Minister of Law and Order and Others v Pavlicevic (55/89) [1989] ZASCA 55; [1989] 2 All SA 390 (A) (19 May 1989)

IN THE SUPREME COURT OF SOUTH AERICA (APPELLATE DIVISION)

In the matter between:

THE MINISTER OF LAW AND ORDER

.. Ist appellant

THE COMMISSIONER OF THE SOUTH AFRICAN POLICE 2nd appellant THE COMMANDING OFFICER JOHN VORSTER SQUARE 3rd appellant

and

MARIA BENITA PAVLICEVIC ... respondent

CORAM: CORBETT CJ, VAN HEERDEN, NESTADT, STEYN JJA, et NICHOLAS AJA.

DATE OF HEARING: 2 May 1989

DATE OF JUDGMENT: 19 May 1989

JUDGMENT CORBETT CJ:On 7 May 1987 the respondent's husband, Mr Michael Roussos (whom I shall call "the detainee"), was arrested and detained in terms of reg 3(1) of the so-

2.called Emergency Regulations, proclaimed on 12 June 1986 (and promulgated in Government Gazette No 10280 of that date). On 13 May 1987 his detention was ex-tended in accordance with the provisions of reg 3(3). On 11 June 1987 his detention under the Emergency Regu-lations was terminated, but immediately thereafter he was again arrested and detained, this time in terms of sec 29(1) of the Internal Security Act 74 of 1982 ("the Act"). Soon thereafter the respondent made an urgent application to the Witwatersrand Local Division, citing the present appellants as respondents and praying for orders (i) declaring that the detainee's "purported" arrest and detention in terms of sec 29(1) of the Act were wrongful and unlawful and (ii) directing that he be released from custody. The matter came before Leveson J, who on 13 July 1987 granted the orders prayed for and directed the appellants to pay the costs of the application, including costs consequent upon the

3

employment of two counsel. The judgment of Leveson J has been reported ( see Pavlicevic v Minister of Law and Order and Others 1988 (2) SA 295 (W) ). Withleave of the Court a quo the appellants appeal to this Court against the whole of the judgment and order of the Court a quo, including the order as to costs.The relevant portions of sec 29(1) provide as follows:

"Notwithstanding anything to the con-trary in any law or the common law con- tained 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 in-

tended to commit an offence refer-red to in section 54(1), (2) or (4), excluding, in the case of an

4

offence referred to in section 54(4), such an offence which the suspect committed or intends or intended to commit in connection with a person suspected of having intended to commit or having com-mitted the offence of sabotage; or

(b) is withholding from the South Afri-can Police any information relating to the commission of an offence re-ferred to in paragraph (a) or rela-ting to an intended commission of such offence or relating to any person who has committed or who intends to commit such offence,

without warrant arrest such person or cause him to be arrested and detain such person or cause him to be detained for interrogation in accordance with such directions as the Commissioner may, sub-ject to the directions of the Minister, from time to time issue,...." In the case of Minister of Law and Order and Others v

Hurley and Another, 1986 (3) SA 568 (A), it was held

5

by this Court -

(a) that the words "he has reason to believe",

appearing in sec 29(1), imply that there are grounds, or facts, which give rise to, or form the basis of, the belief of the police officer concerned (see p 577 I);(b) that these grounds must be reasonable

grounds, ie grounds on which he could reasonably have held the belief he did (see PP 578 B-F, 586 G);

(c) that the question as to whether a police of-ficer who has arrested and detained a personin terms of sec 29(1) had the requiredbelief, based upon reasonable grounds, is ob-jectively justiciable (pp 578 G - 583 H);

(d) that the jurisdiction of the Court to enquireinto whether a police officer who has arres-ted and detained a person had reasonable

6

grounds for the belief which led him to take this action is not ousted by sec 29(6) of the Act (pp 583 I - 586 I); and

(e) that where the lawfulness of the arrest and detention are in issue the onus is upon the police officer concerned to show that he ac-ted in accordance with the powers granted un-der the subsection and, therefore, that he had reasonable grounds for his belief (pp 587

B - 589 H). These are the basic principles pertinent to the adjudi-cation of the present case.

