Kauluma and Another v Minister van Verdediging and Another (28/87) [1987] ZASCA 27; [1987] 4 All SA 320 (AD) (26 March 1987)

Kauluma and Another v Minister van Verdediging and Another (28/87) [1987] ZASCA 27; [1987] 4 All SA 320 (AD) (26 March 1987)

The Supreme Court of Appeal held that the certificate issued by the Minister of Justice under section 103 ter (4) of the Defence Act, 1957, did not apply to the ongoing detention of the applicants, as the section only covers acts already completed at the time proceedings are instituted. Furthermore, the detention orders issued by the Administrator-General under section 5 bis (1) of Proclamation AG 9 of 1977 were lawful, even if the initial detention by the military was unlawful. The statute does not require the Administrator-General to investigate the lawfulness of prior detention before exercising his powers. The appeal was dismissed with costs, and the order of the court a quo was...

Citation
[1987] ZASCA 27
Parties
Appellant: James Hamupanda Kauluma and Others; Respondent: Minister van Verdediging and Others
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 1987
Case Number
28/87
Procedural Posture
Civil Appeal / Appeal From the High Court of South West Africa
Outcome
Appeal dismissed with costs; order of the court a quo set aside and replaced with an order dismissing the application with costs, including costs of two counsel; costs of application for leave to appeal to be paid by the appellants.
Judges
Rabie, Jansen, Joubert, Hefer, Boshoff
Legal Topics
Detention Without Trial, Statutory Interpretation, Costs Order, Proclamation Ag 9 1977, Defence Act 1957
Administrative Law Civil Procedure Detention Without Trial Statutory Interpretation Costs Order Proclamation Ag 9 1977 Defence Act 1957

Case Brief

Summary, issues, holding and outcome

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Parties

James Hamupanda Kauluma and Others

Appellant

Minister van Verdediging and Others

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court of South West Africa

Legal Issues

  1. 1 Whether the certificate issued by the Minister of Justice under section 103 ter (4) of the Defence Act, 1957, rendered the application for release of detainees void.
  2. 2 Whether the detention orders issued by the Administrator-General under section 5 bis (1) of Proclamation AG 9 of 1977 were lawful, even if the initial detention by the military was unlawful.
  3. 3 Whether costs should be awarded against the applicants.

Ratio Decidendi

The Supreme Court of Appeal held that the certificate issued by the Minister of Justice under section 103 ter (4) of the Defence Act, 1957, did not apply to the ongoing detention of the applicants, as the section only covers acts already completed at the time proceedings are instituted. Furthermore, the detention orders issued by the Administrator-General under section 5 bis (1) of Proclamation AG 9 of 1977 were lawful, even if the initial detention by the military was unlawful. The statute does not require the Administrator-General to investigate the lawfulness of prior detention before exercising his powers. The appeal was dismissed with costs, and the order of the court a quo was...

Court Disposition

Appeal dismissed with costs; order of the court a quo set aside and replaced with an order dismissing the application with costs, including costs of two counsel; costs of application for leave to appeal to be paid by the appellants.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs, including the costs of two counsel.'