State President and Others v Tsenoli Kerchff and Another v Minister of Law and Order and Others (124/86) [1986] ZASCA 118 (30 September 1986)

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

( 1) In the matter between:

THE STATE PRESIDENT 1st Appellant

THE MINISTER OF LAW AND ORDER .2nd Appellant

THE MINISTER OF JUSTICE 3rd Appellant

and

SOLOMON LECHESA TSENOLI Respondent

( 2 ) In the matter between:

JOAN LYNETTE KERCHOFF 1st Appellant

PETER CAMPBELL KERCHOFF 2nd Appellant

THE MINISTER OF LAW AND ORDER.1st Respondent

THE MINISTER OF JUSTICE 2nd Respondent

THE/

THE COMMISSIONER OF POLICE 3rd Respondent

THE OFFICER COMMANDING

THE NEW PRISON, PIETERMARITZBURG..... 4th Respondent

Coram: RABIE CJ, JANSEN, CORBETT, JOUBERT et VILJOEN JJA.

Heard: Delivered

30 September 1986 10 September 1986

JUDGMENT

RABIE CJ:

These two appeals are concerned with the validity of regulation 3(1) and (3) of the regulations contained in Proclamation R 109 of 1986, promulgated in terms of section 3(l)(a) of the Public Safety Act, No. 3

of/

3

of 1953

In the first case (to which I shall refer as

'Tsenoli's case") it was held on 11 August 1986 in the

Durban and Coast Local Division (per Friedman J, with whom

Leon and Wilson JJ agreed) that reg. 3(1) was invalid for

being beyond the powers of the State President as set out

in sec. 3(1)(a) of the aforesaid Act (hereinafter referred

to as "the Act"), and that, without reg. 3(1), reg, 3(3)

had no practical effect. The Court accordingly ordered

the release of the applicant in that case (the respondent

in the first appeal), who had been arrested and detained

under the said regulations.

In the second matter (hereinafter referred to

as "Kerchoff's case"), which was concerned with the arrest

and/......4and detention of one Peter Campbell Kerchoff (the 2nd

appellant in the second appeal), a full Court of three

Judges (Kriek, Thirion and Law JJ "), sitting in the Natal

Provincial Division, held in a joint judgment, delivered on-

14 August 1986, that it had been wrongly decided in Tsenoli's

case that reg. 3(1) was ultra vires and invalid. (It does

not appear from the Court's judgment that it was contended

on the 2nd appellant's behalf that reg. 3(3) should be held

to be invalid even if it were found that reg. 3 (1) was

valid.) The Court accordingly refused to order the 2nd

appellant's release from detention on the ground that

reg. 3(1) was invalid. It also refused to do so on

the ground that, as was argued on his behalf, his

detention/.......

4(a)

detention was unlawful because it had not been preceded

by an "arrest" within the meaning of that term in reg,

3(1).

In Proclamation R 108 of 11 June 1986 the State

President, acting in terms of the powers conferred upon him by sec. 2(1) of the Act, declared the existence of a state of emergency in the Republic as from 12 June 1986. Sec. 2(1) of the Act reads as follows:

2. (1) If in the opinion of the Governor-General it at any time appears that -(a) any action or threatened action

by any persons or body or persons in the Union or any area within the Union is of such a nature and of such an extent that the safety of the public, or the maintenance of public order is seriously threatened thereby; or (b) circumstances have arisen in the

Union or any area within the Union which seriously threaten the

safety of the public, or the

maintenance/

5

maintanance of public order; and

(c) the ordinary law of the land is

inadequate to enable the Government to ensure the safety of the public, or to maintain public order,

he may, by proclamation in the Gazette, declare that as from a date mentioned in the proclamation, which date may be a date not more than four days earlier than the date of the proclamation, a state of emergency exists within the Union or within such area, as the case may be."

Sec. 3 (1) (a) of the Act empowers the State President to make regulations in any area in which the existence of a state of emergency has been declared. It reads as follows:

"3. (l)(a) The Governor-General may in any area in which the existence of a state of emergency has been declared under section two, and for as long as the proclamation

declaring the existence of such emergency remains in force, by proclamation in the Gazette, make such regulations as appear to him to be necessary or expedient for providing for the safety of the public, or

the/

6

the maintenance of public order and for making adequate provision for terminating such emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency."

