Minister of Law and Order and Others v Hurley and Another (59/86) [1986] ZASCA 53; [1986] 2 All SA 428 (A) (26 May 1986)

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

THE MINISTER OF LAW AND ORDER First Appellant

THE COMMISSIONER OF POLICE Second Appellant

THE DIVISIONAL COMMISSIONER OF POLICE

FOR PORT NATAL Third Appellant

and

DENIS EUGENE HURLEY First Respondent

CARMEL PATRICIA RICKARD Second Respondent

Coram: RABIE, CJ, JANSEN, TRENGOVE, BOTHA et

VAN HEERDEN, JJAHeard:Delivery:

13 March 1986

22 May 1986

JUDGMENT/.....

J U D G M E N T

RABIE, CJ:

This is an appeal against the judgment of

Leon, ADJP, sitting in the Durban & Coast Local Division,

in which he declared that the detention of Gerald Patrick Kearney, which followed upon an arrest purportedly made in terms of sec. 29(1) of the Internal Security Act 74

of 1982 , was unlawful and of no force and effect. The facts of the case are set out in detail in the report

of the judgment at 1985(4) SA 709.

Colonel Ignatius Coetzee, who is an officer

in the South African Police, caused the aforesaid

Kearney to be arrested and detained on 26 August 1985.

Coetzee states in an affidavit, made on behalf of all

three of the appellants (the respondents in the motion

proceeding in the Court a quo),that ,in causing

Kearney/......

3Kearney to be arrested and detained, he acted in terms of the provisions of sec. 29(1) of the aforesaid Act (hereafter referred to as "the Act"). As to his decision to have Kearney arrested and detained, Coetzee says the following in paragraph 4 of his affidavit:

'(c) Uit hoofde van die feite tot my

beskikking, die aard waarvan uiters vertroulik is en, derhalwe , nie open -baar gemaak kan word nie, het ek rede gehad om te vermoed dat die gemelde Kearney, wat hom toe, en te alle wesenlike tye te Durban bevind het, 'n misdryf gepleeg het soos bedoel in artikel 54(1) van die gemelde wet, en dat hy inligting

had aangaande die pleeg deur ander van gemelde misdryf, en dat hy sodanige inligting van die Suid-Afrikaanse Polisie weerhou het.

(d) Ek het , gevolglik , gemelde Kearney in hegtenis laat neem sonder lasbrief soos voormeld.

(f)/........

4

(f) My besluit om die inligting op grondwaarvan ek opgetree net kragtens artikel29(1) en die arrestasie en aanhoudingvan Kearney gelas het, te weerhou, isgeneem na deeglike oorweging en tenvolle bewus van die moontlike nadeligeafleiding wat daaruit te maak is. Ekbevestig egter dat die inligting van so-danige aard is dat dit nie openbaar gemaakkan word sonder om die handhawing van

wet en orde en die regsadministrasie te benadeel nie. Voorts, sal openbaar-making van gemelde inligting die polisie se inligtingsbronne in gevaar stel.

(g) Ek beweer voorts dat ek die diskresieaan my verleen deur artikel 29(l)bona fide en na deeglike besinning enoorweging van al die tersaaklike feiteuitgeoefen het."

Coetzee also says in his affidavit that statements appearing in the affidavits of the respondents (the applicants in the Court below) concerning Kearney and his

activities/

5activities - e.g. the statement that no person "having

even the slightest acquaintance with the said Kearney

or his activities can have reason to believe that his

conduct could fall within the said section" (i.e. sec.

29(1)) - do not accord with information at his (Coetzee's)

disposal.

Sec 29(1) of the Act, in so far as relevant,

provides as follows:

"29.(1) Notwithstanding anything to the contrary in any law or the common law contained .... , any commissioned officer as defined in section 1 of the Police Act, 1958 (Act No, 7 of 1958), of or above the rank of lieutenant-colonel may, if he has reason to believe that any person who happens to be at any place in the Republic -

(a) has committed or intends or intended to commit an offence referred to in section 54(1), (2) or (4), ...; or

(b)/.......

6

(b) is withholding from the South AfricanPolice any information relating to thecommission of an offence referred toin paragraph (a) ,

without warrant arrest such person or cause himto be arrested and detained for interrogationin accordance with such directions as theCommissioner may, subject to the directions of theMinister, from time to time issue, ".

Sec. 29(6) of the Act, which is also relevant to the

present proceedings, reads as follows:

"(6) No court of law shall have jurisdiction to pronounce upon the validity of any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section."

Mr Combrinck,who appeared for the appellants, contended that the Court a quo erred in holding (A) that

Coetzee's/. 7Coetzee's decision to have Kearney arrested and detained

was objectively justiciable, and also in finding (B) that

sec. 29(6) of the Act did not preclude the Court from

reviewing Coetzee's decision.

As to (A), counsel, starting from the

premise that it is of vital importance to determine what

sec. 29(1) of the Act means when it says that a commissioned

officer of or above the rank of lieutenant-colonel may,

without warrant, arrest a person "if he has reason to

believe" that that person is a person as described in

paragraph (a) or (b) of the subsection, accepted the

proposition - put to him by a member of the Bench - that

the officer must have grounds for his belief before he is

entitled to effect an arrest. It is essential also,

counsel/.......8counsel conceded, that there must in fact exist grounds

which cause him to have the required belief. This

does not mean, however, counsel submitted, that the

Court is entitled to. make an objective inquiry into the

existence of such grounds, or to determine objectively whether

they provide justification for the officer's belief and

decision to arrest. The Legislature's intention is,

counsel contended, that the officer concerned should be

the sole judge of these matters. Consequently, it was

argued, if the officer who made an arrest states that

he did so because he had reason to believe that the person

concerned was a person as described in sec. 29(1)(a) or

(b), it is not open to the Court to inquire into the

matter/......

