Visagie v State President and Others

• Jurisdiction: South Africa
• Citation: 1989 (3) SA 859 (A)

Visagie v State President and Others
1989 (3) SA 859 (A)

1989 (3) SA p859

Citation	1989 (3) SA 859 (A)
Court	Appellate Division
Judge	Joubert JA, Hoexter JA, Hefer JA, Vivier JA, Kumleben JA
Heard	May 8, 1989
Judgment	June 1, 1989

Flynote : Sleutelwoorde D

Internal security — Detention — Release from — Release from detention in terms of reg 3(6) of emergency regulations made in terms of s 3 of the Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 E June 1986 — Conditions of release — Applicability of audi alteram partem rule — Conditions of release making serious inroads into freedom of detainee and audi alteram partem rule not specifically excluded in terms of reg 3(6) — Rule, however, a malleable one — Expeditious release of detainee of paramount importance — Requirements of fairness met by a hearing after the notice is delivered. F

Internal security — Detention — Release from — Release from detention in terms of reg 3(6) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Conditions of release — Contention that Minister had taken irrelevant and extraneous factors into consideration in G determining conditions of release — Court holding that reg 3(6) prescribed no rules for guidance of Minister and Minister's discretion a general one — It is for Minister alone to weigh factors which appear to him in the honest exercise of his discretion to bear upon a detainee's case.

H Internal security — Detention — Release from — Release from detention in terms of reg 3(6) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Conditions of release — Contention that conditions grossly unreasonable and that it could thereby be inferred that Minister I had not applied his mind to the matter — Detainee a minister of religion who was confined to the magisterial district in which he resided although his congregation was partly outside of magisterial district and he was also required to undergo regular medical treatment outside of the district — Court holding that conditions not so grossly unreasonable and oppressive that it could be inferred that J Minister had failed to apply his mind to the matter.

1989 (3) SA p860

A Internal security — Detention — Release from — Release from detention in terms of reg 3(6) of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Conditions of release — Whether conditions ultra vires — Condition that detainee could not attend any gathering at which any B constitutional form ('enige staatsvorm') was attacked or criticised — These words rendering the prohibition so manifestly extravagant that it excluded attendance at gatherings where there was discussion of innocuous, commonplace and daily occurrences — Minister having overlooked tenor and policy of statute which gave him his discretion C under reg 3(6) and condition accordingly ultra vires — Condition declared void.

Headnote : Kopnota

The appellant, a minister of religion, had been arrested in terms of reg 3(1) of the emergency regulations made under s 3(1)(a) of the Public Safety Act 3 of 1953 and his detention was subsequently extended in terms of reg 3(3). After nearly two months in detention he was D released by the second respondent, the Minister of Law and Order, who signed a written notice in terms of reg 3(6). His release was made conditional on, inter alia, the following terms: (a) that he did not leave the magisterial district of Middelburg (Cape), and (b) that he did not attend any gathering at which any constitutional form or any principle or policy of, or action or intended action by, the Government of the Republic of South Africa was attacked or criticised. The appellant brought an application in a Provincial Division for an order declaring the conditions of his release to be invalid. This application E was refused. On appeal the appellant's contention that the conditions were invalid rested on a number of arguments, viz (1) that the second respondent had failed to observe the principles of natural justice before deciding on the conditions and more specifically that he had not afforded him a hearing in relation to the conditions of release; (2) that in deciding upon the conditions of release the second respondent had taken into account irrelevant and impermissible considerations; F and (3) that the conditions mentioned above were so capricious, oppressive, uncertain and grossly unreasonable that it was to be inferred that the second respondent had not applied his mind thereto properly or in good faith.

