of it, and that the ouster does not preclude a finding A that the action is invalid for that reason.

Mr Van der Merwe for the respondents attempted to counter the effect of the judgment in the Hurley case Supra by pointing out that the section there in question referred to actions taken 'in terms of this section'. (The Afrikaans version is B 'ingevolge hierdie artikel.') The ouster clause contained in s 5B of the Public Safety Act of 1953 precludes a court from enquiring into or giving judgment on the validity of '... any regulation made under s 3...'. (In Afrikaans 'kragtens art 3'.) He submitted that there was an important difference between the expressions 'in terms of', 'ingevolge' on the one hand and 'under', 'kragtens' on the other. He sought support C for this submission by referring to Caganoff v Zacks 1917 TPD 334 in which it was held that the word 'under' was not synonymous with 'in accordance with'. In my view the questions in issue in that case are distinguishable from the questions presently being considered. As Mr De Villiers pointed out, the D learned Chief Justice in Hurley's case supra said:

'This being so, it is obvious that the meaning of the words "in terms of" is a question of vital importance.'

In considering the meaning of these words he found support for his view as to their meaning in the judgments of Rumpff JA and Trollip JA in Schermbrucker v Klindt NO 1965 (4) SA 606 (A) where s 17 of Act 37 of 1963 was under consideration. Section E 17 (1) of that Act provided for the arrest and detention of persons under certain circumstances. Section 17 (2) provided F that 'No person shall...