Peters and Others v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Van Rhyn JP and Steenkamp J
• Judgment Date: 15 April 1987
• Citation: 1987 (4) SA 482 (NC)
• Hearing Date: 31 March 1987
• Court: Northern Cape Division

Van Rhyn JP:

I have read the judgment of Steenkamp J and agree E that the applications for leave to appeal should be dismissed.

I, however, find no merit at all in the argument that in State President and Others v Tsenoli ; Kerchhoff and Another v Minister of law and Order and Others 1986 (4) SA 1150 (A) the F learned Chief Justice did not consider the effect of the provisions of s 39(2) of the Criminal Procedure Act 51 of 1977 (namely the codified common law principle that an arrested person should immediately be informed of the cause of his arrest).

To me it is clear from the judgment of Rabie CJ that an arrest as provided for in reg 3(1) is not an arrest as contemplated in s 39 of the Criminal Procedure Act and that, if a person is G apprehended and informed that he is being detained under the regulation in question, it cannot be claimed that his detention is unlawful because he was not properly arrested.

The applications for leave to appeal are dismissed with costs H including the costs of two counsel.

Judgment

Steenkamp J:

The three applicants in this matter seek leave to appeal to the Appellate Division of the Supreme Court of South Africa against the judgment of this Court dismissing the applications of the applicants. The grounds of appeal are the following:

'(1)

The above honourable Court erred in dismissing the I applicants' application with costs; and/or

(2)

the above honourable Court erred in not granting applicants' application; and/or

(3)

the above honourable Court erred in finding (expressly or by implication) that it was not necessary for the J police to give factual

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A grounds or reasons to applicant why he is being apprehended; and/or

(4)

the above honourable Court erred when it found that applicants' arrest was not unlawful, invalid and ultra vires ; and/or

(5)

the above honourable Court erred in finding that an B arrest under the emergency regulations need not take place in accordance with the common law principles as codified in s 39 of the Criminal Procedure Act 51 of 1977; and/or

(6)

the above honourable Court erred in finding (expressly or by implication) that the Appellate Division of the Supreme Court has already found that an arrest and/or C apprehension under the emergency regulations need not take place in accordance with the common law principles as codified in s 39 of the Criminal Procedure Act 51 of 1977; and/or

(7)

the above honourable Court erred in finding that the arrest(s) and/or apprehension(s) was/were lawful and valid; and/or

(8)

D the above honourable Court wrongly applied the facts and dicta in the cases of State President and Others v Tsenoli ; Kerchhoff and Another v Minister of Law and Order and Others to the facts and principles of applicants' case; and/or

(9)

the above honourable Court erred in finding that the respondents had established and/or proved the E preconditions necessary for the valid and lawful exercise of a power to arrest applicant in terms of reg 3(1); and/or

(10)

the above honourable Court erred in finding that the arresting person did not fail in properly applying his mind when he/they found that applicants' arrest and F detention was necessary for the purposes contemplated by reg 3(1).'

The application was opposed by the respondents.

Mr De Jager, who appeared for the applicants, did not put forward any new argument. On the contrary, he repeated virtually verbatim the submissions of Mr De Villiers who had appeared for the applicants when this matter was first heard.

G The essence of the applicants' submission is that the arrests, the written orders for detention in terms of reg 3(1) and written notices ordering extension of the period of detention in terms of reg 3(3) were all unlawful, invalid and ultra vires the emergency regulations. It was submitted that the emergency regulations contain no definition of the concept H 'arrest' nor does the enabling statute contain any such definition. The term should, therefore, be interpreted in its ordinary meaning as applied in our legal system.

The ordinary and applied manner of arresting a person is prescribed by s 39 of the Criminal Procedure Act 51 of 1977 ('the Act'). Apart from the manner in which a person is I arrested, it is a well-established principle in our common law and in terms of the said section that a person arrested is to be informed as soon as practically possible of the cause of the arrest, if the arrest is carried out without a warrant, save in exceptional circumstances, which do not apply in the instant case.

It was further submitted that in the case of an arrest under J reg 3(1) the requirement is not met by simply informing the person concerned that he

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is arrested 'under the emergency regulations' or 'under reg A 3(1) of the emergency regulations'. In this regard this Court was invited to follow the case of Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 716. Brand's case was followed in Fredericks v Minister of Law and Order and Others (1986 ECD, unreported) in which it was held that a person arrested under s 50 of the Internal Security Act 74 of 1982 B ('the Security Act') must be informed of the cause of his arrest.

In Nqumba and Others v State President and Others 1987 (1) SA 456 (E) it was decided that the 'cause of arrest' is not properly explained to a person if it is merely mentioned to such a person that he is being arrested 'in terms of the emergency regulations'. At 469E - G Kannemeyer J stated his C views as follows:

'If any arrest under reg 3(1) is subjected to the provisions of the common law requirements of an arrest as codified in s 39 of Act 51 of 1977 two things are, in my view, clear. First, the intimation that the applicants were being arrested "in terms of the emergency regulations" did not, in the circumstances under which the various arrests were effected, amount to informing D the arrested person of the "cause of the arrest". It may indicate the authority for effecting the arrest but does not apprise the person concerned "in substance... why his liberty is being restrained". There may be circumstances under which the information, on arrest, that the arrest was being effected in terms of the emergency regulations may suffice. A person so arrested while addressing a proscribed meeting in inflammatory...