In her founding affidavit the respondent a-verred that the detention of the detainee "purportedly" in terms of section 29 of the Act was wrongful and unlawful for a number of reasons. In the course of setting out these reasons she stated:

7

" any police officer purporting to

effect an arrest in terms of section 29 of the Act could never properly have had 'reason to believe' that the detainee was a person falling within the terms of paragraphs (a) and (b) ( of sec 29(1) )".

The main answering affidavit filed on behalf of the appellants was deposed to by Brigadier G N Eras-mus, of the South African Police and officer commanding

the security branch at John Vorster Square. He per-

sonally arrested and detained the detainee under sec 29(1). In answer to the above-quoted averment in the founding affidavit Eramus stated:

"Ek het die aangehoudene kragtens Arti-kel 29(1) van die Wet gearresteer en aangehou. Ek het die ondergenoemde vermoede bona fide en sonder vooroordeel geneem. Ek ontken enige bewering tot die teendeel. Ek het die aangehoudene gearresteer en aangehou omdat ek rede gehad het om te vermoed dat hy 'n persoon

" any police officer purporting to effect an arrest in terms of section 29 of the Act could never properly have had 'reason to believe' that the detainee was a person falling within the terms of paragraphs (a) and (b) ( of sec 29(1) )".

The main answering affidavit filed on behalf of the appellants was deposed to by Brigadier G N Erasmus, of the South African Police and officer commanding the se-curity branch at John Vorster Square Police Station, Johannesburg. He personally arrested and detained the detainee under sec 29(1). In answer to the above-quoted averment in the founding affidavit Erasmus stated:

"Ek het die aangehoudene kragtens Arti-kel 29(1) van die Wet gearresteer en aangehou. Ek het die ondergenoemde vermoede bona fide en sonder vooroordeel geneem. Ek ontken enige bewering tot die teendeel. Ek het die aangehoudene gearresteer en aangehou omdat ek rede gehad het om te vermoed dat hy 'n persoon 8 was wat op 'n plek in die Republiek -

19.3.1 'n misdryf bedoel in Artikel54(1)(b) en 54(1)(d) geleesmet Artikel 54(2), 54(2)(a),(b), (c), (d), (e), (f), (i),

(j) en (k) gepleeg het;

19.3.2 inligting met betrekking totdie pleeg van 'n misdryf soos

in paragraaf 19.3.1 hierbo

uiteengesit van die Suid-Afrikaanse Polisie weerhou òf inligting met betrekking tot 'n persoon wat so 'n misdryf soos in paragraaf 19.3.1 hierbo uiteengesit van die Suid-Afrikaanse Polisie weerhou."

After averring that the detainee was detained for in-terrogation and was in fact thereafter interrogated,Erasmus proceeded to elaborate his reasons, or grounds,

for forming the belief that the detainee had committedthe aforementioned offence or was withholding informa-tion relating to the commission of this offence:

"19.6.1. 'n Onwettige staking deur sommige werkers van die Suid-Afrikaanse Vervoerdienste ("SAVD") het plaas-

9

gevind van ongeveer die 13de Maart 1987 tot die 5de Junie 1987. Daar-die staking was h onwettige staking en daar het nie h geskil bestaan tussen die werkgewer en h werknemer soos bedoel in die Wet op Arbeids-verhoudinge nie. Die staking het begin toe die SAVD h sekere werker, mnr Andrew Nedzamba, afgedank het omdat hy sekere gelde nie inbetaal het toe hy moes nie. Hy is daarna weer in diens geneem maar is 'n boe-te opgelê omdat hy die gemeldê gel-de nie soos hy moes, inbetaal hetnie. Sekere van sy mede-werkers het daarna in simpatie met hom ge-staak. Die staking het uitgebrei totdat duisende werkers van die SAVD onwettig gestaak het. Die Congress of South African Trade Unions ("Cosatu") en die South African Railways and Harbours Workers' Union ("SARHWU") het hulle met die staking bemoei. Die aan-gehoudene was voorheen h nasionale organiseerder van SARHWU. Hy was kort voor sy aanhouding die opvoed-10

