Omar and Others v Minister of Law and Order and Another; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill (68/87) [1987] ZASCA 66; [1987] 4 All SA 556 (AD) (29 June 1987)

Omar and Others v Minister of Law and Order and Another; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill (68/87) [1987] ZASCA 66; [1987] 4 All SA 556 (AD) (29 June 1987)

The Supreme Court of Appeal held that regulation 3(3), which excludes notice and hearing before further detention, is not ultra vires the Public Safety Act, 1953. The Act confers extremely wide discretionary powers on the State President to make regulations necessary or expedient for public safety and order during emergencies, including measures that may drastically curtail individual rights. The exclusion of the audi alteram partem rule is justified by the emergency context and the need to prevent disclosure of sensitive information. Regulation 3(10)(a) and rule 5(1) and (3), which restrict access to legal advisers, are also intra vires, as they are reasonably related to the purposes of...

Citation
[1987] ZASCA 66
Parties
Appellant: Abdullah Mohamed Omar; Appellant: Howard Sikolake Marawu; Appellant: Marcus Chinnosamy Solomon; Appellant: Leslie Andrews; Appellant: Derrick Rabindranath Naidoo; Appellant: Neville Naidoo; Respondent: The Minister of Law and Order; Respondent: The Minister of Justice; Respondent: Officer Commanding, Victor Verster Prison; Respondent: The State President; Respondent: The Commissioner of Police; Appellant: Marjorie Fani; Respondent: Officer Commanding, St Alban's Prison; Respondent: Officer Commanding, Northend Prison; Appellant: The State President; Appellant: The Government of the Republic of South Africa; Appellant: The Minister of Law and Order; Respondent: Mary Cameron Bill
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 June 1987
Case Number
68/87
Procedural Posture
Civil Appeal / Appeal From Decisions of Lower Courts Regarding Validity of Emergency Detention Regulations
Outcome
Appeals in Omar and Fani dismissed with costs; appeal in Bill upheld with costs, application dismissed.
Judges
Rabie, Joubert, Viljoen, Hoexter, Boshoff
Legal Topics
State of Emergency, Detention Without Trial, Audi Alteram Partem, Ultra Vires, Access to Legal Representative
Constitutional Law Administrative Law State of Emergency Detention Without Trial Audi Alteram Partem Ultra Vires Access to Legal Representative

Case Brief

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Parties

Abdullah Mohamed Omar

Appellant

Howard Sikolake Marawu

Appellant

Marcus Chinnosamy Solomon

Appellant

Leslie Andrews

Appellant

Derrick Rabindranath Naidoo

Appellant

Neville Naidoo

Appellant

The Minister of Law and Order

Respondent

The Minister of Justice

Respondent

Officer Commanding, Victor Verster Prison

Respondent

The State President

Respondent

The Commissioner of Police

Respondent

Marjorie Fani

Appellant

Officer Commanding, St Alban's Prison

Respondent

Officer Commanding, Northend Prison

Respondent

The State President

Appellant

The Government of the Republic of South Africa

Appellant

The Minister of Law and Order

Appellant

Mary Cameron Bill

Respondent

Procedural Posture

Civil Appeal / Appeal From Decisions of Lower Courts Regarding Validity of Emergency Detention Regulations

Legal Issues

  1. 1 Whether regulation 3(3) of the emergency regulations, which excludes notice and hearing before further detention, is ultra vires the powers conferred by the Public Safety Act, 1953.
  2. 2 Whether regulation 3(10)(a) and rule 5(1) and (3), restricting access to legal advisers for detainees, are ultra vires.
  3. 3 Whether the Minister is obliged to furnish detainees with reasons for their continued detention under regulation 3(3).

Ratio Decidendi

The Supreme Court of Appeal held that regulation 3(3), which excludes notice and hearing before further detention, is not ultra vires the Public Safety Act, 1953. The Act confers extremely wide discretionary powers on the State President to make regulations necessary or expedient for public safety and order during emergencies, including measures that may drastically curtail individual rights. The exclusion of the audi alteram partem rule is justified by the emergency context and the need to prevent disclosure of sensitive information. Regulation 3(10)(a) and rule 5(1) and (3), which restrict access to legal advisers, are also intra vires, as they are reasonably related to the purposes of...

Court Disposition

Appeals in Omar and Fani dismissed with costs; appeal in Bill upheld with costs, application dismissed.

Orders

  • The appeal in Omar and Others v Minister of Law and Order and Others is dismissed with costs, including the costs of two counsel.
  • The appeal in Marjorie Fani and Others v Minister of Law and Order and Others is dismissed with costs, including the costs of two counsel.