By Proclamation R109, dated 12 June 1986, the State President, acting in terms of the powers conferred upon him by sec. 3(1)(a) of the Act, made regulations which came into operation on the date of the Proclamation. Subregulations (1), (2), (3), (4), (5) and (6) of reg. 3 of these regulations read as follows:

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

member/

7member of a Force, detain, or cause to be detained, any such person in custody in a prison.

(2) No person shall be detained in terms of subregulation (1) for a period exceeding fourteen days from the date of his detention, unless the period is extended by the Minister in terms of subregulation (3). (3) The Minister may, without notice to any person and without hearing any person,

by written notice signed by him and addressed to the head . of a prison, order that any person arrested and detained in terms of subregulation (1) , be further detained in that prison for the period mentioned in the notice, or for as long as these Regulations remain in force.

(4) A person detained in a prison pursuantto an order referred to in subregulation (1),or a notice referred to in subregulation (3),may be removed in custody, if the Minister

or a person authorized by him in writing so directs, from that prison for detention in any other prison, or for any other purposes mentioned in such direction.

(5) A member of a Force may, with a viewto the maintenance of public order, thesafety of the public or the termination of

8

the state of emergency, interrogate any person arrested or detained in terms of this regulation.

(6) The Minister may at any time by notice in writing signed by him order that a person detained in terms of this regulation, be released on such condition or conditions, if any, as may in his discretion be determined' by the Minister in such notice."

According to reg. 1, "Minister" means the Minister of Law and Order, while "Force" means -

".... the South African Police referred to in the definition of 'the Force' in section 1 of the Police Act, 1958 (Act 7 of 1958), the South African Railways Police Force established under section 43 of the South African Transport Services Act, 1981 (Act 65 of 1981), The South African Defence Force referred to in section 5 of the Defence Act, 1957 (Act 44 of 1957) or the Prisons Service established by section 2(1) of the Prisons Act, 1959 (Act 8 of 1959.)"

Before/

9 Before I proceed to discuss the two appeals,

I propose to refer to what has been said by this Court

concerning the interpretation of a statute of the kind that

is in issue in the appeals, i.e. a statute which encroaches,

or authorises an encroachment, upon the liberty normally

enjoyed by the individual, but which is, at the same time,

aimed at the protection of the public in an emergency

situation. The approach to be followed by a Court in such

circumstances was considered in the case of Rossouw v. Sachs

1964(2) SA 551(A), where sec. 17 of Act 37 of 1963, the

predecessor of sec. 6 of the now repealed Terrorism Act, No.

83 of 1967, and of sec. 29 of the present Internal Security

Act, No. 74 of 1982, was in issue. Ogilvie Thompson JA, who

delivered the judgment of the Court, said (at 563 C-H):

.... as/.....

10

"......as the Acts mentioned in sec 17 and as various cases both in the Provincial Courts and in this Court bear witness, subversive activities of various kinds directed against public order and the safety of the State are by no means unknown, and sec. 17 is plainly designed to combat such activities. Such being the circumstances whereunder sec. 17 was placed upon the Statute Book, this Court should, while bearing in mind the enduring importance of the liberty of the individual, in my judgment, approach the construction of sec. 17 with due regard to the objects which that section is designed to attain. In this connection I cite, as being, in my opinion, very apposite to the present enquiry, sufficiently heedful of the necessity for the Court to avoid any 'strained construction' in favour of the Executive as elaborated by LORD ATKIN at p. 361 of his dissenting judgment in Liversidge's case, and in general harmony with what was said in a somewhat similar, though not identical, context by this Court in R. v. Sachs, supra at p. 399, the following excerpt from the opinion of LORD WRIGHT in Liversidge's case at p. 372 of (1941) 3 All E.R., viz.:

' All the Courts to-day, and not least this House, are as jealous as they have ever

been/....

11

been in upholding the liberty of the" subject. That liberty, however, is a liberty confined and controlled by law, whether common law or statute ... If an Act of Parliament ... is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is as to the precise extent of the powers given. The answer to that question is only to be found by scrutinising the language of the enactment in the light of the surrounding circumstances and the general policy and object of the measure.'"