kundige sekretaris van SARHWU en lid van verskeie komitees, insluitende 'n "Co-ordinating Committee". Ek verwys verder hieronder na die "Co-ordinating Committee". Die staking het gepaard gegaan met onwettige intimidasie, openbare onrus, saakbeskadiging en veral be-skadiging van eiendom van die SAVD. Die staking is beeindig soos in die applikant se eedsverklaring uiteen-gesit toe daar 'n ooreenkoms plaas-gevind het tussen die stakende werkers en die SAVD. Nadat die staking beëindig is deur die ge-noemde ooreenkoms het die stakende werkers behoorlik na hulle werk te-ruggekeer, en die onwettige open-bare onrus, saakbeskadiging en ge-weld is beëindig. Soos in die ap-plikant se eedsverklaring uiteen-gesit, eien SARHWU dit aan hom toe dat hy veroorsaak het dat die sta-king beeindig was. 19..6.2 Die aangehoudene was betrokke by

die stigting van die "Co-ordinating

11

Committee" en was 'n lid daarvan. Die aangehoudene was teenwoordig en deel van die "Co-ordinating Com-mittee" toe die "Co-ordinating Com-mittee" besluit het dat vyf persone wat van hul werksplekke verwyder is en na Cosatu-huis geneem is, vermoor moet word. Vier persone is wel vermoor en aan die brand gesteek. Hulle liggame is deur die polisie gekry. Die polisie het inligting dat dade teen daardie persone te Cosatu-huis plaasgevind het en objektiewe bewys daarvan is gekry toe Cosatu-huis deursoek was op die 29ste April 1987. Die aan-gehoudene was teenwoordig op 'n ver-gadering toe daar besluit is dat persone wat nie aan die staking deelgeneem het nie, van hul werks-plekke ontvoer moes word en na Cosatu-huis geneem moes word waar hulle geslaan moes word ten einde hulle te intimideer sodat die per-sone nie weer moes terugkeer na hul werksplekke nie. Ook dat sekere persone wat nie aan die staking

12deelgeneem het nie van hul werks-plekke ontvoer moes word en na Cosatu-huis geneem moes word waar hulle op bevel van die aangehoudene aangerand is en geforseer is om le-de van SARHWU te word. Die aange-houdene het persone aangestel in sleutelposisies wie opdragte van die "Co-ordinating Committee" aan die stakende werkers op die grond-vloer van Cosatu-huis moes oordra. Volgens hierdie persone sou dit in opdrag van die "Co-ordinating Committee" gewees het dat treine gebrand moet word, spore losgemaak moet word en dat sinjaalkaste aan die brand gesteek moes word. Hierdie opdragte is afkomstig van die "Co-ordinating Committee" waar-op die aangehoudene gedien het. Die aangehoudene het volgens een van die "Co-ordinating Committee"-lede gesê dat geen persone van SARHWU treinkaartjies mag koop of van vervoerdienste gebruik mag maak nie. 19.6.3 Sekere subversiewe handelinge het

13 wel plaasgevind en het ingesluit dat treine gebrand is, spore is losgemaak, sinjaalkaste is gebrand, treindienste is lamgelê, persone is geïntimideer, persone is ontvoer en aangerand en persone is gedood. 19.6.4 Die aangehoudene het vier swart SARHWU lede na Oos-Londen gestuur om onwettige stakings aldaar te or-ganiseer aangesien werkers van die SAVD nie op daardie stadium daar gestaak het nie. Nadat hierdie persone in opdrag van die aange-houdene op die 22ste April 1987 SARHWU-lede te Oos-Londen toe-gespreek het, was daar 'n onwettige staking vanaf die 23ste April 1987. Die genoemde vier persone meld dat die aangehoudene hulle wel vir daardie doel gestuur het en dat hy die stakings geïnisieer het. 19.6.5 Die aangehoudene het opdrag gegee dat pamflette versprei moes word om die vervoer staking wat op die Witwatersrand uitgebreek het, aan te stig.

