S v Baleka and Others

• Jurisdiction: South Africa
• Judge: Eloff Djp, Preiss J and Stegmann J
• Judgment Date: 07 October 1985
• Court: Transvaal Provincial Division
• Hearing Date: 29 September 1985
• Citation: 1986 (1) SA 361 (T)

Stegmann J:

The 22 applicants have joined to make a single application on notice of motion supported by affidavits for their release on bail. They have been indicted for treason and on five counts of murder. Alternative to the charge of treason J are three counts of contravening s 54 (1) of the Internal Security Act 74 of 1982 (terrorism) or s 54 (2) of that

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Act (subversion). Treason, terrorism and subversion are all A offences referred to in Schedule 3 of the Internal Security Act.

The 22 accused are to be tried together on 16 October 1985. It is estimated that the trial will take many months, and perhaps more than a year.

The application is opposed by the State. An opposing affidavit B by the Attorney-General and a supporting affidavit by the investigating officer, Captain Kruger, have been filed. The Attorney-General's affidavit identifies a document annexed thereto as a copy of the record of a similar application for bail made by the 22 applicants to the magistrate's court, C Pretoria.

We are called upon to deal with three questions, or groups of questions, that have arisen in the course of this application, and on which the parties have, in terms of counsel's arguments, joined issue.

The first question is whether the applicants, having already applied for bail in the magistrate's court, have any right to D bring the present application in this Court. This question appears to me to be partly procedural in nature and partly a question as to the jurisdiction of this Court to entertain this application. I shall refer to it as the procedural and jurisdictional question. If the applicants fail on that question, the second and third questions do not arise.

If, on the other hand, the applicants have shown that they are E entitled to succeed on the procedural and jurisdictional question, the second and third questions that then arise are both related to the State's attempt to show that the Attorney-General has validly issued orders under s 30 (1) of the Internal Security Act 74 of 1982 to the effect that the applicants may not be released on bail; and that the Court is F consequently precluded by s 30 (2) (a) from releasing the applicants on bail. These sections read as follows:

"30 (1)

Whenever any person has been arrested upon a charge of having committed any offence referred to in Schedule 3, the Attorney-General may, if he considers it necessary in the interests of the security of the State or the maintenance of law and order, issue an G order that such person shall not be released on bail or on warning as contemplated in the Criminal Procedure Act 51 of 1977.

(2) (a)

Notwithstanding the provisions of any other law, but subject to the provisions of ss (3), no person shall be released on bail or on warning contrary to the provisions of an order issued under ss (1)."

Subsection (3) empowers the Attorney-General to withdraw any H order issued under ss (1).

The second question is really a group of questions incorporating two questions of law and a question of fact relating to the "issue" of an order under s 30 (1). The first question of law in this group is whether s 30 (1) implies that I the prior arrest of the accused on a charge referred to in Schedule 3 of the Internal Security Act is a pre-condition that must be fulfilled before the Attorney-General is empowered validly to issue an order in terms thereof. In other words, if the Attorney-General should issue such an order before the arrest of the person concerned on such a charge, would the order be invalid at the time of its issue, and subsequently remain invalid on and after the arrest of the person concerned? That legal question has been answered by a Full Bench of the J Natal

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A Provincial Division in the case of S v Ramgobin and Others 1985 (3) SA 587 (N). It was there held that the prior arrest of the accused on such a charge is a jurisdictional fact which must exist before the Attorney-General is invested by s 30 (1) with the power to issue a valid and enforceable order prohibiting the release of the accused on bail.

B The second question of law is as to the intention of the Legislature when it used the word "issue" in s 30 (1). The applicants contend that "issue" encompasses any handing out by the Attorney-General of a written order signed by himself for the purpose of having it acted upon. The State contends that, C as a matter of law, such an order cannot meaningfully be directed to anyone other than a court of law, and that "issue" must therefore be understood to mean "issue (whether orally or in writing) to a court of law".

The factual aspect of the second group of questions is whether, on the facts of the present case, the "issue" of the D Attorney-General's orders occurred before or after the arrest of the applicants on the charges referred to above.

The third group of questions relates to the maxim audi alteram partem, and incorporates a question of law and a question of fact. The question of law is whether s 30 (1) implies that E observance of the requirements of the maxim audi alteram partem is a pre-condition that must be fulfilled (or a jurisdictional fact that must be established) before the Attorney-General is empowered validly to issue an order contemplated by the section. The question of fact is whether, in the present case, the requirements of the maxim were duly observed before the Attorney-General issued the orders in question.

