State President and Others v Tsenoli; Kerchhoff and Another v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Corbett JA, Joubert JA and Viljoen JA
• Judgment Date: 13 September 1986
• Citation: 1986 (4) SA 1150 (A)
• Hearing Date: 10 September 1986
• Court: Appellate Division

Rabie CJ:

These two appeals are concerned with the validity of reg 3 (1) and (3) of the regulations contained in Proc R109 of 1986, promulgated in terms of s 3 (1) (a) of the Public Safety E Act 3 of 1953.

In the first case (to which I shall refer as "Tsenoli's case") it was held on 11 August 1986 in the Durban and Coast Local Division (per FRIEDMAN J, with whom LEON and WILSON JJ agreed) that reg 3 (1) was invalid for being beyond the powers of the State President as set out in s 3 (1) (a) of the aforesaid Act F (hereinafter referred to as "the Act"), and that, without reg 3 (1), reg 3 (3) had no practical effect. The Court accordingly ordered the release of the applicant in that case (the respondent in the first appeal), who had been arrested and detained under the said regulations.

In the second matter (hereinafter referred to as "Kerchhoff's case"), which was concerned with the arrest and detention of G one Peter Campbell Kerchhoff (the second appellant in the second appeal), a Full Court of three Judges (KRIEK, THIRION and LAW JJ), sitting in the Natal Provincial Division, held in a joint judgment, delivered on 14 August 1986, that it had been wrongly decided in Tsenoli's case that reg 3 (1) was ultra vires and invalid. (It does not appear from the Court's H judgment that it was contended on the second appellant's behalf that reg 3 (3) should be held to be invalid even if it were found that reg 3 (1) was valid.) The Court accordingly refused to order the second appellant's release from detention on the ground that reg 3 (1) was invalid. It also refused to do so on the ground that, as was argued on his behalf, his I detention was unlawful because it had not been preceded by an "arrest" within the meaning of that term in reg 3 (1).

In Proc R108 of 12 June 1986 the State President, acting in terms of the powers conferred upon him by s 2 (1) of the Act, declared the existence of a state of emergency in the Republic as from 12 June 1986. Section 2 (1) of the Act reads as follows:

"2 (1) If in the opinion of the Governor-General it at any J time appears that -

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(a)

A any action or threatened action by any persons or body of persons in the Union or any area within the Union is of such a nature and of such an extent that the safety of the public, or the maintenance of public order is seriously threatened thereby; or

(b)

circumstances have arisen in the Union or any area within the Union which seriously threaten the safety of the public, or the maintenance of public order; and

(c)

B the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or to maintain public order,

he may, by proclamation in the Gazette, declare that as from a date mentioned in the proclamation, which date may be a date not more than four days earlier than the date of the proclamation, a state of emergency exists within the Union or within such area, as the case may be."

C Section 3 (1) (a) of the Act empowers the State President to make regulations in any area in which the existence of a state of emergency has been declared. It reads as follows:

"3 (1) (a) The Governor-General may in any area in which the existence of a state of emergency has been declared under s 2, D and for as long as the proclamation declaring the existence of such emergency remains in force, by proclamation in the Gazette, make such regulations as appear to him to be necessary or expedient for providing for the safety of the public, or the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency."

By Proc R109, dated 12 June 1986, the State President, acting E in terms of the powers conferred upon him by s 3 (1) (a) of the Act, made regulations which came into operation on the date of the proclamation. Subregulations (1), (2), (3), (4), (5) and (6) of reg 3 of these regulations read as follows:

"3 (1) A member of a Force may, without warrant of arrest, arrest or cause to be arrested any person whose F 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, under 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 G detention, unless the period is extended by the Minister in terms of subreg (3).

(3) 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.

(4) A person detained in a prison pursuant to an order H referred to in subreg (1), or a notice referred to in subreg (3), may be removed in custody, if the Minister or a person authorized by him in writing so directs, from that prison for detention in any other prison, or for any other purposes mentioned in such direction.

(5) A member of a Force may, with a view to the maintenance of public order, the safety of the public I or the termination of the state of emergency, interrogate any person arrested or detained in terms of this regulation.

(6) The Minister may at any time by notice in writing signed by him order that a person detained in terms of this regulation, be released on such condition or conditions, if any, as may in his discretion be determined by the Minister in such notice."

According to reg 1, "Minister" means the Minister of Law and Order, while "Force" means:

"... the South African Police referred to in the definition J of 'the Force' in s 1 of the Police Act 7 of 1958, the South African Railways Police Force established

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under s 43 of the South African Transport Services Act 65 of A 1981, the South African Defence Force referred to in s 5 of the Defence Act 44 of 1957 or the Prisons Service established by s 2 (1) of the Prisons Act 8 of 1959."

Before I proceed to discuss the two appeals, I propose to refer to what has been said by this Court concerning the interpretation of a statute of the kind that is in issue in the B appeals, ie a statute which encroaches, or authorises an encroachment, upon the liberty normally enjoyed by the individual, but which is, at the same time, aimed at the protection of the public in an emergency situation. The approach to be followed by a Court in such circumstances was considered in the case of Rossouw v Sachs 1964 (2) SA 551 (A), where s 17 of Act 37 of 1963, the predecessor of s 6 of the now repealed Terrorism Act 83 of 1967, and of s 29 of the present C Internal Security Act 74 of 1982, was in issue. OGILVIE THOMPSON JA, who delivered the judgment of the Court, said (at 563C - H):

"... as the Acts mentioned in s 17 and as various cases both in the Provincial Courts and in this Court bear witness, subversive activities of various kinds directed against public order and the safety of the State are by no means unknown, and s 17 is plainly designed to combat such activities. Such being D the circumstances whereunder s 17 was placed upon the Statute Book, this Court should, while bearing in mind the enduring importance of the liberty of the individual, in my judgment, approach the construction of s 17 with due regard to the objects which that section is designed to attain. In this connection I cite, as being, in my opinion, very apposite to the present enquiry, sufficiently heedful of the necessity for E the Court to avoid any 'strained construction' in favour of the Executive as elaborated by Lord ATKIN at 361 of his dissenting judgment in Liversidge's case, and in general harmony with what was said in a somewhat similar, though not identical, context by this Court in R v Sachs (supra at 399), the following excerpt from the opinion of Lord WRIGHT in Liversidge's case at 372 of [1941] 3 All ER, viz:

'All the Courts to-day, and not least this House, are as jealous as they have ever been in upholding the liberty of F the subject. That liberty, however, is a liberty confined and controlled by law, whether common law or statute... If an Act of Parliament... is alleged to limit or curtail the liberty of the subject or vest in the Executive extraordinary powers of detaining a subject, the only question is as to the precise extent of the powers given. The answer to that question is only to be found by scrutinising the language of the enactment in the light of the surrounding circumstances and the general policy and G object of the measure.'"

The learned Judge stated his conclusion in the following terms (at 563H - 564A):

"I accordingly conclude that in interpreting s 17 this Court should accord preference neither to the 'strict construction' in favour of the individual indicated in Dadoo's case, supra, H nor to the 'strained construction' in favour of the Executive referred to by Lord ATKIN in Liversidge's case, supra, but that it should determine the meaning of the section upon an examination of its wording in the light of the circumstances whereunder it was enacted and of its general policy and object."

(The decisions mentioned in the passages quoted above, are Liversidge v Anderson and Another [1941] 3 All ER 338 (HL); R v I Sachs 1953 (1) SA 392 (A) and Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530.)

As to determining the meaning of a statutory provision which encroaches upon the liberty of the subject, it has often been said that, if the language thereof is...