The learned Judge stated his conclusion in the following terms (at 563H-564A):

"I accordingly conclude that in interpreting sec. 17 this Court should accord preference neither to the 'strict construction' in favour of the individual indicated in Dadoo's case, supra, nor to the 'strained construction' in favour of the Executive referred to by LORD ATKIN in Liversidge's case, supra, but that it should determine the meaning of the section upon an examination of its wording in the light of the circumstances whereunder it

was/....

12

was enacted and of its general policy and object."

(The decisions mentioned in the passages quoted above, are: Liversidge v. Anderson and Another [1941] UKHL 1; (1941) 3 All ER 338 (HL); R v. Sachs 1953(1) SA 392(A), and Dadoo Ltd and Others v. Krugersdorp Municipal Council 1920 A.D. 530.)As to determining the meaning of* a statutory-provision which encroaches upon the liberty of the subject, it has often been said that, if the language thereof is uncertain or ambiguous, it should be interpreted in a way which least interferes with the rights of the individual. It is to be noted, however, that such an approach to the task of interpretation is permissible only if the language used by the Legislature is indeed

ambiguous or open to doubt. If it is not, and the meaning

thereof/

13

thereof is clear, the Court must give effect thereto, no matter how unfortunate the result may be for those who may be affected by it. See Rossouw v. Sachs, supra, and R. v. Sachs, supra, at 399 G-H, where Centlivres CJ said:

"Courts of law do scrutinise such statutes with

the greatest care but where the statute under

consideration in clear terms confers on the

Executive autocratic powers over individuals,

courts of law have no option but to give

effect to the will of the Legislature as expressed

in the statute. Where, however, the statute is

reasonably capable of more than one meaning a

court of law will give it the meaning which

least interferes with the liberty of the individual"

In this connection I would also cite what was said by Lord Wilberforce and Lord Diplock in the case of Inland Revenue Commissioners and Another v. Rossminster Ltd and Others [1979] UKHL 5; 1980 A.C. 952 (HL), where the issue was whether search

warrants/.......

14

warrants were within the terms of the provision (sec.

20 of the Taxes Management Act 1970) under which they

had been issued. Lord Wilberforce said (at 998A):

"... while the courts may look critically at

legislation which impairs the rights of citizens

v and should resolve any doubt in interpretation

in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation ..."

Lord Diplock said the following (at 1008 D-E):

"So if the statutory words relied upon as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search

for/

15

for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect." In Tsenoli' s case Friedman J, reading

sec. 3(l)(a) of the English version of the Act as if there were a comma after the word "order" (there is a comma after the word "orde" in the signed Afrikaans text), held that the section was capable of two meanings. The learned Judge said:

"The first meaning is to the following effect. The first respondent is empowered to make such regulations as appear to him to be necessary or expedient for one or more of the following purposes -

(a) for providing for the safety of the public; (b) for providing for the maintenance of public order; (c) for making adequate provision for terminating the state of emergency;

(d)/ 16

(d) for dealing with any circumstances which in his opinion have arisen as a result of the state of emergency.

The second meaning is to the following effect The first respondent is empowered to make such regulations as appear to him to be necessary or expedient for one or more of the following purposes -

(a) for providing of the safety of the public and for making adequate provision for terminating the state of emergency; (b) for providing for the maintenance of law and order and for making adequate provision for terminating the state of emergency; (c) for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of the state of emergency."

The learned Judge held that the second meaning was the correct one.

It will immediately be apparent that according to the learned Judge's interpretation of sec.

3/......

17

3(1)(a) the words "and for making adequate provision

for terminating such emergency" constitute a qualification

of, or limitation upon, the State President's power to

make regulations "for providing for the safety of the

public, or the maintenance of public order", the effect

of which is that the State President is entitled to make

regulations which provide for the safety of the public or

the maintenance of public order, and which, at the same

time, also provide for the termination of the state

of emergency, but not regulations which provide only for

the safety of the public or the maintenance of public order

as independent purposes. According to this interpretation

of sec. 3(1)(a), as I understand it, reg. 3(1) would be

invalid because the State President, by using the word "or"

instead/.....18

nstead of "and" before the words "for the termination

of the state of emergency", ignored the qualification,or limitation, which the words "and for making adequateprovision for terminating such emergency" place upon hispower to make regulations for providing for the safety ofthe public or the maintenance of public order, and, in theresult, went beyond the powers conferred on him by sec.3(l)(a).