9

matter. When asked whether it was his contention that

there is no real difference in meaning between the ex-

pressions "if he has reason to " in sec. 29(1) and

"if in his opinion there is reason to ...." in sec. 28

( 1 ) (c ) of the Act , counsel's reply was "yes". Both

these expressions, counsel said, provide for a purely

subjective test. Counsel submitted, furthermore,

that if Courts of law could objectively inquire whether

reasonable grounds existed for the belief held by an

officer who made an arrest under sec. 29(1), the police

would be forced to disclose the information on the

strength of which such arrest was made. The disclosure

of such information, counsel argued, could be harmful

to........

10

to the security of" the State , and it should, therefore ,

be held that the Legislature's intention was that action

taken in reliance on the provisions of sec. 29(1)

should not be objectively justiciable.

As to counsel's argument with regard to

sec. 29(6) of the Act (see (13) above), the contention

is that the subsection contains a clear expression of

intention that an arrest by an officer of the required

rank should not be objectively justiciable. Consequently,

counsel says, when such an officer states with regard

to an arrest effected by him that he acted in terms of

sec. 29(1), the arrest is to be regarded as "action taken

in terms of this section", i.e. as action which is not

subject to review. Sec. 29(6), counsel contends, would

be........

11

be a superfluous provision if the Court were entitled to inquire into the grounds which moved an officer to effect or cause an arrest.With regard to Mr Coinbrinck's submissions as set out under (A) above, 1 think it is clear thatthe words "he has reason to believe" imply that thereare grounds, or facts, which give rise to, or form the basis of, the belief of the officer concerned. In London Estates (Pty) Ltd v. Nair 1957(3) SA 591 (D & CLD)

the Court,dealing with the meaning of the words "if ....

to there is reason to believe that it will be/the advantage

of the creditors of the debtor if his estate is sequestrated" in sec. 10(1) of the Insolvency Act 24 of 1936, said, (at 592 E-F):

"Reason/......

12

"' Reason to believe' , in my opinion , is constituted by facts giving rise to such belief."

This view, although expressed in connection with words occurring in an Act of a kind different from the one with which we are concerned in this case, seem to me to apply also to the words "has reason to believe" in sec. 29(1).

If, then, one accepts that the officer who

contemplates arresting a person in terms of the provisions of; sec. 29(1) must have grounds which cause him to

the believe that / person concerned is a person as described

in paragraph (a) or paragraph (b) of the subsection,

the next question which arises is, it seems to me,

whether it can be said that the Legislature intended that

those/......

13

those grounds should be reasonable grounds. As to

this question, I do not think it can be doubted that it

was the Legislature's intention that the grounds on which

the officer's belief is based must be reasonable around:

When regard is had to the serious consequences which an

arrest and the subsequent detention under sec. 29(1) have

for the individual concerned, it is, 1 think, inconceivable

that the Legislature could have intended that a belief

based on grounds which cannot pass the test of reasonabl

would be sufficient to provide justification for such

arrest and detention.

In this connection it is relevant to note, also,

that the provisions of the Criminal Procedure Act 51 of

1977 which empower a peace officer to arrest someone

without/......

14

without a warrant on the strength of a belief or suspicion

held by him, require that the belief, or suspicion, should

be founded on reasonable grounds. (See sections 40, 41, 46

and 48 of that Act.) The corresponding provisions of

the Criminal Procedure Act of 1917 and the Criminal

Procedure Act of 1955 were to the same effect. This

being so, and considering the consequences which an

arrest under sec. 29(1) has for the person concerned,

it is most unlikely, in my opinion, that the Legislature

could have intended that the belief which is requiredfor an arrest under sec. 29(1) need not be founded

on

reasonable grounds.

This/......

15

This conclusion leads me to the important

question whether the Court is entitled to inquire into

the existence of grounds which could reasonably found

a belief as required by sec, 29(l). The appellants,

as stated above, contend that the Court has no such

power and that it cannot go behind the statement of

the officer concerned that he had grounds for entertaining

the belief required by sec. 29(1). Leaving aside, for

the present, the question whether sec. 29(6) precludes

the Court from making an inquiry as aforesaid (a question

to be dealt with later in the judgment), I cannot accept

the argument that the Legislature intended that the officer

who contemplates making an arrest should be the sole

judge/......

16judge as to whether there are reasonable grounds for such action. Having regard, once again, to the serious consequences which an arrest under sec. 29(l) has for the person concerned, it seems to me, firstly, that if the Legislature had intended that the question whether reasonable grounds existed for a belief as required by sec. 29(1) should be left entirely to the subjective judgment of the officer making, or causing, the arrest, it would have used language which made that intention clear. I may refer, in this connection, to the language used by the Legislature in subsection (l) of sec. 28 of the Act. Paragraph (a) of this subsection empowers the Minister to order the detention of a person "if in his opinion there is reason to apprehend" that that person

"will commit an offence referred to in sec. 54(1), (2)

or/

17

or (3)", whereas paragraph (c) of the subsection empowers him to issue such an order "if he has reason to suspect" that a person who has been convicted of

an offence mentioned in Schedule 2 to the Act engagesin or is likely to engage in activities which endanger the security of the State, etc. The language used in paragraph (a) of sec. 28(1) is in subjective terms, and I have little doubt that if the Minister were to state that he issued an order since there was, in his opinion, reason to apprehend that a particular person would commit an offence referred to in sec. 54(l) of the Act, the Court would not be entitled to query his judgment. See R. v Sachs 1953(1) SA 392(A) at 400 E-F; South African Defence and Aid Fund and Another v.

Minister of Justice 1967(1) SA 31(C) at 35 A-B.

Sec/

18

Sec. 28(1) (c) employs virtually the same words, viz.

"if he has reason to suspect", as those used in sec.

