Radebe v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Goldstone J
• Judgment Date: 07 July 1986
• Citation: 1987 (1) SA 586 (W)
• Hearing Date: 04 July 1986
• Court: Witwatersrand Local Division

Goldstone J:

On 12 June 1986, acting under the provisions of s 2(1) of the Public Safety Act 3 of 1953 ('the Act') the State President by proclamation in the Government Gazette declared a state of emergency to exist throughout the Republic. On the same date and in the same Government Gazette the State F President by further proclamation in terms of s 3(1)(a) of the Act made regulations. For convenience I shall refer to those regulations as 'the emergency regulations'.

Regulation 3(1), (2) and (3) read as follows:

'3 (1)

A member of a force may, without warrant of arrest, arrest, or cause to be arrested, any person whose G 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, by 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)

H 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.'

'Force' is defined in reg 1 as meaning the South African Police, the South African Railway Police, the South African Defence Force and the Prison Service.

On 15 June 1986 Mr Theophilus Mashiyane was detained by a member or members of the South African Police. The detention purported to have been made in terms of reg 3(1). On 22 June J 1986 the Minister of Law and Order, ie the first respondent, issued a written

Goldstone J

notice under reg 3(3) which purports to authorise the further A detention of Mashiyane for as long as the emergency regulations remain in force.

The applicant describes herself as the girlfriend of Mashiyane and says that she has been such for the past four years. She is a student at the University of the Witwatersrand and is in her B third year of study for a degree in Social Science. She lives at the Glyn Thomas Residence for Black Students. The applicant seeks an order declaring the detention of Mashiyane to be unlawful and an order setting aside such detention and an order for his release forthwith.

The Minister of Justice is cited as the second respondent and the costs of the application are sought against both C respondents.

Not one of the factual allegations made by the applicant is placed in issue by the respondents. Those allegations in so far as they are now relevant read as follows:

'6.

Mashiyane is 26 years old. He has been employed by World Wide Television News (WTN) as a sound-man since D approximately June 1985.

...

9.

On the night of his arrest Mashiyane was spending the night with me at Glyn Thomas House.

10.

At 3 o'clock in the morning when I and Mashiyane were fast asleep I heard a loud knocking on the door. Mashiyane did not hear the knocking. He suffers from defective hearing as a result of an injury inflicted at the hands of the police.

11.

I got up and peered through the window and saw four E uniformed men standing outside. I opened the door and let the visitors in. They turned out to be two policemen and two policewomen.

12.

The policewomen then rummaged in my locker and among my personal belongings seizing certain items. Their ultimate haul consisted of

12.1

one audio cassette holder with 32 audio cassettes therein;

12.2

six loose audio cassettes;

12.3

F one Release Mandela campaign calendar;

12.4

one placard with the face of Winnie Mandela thereon...

13.

Save for the cassette holder and cassettes the items seized by the police belonged to me.

14.

All but one of the cassette tapes contained music. This one contained singing and slogans recorded by Mashiyane at two funerals in Uitenhage in the course of his employment as a G sound-man with WTN.

15.

One of the policemen then caught sight of a writing pad bearing the initials ABC. These initials stand for the American Broadcasting Company, an associate company of WTN. The initials immediately aroused the attention of the policeman in question who asked me and Mashiyane who had contacts with ABC. Mashiyane told him that he worked for WTN, an associate company of ABC.

16.

At that point a person in a balaclava hat came into the room. I do not know whether he was a policeman or not. Be H that as it may, he said to the other policemen that he, meaning Mashiyane, was a foreign correspondent.

17.

Without any further ado Mashiyane was ordered to dress, pack a few clothes and toiletries and go with the police. They said they wanted a few words with him. He duly went with them and I have not seen him since.

...

22.

Insofar as Mashiyane's background and character is concerned I can positively assert that since I have known I him

22.1

he has not been involved in any unlawful activities or organisations;

22.2

he is a shy and retiring person who would not in any event do anything to provoke or antagonise the authorities.'

The applicant alleges that in all the circumstances the detention of Mashiyane cannot be justified by any legitimate J purpose countenanced by

Goldstone J

A the emergency regulations and that it must have been actuated by bad faith.

It is not necessary to refer to the allegations made in the supporting affidavits of colleagues of Mashiyane, on behalf of his employer and by his mother. Suffice it to say that they are corroborative of the general allegations concerning Mashiyane which are made by the applicant.

B The only affidavit filed by the respondents on the merits is that of Warrant Officer Frederick Cornelius Zeelie. He is stationed at the security branch of the South African Police at Soweto. He states that he is the official who detained Mashiyane on 15 June 1986. He goes on to state that:

(1)

C in his bona fide opinion, at that time, the detention of Mashiyane was necessary for the purposes set out in reg 3(1);

(2)

prior to 15 June 1986 he did not know Mashiyane at all. He harbours no grudge against Mashiyane. Insofar as the applicant alleges that he acted in bad faith he denies it; and

(3)

D he has been advised that in the light of the contents of the regulations it is not necessary to answer further in relation to the documents filed by the applicant and he therefore does not do so.

Those then are the facts and circumstances upon which I must decide whether the detention of Mashiyane is lawful or unlawful.

E Jurisdiction of the Court

Regulation 16(3) contains what is now commonly referred to as an ouster clause. It reads as follows:

'No interdict or other process shall issue for the staying or setting aside of any order, rule or notice issued under these regulations or any condition determined thereunder and no such order, rule, notice or condition shall be stayed on the grounds F of an appeal against a conviction under these regulations.'

In Minister of Law and Order and Others v Hurley and Another, an as yet unreported judgment of the Appellate Division delivered on 22 May 1986 [*], Rabie CJ considered the effect of the ouster clause contained in s 29(6) of the Internal Security Act 74 of 1982. It is there provided that:

'(6)

G 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 issue in that case was the validity of a detention order under s 29(1) of the Act. In effect, from pp 40 to 53 of the H typed judgment the learned Chief Justice explained why the ouster clause does not preclude the Courts from enquiring into the legality of actions taken under the Act. At 52 and 53 (586G-I of the report) the learned Chief Justice said:

'The Court will, as I have indicated, be entitled to enquire whether the officer concerned had reasonable grounds for his belief that the person whom he arrested was a person as described in s 29(1) - reasonable grounds being grounds on I which he could reasonably have held the belief he did. The Court will, however, be precluded by s 29(6) from...