Omar and Others v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Munnik JP, Vivier J and Friedman J
• Judgment Date: 20 December 1985
• Citation: 1986 (3) SA 306 (C)
• Court: Cape Provincial Division

Vivier J:

The applicants are all being detained pursuant to the provisions of reg 3 (3) of the emergency regulations promulgated by Proc R121 in Government Gazette 9878 of 21 July 1985 in terms of s 3 (1) (a) of the Public Safety Act 3 of 1953 ("the Act"). This means that they have all been detained by B Ministerial order beyond the initial 14 days' detention.

The applicants originally applied for an order in the following terms:

"1.

Granting leave that this application be heard as a matter of urgency in terms of Rule 6 (12) (b).

2.

Ordering that the respondents release the applicants C from custody at Victor Verster Prison forthwith:

3 (i)

declaring that the detainees are entitled as of right to access to their legal advisers and that the consent of the first and/or fifth respondents is not required for such access;

(ii)

declaring that the detainees are entitled as of right to access to their medical practitioners and D that the consent of the first and/or fifth respondents is not required for such access;

(iii)

declaring that reg 3 (3) and 3 (10) of R120 of 1985, as amended, and rules 5 (1), (2), (3) and (7), 20 (3) and 21 (2) are invalid, unlawful and unenforceable in that they are ultra vires the empowering provisions of s 3 of E Act 3 of 1953, and on the further grounds set out in para 15 of the affidavit of Michael Joseph Richman filed herewith.

4.

The respondents should be ordered to pay the costs of these proceedings in the event of their opposing this application.'

First respondent is the Minister of Law and Order ("the F Minister"). Second respondent is the Minister of Justice. Third respondent is the Officer Commanding, Victor Verster Prison. Fourth respondent is the State President. Fifth respondent is the Commissioner of Police.

At the hearing of the application Mr Chaskalson, who appeared on behalf of the applicants, informed us that, in view of certain disputes of fact which had arisen on the affidavits, G his clients no longer claimed an order in respect of access to their medical practitioners, so that the following two main issues remained for determination: Firstly whether reg 3 (3) was ultra vires the powers given to the State President in the Act and secondly, whether reg 3 (10), in purporting to deprive a detainee of his right of access to his legal adviser, was H similarly ultra vires the powers conferred on the State President in the Act.

In order to deal with these issues it is necessary to refer in some detail to the relevant provisions of the Act and the regulations. Section 2 (1) of the Act provides that the State President may by proclamation declare a state of emergency in I the whole Republic or in a particular area, whenever in his opinion, it appears that either the action by any person or body of persons in the Republic seriously threatens the safety of the public or the maintenance of public order (para (a)), or circumstances have arisen in the Republic which have that effect (para (b)) and "the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public or to maintain public order" (para (c)). Section 2 (2) J provides that no such proclamation of a state of emergency shall remain in force for more than 12 months, provided that another state

Vivier J

of emergency may be proclaimed in respect of the same area at A or before the expiration of the said period of 12 months. In terms of ss 2 (3) the State President may at any time withdraw any proclamation. Section 3 (1) (a) of the Act empowers the State President to make emergency regulations. It provides as follows:

'3 (1) (a) The Governor-General in any area in which B the 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 C have arisen or are likely to arise as a result of such emergency.'

Section 3 (4) provides that whenever a person is detained for a period of longer than 30 days pursuant to a regulation made under ss (1) providing for his "summary arrest and detention", the Minister must lay his name on the Tables of both Houses of D Parliament: if Parliament is then in ordinary session this must be done within 14 days of the expiration of the 30 days' detention aforesaid and, if Parliament is not then in ordinary session, it must be done within 14 days after the commencement of its next ensuing ordinary session. Section 3 (5) provides that every regulation made by the State President shall be laid on the Tables of both Houses of Parliament within certain E specified times. In terms of s 3 (6) every regulation made by the State President under ss (1) shall cease to be of force and effect if it is not approved by both Houses of Parliament.

On 26 October 1985 the State President declared a state of emergency in the areas in question. This was done in terms of s 2 (1) (b) and (c) of the Act. On the same date the emergency F regulations of 21 July 1985 were extended to these areas by Proc R201. Regulation 3 (1), 3 (2) and 3 (3), as amended with retrospective effect by Proc R207 of 31 October 1985, read 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 G 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 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 H 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 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.'

I should, at the outset, deal with Mr Chaskalson's submission I that reg 3 (3) must be construed as meaning that only an oral hearing is excluded before an order for further detention is issued by the Minister. On such a construction a detainee would still have the right to make written representations, which would mean that the audi alteram partem rule is not excluded and the validity of the regulation is not affected. As to the sufficiency of written representations for purposes of the audi alteram partem rule, see Winter and Others v J Administrator-in-Executive Committee

Vivier J

A and Another 1973 (1) SA 873 (A) at 889D. Mr Chaskalson, however, seemed doubtful about the correctness of this submission in view of the wording of reg 3 (3) and, in my view, there is no justification for giving the word "hearing" in reg 3 (3) such a restrictive interpretation. In the context in B which the word is there used it seems to me that no hearing of any kind, and no representations of any kind are contemplated. This means a total exclusion of the audi alteram partem rule. That this is what the State President intended is clear from what he says in his affidavit. The question is whether the State President was empowered by the Act to exclude C the maxim. It is not in dispute that the applicants were not given any opportunity to make representations before the Minister ordered their further detention in terms of reg 3 (3).

In accordance with well established principles of our law, the Court's approach to the question whether the State President could exclude the audi alteram partem rule should be as follows: One begins with a presumption that a statute such as D the present impliedly enacts that the audi alteram partem rule is to be observed and, because there is a presumption of an implied enactment, the implication will stand unless the clear intention of Parliament negatives and excludes the implication. (Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at 489C-D.)

As STRATFORD ACJ pointed out in Sachs v Minister of Justice; E Diamond v Minister of Justice 1934 AD 11 at 38, the question whether the audi alteram partem rule applies must fundamentally be answered by reference to the Act, and that:

'Sacred though the maxim is held to be, Parliament is free to violate it. In all cases where by judicial interpretation it has been invoked, this has been justified on the ground that the enactment impliedly incorporated it. When on a true F interpretation of the Act the implication is excluded, there is an end to the matter.'

See also R v Ngwevela 1954 (1) SA 123 (A) and Winter's case supra at 888G-889C.

The question whether a detainee is entitled to a hearing before the Minister orders his further detention in terms of reg 3 (3) G has been the subject of two recent conflicting decisions of the Full Bench of the Eastern Cape Division. In the first of these, Nkwinti v Commissioner of Police and Others, an unreported judgment delivered on 4 November 1985, J [*] it was held that neither the Act nor the regulations contained any indication of an intention to exclude the audi alteram partem rule. When that matter was heard, reg 3 (3) had not yet been H amended to its present form, and simply empowered the Minister to order the further detention of a detainee by written notice addressed to the head of the prison. It was not contended that Nkwinti had the right to be heard...