29(1). It was argued by counsel for the appellants, as

stated above, that there is no difference in meaning

between the words "if in his opinion there is reason

to ..." in sec. 28(l){a) and the words "if he has reason

to ..." in sec. 29(1). Sec. 28(1)(a), as I have said

above, provides Tor a subjective test (viz. "if in his

opinion there is reason to apprehend"), and it seems to

me that if the Legislature had intended to provide a

like subjective test in sec. 28(1)(c), and in the

virtually identically worded sec. 29(1), it would have

used the same words in sec . 28(1)(c) and sec . 29(1)

as ,it did in sec. 28(l)(a).

There/......

19

There is a further consideration which shows,

I think, that the question whether a police officer

had the required belief when he made an arrest in reliance

on sec. 29(1) is objectively justiciable. It is this:

1 stated earlier on that in my opinion the words "if he has

reason to believe" carry the implication that the belief

must be based on reasonable grounds, and it seems to me

that, if this is correct, as I consider it to be, the

Court should be entitled to inquire whether the belief

was reasonably held. There is ample authority to the

effect that the question whether a peace officer, or

private person, reasonably suspected, or had reasonable

grounds for suspecting, that the person whom he arrested

without a warrant had committed an offence, is objectively

justiciable/.....

20

justiciable. See e.g. R. v, van Heerden 1958(3) SA

150CT) at 152 D-E; Wiesner v. Molomo 1983(3) SA 151 (A)

and at 159 B,/Duncan v The Minister of Law and Order (AD

Case No. 38/1985, in which judgment was given on 24 March 1986). In Duncan's case both parties adopted the view - and it is clear that this Court considered it to be correct ~ that

"the question whether a peace officer 'reasonably suspects' a person of having committed an offence within the ambit of s 40(1)(b ) of the Act is objectively justiciable"

The Court , referring to ft v. Van Heerden, supra , Wiesner v. Molomo, supra, and Watson v. Commissioner of Customs and Excise 1960(3) SA 212(N) at 216, went on to say:

"And it seems clear that the test is not whether a policeman believes that he has reason to suspect, but whether, on an objective approach,

he/... 21

he in fact has reasonable grounds for his suspicion. "

It follows from the aforegoing that I donot agree with the view expressed in Mbane v. Minister of Police and Others, 1982(1) SA 223 (Tk) at 229 B-F as to the meaning of the words "has reason to believe". Reference will again be made to this case later in the judgment .

As will have appeared from what I have said above, I am of the opinion that the conclusion of the Court a quo as to the meaning of the words "if he has reason to believe" is correct. (See ?17A of the report.) I should indicate, however, that I do not agree with the learned Judge's statement as to the "abundant authority" which supports his interpretation of those

words/

22

words. Not one of the English cases mentioned by

him as providing authority for his interpretation dealt

with the meaning of the words "has reason to believe ."

They were all concerned with the meaning of expressions

in which the word "reasonable", or "reasonably" occurred,

while the issue in the present case is whether the words

"has reason to believe" carry with them the implication

that the belief must be reasonable, or be based on

reasonable grounds. The first of the South African

cases to which the learned Judge referred in this

connection, viz. London Estates (Pty) Ltd v. Nair, supra,

discussed the meaning of the words "has reason to believe",

but it did not deal with the question of reasonable

In/.....23In Watson v. Commissioner of Customs and Excise, supra,

the second South African case referred to by the 1earned

Judge (at 717C), the words in question were "has reasonable

cause to believe". In "L.S.D." Ltd and Others v. Vachell

and Others 1918 WLD 127, the third South African case,

the question was whether a police officer was entitled

to search premises without a warrant because he believed

on reasonable grounds", as required by sec . 50 (1) of

Act 31 of 1917 , that the delay in obtaining a search

warrant would defeat the object of the search. The

fourth South African case referred to by the learned

Judge, viz. Metal & Allied Workers Union v. Castell NO

1985(2) SA 280 (D & CLD), does not appear to be relevant

to the question with which we are here concerned.

The/.....

24

The first case cited in the judgment of the

Court a quo which is directly in point in that it

provides support for the learned Judge's view (set out

at 718 G-H of the report) as to the meaning of the words

"if he has reason to believe", is Sigaba v. Minister-

of Defence and Police and Another 1980(3) SA 535, a

decision by Rose-Innes, J, in the Supreme Court of

Transkei. One of the issues in that case was whether

Sigaba had been lawfully arrested and detained in terms

of the provisions of sec. 47(1) of Transkei's Public

Security Act 30 of 1977. This subsection, which

to a large extent, a reproduction of sec. 6 of the

Terrorism Act 83 of 1967 (which, in turn, was the

predecessor/......

25

predecessor of sec. 29(1) of Act 74 of 1982) reads as

follows, in so far as relevant:

"47(1) Any commissioned officer as defined in s. 1 of the Transkeian Police Act 5 of 1966 may, if he has reason to believe that any person has committed an offence under this Act ...... without warrant arrest

such person or cause him to be arrested and detain such person or cause him to be detained in custody, for interrogation .... "

Rose-Innes, J, held (at 544 E-F) that the words "ifhe has reason to believe " "carry the premise that

the belief must be a reasonable belief," and that the commissioned officer "must have information such as would lead a reasonable man to believe that the suspect had committed an offence under the Act." In a later

Transkeian/ 26Transkeian case, Mnyani and Others v. Minister of Justice

and Others 1980(4) SA 528, which was also concerned with

a detention under sec . 47(1 ) of the aforesaid Act 30 of

1977, Van Rensburg, AJ, dissented from the decision in

Sigaba's case, supra, and held that Rose-Innes, J, erred

in holding that the onus was on the Minister of Justice

to show that a detention was lawful (532 D-F and 533 C-D),

and in finding that a Court could inquire objectively

into the grounds on which the officer decided to effect

an arrest (534E). The learned Judge stated that his

conclusions were based on certain decisions of this

Court, viz. Groenewald v. Minister van Justisie 1973(3)