19.6.6 Die lede van die "Co-ordinating

14

Commitee" waarvan die aangehoudene 'n lid is het deel gehad in die op-sweping van skares stakendes by Cosatu-huis gedurende April en Mei 1987.

19.6.7 In opdrag van die "Co-ordinatingCommittee" is onwettige volkshowegehou te Cosatu-huis waartydenspersone wat nie aan die stakingsdeelgeneem het nie, verhoor en ge-vonnis is, welke 'vonnisse' uitge-voer is te Cosatu-huis.

19.6.8 Die bogenoemde is misdrywe volgens

Artikel 54(1)(b) en Artikel 54(1)(d) gelees met Artikel 54(2), 54(2)(a), (b), (c), (d), (e), (f), (i), (j) en (k). Daardie misdrywe is gepleeg deur die aangehoudene, lede van die "Co-ordinating Commit-tee" en ander."

It is common cause that the agreement of set-tlement which term the strike to an end (referredto at the end of para 19.6.1) was signed on 5 June 1987 and that by 15 June the entire labour force of the15 South African Transport Services ("SATS") was back at work. The agreement of settlement made provision for the re-employment (subject to certain exceptions) of certain ex-employees of SATS whose services had been terminated during the strike; stipulated that ex-employees who were re-employed would be entitled to participate in "the democratic structures in SATS through free elections"; and recorded that SATS had decided to effect certain improvements in hostel facilities for the benefit of its employees.Although a number of points were raised in the founding affidavit, argued in the Court below and put forward in the heads of argument submitted to this Court, there is one central and decisive issue. It was with reference to this issue that Leveson J decided the matter; and in this Court counsel confined their oral argument to this issue. The issue may be stated thus: whether or not the evidence of Erasmus16 discharged the onus bearing upon the appellants of establishing that when Erasmus arrested and detained the detainee under sec 29(1) he believed that the detainee had committed an offence referred to in para (a) of sec 29(1) or was withholding information relating to the commission of such an offence; and that Erasmus had reasonable grounds for holding that belief. Or, as it is sometimes put, whether or not the jurisdictional fact or facts requisite to the exercise of the power of arrest and detention were shown to have existed.As appears from paras 19.3.1 and 19.6.8 of Erasmus's affidavit, the offence which he believed the detainee to have committed and relating to which he believed the detainee was withholding information was described, somewhat curiously, as being one in terms of sec 54(1)(b) and 54(1)(d), read with sec 54(2), 54(2(a), (b), (c), (d), (e), (f), (i), (]) and (k), of17 the Act. Why I say "somewhat curiously" emerges from the provisions of sec 54 itself, the relevant portions of which read as follows:

"(1) Any person who with intent to -

(a) overthrow or endanger the State authority in the Republic; (b) achieve, bring about or promote any constitutional, political, indus-trial, social or economic aim or change in the Republic; (c) induce the Government of the Repu-blic to do or to abstain from doing any act or to adopt or to abandon

a particular standpoint; or

(d) put in fear or demoralize the gene-ral public, a particular populationgroup or the inhabitants of a par-ticular area in the Republic, or

to induce the said public or such population group or inhabitants to do or to abstain from doing any act,

in the Republic or elsewhere -

(i) commits an act of violence or

threatens or attempts to do so; (ii) performs any act which is aimed at causing, bringing about, promoting or contributing towards such act or threat of violence, or attempts, consents or takes any steps to per-

18

form such act; (iii) conspires with any other person to commit, bring about or perform any act or threat referred to in para-graph (i) or act referred to in pa-ragraph (ii), or to aid in the com-mission, bringing about or perform-ance thereof; or (iv) incites, instigates, commands,

aids, advises, encourages or pro-cures any other person to commit, bring about or perform such act or threat,

shall be guilty of the offence of terrorism and liable on conviction to the penalties provided for by law for the offence of trea-son.

