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
• Citation: 1987 (3) SA 859 (A)

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
1987 (3) SA 859 (A)

1987 (3) SA p859

Citation	1987 (3) SA 859 (A)
Court	Appellate Division
Judge	Rabie ACJ, Joubert JA, Viljoen JA, Hoexter JA and Boshoff AJA
Heard	March 3, 1987
Judgment	June 26, 1987

Flynote : Sleutelwoorde

Internal security — Detention in terms of reg 3(3) of C emergency regulations made under s 3(1)(a) of Public Safety Act 3 of 1953 as promulgated in Proc R121 of 21 July 1985 — Regulation 3(3) — Validity of — Wide discretion conferred by s 3(1)(a) of Act on State President — Not open to Court to substitute its assessment of what would be D necessary or expedient to achieve purposes mentioned in section for that of State President — But exercise of those powers by State President open to attack if he did not apply his mind to the matter, did not act bona fide or did not exercise such powers for purposes mentioned in section — Regulation 3(3) cannot be said not to be related to such E purposes — Although it is a drastic provision, it cannot, in view of wording of s 2(1)(c) of Act, be said to be so grossly unreasonable that Parliament could not have intended to authorise it — Exclusion of audi alteram partem rule in reg 3(3) likewise falling within State President's power and State F President not having acted improperly in doing so.

Internal security — Detention in terms of reg 3(3) of emergency regulations made under s 3(1)(a) of Public Safety Act 3 of 1953 as promulgated in Proc R121 of 21 July 1985 — Regulation 3(10)(a) and rule 5(1) and (3) of rules published under reg 3(9)(a) — Validity of — Such regulation and rules, insofar as they apply to legal advisers, cannot be said G not to be related to purposes mentioned in s 3(1)(a) of Act — Not ultra vires on that ground — Nor could it be said that State President did not apply his mind to the matter or that reg 3(10)(a) and rule 5(1) and (3) are so unreasonable that they cannot have been authorised by the Act — Must be taken to be implied in rule 5(1) that leave to a detainee to H see a lawyer can be refused only on grounds related to the emergency.

Internal security — Detention in terms of reg 3(3) of emergency regulations made under s 3(1)(a) of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Order by Minister for further detention of a detainee becomes effective immediately and is a final order — No obligation I on Minister to inform detainee of grounds on which order was made and, thereafter, to reconsider order if representations made by detainee — Regulation 3(3) in its effect a very harsh provision — Having regard, however, to very wide powers conferred on State President by s 3(1)(a) of Act, it cannot be said that reg 3(3) is ultra vires — Such J conclusion not

1987 (3) SA p860

A meaning, however, that detainee not entitled to make written representations concerning such detention after his further detention ordered — But Minister not obliged to furnish him with grounds upon which order made.

Headnote : Kopnota

The power which s 3(1)(a) of the Public Safety Act 3 of 1953 B (concerning the making of regulations in connection with a state of emergency) confers on the State President to make regulations for the achievement of the purposes stated in the section is a most extensive one and is a power not only to make such regulations as he considers to be necessary for those purposes but also to make such regulations as appear to him to be expedient for achieving the said purposes. The test of what is expedient is obviously a less stringent one than that of C what is necessary. This illustrates how wide the discretion is which the Act confers on the State President. It is clear from the terms of the section that the State President is empowered to make such regulations for achieving the purposes mentioned in the section as appear to him, ie in his subjective judgment, to be necessary or expedient. It follows from this that it is not open to a Court, when considering a regulation, to substitute its assessment of what would be necessary or expedient to achieve the purposes mentioned in the D section for that of the State President and to hold that the regulation is invalid because the State President could, in its judgment, have dealt with the matter in issue in another, less harsh way. This does not mean, of course, that the exercise by the State President of the powers conferred upon him by the Act is immune from attack. It need hardly be said that he must apply his mind to whatever matter may be in issue, that he must act bona fide and that he must exercise the powers conferred on him by s 3(1)(a) of the Act for the purposes mentioned in the section.

