S v Ramgobin and Others

• Jurisdiction: South Africa
• Judge: Mline JP
• Judgment Date: 03 May 1985
• Citation: 1985 (4) SA 130 (N)
• Hearing Date: 03 May 1985
• Court: Natal Provincial Division

Milne JP:

It is recorded that the Attorney-General has, in terms of s 30 of Act 74 of 1982, withdrawn all the orders made in terms of ss (1) of that section, in respect of each of the accused. It has also been possible for the prosecution and the defence to agree on the terms upon which the accused should be H admitted to bail. It is thus unnecessary for me to consider the validity of the orders which purported to be made under that section. I do nevertheless want to say someting about that section.

It is in the same terms as s 12 A of the previous Internal Security Act 44 of 1950, so it has been on the statute book for some years. Its age is, I venture to say, its sole claim to respectability. In giving judgment on an appeal against a I decision of a regional magistrate that he could not consider an application for bail because the Attorney-General had issued a certificate which purported to be in terms of s 30 of the Internal Security Act, Mr Justice FRIEDMAN made some general remarks about bail and the provisions of s 30. These remarks were concurred in by Mr Justice BOOYSEN and Mr Justice GALGUT. I summarise them briefly:

(a)

It is right and proper that the Court and not the J Attorney-General should exercise the power to refuse bail, to grant it or to grant it

Milne JP

conditionally. This is so, inter alia, because the A courts in this country exercise their power entirely free from any direct or indirect pressure from the State, the Legislature or the executive branch of Government, whereas the Attorney-General is not an independent officer who exercises his powers free of executive control. In fact, he is expressly subject to B the control and direction of the Minister of Justice who may reverse any decision arrived at by an Attorney-General.

(b)

Section 30 of the Internal Security Act, which prevents the Court from exercising its traditional power to grant or withhold bail, is a serious inroad into the rôle of the Court. It is not clear why the C Legislature should have found it necessary thus to place in the hands of the Attorney-General a power which ought properly to repose in the courts and which produces the situation that the Attorney-General is at least, in a manner of speaking, a judge in his own D cause.

(c)

Because of the inroads which s 30 makes upon the liberty of the individual and the limitations it imposes on the courts, it will be strictly interpreted.

I entirely agree with all these views. When it is the courts which decide on the major question of innocence or guilt and of sentence, I cannot understand why it has been decided that in E certain circumstances the courts must be precluded from deciding questions of bail. The courts exist for these purposes. It is their function and not the function of the executive. No doubt in deciding whether or not to issue an order in terms of s 30, the Attorney-General acts in good faith on information furnished to him by others, including the F police. That information may be accurate, honest and reliable. On the other hand, it may be factually incorrect, or it may involve the drawing of inferences which are not justified on the facts. The Attorney-General cannot test this information. He cannot conduct a trial. Of course, he will carefully sift the information before him but he hears only one side, and the G accused are not given an opportunity to test this information. If the case made to him for denying bail has been so overwhelmingly convincing that an Attorney-General felt able to take the grave step of acting on it without hearing the other side, surely it would be equally convincing to a court and surely it would stand up to cross-examination and H countervailing evidence on behalf of the accused.

As Mr Justice FRIEDMAN said:

"When circumstances warrant, enquiries into matters affecting security in the State and the maintenance of law and order by the courts can be conducted in camera."

I wholly fail to see the purpose or necessity for this legislative curtailment of ancient and fundamental rights, nor I can I see any occasion under which its use could be justified. I venture to suggest that serious consideration should be given to its repeal.

As I mentioned earlier, the Attorney-General and counsel for the accused have agreed upon the terms upon which the accused are to be admitted to bail. I accordingly grant the following order, and I should add that in my view it is a proper order to J make, namely:

Milne...