Minister of Law and Order and Another v Swart (260/87) [1988] ZASCA 120; [1989] 1 All SA 405 (A) (29 September 1988)

Case No 260/87

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between

THE MINISTER OF LAW AND ORDER 1st APPELLANTTHE COMMISSIONER OF POLICE 2nd APPELLANTand

NABIL (BASIL) SWART ' RESPONDENT

CORAM: JOUBERT, HEFER, VIVIER, STEYN JJA

et VILJOEN AJA.

HEARD : 19 SEPTEMBER 1988

DELIVERED : 29 SEPTEMBER 1988

J U D G M E N T

HEFER JA :

This appeal is against an order granted by SELIKO-

WiTZ AJ in the Cape of Good Hope Provincial Division for

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respondent's relcase from Victor Verster prison, where hewas detained purportedly in terms of the emergency regula-tions made by the State President in terms of sec 3(1) ofthe Public Safety Act 3 of 1953 and published on 12 June1986 in Proclamation R109.

The regulation relevant to the present enquiry isreg 3. Subregulations (1), (2) and (3) read as follows:

"3. (1) A member of a Force may, without warrant of arrest, arrest or cause to be arrested any person whose detention is,in the opinion of such member, necessary for the maintenance of public order or the safety of the public or that person him-self, or for the termination of the state of emergency, and may, under a written or-der signed by any member of a Force, de-tain, or cause to be detained, any such person in custody in a prison.

(2) No person shall be detained interms of subregulation (1) for a periodexceeding fourteen days from the date ofhis detention, unless that period is ex-tended by the Minister in terms of sub-regulation (3).

(3) The Minister may, without no-tice to any person and without hearingany person, by written notice signed byhim and addressed to the head of a prison,

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order that any person arrested and detained in terms of subregulation (1), be further detained in that prison for a period men-tioned in the notice, or for as long as these Regulations remain in force."

It is common cause that respondent was arrested and detainedby a member of the police force and that first appellant there-after ordered that he be further detained for as long as theregulations remained in force. Respondent challenged thevalidity both of the arrest and initial detention and offirst appellant's order and argument proceeded in the courta quo on the basis that it was for the present appellantsto justify both. SELIKOWITZ AJ, without pronouncing onthe validity of the arrest, found it not established thatthe order had properly been made in terms of reg 3(3),nor that there was "lawful cause" for respondent's deten-tion at the time when the application for his release was

launched. (It was launched about five months after theorder had been made).

It is against these findings that the submissionsin the appellant's heads of argument in this court were initially aimed. However, shortly before the hearing of the appeal respondent's counsel filed supplementary written heads of argument which contained a submission not made in the heads originally filed on respondent's behalf. Very briefly stated, the new submission was that the detention was unlawful simply because the respondent had not been sufficiently and timeously informed of the reason for his arrest. In the event this was the only submission on which counsel addressed us and I proceed to deal with it forthwith.

An examination of reg 3 reveals that there are, in effect, three stages in the process of detention. First there is the arrest by a member of a Force, which is followed by detention in prison under a written order signed by a member of a Force, which is followed in turn by detention in prison under the Minister's order in terms of reg 3(3). As appears from the decision inState President and Others v Tsenoli 1986(4) S A 1150 (A) an arrest in terms of reg 3(1) can only be made if a mem-ber of a Force is of the opinion that the detention of the person concerned is necessary for any of the purposes sta-ted in that subregulation (1182 G-H), whilst the Minister may only make an order extending the detention in terms of reg 3(3) if he is of the same opinion (1184 F).Respondent's counsel submitted, and I agree, that regs 3(1) and 3(3) do no operate independently since the Minister's power to extend a detention has been related to persons "arrested and detained in terms of subregula-tion (1)". From this it follows logically that, unless a detention can be brought within the ambit of reg 3(1), it cannot be said to be one which the Minister may ex-tend under reg 3(3). Thus, if a person were to be ar-rested by someone who ,is not a member of a Force, his subsequent detention would obviously not be in terms of reg 3(1), nor will it be if the arrest is effected by amember of a Force but the opinion which reg 3(1) requires, is lackina. (Cf Minister of Law and Order and Others v Hurley and Another 1986(3) S A 568 (A) at 584 F-I). In neither of the postulated cases would the Minister be em-powered to extend the detention and, if he were to do so, the extension would plainly be a nullity.I say this in view of Mr Burger's argument on be-half of first appellant that the Minister's action in ex-tending a detention falls to be judged entirely on its own without Yeference to the arrest and deténtion which prece-ded it. Relying on the fact that the Minister is required to form his own opinion on the necessity of extending a detention and to take an independent decision in this re-gard, Mr Burger submitted that any irregularity in the pre-ceding arrest and detention is cured by the Minister's or-der in terms of reg 3(3). From what I have said it is clear that there is no substance in this submission. Rer-haps I should add that, if Mr Burger were to be correct,