SA 877, Shidiack v. Union Government 1912 AD 642

and Divisional Commissioner of S.A. Police, Witwatersrand

Area/....27

Area, and Others v, S.A. Associated Newspapers Ltd and Another 1966(2) SA 503. With regard to Groenewald's case, the Court relied on the following passage in the judgment of Van Blerk, JA (at 883 G- 884B):

"In hoofsaak is eiser se betoog hier, soos dit ook in die Hof a quo was, dat aangesien die injuria waarop hy steun op vryheidsberowing neerkom, die bewys volgens die gewysdes van ons Howe by die verweerder berus om die arrestasie te billik en die opset om te laedeer (leed aan te doen) te ontsenu. Met ander woorde, hy moet bewys dat redelike gronde vir verdenking wel aanwesig was en die lasbrief bygevolg geldig was. Hierdie betoog gaan nie op nie. Deur art. 28(1) van die Strafproseswet, wat die landdros met die bevoegdheid beklee om 'n lasbrief uit te reik, lê die Wetgewer 'n verantwoordelikheid op die beampte om 'n diskresie uit te oefen; hy moet die gronde waarop die Staatsaanklaer steun, oorweeg en hy kan op grond daarvan of op grond van inligting met dieselfde

strekking/

28

strekking deur iemand onder eed afgelê

voor hom 'n lasbrief uitreik. By die uit-

reiking van die lasbrief oefen die landdros 'n diskresie uit. Die bona fide uitoefening van sodanige diskresie is nie by wyse van objektiewe benadering deur 'n Hof beregbaar nie. (Sien Shidiack v. Union Government, 1912 A.D. 642 op bl. 651). Dit sou volg dat daar geen onus op die verweerder rus om te bewys dat redelike gronde wel bestaan het nie. (S.A. Police, Divisional Commissioner of Witwatersrand v. S.A. Associated Newspapers Ltd. , 1966(2) S.A. 503 (A,D.) op bl. 511). Hierdie beslissing het gegaan oor 'n visenteerlasbrief wat uitgereik was inge-volge die bepalings van art. 42(1) van die Strafproseswet wat nie wesenlik van art. 28(l) verskil wat betref die gronde vereis vir 'n aansoek om 'n lasbrief en wat betref die ver- antwoordelikheid wat die wetgewer gelê het op die uitreiker van die lasbrief om 'n diskresie uit te oefen."

The passage does not support the conclusions at which the learned Judge arrived. When Van Blerk, JA, said "Die bona fide uitoefening van sodanige diskresie is

nie/......

29

nie by wyse van objektiewe benadaring deur 'n Hof be-

regbaar nie," he was not referring to the discretion

exercised by a peace officer when considering whether

he should make an arrest, but to the discretion exercised

by a magistrate when he has to decide whether he should

the issue a warrant of arrest on/strength of information

put before him by the public prosecutor. The discretion so exercised by a magistrate is of a judicial nature

and cannot be equated with that exercised by a peace

officer when considering whether he should make an arrest As to the learned Judge's reference to Shidiack's case , it is sufficient to say that what was decided in that case relates to the situation where a decision is left to the sole discretion of a public officer or body. It may be

noted that the relevant phrase in that case was "to

the/

30

the satisfication of the Minister", which suggested

that "the Minister was entitled to decide on grounds

which he considered to be sufficient. This differs

from the case where a peace officer is authorised to

make an arrest if he reasonably believes that a certain

fact, or state of affairs, exists. It happens not

infrequently that Courts are called upon to decide

whether a peace officer who made an arrest entertained

the required belief. In the aforesaid Divisional

Commissioner of S.A. Police case the matter in issue

was the validity of a warrant which had been issued

by a justice of the peace in terms of sec. 42 of

the Criminal Procedure Act 56 of 1955. This case,

toe , does not provide support for the conclusions

at/......

31

at which the Court arrived in Mnyani's case.

In this connection reference must also be

made to the Transkeian case of Mbane v. Minister of

Police and Others, supra, in which, as in Mnyani's

case, supra, the Court found support for its decisior

in the aforesaid judgments of this Court in Groenewald

v. Minister van Justisie and Divisional Commissioner

of S.A. Police. Mbane's case was concerned with

regulations made under Transkei's Public Security Act

30 of 1977, and the question was whether the Court

was entitled to inquire into the validity of the

detention of a person (Mbane) who had been detained

under reg. 4(2)(a)(ii) of those regulations.

4(2)(a) reads, in so far as relevant, as follows:

The/.......

32

"The Commissioner of the Transkeian Police or any commissioned officer acting under his directions may .... -

(a) without warrant detain or

cause to be detained .... -

(i) any person arrested under ss (1),

(ii) any other person if the said Commissioner or such officer has reason to believe that such

other person has committed or intends

committing an offence under these regulations or any other law .... for such period as may be necessary for the proper investigation of the offence or suspected offence concerned or the proper interrogation of such person ."

(Subsec. (1) deals with the powers of peace officer's to arrest without warrant.) Hefer, CJ (,with whom Van Coller, J, agreed), held that the Court was not entitled to inquire into the question whether the commissioned

officer who caused the arrest and detention of Mbane hadreason/

33reason to believe that Mbane had committed or intended to commit an offence. In coming to this conclusion, Hefer, CJ , found it unnecessary to decide whether the cases of Sigaba , supra , and Mnyani , supra , had been correctly decided, because, the learned Judge said

(at 2 27 i.f. and 228 A-B), those cases were concerned

with the Public Security Act 30 of 1977 and, not with

the Security Regulations, and because there was "at least one consideration .... which affects the regulation and assists in its interpretation, but which does not affect the section." In view of this statement by the learned Judge it may be thought to be unnecessary to have regard to Mbane's case, but I think I should

nevertheless deal briefly with one of the points which

weighed/

34

weighed with the Court when it came to the conclusion that it did. The point appears from the following passage in the judgment (at 228 E-F):

"There does not, at least as far as persons arrested in terms of reg, 4(1) (a) are concerned, appear to be any material distinction in principle between the functions performed by an officer acting under reg 4(2)(a) and a magistrate

issuing a warrant (as to which see Groenewald's case supra; Divisional Commissioner of SA Police, Witwatersrand Area,_ and Others v. Associated Newspapers Ltd and Another 1966 (2) SA 503 (A) at 511-512), except for the purpose of the detention."

