S v Ramgobin and Others

• Jurisdiction: South Africa
• Citation: 1985 (3) SA 587 (N)

S v Ramgobin and Others
1985 (3) SA 587 (N)

1985 (3) SA p587

Citation	1985 (3) SA 587 (N)
Court	Natal Provincial Division
Judge	Friedman J, Booysen J and Galgut J
Heard	April 9, 1985; April 11, 1985
Judgment	April 24, 1985

Flynote : Sleutelwoorde

Internal security — Internal Security Act 74 of 1982 — B Order by Attorney-General under s 30 (1) prohibiting granting of bail — Section making inroads into liberty of individual and imposing limitations on courts and to be strictly interpreted — Court to be satisfied that objective jurisdictional fact (that person arrested on a charge referred C to in the section) exists before order issued in terms of the section can have any application — Words "arrested on a charge" as used in section meaning that there must have been a decision prior to or at time of arrest to charge the person with the offence — Held, in an appeal against refusal of bail, that where only warrants and the applications therefor together with the orders under s 30 (1) were placed before a D magistrate, there had been no proof of a decision to charge the persons who were subsequently refused bail — Matter accordingly remitted to the magistrate.

Headnote : Kopnota

The Attorney-General had issued orders in terms of s 30 (1) of E the Internal Security Act 74 of 1977 in respect of the eight appellants, pursuant to which they were refused bail in a magistrate's court. The appellants had been arrested on warrants describing the offence for which they were arrested as "treason, alternatively contravening the Internal Security Act 74 of 1982". The warrants, the applications pursuant to which the warrants were issued and the orders which stated that the F appellants "had been arrested on a charge of having committed an offence referred to in Schedule 3 of Act 74 of 1982" were all that the court a quo had before it. In an appeal against the refusal of bail,

Held, that because of the inroads s 30 made into the liberty of the individual and because of the limitations it imposed on the courts, its provisions would be strictly interpreted in such a G way as to limit its impact as much as its language might reasonably permit.

Held, further, that the power of the Attorney-General to issue an order in terms of s 30 (1) arose only when the objective jurisdictional fact mentioned in the section, viz that the person must have been arrested on a charge of having committed an offence referred to in Schedule 3, existed: this was not simply a circumstance upon which the Attorney-General had to H satisfy himself but was something about which the court would have to be satisfied before the section and any order issued by the Attorney-General under the section had any application.

Held, further, that the words "arrested on a charge" as used in the section meant that there had to have been, either prior to or at the time of the arrest, a decision by the appropriate I authority to "charge" the person with the offence for which he had been arrested.

Held, further, that the production of the warrants, the applications therefor and the orders together with the admitted fact of the arrest did not prove that there had been a decision to charge the appellants with the offences referred to in the warrants.

Held, accordingly, that the appeal had to succeed and the matter remitted to the magistrate for the Attorney-General to be afforded J an opportunity of leading the necessary evidence.

1985 (3) SA p588

Case Information

Appeal against the refusal of bail in a magistrate's court. The facts appear from the judgment of FRIEDMAN J.

I Mahomed SC (with him L Gering) for the appellants.

N C Gey van Pittius SC (with him J Meiring) for the State.

Cur adv vult.

Postea (April 24).

Judgment

Friedman J:

Traditionally in our system of jurisprudence applications for bail are determined by courts of law. By C balancing the need to preserve the liberty of the individual who is presumed to be innocent until proven guilty, on the one hand, and the interests of the due administration of justice, on the other hand, the courts will decide whether or not a person who is in custody awaiting trial, should or should not be released pending that trial. Where an application for bail D is opposed by the prosecuting authority (usually the Attorney-General or his representative), the court will consider the grounds upon which such opposition is based and give its decision accordingly - to refuse bail, or to grant bail unconditionally or, if circumstances warrant it, subject to whatever conditions it may consider just to cater for the E legitimate fears of the prosecuting authority. It is right and proper that the courts should exercise this power. It is only through the courts exercising their powers, fearlessly and impartially, that a proper balance can be achieved between the interest of the individual's liberty and the interest of the State in bringin alleged wrongdoers to justice. And the courts F in this country do so exercise their powers entirely free from any direct or indirect pressure or influence from the State, the Legislature, or the Executive branch of Government. So basic is all this, that the courts will, insofar as they are legally able to do so, resist any attempts to lessen or minimise their powers and role in this regard.

In s 30 of the Internal Security Act 74 of 1982, the G Legislature has restricted the traditional role of the courts and prevented them from granting bail in certain circumstances. Section 30 (1) reads as follows:

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

Subsection (2) (a) of s 30 provides:

"Notwithstanding the provisions of any 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) gives the Attorney-General the right or power to I withdraw any order made by him "at any time before its expiration".

These sections constitute serious inroads into the traditional role of the courts. Why the 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 is not clear. It would seem that, although the usual reasons for J courts to refuse bail concern either the fear that the accused might not, if released on bail, stand trial or that he might interfere with

1985 (3) SA p589

Friedman J

potential State witnesses, these reasons are not exhaustive. It A has been held, in a number of cases that the courts would have the right, where circumstances warrant it, to refuse to release an accused on bail where to do so might, for example, constitute a threat to the security of the State or interfere with the maintenance of law and order. In the case of S v B Fourie 1973 (1) SA 100 (D) MILLER J said at 101:

"It is a fundamental requirement of the proper administration of justice that an accused person stand trial and, if there is any cognizable indication that he will not stand trial if released from custody, the Court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence. (Cf S v Mhlawli and Others1963 (3) SA 795 (C) at 796B - C.) But if there are no indications that the accused will not stand trial if released on bail or that he will C interfere with witnesses or otherwise hamper or hinder the proper course of justice, he is prima facie entitled to and will normally be granted bail. But it does not follow that no other factors than the due and proper administration of justice can ever be taken into account by the Court when it considers whether bail should be granted or refused. Quite apart from certain statutory provisions (see s 108 of the Code) it has been held that bail may be refused, even where there are no indications that the accused is likely to abscond, in cases where public safety or national security might be endangered by D his release."

Further authority for the point mentioned in the last sentence of this passage will be found in the case of Mhlawli to which MILLER J referred and also in S v Baker; S v Doyle1965 (1) SA 821 (W) and S v Nangutuuala en 'n Ander 1973 (4) SA 640 (SWA). E No doubt as and when circumstances warrant it, enquiries into matters affecting the security of the State and the maintenance of law and order by the courts can be conducted in camera.

Nor do I like the provisions of s 30 (1) and 30 (2) (a). It is to me a complete...