Minister of Law and Order and Another v Bishop of Roman Catholic Church of Diocese of Port Elizabeth (165/87) [1988] ZASCA 119 (29 September 1988)

Minister of Law and Order and Another v Bishop of Roman Catholic Church of Diocese of Port Elizabeth (165/87) [1988] ZASCA 119 (29 September 1988)

The Supreme Court of Appeal held that the respondent failed to discharge the onus of proving mala fides or ulterior motive in the decision to detain Father Cornelius. The affidavits submitted by the respondent and supporting witnesses did not rebut the evidence of Captain van Wyk, who stated that his opinion was...

Source-derived case information.

Citation
[1988] ZASCA 119
Parties
Appellant: Minister of Law and Order; Appellant: Commissioner of Police; Appellant: Head of the Security Police, East London; Appellant: Commissioner of Prisons; Respondent: Bishop of the Roman Catholic Church of Diocese of Port Elizabeth
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1988
Case Number
165/87
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division Judgment
Outcome
Appeal upheld; detention of Father Cornelius found lawful; respondent's application dismissed.
Judges
Rabie, Joubert, Hefer, Vivier, Steyn
Legal Topics
Detention Under State of Emergency, Subjective Opinion Test, Onus of Proof Mala Fides, Judicial Review of Executive Action
Administrative Law Civil Procedure Detention Under State of Emergency Subjective Opinion Test Onus of Proof Mala Fides Judicial Review of Executive Action

Source-derived case record

Summary, issues, holding and outcome

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Parties

Minister of Law and Order

Appellant

Commissioner of Police

Appellant

Head of the Security Police, East London

Appellant

Commissioner of Prisons

Appellant

Bishop of the Roman Catholic Church of Diocese of Port Elizabeth

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division Judgment

Legal Issues

  1. 1 Whether the detention of Father Graham Cornelius under regulation 3(1) of Proclamation R 109 of 1986 was lawful.
  2. 2 Whether the opinion formed by the arresting officer met the requirements of regulation 3(1).
  3. 3 Whether the respondent discharged the onus of proving mala fides or ulterior motive in the detention decision.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent failed to discharge the onus of proving mala fides or ulterior motive in the decision to detain Father Cornelius. The affidavits submitted by the respondent and supporting witnesses did not rebut the evidence of Captain van Wyk, who stated that his opinion was formed in good faith based on credible information regarding the activities of the Duncan Village Residents Association. The Court rejected the lower court's reasoning that the failure to consider alternative measures, such as prohibiting the church service, constituted a lack of proper application of mind or mala fides. The test under regulation 3(1) is subjective, and the...

Court Disposition

Appeal upheld; detention of Father Cornelius found lawful; respondent's application dismissed.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • Paragraphs (1) and (2) of the order of the Court a quo are set aside and substituted with: 'The application relating to the detention of Father Graham Cornelius is dismissed.'