(2) Any person who with intent to achieve any of the objects specified in paragraphs (a) to (d), inclusive, of subsection (1) -

(a) causes or promotes general dislo-cation or disorder at any place in the Republic, or attempts to do so; (b) cripples, prejudices or interrupts at any place in the Republic any industry or undertaking, or indus-tries or undertakings generally, or the production, supply or dis-tribution of commodities or food-stuffs, or attempts to do so;

19

(c) interrupts, impedes or endangers at any place in the Republic the manufacture, storage, generation, distribution, rendering or supply of fuel, petroleum products, ener-gy, light, power or water or of sa-nitary, medical, health, education-al, police, fire-fighting, ambulan-ce, postal or telecommunication services or radio or television transmitting, broadcasting or re-ceiving services or any other pu-blic service, or attempts to do so; (d) endangers, damages, destroys, ren-ders useless or unserviceable or puts out of action at any place in the Republic any installation for the rendering or supply of any ser-vice referred to in paragraph (c), any prohibited place or any public building, or attempts to do so; (e) prevents or hampers, or deters any person from assisting in, the main-tenance of law and order at any place in the Republic, or attempts to do so; (f) impedes or endangers at any place in the Republic the free movement of any traffic on land, at sea or in the air, or attempts to do so;

(9) (h) (i) in the Republic or elsewhere per-

forms any act or attempts, consents or takes any steps to perform any 20

act which results in or could have resulted in or promotes or could have promoted the commission of any of the acts or the bringing about of any of the results contemplated in paragraphs (a) to (h), inclu-sive;

(j) conspires with any other person to commit, bring about or perform any of the acts or results contemplated in paragraphs (a) to (h), inclu-sive, or any act contemplated in paragraph (i), or to aid in the commission, bringing about or per-formance thereof; or

(K) incites, instigates, commands,

aids, advises, encourages or pro-cures any other person to commit, bring about or perform such act or result,

shall be guilty of the offence of subversion and liable on conviction "

Despite the way in which the offence is described in the affidavit, it appears that what Eras-mus had in mind was an offence consisting of the cate-gories of conduct listed in the various paragraphs of sec 54(2) mentioned by him, such conduct having been

21

accompanied by an intent to achieve the objects speci-fied in paras (b) and (d) of sec 54(1). Accordingly, the offence would have been more properly described as a contravention of sec 54(2)(a), (b), (c), (d), (e), (f), (i), (j) and (k), read with paras (b) and (d) of sec 54(1). Furthermore, thus put, the averment appears to comprehend a large number of offences, not one; and indeed counsel for the appellants conceded that the various permutations of intent inherent in paras (b) and (d) were manifold. In his affidavit Erasmus did not give any greater particularity than this.I proceed, therefore, on the basis that what Erasmus acted on was an offence, or offences, consist-ing of the contravention of sec 54(2), ie subversion, in the respects specified by him. An examination of sec 54(2) shows that the offences which it creates con-sist essentially of two elements: (i) conduct falling

22

within one or other of the categories listed in paras (a) to (k) inclusive - "the conduct element" - and (ii) an accompanying intent to achieve any of the objects specified in paras (a) to (d) inclusive of sec 54(1) - "the mental element". The coincidence of both elements is obviously essential for the commission of the crime of subversion.With reference to the mental element appel-lant's counsel submitted that the "intent" referred to in the opening words of sec 54(2) could include the common law concept of dolus eventualis. The argument, as I understood it, was that a person would be guilty of the offence of subversion if he committed one or other of the acts listed in paras (a) to (k) of sec 54(2), not with the aim or intention of achieving one of the objects specified in one or other of paras (a) to (d) of sec 54(1), but merely with the realisation

23

that his conduct might have that result and being reckless as to whether that result ensued or not. In my view, this argument is unsound. One is here not dealing with the concept of mens rea, which is a neces-sary ingredient of common law crimes and of most statu-tory offences, but with an expressly prescribed element in a statutory offence. And the wording of the sec-tion, in my view, clearly excludes the idea of some sort of dolus eventualis. It decrees that the offence is only committed if the person concerned did one of the listed acts "with intent to achieve" any of a num-ber of specified objects (or, as the Afrikaans text, the signed one, puts it, "met die opset om enige van die doelstellinge.... te bereik") Whatever the position may be where a person commits such an act with intent to achieve both a proscribed object and one which is not, I am satisfied that the section does not cover the case where the person