E Having regard to the fact that the Act confers upon the State President the power to decide on the means and methods to be adopted to achieve the purposes mentioned in s 3(1)(a) of the Act, it cannot be said that reg 3(3) of the emergency regulations made under s 3(1)(a) of the Act as promulgated in Proc R121 of 21 July 1985 (Government Gazette 9877 of 21 July 1985) (which regulation (reg 3(3)) provides that '(T)he Minister may, without notice to any person and without hearing any person, by written notice signed by him and addressed to F 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') is not related to the said purposes and accordingly it cannot be held that reg 3(3) is ultra vires on the grounds that it is unrelated to the tenor and policy of the Act and served none of the purposes mentioned in s 3(1)(a) of the Act.

G There is no doubt that reg 3(3) of the said emergency regulations is a drastic provision. However, when proper regard is had to the fact that the regulation was made as an emergency measure which was to be of application in an emergency situation in which - to use the words of s 2(1)(c) of the Act - 'the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public or to maintain public order', it cannot be said that the regulation is so grossly unreasonable as to justify the conclusion that H Parliament could not have intended to authorise it.

Even though the audi alteram partem rule embodies a fundamental right and that a subordinate legislator - such as the State President in this case - cannot deprive the subject of such a right unless he has expressly, or by necessary implication, been empowered by the enabling statute to do so, reg 3(3) is an emergency measure that was intended to apply in an emergency situation as referred to in s 2(1)(c) of the Act, and it falls I within the power given to the State President to make such regulations as appear to him to be necessary or expedient to achieve the ends mentioned in s 3(1)(a) of the Act.

Whilst it is clear from the affidavits filed in the present case that the State President realised that there might be individual cases where the exclusion of the audi alteram partem rule would not be necessary, the State President's decision nevertheless to make reg 3(3) in the form that he did does not J show that he acted improperly in that he did not properly apply his mind to the matter in issue or that he had regard to

1987 (3) SA p861

improper or irrelevant considerations or that he acted with A gross unreasonableness. The State President could reasonably have thought that in view of the emergency situation seen as a whole it would be advisable to authorise the Minister to exclude the audi alteram partem rule in all cases, ie whenever the Minister considered that it should be done. Regulation 3(3) cannot be held to be invalid on the ground that the State President acted improperly in making it. (Hoexter JA dissented insofar as he held that reg 3(3) goes no further than to deny a detainee the right to be heard prior to the Minister's order B for the detainee's further detention, but that the detainee still had the right to make representations to the Minister after the order and that the Minister was legally obliged to consider such representations.)

Regulation 3(10)(a) of the aforesaid emergency regulations and rule 5(1) and (3) of the rules published under reg 3(9)(a), limiting a detainee's right of access to a legal adviser except with the consent and subject to the conditions referred to in C the regulation and rules, cannot be said not to be related to the purposes mentioned in s 3(1)(a) of the Act and cannot therefore be held to be ultra vires on the ground. Having regard to the affidavits filed in the present case, it cannot be said that the State President, in making reg 3(10)(a), and the Minister of Justice, in publishing the said rules, failed properly to apply their minds to the matter or that they acted with gross unreasonableness and it cannot be said that the regulation and rules in question are so unreasonable that they D cannot be held to have been authorised by the Act. (Hoexter JA dissented, holding that reg 3(10)(a) and rule 5(1) and (3) were, insofar as they made access by a detainee to his lawyer dependent on permission by others, ultra vires the powers of the State President and the Minister of Justice respectively.)

Rule 5(1) of the aforesaid rules published by the Minister of Justice contemplates that leave may be asked by a detainee to E see his legal adviser and, although the rule does not expressly state on what grounds leave may be granted or refused, it must be taken to be implied that it can be refused only on grounds which are related to the emergency.

The order which the Minister makes when, in terms of reg 3(3) of the emergency regulations made under s 3(1)(a) of the Public...