F All of these questions must be addressed in the light of the relevant facts as they appear from the affidavits and the annexures thereto.

The Facts

On various dates between September 1984 and April 1985, the 22 applicants were arrested and detained for interrogation in G terms of s 29 of the Internal Security Act 74 of 1982. That section is one which expressly ousts the jurisdiction of the Court to pronounce on the validity of actions taken pursuant thereto, and also its jurisdiction to order the release of persons detained in terms thereof.

By 10 June 1985 the Attorney-General had prepared an indictment H in terms of which the 22 applicants are charged, as already mentioned, with treason, alternatively with certain counts of terrorism or subversion in terms of s 54 of the Internal Security Act, and with five counts of murder.

In the course of the morning of 10 June 1985, the Attorney-General firstly signed the indictment; and secondly, I in respect of each of the applicants, he signed the written authority which is required in terms of s 64 of the Internal Security Act before any prosecution for charges of terrorism and subversion in terms of s 54 of that Act can be instituted. The crimes alleged in the indictment are offences referred to in Schedule 3 of the Internal Security Act. They are therefore offences in respect of which the Attorney-General is empowered by s 30 of that Act in appropriate circumstances to issue J orders to the effect that the accused should not be released on bail or on warning. In the course of the

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afternoon of 10 June 1985 the Attorney-General prepared and A signed what he intended to be orders under s 30 in respect of each of the 22 applicants.

In the course of preparing these documents the Attorney-General was in touch with Captain Kruger of the South African Police. Captain Kruger is the investigating officer who has been B preparing the State's case against the applicants. In respect of each of the 22 applicants, the Attorney-General handed to Captain Kruger an indictment, a written authority in terms of s 64 and an order in terms of s 30.

With regard to the order in terms of s 30, the Attorney-General records his instructions to Captain Kruger and his further C intentions in paras 8 and 9 of his affidavit at p 214 of the record:

"8.

Vir doelmatigheidsredes en duidelikheid het ek die bevele, wat ek van voornemens was om ingevolge art 30 (1) van Wet 74 van 1982 uit te reik aan die Hof, op skrif gestel en afskrifte van hierdie bevele het ek aan kaptein Kruger oorhandig met die opdrag om dit aan elk van die applikante wat gearresteer is, te oorhandig ter inligting van my voorneme om die bevele D soos voormeld uit te reik.

9.

Op 11 Junie 1985 het ek die art 30 (1) van Wet 74 van 1982 bevele ten opsigte van elke applikant aan die laer hof laat uitreik aangesien ek dit op daardie stadium in belang van die landsveiligheid en handhawing van wet en orde nodig geag het dat geeneen van die applikante, na ek elk se geval behoorlik oorweeg het, op borgtog, of waarskuwing soos in Wet 51 E van 1977 bedoel nie, vrygelaat mag word nie."

It will be seen that the Attorney-General draws distinctions between his handing the order over to Captain Kruger; Captain Kruger's handing copies thereof to the applicants; and his intention thereafter to cause the order to be "issued" to the court. It is evident that, as the Attorney-General understood F the intention of s 30, these steps would not result in the "issue" of the order in question until the last stage at which the orders were handed to the court.

Captain Kruger confirms the Attorney-General's instructions to himself, and testifies to the fact that he duly carried them out, in paras 9-12 of his affidavit. He states:

9.

Ek is bewus daarvan dat sodra die akte van beskuldiging op G beskuldigdes beteken word, hul daardeur onthef word van die bepalings van art 29 (1) van Wet 74 van 1982.

10.

Ek het die Prokureur-generaal meegedeel dat ek van voorneme was om elk van die applikante ingevolge art 40 (1) (b) van Wet 51 van 1977 te arresteer op die aanklagte soos in die akte van beskuldiging vervat.

11.

Die Prokureur-generaal het aan my afskrifte van:

(i)

Die sertifikaat kragtens art 64 van Wet 74 van 1982 H ten aansien van elk van die beskuldigde applikante oorhandig;

(ii)

'n bevel ingevolge art 30 (1) van Wet 74 van 1982 wat die Prokureurgeneraal my...