If I understand this passage correctly, it says that there is no material distinction between the function excercised by a magistrate who has to decide, on information put before him by the public prosecutor, whether he

should/....

35

should issue a warrant of arrest, and the function

exercised by the Commissioner of Police, or a commissioned

officer acting under his directions, when he has to

decide whether a person who has been arrested by a peace

officer under reg. 4(1)(a) should be detained under reg

4(2)(a). If this is a correct understanding of what the

learned Judge said, I would hesitate to agree with it.

A magistrate is a judicial officer, and when he decide

whether he should, on information put before him by a

prosecutor, issue a warrant of arrest, he excercises an

independent discretion. In the case of police officials,

whatever their rank, this can hardly be the case. (In

Mbane's case, it would seem, the same officer caused

both/.......

36

both the arrest and the detention of Mbane, See 244 H.

If this is correct, there would have been no independent exercise'

of a discretion by a second police officer concerning

action taken by another officer.) But in any event, even

if it could be said that there is no material difference

between the function exercised by a magistrate when

issuing a warrant and that exercised by a commissioned

officer when deciding under reg. 4(2) (a) whether a

person who was arrested under reg, 4(1)(a) should be

detained, the same would not be true of an arrest and

detention under sec. 29(1) of Act 74 of 1982. Under

sec. 29(i) detention follows automatically and

immediately on arrest: it is not the subject of a

further decision after an arrest has been made.

I/....

37

I turn now to counsel's final argument in

support of his contention that the Legislature did not,

when using the words "if he has reason to believe ...

in sec. 29(1) of the Act, intend that the decision of

the officer who arrested or caused the arrest of someone

should be subject to objective inquiry by the Court.

Such an inquiry, counsel says , could result in the police

being forced to disclose information which, if divulged,

could endanger the security of the State, and the

Legislature could not have intended such a result.

It must be accepted that occasions may arise when the

police will, for security reasons, not be able to

disclose information available to them, and it must

be/......

38

be acknowledged, in my view, that there is force in counsel's

argument. At the same time it should not,.I think,

be assumed that occasions of the kind mentioned will

frequently arise. It is, also, not to be assumed thai;

the police will on such occasions necessarily have to

disclose all the information of which they are possessed,

or the sources of their information. Sec. 29(1)

requires merely that it be shown that there were

grounds on which the officer concerned could reasonably

have held the belief that the person whom he arrested

or caused to be arrested was a person as described in

the subsection. I would sum up my view of counsel's

argument by saying that, while it must be recognized

that/.......39

that it has some force, it does not outweigh the considerations,

discussed above, which indicate, in my opinion, that

the words "if he has reason to believe..." in sec.

29(1) should be construed as constituting an objective

criterion.

In my discussion of the appeal up to this

point I have left out of account the question whether sec. 29(6) of the Act precluded the Court a quo from inquiring into the validity of Kearney's arrest and detention. I now proceed to consider the appellant's contention that the Court was so precluded by sec. 29(6). The contention is, it will be recalled, that when an officer of the rank mentioned in sec. 29(1) of the Act states that he acted in terms of. sec . 29(1)

in arresting or causing the arrest of a person, the

arrest/....

40

arrest is to be regarded as "action taken in terms of

the section" and that it is, then, by virtue of the

provisions of sec. 29(6), not subject to review by the

Court.

It is a well recognised rule in the in-

terpretation of statutes, it has been stated by this

Court, "that the curtailment of the powers of a court

of law is, in the absence of an express or clear implication

to the contrary, not to be presumed." (Schermbrucker v

Klindt, NO 1965(4) SA 606 at 6.1.8 A, per Botha, JA, citing

Lenz Township Co. (Pty) Ltd v. Lorentz, NO en Andere

1961(2) SA 450(A) at 455, and R v. Padsha 1923 AD 28

at 304). The Court will, therefore, closely examine

any/.........

41

any provision which appears to curtail or oust the

jurisdiction of courts of law. Having considered the

provisions of sec. 29, I am of the opinion that sec.

29(6), despite its wide terms, does not preclude the

Court from inquiring into the question whether an

officer who arrested or caused the arrest of a person

in reliance on the provisions of sec. 29(1) had reasonable

grounds for entertaining a belief as required by sec

29(1). I have come to this conclusion in the light

of the considerations set out hereunder.

Sec. 29(1) provides inter alia that a

commissioned officer of or above the rank of lieutenant-

colonel may, if he has reason to believe that a person

is a person as described in paragraph (a) or paragraph (b)

of/.......

42of the subsection, without warrant arrest and detain

such person, or cause him to be arrested or detained

Sec. 29(6) precludes the Court from pronouncing upon

the validity of any action taken "in terms of" sec. 29 ,

and from ordering the release of a person detained "in

terms of the provisions" of sec. 29. It is clear from

this that it is only action taken "in terms of" sec

29, and a detention "in terms of" the provisions of

sec. 29, which are not open to inquiry by the Court.

This being so, it is obvious that the meaning of the

words "in terms of" is a question of vital importance

An arrest as contemplated by sec. 29(1)

is an arrest by an officer of the required rank "if

he/....

43

he has reason to believe" that the person whom he arrests

or causes to be arrested is a person as described in

paragraph (a) or (b) of the subsection. An arrest by,

or caused by, an officer who is not of the required

rank would, therefore, not be an arrest in terms of sec.