The learned Judge' s reasons for adoptinghis aforesaid interpretation of sec. 3(1)(a) of theAct appear from the following passages in his judgment:

"It seems to me, in the first place, that by far the most important single factor in seeking to ascertain which of the two meanings the section bears, is the use of the word 'and' before the words 'for making adequate provision'. Immediately

prior/

19

prior to that word the section lists two of the purposes of the regulations to be 'for providing for the safety of the public' and 'for providing for the maintenance of the public order.' These two purposes are linked by the use of the word 'or'. The word 'or' has clearly been used not to suggest that the first respondent can make regulations for alternative purposes, and if he does it for the one purpose it excludes the other, but rather to suggest that he can make regulations for either or both of those purposes. Thus the word 'or' is used by the legislature before the phrase 'the maintenance of public order' so as to indicate that an additional power or purpose to that of 'providing for the safety of the public' is being specified by it. The word 'or' is also used in precisely the same manner in the latter part of the section in order to add an additional purpose for which regulations can be made, namely, 'for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency.' That being so, if the words 'for making adequate provision for terminating such emergency' were intended

by/......

20

by the legislature simply to add yet a further purpose for which the first respondent may make regulations, one would have expected it once again to have used the word 'or' to introduce the phrase. The use of the word 'and' would therefore tend to suggest that the legislature intended to link or connect the phrase following that word, to the phrase which preceded it. The use of the commas to which I have referred, tend to suggest that that phrase was being linked to both and not simply one of the preceding purposes which, as I have said, is indicated by the positioning of the comma in the English version. This object would be reached by giving to the section the second, but not . the first, meaning."

"The second meaning, and the emphasis to which I have just referred, appears to accord with the reasons for the declaration of a state of emergency as they emerge from a consideration of the provisions of section , 2(1) of the Act. In essence, a state of emergency may be declared where the first

respondent/

21

respondent is of the opinion that, firstly,there are either actions or threatened actionsby persons or bodies of persons or there arecircumstances which have arisen, whichseriously threaten the safety of the publicor the maintenance of public order and,secondly, that the ordinary law of the land

is inadequate to enable the government toensure the safety of the public or themaintenance of law and order. In other words,

it is not the mere threat to the safety ofthe public or the maintenance of law and orderwhich gives rise to the state of emergency,but also, the circumstance that the ordinary

law is inadequate to deal with the problemswhich have arisen. The object of the declaration

of the state of emergency, therefore, is not

simply to bring about the elimination of

threats to public safety and law and order,

but also to bring about a situation where the

ordinary law once again will be adequate to

cope with such threats. In other words, it

might be said that an important purpose of

the declaration of a state emergency is to

bring an end to such emergency. If this

then is an underlying object of the declaration

of a state of emergency, as I believe it to

be upon a consideration of section 2(1), then

it/

22

it makes good sense to give to section 3(l)(a)the second meaning ; ".

"There is a further important consideration which

leads me to believe that the second meaning is the correct one. The legislature in enacting section 3(1)(a) no doubt had in mind that the regulations made by the first respondent might, for example, make provision for not only the arrest but also for the detention of persons, otherwise than in accordance with the ordinary law of the land (cf. for example sections 3(4) and 3(4) bis). Such detention might, and probably would be, summary or without what is often referred to as, due process of law. If, therefore, the first respondent were to be empowered to make regulations for not only the arrest but also the summary detention of persons believed to be a threat to the safety of the public or a threat to the maintenance of law and order, such detentions might continue even if the detention of such persons in no way accelerated or might even be thought to be in any way relevant to the acceleration of, the termination of the state of emergency. In order to obviate such an undesirable result, it seems logical to suppose that the legislature inserted the words 'and for making adequate provision

23

for terminating such emergency' as an additional requirement of, or qualification to, the power of the first respondent to make regulations for the detention of persons believed to be a threat to the safety of the public or a threat to the maintenance of law and order. To look at the matter somewhat differently, if the first meaning of sec. 3(1)(a) is the correct meaning, persons whose activities, actual or potential, were in no way related to either the existence or continuance of the state of emergency, might be subject not only to arrest but also to summary detention for as long as the state of emergency exists. Thus, for example, every common criminal, at any rate those with a propensity for violence, might be considered a threat to the safety of the public and liable as such to be detained summarily for the duration of the state of emergency, a result which does not seem to accord with the object of the Act insofar as the declaration of a state of emergency is concerned."