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all the Divisions in the country, including this court,have been wasting their time during the last few yearsin their punctilious enquiries into the validity of thearrest in cases where an order had been made in terms ofreg 3(3). Ngqumba and Others v The State President andOthers in which judgment by this court was delivered on25 March 1988 was just.such a case; and this court didnot find the Minister's order an obstacle to its enquiryinto the validity of the arrest and detention which pre-ceded the order. It enquired into its validity, moreover,on the very ground on which the respondent now seeks to rely.

In Ngqmba's case this court held that it is in-

deed a requirement for a valid detention in terms of reg

3(1) that the detainee be informed of the reason for his

detention. As to the time when he is to be so informed

the court held that

" indien 'n gearresteerde nie by sy

arrestasie van die rede vir sy arres-tasie verwittig word nie, hy so gou

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doenlik daarna daarvan verwittig moet word. Hiermee bedoel ek nie dat die mededeling noodwendig moet geskied sodra dit fisies moontlik word om dit te doen nie. Die vraag wat doenlik is, sal van die omstan-dighede van elke besondere geval afhang."

(Per RABIE ACJ at 108 of the typed judgment).

This brings me to the real question for decision which is whether the respondent in the present case was informed of the reason for his arrest as soon as was reason-ably possible in the circumstances.It emerges from the appellant's opposing affida-vits that lieutenant Erasmus arrested the respondent on the instructions of captain Rust. Both these officers are members of the South African Police and thus members of a Force as defined in reg 1. Captain Rust is the mem-ber who became aware of respondent's activities and who formed the opinion that his detention was necessary for the maintenance of public order or the safety of the pub-lic or for the termination of the state of emergency. Lieu-tenant Erasmus, on the other hand, knew nothing about the

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respondent or of his activities, nor did he know why re-spondent had to be arrested. He was simply given an or-der to go and arrest him and that is what he proceeded todo .

Respondent describes his arrest and the subsequentevents as follows in his founding affidavit:

"12. The person who was in charge said he was

arresting me. He did not tell me in terns of which legislation he was arresting me.

13. My bags were packed and I was taken to Wynberg police Station where I was held for approximately 4 hours. No one infor-med me why I was being arrested and or in terms of which legislation I was being ar-rested. Whilst at Wynberg Police Station I met Mr K. Desai, the principal of Alex-ander Sinton, who said that he had also been arrested that morning. 14. Thereafter I was taken to Woodstock Police Station, where I stayed for approximately an hour. I was still not told in terms of which legislation I was being arrested, or the grounds or reasons in this regard, and to date have still not been so infor-med. 15. Thereafter I was taken to Victor Verster Prison in Paarl. Whilst I was being

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booked in at the said prison, I was for the first time informed by the prison authorities that I was being detained in terms of Regulation 3(1) of the Emer-gency Regulations issued in terms of the Public Safety Act of 1953. I am not a lawyer and did not understand the ambit of the reference: I was not given a copy of Regulation 3(1), nor was it read to me. I was accordingly unable to make represen-tations or to take other steps in this regard."

This evidence is not disputed and has to be accepted. Lieu-

tenant Erasmus confirms in his affidavit that he did not

inform the appellant that he was arresting him in terms

of reg 3. This curious lapse is not explained. After

the arrest, he says, he took the respondent to Wynberg

police station and later to Victor Verster Prison. When

he took him to prison he must have been in possession of

the order for respondent's detention in terms of reg 3(1).He must at least at that stage have been aware of the fact

that the arrest had been made and that the detention would

be in terms of the emergency regulations. Yet he failed

to reveal it to the respondent. Captain Rust's affidavitis equally uninformative. Nowhere does he say why the respondent was not informed of the reason for his arrest, and in the result the court has been left completely in the dark as to why it was left to some unknown prison of-ficial, who knew even less than lieutenant Erasmus about the matter, to inform the respondent.Assuming for the moment (although I am not alto-gether convinced that I am correct in doing so) that the information given to the respondent by the prison official can be taken into account, the position is that prima facie there was ample opportunity for the respondent to be infor-med much sooner and no conceivable reason for the police to refrain from doing so. In the absence of an explanation the conclusion is accordingly unavoidable that he was not informed as soon after his arrest as was reasonably pos-sible. Second appellant's counsel candidly conceded this whilst first appellant's counsel admitted that he could not in all conscience try to persuade us that therespondent was informed timeously.