29. Similarly, an arrest by, or caused by, an officer

of the required rank who does not have reason to believe

that the person concerned is a person as described in

paragraph (a) or paragraph (b)of sec. 29(1) would not

be an arrest as contemplated by sec. 29(1) and, therefore,

not an arrest "in terms of" sec. 29. It follows from

this that the jurisdiction of the Court will be ousted

by sec, 29 (6) only if the officer who arrested or caused

the/.....

44

the arrest of a person was an officer of the required

rank, and if he had reason to believe - i.e., if he had

reasonable grounds for believing - that the person concerned

was a person as described in paragraph (a) or paragraph

b) of sec. 29(1). Whether he was such an officer,

and whether he entertained such belief, are questions

of fact, and it is only when such facts exist; that it

can be said that sec. 29(6) is of application.

My aforesaid view is supported by views

that were expressed in the judgments of Rumpff, JA, and

Trollip, AJA, in the case of Schermbrucker v. Klindt, NO

1965(4) SA 606 (A). The issue in that case was whether

the Court could in terms of Rule 9(a) (T) order that a

person/....

45person who was being detained under the provisions of sec. 17 of the General Law Amendment Act 37 of 1963 should be brought before it for the purpose of giving viva voce evidence. It was common cause between the parties that the detention of the said person was lawful . Sec. 17 provided inter alia as follows.:

"17, (l) Notwithstanding anything to the contrary in any law contained, any commissioned officer as defined in section o ne of the 'Police Act, 1958 (Act No. 7 of 1958), may from time to time without warrant arrest or cause to be arrested any person whom be suspects upon reasonable grounds of having committed or intending or having intended to commit any offence under the Suppression of Communism Act, 1950 ,or the offence of sabotage, ....

and detain such person or cause him to be

detained in custody for interrogation ....

(2) No person shall, except with the consent of the Minister of Justice or a commissioned officer as aforesaid, have access to any person detained under sub-section (l)

(3)/...... 46

(3) No court shall have jurisdiction to order the release from custody of any person so detained, but the said Minister may at any time direct that any such person be released from custody."

This Court decided by a majority of three to two that the Court did not have the power to make an order as aforesaid. Botha, JA, with whom Steyn, CJ, and Trollip, AJA (who also wrote a separate judgment) agreed, held that the Court could not order a detainee to be brought before it to give evidence on the ground that, if such an order were made, the manner of the detainee's detention "as prescribed by sec. 17 would be interfered with in more ways than one, and the purposes of the section may be defeated". (See 619 D-H.) Rumpff, JA,

who/......

47

who wrote a minority judgment, said inter alia at 613 A-D):

"Die bepaling in art. 17(2) dat niemand toegang het tot 'n kragtens sub-art . ( 1.) aangehoudene nie, is prima facie bedoel om regsadviseurs ,maagskap en vriende uit te sluit en volkome isolasie as dwangmiddel te bewerkstellig. Sub-art. (3) bepaal dat geen hof bevoeg is om die vrylating van so 'n aangehoudene te bevee1 nie . So 'n aangehoudene is natuurlik 'n aangehoudene wat binne die bevoegdhede deur art. 17(l) verleen aangehou word en hierdie sub-artikel verklaar met ander woorde dat wanneer die bepalings van die artikel be-

hoorlik uitgeoefen is, geen hof ,jurisdiksie

het ten opsigte van so 'n aangehoudene nie. 'n Voorvereiste vir die uitsluiting van die bevoegdheid van die hof is dat die aangehoudene kragtens die bepalings van art. 1.7(1), eksplisiet sowel as implisiet, aangehou word. Wanneer dit bv. bewys kan word dat iemand anders as 'n omskrewe offisier die aangehoudene laat arresteer het, of dat so 'n offisier nie op redelike gronde ver-dink het dat die aangehoudene in verband

gebring/

48

gebring kan word met sekere in die artikel genoemde misdade nie, het die hof wel deeg-lik die bevoegdheid om die aangehoudene te ontslaan . Dat so 'n aangehoudene nie maklik 'n saak by die hof aanhangig kan maak nie, of" nie maklik so 'n saak kan bewys nie , is momenteel irrelevant . "

Trollip, AJA, in a separate judgment written by him (with which Steyn, CJ, also agreed), expressed a view similar to that op Rumpff, JA. He said (at 623 F-G):

"Sec. 17 of Act 37 of 1963 does not impair the Court's jurisdiction in any case affecting a detainee except to the extent mentioned in sub-sec. (3) ; that is, it cannot order the release from custody of any person so detained'; otherwise it retains full jurisdiction; thus it can order his release if he has been unlawfully arrested or is being unlawfully detained, and it can restrain any unlawful conduct which is being committed upon him during his detention."

And also (at 626 i.f.) :

" . . . . this/

49

". . . . the Court still retains its jurisdictior to determine whether or not a detainee has been lawfully arrested or is being lawfully detained under sec. 17(1)".

The points on which Rumpff, JA, and Trollip,

AJA, expressed their above-quoted views were, of course,not directly in issue in the appeal, but 1 nevertheless

consider them to be of significance.

Finally, as to the question when it can be

said that action was taken "in terms of" a statutory

provision, reference may be made to two further cases.

The first is Ngqulunga and Another v. Minister of Law

and Order 1983(2) SA 696(N). The applicants in that

case had been detained under the provisions of regulations

contained in the Schedule to Proclamation R103 of 1973,

and/

50

and the issue was whether the police were entitled to

deny their legal advisers access to them. The respondent

contended inter alia that the Court was precluded from

pronouncing upon the validity of the action of the police by one of

the regulations which provided that "No court of law

shall pronounce upon the validity of any action taken

in terms of these regulations, or order the release of

any person arrested and detained in terms of reg. 1".

The Court (Howard, J.) rejected the contention and

stated (at 698G) that "the action in question cannot

have been 'taken in terms of these regulations' unless

the regulations authorised it, either expressly or by

necessary implication." The second case is South West

African Peoples Democratic United Front en 'n Ander v. Administrateur -

Generaal/.......