24

commits the act, not with the intention of achieving a proscribed object, but merely with the knowledge that his conduct may have that result. To hold otherwise would amount to flying in the face of the express language of the section. In this connection it must be borne in mind that sec 54(2) creates a very serious offence, punishable with a maximum sentence of twenty years imprisonment (in certain circumstances twenty-five years imprisonment); that consequently even if the language is ambiguous (which I do not think it is) the less onerous interpretation should be adopted (see Rex v Milne and Erleigh (7) 1951 (1) SA 791 (A), at 823 A - F); and that this approach would lead to a rejection of the argument of appellant's counsel.

Some support for my conclusion concerning dolus eventualis may, I think, be derived by way of analogy from a series of cases in which it has been held with reference to sec 29(1) of the Black Adminis-25tration Act 38 of 1927, which penalises conduct "withintent to promote any feelings of hostility betweenBantu and Europeans" (Afrikaans: "met die doel omvyandige gevoelens tussen Swartes en blanke te bevor-der"), that for the State to succeed in a prosecutionunder this section it is not sufficient to show thatan accused possessed a constructive intention (ie doluseventualis); the State has to prove the actual inten-tion of promoting such hostility (see S v Singh andAnother 1975 (1) SA 330 (N), at p 335 C-E, and the ca-ses there cited; see also S v Mbiline and Another 1978(3) SA 131 (E), at p 134 C - 135 A).

I turn now to consider whether it has been shown that Erasmus formed the belief that the offence, or offences, referred to by him had been committed by the detainee and whether there were reasonable grounds for such a belief. There is no doubt that on the in-formation referred to by Erasmus in the passages from26 his affidavit which I have quoted above he had reason-able grounds for believing that, in the course of the SATS strike, acts had been committed which fell within one or more of the categories listed in the paragraphs of sec 54(2) relied upon by him. There is thus no problem about the conduct element. Problems do arise, however, in regard to the mental element.In the first place, there is no indication in Erasmus's affidavit that he gave consideration to the mental element. He does not mention it specifi-cally, unless one can regard his references to sec 54(1)(b) and (d) as conveying an implied allusion thereto. Moreover, having regard to the wide terms of paras (b) and (d) - (b) covers constitutional, political, industrial, social and economic aim or change - and the many possible permutations (pre-viously referred to), one wonders what his thinking on the subject could have been. It seems unlikely that27 he would have considered all these permutations andcome to the conclusion that they all applied. And it seems likely that had he properly applied his mind to the question of the mental element he would have been far more selective in his description of the offence, or offences, which he believed to have been committed.Be that as it may, the main problem is the absence from Erasmus's affidavit of any express indica-tion of the grounds upon which he believed the mental element of the offence to have existed. No doubt there may well be cases in this kind of situation where it is not necessary for the detaining officer to spell out the grounds upon which he came to the belief that the mental element was present. The very facts them-selves or the nature of the conduct in question, con-sidered in the light of the surrounding circumstances, may proclaim that the acts constituting the conduct

28

element were done with the intent to achieve one or more of the objects listed in paras (a) to (d) of sec 54(1); and it may be equally clear that this is what the detaining officer relied on in forming his belief concerning the mental element. But that is hardly the position here.In this case the conduct relied on by Erasmus occurred within the context of an industrial strike, which originated in the treatment of a particular SATS employee. Erasmus himself describes it as a sympathy strike, which later spread and resulted in thousands of SATS workers becoming involved. By no stretch of imagination can the object of such strike action be brought within the ambit of sec 54(1)(b) or (d). It is true that in the course of the strike there was ap-parently illegal intimidation of workers, public unrest, unlawful and serious damage to property, parti-cularly property belonging to SATS; some workers who

