Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Joubert JA, Viljoen JA, Hoexter JA and Boshoff AJA
• Judgment Date: 26 June 1987
• Hearing Date: 03 March 1987
• Court: Appellate Division

Rabie ACJ:

These three appeals were heard on the same day and can conveniently be dealt with in the same judgment. All three of the cases are concerned with the detention of persons in pursuance of regulations made by the State President in terms of the Public Safety Act 3 of 1953. The judgments given in the Courts below in the first and third of the cases have been G reported: see Omar and Others v Minister of Law and Order and Others 1986 (3) SA 306 (C) and Bill v State President and Others 1987 (1) SA 265 (W).

On 21 July 1985 the State President, acting in terms of s 2(1) of the aforesaid Public Safety Act 1953 (hereinafter referred to as 'the Act'), declared, in Proc R120 of 1985, the existence H of a state of emergency in a number of areas, including those in which the detainees in Fani's case resided. On the same date the State President, acting in terms of the powers vested in him by s 3(1)(a) of the Act, issued Proc R121 of 1985, [*1] which contained regulations which were to apply in the said areas. On 26 October 1985, in Proc R200 of 1985, the State President, acting in terms of s 2(1) of the Act, declared the existence of I a state of emergency in a further number of areas, and the next day, in Proc R201 of 1985, he declared that the aforesaid regulations would also apply in these other areas as from 26 October 1985. One of these areas was the magisterial district of the Cape, in which the applicants in Omar's case resided.

Rabie ACJ

Section 2 of the Act (reading 'State President' for A 'Governor-General' and 'Republic' for 'Union') provides as follows:

'2(1) If in the opinion of the State President it at any time appears that -

(a)

any action or threatened action by any persons or body of persons in the Republic or any area within the Republic is of such a nature and of such an extent that the safety of the public, or the maintenance of public order is seriously B threatened thereby; or

(b)

circumstances have arisen in the Republic or any area within the Republic which seriously threaten the safety of the public, or the maintenance of public order, and

(c)

the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or to maintain public order, he may, by proclamation in the Gazette, declare that, as from a date mentioned in the proclamation which date may be a date not more than four days earlier than the date of the proclamation, a state of emergency exists within the Republic or within such area, C as the case may be.

(2) No proclamation issued under ss (1) shall remain in force for more than 12 months: Provided that nothing in this subsection contained shall be construed as precluding the issue of another proclamation in respect of the same area at or before the expiration of the said period of 12 months.

(3) The State President may at any time and in like manner D withdraw any proclamation issued under ss (1).'

The declaration of a state of emergency by the State President by Proc R120 of 1985 read as follows:

'Whereas in my opinion it appears that circumstances have arisen in the areas mentioned in the schedule which seriously threaten the safety of the public and the maintenance of public E order, and the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public and to maintain public order,

Therefore I, in terms of s 2(1) of the Public Safety Act 3 of 1953, hereby declare that as from 21 July 1985 a state of emergency exists within the areas mentioned in the Schedule.'

The declaration of a state of emergency by Proc R200 of 1985 was in the same terms as those contained in Proc R120 of 1985, F save that the emergency was declared to exist as from 26 October 1985.

Section 3(1)(a) of the Act empowers the State President to make regulations in an area in which a state of emergency has been declared. It provides as follows (reading 'State President' for 'Governor-General'):

'3(1)(a) The State President may in any area in which the G existence of a state of emergency has been declared under s 2, and for as 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.'

Regulation 3 of the regulations which were of application at H the time of Fani's case and Omar's case read, insofar as relevant, 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 a written order signed by any member of a Force, detain I 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 J hearing any person, by written notice signed by him and addressed to the head of a prison, order that any

Rabie ACJ

A 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.

.........

(9)(a) The Minister of Justice may make rules to regulate the detention of persons in terms of this regulation.

.........

B (10) No person, other than the Minister or a person acting by virtue of his office in the service of the State -

(a)

shall have access to any person detained in terms of the provisions of this regulation, except with the consent of and subject to such conditions as may be determined by the Minister or the Commissioner of the South African Police; or

(b)

shall be entitled to any official information relating to C such person, or to any information of whatever nature obtained from such person.'

Subregulation (3), in the form quoted above, was substituted for the subregulation as originally promulgated by Proc R207 of 1985 (dated 31 October 1985), which made the new subregulation retroactive to 21 July 1985 in the case of the regulations D promulgated by Proc R121 of 1985, and to 26 October 1985 in the case of the regulations promulgated by Proc R201 of 1985. The State President is empowered to make regulations with retrospective effect by s 3(2)(b) of the Act. Regulation 3(3) as originally promulgated did not contain the words 'without notice to any person and without hearing any person', nor the words 'or for as long as these regulations remain in force'.

E The Minister of Justice, acting in terms of reg 3(9)(a), made certain rules relating to the detention of persons detained in terms of the regulations. Rule 5(1) and (3) of these rules (which were published in Government Notice 2483 of 26 October 1985) provided as follows:

'5(1) No person detained under the regulations shall during his F detention be visited by any person, except with the permission of the person in command of the prison in question, acting with the concurrence of the Commissioner of the South African Police or any person acting on his authority: Provided that if a legal representative desires to visit such a detainee, the permission of the Minister of Law and Order or the Commissioner of the South African Police shall be obtained for such a visit.

(2)...

(3) The person in command of the prison shall ensure that no G physical contact takes place between the detainee and a visitor and that the interview between the detainee and the visitor takes place within sight and hearing of a member of the Prisons Service.'

Fani's case was an earlier case than Omar's case, but it will be convenient to deal with the latter case first.

Omar's case

H The applicants in this case (now the appellants) were arrested during the last week of October 1985 in terms of reg 3(1) of the aforesaid regulations. Thereafter, during the first week of November 1985, the Minister of Law and Order (hereinafter referred to simply as 'the Minister'), acting in terms or reg 3(3), ordered that they be further detained for as I long as the regulations remained in force. It is common cause that they were not notified of the Minister's intention to order their further detention and, also, that they were not given a hearing of any kind before their further detention was ordered. They contended in the Court a quo, as they did in this Court, that reg 3(3) was ultra vires the powers of the State J President and that their detention was, therefore, invalid. They contended, also,

Rabie ACJ

that reg 3(10) and rule 5 were invalid. As to the latter A contention, it should perhaps be said that the appellants were not, in fact, denied access to their attorney. Their complaint was that they had to ask for permission to see him. They also complained about having to consult with him within sight and hearing of a member of the Prisons Service as provided for in rule 5(3). As a result of their objection, they were allowed to consult with the attorney within sight, but B not within hearing, of a member of the Prisons Service.

Before dealing with the argument that reg 3(3) was ultra vires the powers of the State President, I should say that counsel's first argument regarding this regulation was that it merely relieved the Minister of the obligation to give a person whom C he intended...