As to the first argument, the Court a quo had held that since an order for conditional release represented an amelioration in the condition of the person detained, such detainee had no right to be heard. On appeal, the Court held that the appellant's conditional release entailed G serious invasions of his liberty, right of freedom of movement, free association and self-expression. In contrast to reg 3(3), there had been no specific exclusion of the audi alteram partem rule in reg 3(6). Accepting then that the rule was applicable, the Court examined the ambit thereof and held that the principle was a malleable one: in the instant case the need for the expeditious release of the detainee was of paramount importance and any construction of reg 3(6) which encumbered H and retarded its procedure for conditional release by requiring that the order should be preceded by a hearing would be alien to the purview and spirit of its provisions. The Court held that the requirements of fairness were sufficiently met by a hearing after the notice was delivered to the detainee.

As to the argument that the second respondent had taken into account I irrelevant and impermissible considerations, the Court held that reg 3(6) prescribed no rules for the guidance of the second respondent in the exercise of his discretion - his discretion was a general one. It was therefore for the second respondent and for him alone to ponder and weigh those facts which appeared to him in the honest exercise of his discretion to bear upon a detainee's case. The Court held that as there was no contention that the second respondent had acted mala fide and there was nothing on the affidavits to show that the second respondent failed to apply his mind to the issue before him it could not be J said that he had improperly exercised his discretion.

1989 (3) SA p861

A As to the argument that the conditions were so grossly unreasonable that it could be inferred that the second respondent had not applied his mind thereto properly or in good faith, the appellant contended that as a minister of religion he was required to minister to his congregation which resided partly outside the magisterial districts to which he had been confined and in addition he was required to undergo regular B medical treatment in Cape Town. The Court held that it could not be said that in determining this condition the second respondent had failed to apply his mind thereto. The Court furthermore dismissed a contention that the condition which prohibited the appellant from attending certain gatherings was void for uncertainty: the Court held that although it was extremely broad in its compass it did not defy construction. The Court held, however, that the condition was ultra vires as the scope of the prohibition was manifestly extravagant: the words 'any constitutional form' ('enige staatsvorm') and 'any principle or policy' ('enige beginsel of beleid') had the effect of prohibiting attendance at, C for instance, academic lectures on the constitutional law of ancient Greece. The latter words, in addition, were too wide as few, if any, topics of commonplace and daily discussion did not directly or indirectly touch upon the principles or policies or actions of the government. The Court held that in forming this condition the second respondent had overlooked the tenor and policy of the statute which gave him his discretion under reg 3(6) and this condition accordingly had to be declared void.

D The decision in the Eastern Cape Division in Visagie v State President and Others partly confirmed.

Case Information

Appeal from a decision in the Eastern Cape Division (Eksteen J). The facts appear from the judgment of Hoexter JA.

J J Gauntlett for the appellant referred to the following E authorities: As to the question of whether the audi alteram partem principle was applicable, see Nkwinti v Commissioner of Police and Others 1986 (2) SA 421 (E); Buthelezi and Others v Attorney-General, Natal 1986 (4) SA 377 (D); State President and Others v Tsenoli ; Kerchhoff and Another v Minister of Law and Order and Others 1986 (4) SA 1150 (A); Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of F Agriculture 1980 (3) SA 476 (T); De Smith Judicial Review of Administrative Action 4th ed (1981) at 189 - 90. As to the question of extraneous considerations, see Administrator, Cape v Associated Buildings Ltd 1957 (2) SA 317 (A); Pieters v Administrateur van Suidwes-Afrika 1972 (4) SA 127 (SWA) at 142E - H; Goldberg and Others v G Minister of Prisons 1979 (1) SA 14 (A) at 48E - F; The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 625D - 626D; University of Cape Town and Another v Minister of National Education and Others 1988 (3) SA 203 (C) at 211H - 212I. As to the question of ultra vires, see Natal Newspapers v State President 1986 (4) SA 1109 (N) at 1132H - I; Metal and Allied Workers' Union v State President 1986 (4) SA 358 (D). H

J J Nepgen SC (with him L E Leach ) for the respondents referred to the following authorities: As to the question of whether the audi alteram partem...