29

did not heed the strike were intimidated, assaulted, tried and sentenced by illegal people's courts ("volks-howe"); and in certain instances, it would seem, they were murdered. All this, however, was ephemeral. On 5 June 1987 the settlement agreement was signed and in accordance therewith the strikers returned to work on 15 June, apparently satisfied with the settlement.All was peace again. The violence and criminal conduct which ac-companied this strike should not, however, be minimi-zed; and appellant's counsel sought to persuade us that this factor, together with the magnitude of the strike, showed that it was not a normal case of indus-trial action about workers'grievances and that certain of the strikers' conduct, instigated by the "Co-ordinating Committee" (of which the detainee was a member), was pursued with the intent to achieve one or more of the objects referred to in paras (b) and (d)

30

of Sec 54(1).In my view, this argument fails for a number of reasons. Firstly, Erasmus, with whose decision we are primarily concerned, never stated in his affida-vit that this was an inference which he drew. As far as his thinking, and the grounds for his belief, are concerned, the argument thus amounts to pure specula-tion. In fact, as I have previously emphasized, Eras-mus described it as a strike in sympathy with the grie-vances of a particular worker who had been disciplined. Secondly, I do not think that purely on the information supplied by Erasmus in his affidavit such an inference could reasonably be drawn. Strikes, or industrial ac-tion as they are sometimes more euphemistically described, are in the present age matters of fre-quent occurrence in this country and elsewhere in the world. It is, I think, notorious that a strike may originate on a small scale with some minor or in-

31

significant issue, but later escalate, very often through sympathetic action, into something very much larger, sometimes embracing a whole industry. It is, in my view, also notorious that strikes are often ac-companied by intimidation of workers,physical violence and destruction of property, particularly the employ-er's. Save that the physical violence was unusually extreme, the pattern of conduct in the SATS strike does not appear to have been any different. And I see no basis in all this for an inference that the strikers, or some of them, had in mind any of the objects listed in paras (b) and (d) of sec 54(1). Thirdly, the strike lasted less than three months and, in terms of the settlement, which appeared to satisfy all concerned, all that was ostensibly achieved was the re-employment of certain workers who had been dismissed during the strike and, seemingly, the improvement of hostel faci-lities. This seems to negative the suggestion that

32

the strike had other objectives falling within the ambit of paras (b) and (d) of sec 54(1).In the course of his argument appellants' counsel was asked to specify what conduct on the part of the strikers justified the reasonable inference that it occurred with the intent required by the mental element and at the same time to specify which of the various objects listed in paras (b) and (d) was appli-cable. In replý counsel concentrated on (i) the evi-dence, at the end of para 19.6.2 of Erasmus's affida-vit, that the detainee forbade members of SARHWU to buy train tickets or to make use of the transport services provided by SATS, and (ii) the evidence in para 19.6.7 concerning the activities of the illegal people's courts. Counsel suggested that it was to be inferred that the conduct under (i) above was undertaken in order to control the transport system and therefore with the intent to achieve industrial change

33

in the Republic; and that the conduct under (ii) above was undertaken with the object of changing the system of courts, ie bringing about constitutionál change in the Republic. In the context of the evidence as a whole I find these suggestions fanciful: no such infe-rences could, in my opinion, reasonably be drawn. It is not necessary, or indeed desirable, in this case to analyse what is meant by the objects of achieving, bringing about or promoting constitutional, political, industrial, social or economic change in the Republic within the terms of sec 54(2), read with para (b) of sec 54(1). In a very general sense, however, it seems to me that the kind of change contemplated by the Le-

gislature is characterized by criteria of relative uni-

versality within the Republic and relative permanence.