51

Generaal, Suidwes-Afrika, en Andere 1983(1) SA 411(A),

in which this Court (per Jansen, JA) held inter alia

that a provision to the effect that the Court could not

set aside the announcement of an election result made

in terms of sec, 34 of a certain proclaimation ("inge

volge art. 34 gedoen"), could not oust the jurisdiction

of the Court where it appeared that the announcement;

had been made, not on the basis of the registered list

of candidates as prescribed by the said sec. 34, but

on the basis of an irregularly altered list. The

ouster provision, the Court held, was clearly intended

by the Legislature to apply if "die aankondiging van

die uitslag deur die hoofverkiesingsbearnpte

art. 34 gedoen' word". (S

The,......

52

The appellants contend, as stated above,

that if one were to be,interpret sec. 29(6) in the

manner I have suggested, the provision would be rendered

ineffective and redundant. I do not agree. The Court

will, as I have indicated, be entitled to inquire whether

the officer concerned had reasonable grounds for his

belief that the person whom he arrested was a person

as described in sec. 29(l) - reasonable grounds being

grounds on which he could reasonably have held the

belief he did. The Court will, however, be precluded

by sec. 29(6) from going further and considering whether,

if there were such grounds, he should nevertheless not

have held the belief that he did, or not have arrested

the person concerned. In other words, given the

existence/......

53

existence of grounds on which the officer could

reasonably have held the belief that he did, the Cour

cannot hold that it would have come to a different conclusion on those

grounds, or that the officer did not exercise his discretion properly,

and that his action should, therefore, be Found to be illegal. I do not

find it necessary to discuss the matter in greater'

detail and to determine what actions may possibly be

taken in terms of sec. 29 which the Court will be

precluded from considering by sec. 29(6).

Having concluded that the Court was not

precluded from considering whether Coetzee had reasonable

grounds for his aforesaid belief concerning Kearney, I

now turn to the question of onus, i.e. the question

whether the appellants had to prove that Coetzee had the

required/......

54

required belief, or whether the respondents had to prove

that he did not. The Court a quo did not decide the

question, but held (at 725 D-E) that, even if one

assumed that the "onus was on the respondents, they had

discharged it. I deal with the question in the paragraphs

that follow.

Arrests without warrant by peace officers

acting under the powers of arrest conferred upon them

by the Criminal Procedure Act 51 of 1977 and its

predecessors (Act 31 of 1917 and Act 56 of 1955) have

on many occasions given rise to disputes in which the

lawfulness of an arrest was in issue, and in cas

of this kind the question of onus may be of vital

importance. It has been held, or assumed, in a number

of/ 55of cases decided in the Provincial and Local Divisions

of the Supreme Court that the onus lies on the peace

officer who made the arrest in issue to prove that he

acted lawfully, i.e. that he acted within the powers

of arrest conferred upon him by statute. Some of

those decisions are referred to in Botha v. Lues 1981

(1) S.A. 687(0). In that case a full Court of the

Orange Free State Provincial Division dissented from

those decisions and held that the onus was on the plaintiff,

who claimed damages on the ground of an alleged wrongful

arrest, to establish the unlawfulness of the arrest

of which he complained. The basis of this finding by

the Court was that if a peace officer who is empowered.

by/.....

56 by statute to arrest a person whom he reasonably suspects

of having committed an offence proceeds to arrest someone whan he so suspects, the arrest cannot be unlawful, since the exercise of a power which is conferred by law cannot constitute unlawfulness ("uitoefening van 'n bevoegdheid

(en plig) wat van regsweë verleen word kan nie weder

regtelikheid daarstel nie": 691 C-D). Since unlawfulness

is necessary to establish liability, the Court said (at

691 D-E), a plaintiff who complains of an arrest can

succeed in his claim only if he establishes that the

person who arrested him did not have the required

suspicion. When this decision came on appeal to this

Court (see Botha v. Lues 1983(4) SA 496), Gorbett, JA,

found it unnecessary to decide the question of onus.

He/......57He did say, however, that it was doubtful whether thedecision of the Provincial Division concerning thequestion of onus could be reconciled. with what was said

in certain decisions of this Court. The learned Judge

referred to Mabaso v. Felix 1981(3) SA 865 at 872 H-874B, and Ramsay v. Minister van Polisie en Andere 1981(4) SA 802 at807 E-F and 817F-818B. In the judgment of the Provincial Division no reference was made to the judgment of this. Court in Brand v. Minister of Justice and Another 1959 (4) SA 712, a case in which the appellant claimed damages for alleged unlawful arrest and detention in consequence thereof. In the course of his judgment Ogilvie Thompson, JA, dealing with the question of onus, said (at 714 F-H) :

"Second/

58

"Second respondent justified his action in admittedly arresting appellant without a warrant by relying upon sec . 22 (1)(a) of Act 56 of 1955 which authorises a. peace officer to arrest, without warrant, 'any person who commits any offence in his presence'. It was conceded by counsel for respondens in this Court that the onus of establishing that an offence was committed in his presence rests upon the peace officer who relies upon the above-cited sec. 22(l)(a) of the Code. This concession was, in my opinion, rightly made. For that view of the on us , which has been taken in Provincial Divisions (see e.g. R. v . H e nkins , 1954(3) SA 560 (C); Rosseau v. Boshoff , 1945 C.P.D. 135 at p. 137; R. v. Folkus , 1954 (3) S.A. 44 2 (S.W.A.) at pp. 445/6), accords with principle and is in conformity with what was said by this Court in Union Government v. Bolstridge , 1929 A.D. 240 at p. 244, and in Tsose v. Minister of Justice and Others , 1951 (3) S.A. 10 (A.D.) at p. 18."