Relying on a passage in the judgment in Ngqumba'scase second appellant's counsel submitted that the respon-dent's detention, although unlawful until the time when hewas informed in prison of the reason for his arrest, became

lawful when he was so informed. The relevant passage reads

as follows:

"Indien 'n mens sou aanvaar - wat na my mening nie gedoen kan word nie - dat Fuzile en Os-teridge vroeër van die rede vir hulle arres-tasie verwittig kon eewees het as wat ge-beur het en dat dié versuim die geldigheid van hulle aanhouding geaffekteer het, dan sou die geldigheid daarvan na my mening herstel gewees het toe hulle, terwyl hulle nog steeds onder arres was, die rede vir hulle arrestasie en aanhouding meegedeel is."

This remark does not assist the appellants. Elsewhere inthe judgment RABIE ACJ explained that the two detainees re-ferred to were taken to a police station after their arrestand that they were there informed of the reason for theirarrest by the policemen who had arrested them. At that13

stage they were still in police custody. The factual situ-

ation in the present case is so entirely different that

the acting Chief Justice's remark cannot be applied. The

remark is in accordance with the trial court's reasoning

in NRqumba's case which has been reported as Nqumba and

Others v State President and Others 1987(1) S A 456 (E).

The relevant passage appears at 470 C-ll and reads as fol-

lows:

"What effect does the failure to inform the applicants of the cause of their arrest have on their subsequent detention? I am unable to agree with the submission that it vitiates the legality of the detention. Had one of the applicants escaped from the custody in which he was after the time had passed when he should have been told the cause of his arrest and before he had been told of it, he would not be criminally li-able because his detention in custody would have been unlawful. The cases to which we have been referred deal with the situation where the person arrested had not been told at all for what reason he had been arrested. In Christie and Another v Leachinsky [1947] UKHL 2; (1947) 1 All ER 567 (IIL), which was heavily relied on by the applicants' counsel, the plain-tiff in an action for false imprisonment7 14

had never been told the true reason why he

was being arrested and detained. In R v

Harkoes 1929 CPD 41 the accused escaped from custody having been arrested by a private individual. There was no evidence that he had been informed of the reason for his ar-rest which was thus not proved to have been lawful and his conviction was set aside on review. What if an arrested person submits to custody and is not told the reason for his arrest until some time later and he thereafter escapes? In my view it could not be argued that he was not in lawful custody at the time. The requirement that a person should be advised of the cause of his arrest immediately is intended to eusure that his arrest is legally effective as soon as possible after his submission to custody. In my view, if he is informed later, but while still in custody, his arrest becomes lawful from that time. Thus when the ap-plicants were informed of the reason For their arrest under reg 3(1), as for present purposes it must be accepted that they were, the arrests became lawful. It has not been suggested that the orders for detention in terms of reg 3(1) were signed before the reasons for their arrest had been conveyed to them. Thus it cannot be said that their detention is illegal on this ground."

It need hardly be stated that a situation where the de-tainee is informed of the reason for his arrest by an out-

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sider while he is no longer in police custody is entirely different.

It follows, therefore, that the submission that the respondent was never properly arrested and not lawfully de-tained must be upheld. It is unnecessary to consider the question whether the information given to him in prison suf-ficiently informed him of the reason for his arrest.This conclusion also renders it unnecessary to con-sider the validity of SELIKOWITZ AJ's reasoning in the court a quo, although I must say that my prima facie im-pression is that it cannot be supported.Finally there is the question of counsel's fees. Respondent's counsel asked for the coste of two counsel in the event of the appeal being dismissed. My view is that the request should not be acceded to. Neither the facts nor the questions of law arising therefrom are com-plicated; it is really quite a simple matter. Mr Gauntlettprepared the original heads of argument himself and it was only in putting forward the submission which even-tually succeeded, that he enlisted Mr Rose-Innes's assis-tance. That submission was even less complicated than the ones made in the original heads. The services of two counsel cannot reasonably be justified.

The appeal is accordingly dismissed with costs.

J J F HEFER JA.

JOUBERT JA ) VIVIER JA ) STEYN JA ) CONCUR.

VILJOEN AJA )