The inferred object of the conduct described under (i)

and (ii) above had none of these characteristics. It was obviously localized within a particular industry34and ephemeral, designed merely to promote the strike.Counsel also suggested that it was to be in-ferred that certain of the strike action, particularly the intimidation, was undertaken with the object of putting in fear or demoralizing a particular population group or the inhabitants of a particular area in the Republic or to induce such population group or such in-habitants to do or abstain from doing acts, within the meaning of para (d) of sec 54(1). When asked what population group he had in mind counsel indicated the workers employed by SATS. As I read the evidence about the strike furnished by Erasmus, the intimidation was directed not at the entire body of SATS workers, but only at those who did not or were reluctant to participate in the strike. But, in any event, having regard to what was said by this Court in S v Radebe 1988 (1) SA 772 (A), at p 777 B - I, about the meaning of the words "a particular population group" and "the

35inhabitants of a particular area" I do not think that even the entire body of SATS workers would constitute either of these concepts. There is accordingly, also no substance in this line of argument.It was further argued by appellants' counsel, in the alternative, that the respondent was not enti-tled on the papers to take the point that there was insufficient evidence to show that Erasmus formed a be-lief in regard to the mental elements or that he had reasonable grounds for such a belief and in this con-nection counsel referred to the decision of this Court in the case of Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A). There is, in my view, no validity in this submission. The point concerning the mental element was raised in argument in the Court a quo by respondent's counsel, apparently without ob-jection from appellants or any attempt on their part to supplement their evidence, and it formed the basis36

of the decision of the Court a quo. Objection to the raising and consideration of the point was not made one of the grounds upon which leave to appeal was sought. The objection is thus very much of an afterthought. In any event, the founding affidavit, as I have indica-ted, alleges that the police officer arresting the de-tainee could never have had reason to believe that the detainee was a person falling within paras (a) and (b) of sec 29(1). This puts in issue, fairly and square-ly, the lawfulness of the decision of the detaining of-ficer and the adequacy of the grounds upon which he reached his decision. The onus being on the detaining officer, it was incumbent upon him, if he wished to discharge that onus, to deal fully with all the ele-ments of his decision and the grounds therefor. This included the mental element of an offence under sec 54(2). Accordingly, respondent upon being apprised, by way of Erasmus's affidavit, of.the basis of the

37

of the decision to detain, was perfectly,entitled to take the point that, in regard to this mental element, the appellants had failed to discharge the onus.The Dempsey case, supra, is not in point. It related to a detention in terms of reg 3(1) of the Emergency Regulations, not sec 29(1) of the Act. With-out going into detail, I would point out that the na-ture and grounds of the decision to arrest and detain under that regulation and the onus of proof in regard thereto are quite different from those under sec 29(1). The factual situation in Dempsey's case and the grounds upon which the arresting officer's decision was there challenged are also not in pari materia.Finally, I would add that appellants' counsel made no special point about sec 29(1)(b) of the Act. In other words, he appeared to accept (in my view cor-rectly) that if there were no reasonable grounds dis-closed in Erasmus's affidavit for a belief that the

38

detainee had committed an offence described in sec 29(1)(a), then there were equally no reasonable grounds disclosed for a belief that the detainee was withhold-ing information relating to the commission of such an offence.For these reasons, I am of the view that even if Brigadier Erasmus did advert to the mental element of the offence or offences said to have been committed by the detainee under sec 54(2), the facts recounted by him in his affidavit do not disclose reasonable grounds for believing that this mental element was present when the conduct said to give rise to the of-fence or offences took place. In the result the ap-pellants failed to discharge the onus of proving the lawfulness of the arrest and detention. It follows that the Court a quo came to a correct decision (see p 301 F - H of the reported judgment) and that the ap-peal against the judgment on the merits must fail.

39There is also an appeal against the order of costs made by the Court a quo on the ground that the learned judge ought not to have granted the costs of two counsel. The question as to the costs of two counsel was raised in the Court a quo (see p 301 J to 302 B). Leveson J considered it and gave what appear to me to be sound reasons for his decision to allow the costs of two counsel. No good ground for interfering with the exercise of his discretion in this regard has been advanced. There is no merit in this aspect of . the appeal.

The appeal is accordingly dismissed with costs, such costs to include those occasioned by the employment of two counsel.

M M CORBETT VAN HEERDEN JA)

NICHOLAS AJA)