In the case of Rosseau v. Boshoff (referred to in the passage quoted above), where the legality of an arrest

under/

59

under sec . 26(b) of Act 31 of 1917 was in issue (see now sec . 40(l) (b) of Act 51 of 1977) , the Court held .(per Jones, AJP, at 136-137):

".... when the law says that a person is empowered to arrest without warrant every person whom he has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule of the Act, when such arrest has been effected, the onus is on the person effecting the arrest to show that he had reasonable grounds . "

It is clear, therefore that the decision of the Provincial Division in Botha v. Lues with regard to the question

of onus is in conflict with the judgment of this Court

in Brand v. Minister of Justice and Another.

As/.....

60

As to the aforesaid decision of the Provincial

Division in Botha v . Lues, there is a further matter

which calls for some discussion. - It is this: The Court

suggested (see 689 G-H) that it could be argued that in

Groenewald v. Minister van Justisie, supra, at 883, and

Minister van Polisie en_'n Ander v. Gamble en 'n Ander 1979(4) SA 759(A), at 763, the Appellate Division adopted the view that a person who alleges that he was unlawfully arrested has to prove that the arrest was unlawful. The Court did not, however, discuss the point raised by it As for the reference to Groenewald's case, it seems that the Court had in mind the passage in the judgment of Van Blerk, JA, which appears at p. 883 of the report

61

and which I quoted above when discussing the decision in Mnyani's case. That passage, as I pointed out in the course of that discussion , was concerned with an arrest which followed upon the issue of a warrant of arrest by a magistrate and it does not support the view that a plaintiff who complains of an arrest without warrant by a peace officer has to prove that the arrest was unlawful. In Gamb1e's case the respondent (the plaintiffs at the trial) claimed damages on the ground that they had been unlawfully arrested. (See 763 E-F of the report of the judgment.) The judgment contains no reference to the judgment of this Court in Brand v. Minister of Justice and Another, supra, and it seems to be clear that it was not intended to dissent from what

was said by Ogilvie Thompson, JA, in the above-quoted

passage/

62

passage in Brand ' s case as to the question of' onus .

It would seem that in Gamble's case it was assumed in favour of the appellants (the defendants at the trial) that the onus was on the respondents (the plaintiffs at the trial) to prove that the arrest of which they complained was unlawful.

With regard to the question of onus in the

case of an arrest under sec. 29(1) of the Act,I

should point out that it was said in Mnyani's case,

supra, at 532 B-C that, while there was "ample authority for the proposition that, in an ordinary case of unlawful arrest, the onus rests on the arresting authority to justify the arrest", "entirely different principles" applied in a case of an arrest and detention

under sec. 47(1) of Transkei's Public Security Act 30

of/

63of 1977. The Court reasoned as follows (532 B-E):

Sec. 47(l) gives a commissioned officer certain powers

of arrest and detention; he must weigh the information

available to him and thereafter decide whether arrest

and detention would be justified in terms of the section;

when he so decides, he exercises a discretion; the

bona fides of the exercise of such discretion is not

objectively justiciable ; consequently, when an

officer has made an arrest in the exercise of such

discretion, there is no onus on the arresting authority

to show that reasonable grounds existed for the arrest.

The Court was of the opinion (see 533 C of the report

of the judgment) that these views were supported by the

decision of this Court in Groenewald's case, supra,

and/.....

64

and in the case of Divisional Commissioner of S.A. Police

supra, but it erred in that belief, as I stated earlier

on. In my opinion there is no warrant Tor saying

that the principles which govern an arrest by a

commissioned officer under sec. 47(1) of the Transkeian

Act - or sec. 29(1) of Act 74 of 1982 - differ from

those which apply to the case of an arrest under, say,

sec. 40(1)(b) of the Criminal Procedure Act 51 of 3 977

In the case of all three of these sections the officer

concerned has to exercise a discretion in the light of

information available to him, and I can see no difference

between the discretion exercised by an officer acting

under sec. 47(1) of the Transkeian Act and sec. 29(1)

of/....

65

of Act 74 of 1982, on the one hand, and sec. 40(l)(b) of

the Criminal Procedure Act 51 of 1977, on the other hand

In view of the aforegoing I hold that the

above-quoted passage in the judgment of Ogilvie Thompson,

JA, in Brand's case , supra, contains a correct statement

of the law as to the question of onus in the case of

arrests without warrant , and, furthermore , that the law

as there stated also applies to arrests under sec . 29(1)

of Act 74 of 1982. I would add that I consider it to

be good policy that the law should be as there stated.

An arrest constitutes an interference with the liberty

of the individual concerned, and it therefore seems to

be fair and just to require that the person who arrested

or/.....

66

or caused the arrest of another person should bear the

onus of proving that his action was justified in law

See generally Weeks and Another v. Amalgamated Agencies,

Ltd. 1920 AD 218 at 226; Cohen Lazar & Co.v. Gibbs .1922

TPD 142 at 144-145; May v . Union Governemnt 1954(3)

SA 120(N) at 124 H ; Ingram v. Minister of Police 1962

(3) SA 225(W) at 227 D, and Areff v. Minister van Polisie

1977(2) SA 900(A) at 914 G.

onus was on the appellants to show that Coetzee had

reasonable grounds for his alleged belief concerning

Kearney. The appellants counsel, I must add, conceded

without addressing any argument on the point to us}

that....

67

that if it were held that the Court was entitled to

inquire into the existence of reasonable grounds for

Coetzee's belief, the onus would be on the appellants

to establish the existence of such grounds. Having

held that the Court was entitled to inquire into the

question of Coetzee's belief, and that the onus was on

the appellants to show that Coetzee had reasonable

grounds for his belief, the only remaining question is

whether the onus was discharged. The answer to the

question is obviously "no", the appellants not having

put any facts before the Court from which the conclusion

that Coetzee had reasonable grounds for his alleged

belief could have been drawn .

The/......

68

The appeal is dismissed with costs , including

the costs of two counsel .

P J RABIE

CHIEF JUSTICEJANSEN, JA TRENGOVE, JA BOTHA, JA VAN HEERDEN JA

Concur.