In my opinion the learned Judge's interpretation of sec. 3(1)(a) of the Act is forced and strained, and

not/.....

24

not supported by the language used by the Legislature. The Afrikaans text of the section - the punctuation of which the learned Judge adopted when considering the meaning of the section - reads as follows:

"3. (l)(a) Die Goewerneur-Generaal kan in 'n gebied waar die bestaan van 'n noodtoestand kragtens, artikel twee verklaar is, en vir solank die proklamasie wat die bestaan van so 'n noodtoestand verklaar, van krag bly, by proklamasie in die Staatskoerant die regula-sies uitvaardig wat hy nodig of raadsaam ag om voorsiening te maak vir die veiligheid van die publiek of die handhawing van die openbare orde, en om voldoende voorsiening te maak vir die beëindiging van die noodtoestand, of om te handel met omstandighede wat na sy oordeel as gevolg van so 'n noodtoestand ontstaan het of waarskynlik sal ontstaan."

In what follows, I refer to the Afrikaans version of the section, not because I believe that it has a meaning which is in any way different from that of the English version,

but/.....

25

but because I consider that the relevant part of the section in the Afrikaans version is grammatically so constructed as to reveal immediately what the Legislature intended to say. On reading the Afrikaans text of the section, I find myself quite unable to construe the words "en om voldoende voorsiening te maak vir die beëindiging van so 'n noodtoestand" (my emphasis) as constituting a qualification of, or limitation upon, the power mentioned in the earlier part of the section, viz. to make regulations "om voorsiening te maak vir die veiligheid van die publiek of the handhawing van die openbare orde". The section empowers the State President to make regulations "om voorsiening te maak vir die veiligheid van die publiek of die handhawing van die openbare orde, en om

voldoende voorsiening te maak vir die beëindiging van so

'n/

26

'n noodtoestand", and in my view it is clear that the

words "en om voldoende voorsiening te maak vir die

beëindiging van so 'n noodtoestand" refer to a power

additional to that referred to in the words "om voorsiening

te maak vir die veiligheid van die publiek of die hand-

hawing van die openbare orde". There is nothing in the

words "en om voldoende voorsiening te maak vir die be-

eindiging van so 'n noodtoestand" which, as a matter of

language, qualifies or limits the power "om voorsiening

hawing van die openbare orde". The power to make

regulations "om voorsienig te maak vir die veiligheid van

die publiek of die handhawing van die openbare orde, en om

voldoende voorsiening te maak vir die beëindiging van so 'n

noodtoestand/....

27

noodtoestand" relates to two concepts, the one being the safety of the public and the maintenance of public order, and the other the termination of the state of emergency. It is no doubt likely that measures which are designed to ensure the safety of the public or the maintenance of public order will often contribute to the termination of the state of emergency, but this does not detract from the fact that the protection of the public or the maintenance of public order, on the one hand, and the termination of the state of emergency, on the other, are not the same concept. In Kerchoff's case the

Court a quo said the following in this connection: "It seems to us that section 3(l)(a)

contains/......

28

contains two distinct notions which are joined by the word 'and'. The first envisages regulations which appear to the State President to be necessary or expedient for providing for the safety of the public or the maintenance of public order while the second envisages regulations which appear to him to be necessary or expedient for making adequate provision for terminating the emergency or for dealing with any circumstances which have arisen or are likely to arise as a result of such emergency ".

In a recent appeal heard in the Eastern Cape Division (Phila Nqumba and Another v. The State President and Three Others ; case no. M1173/89) Kannemeyer J (with whom Jennett and Wilshire Jones JJ agreed) expressed a similar view regarding the meaning of sec. 3(1)(a). The learned Judge said:

"In/....

29

"In my view the above envisages two groups of situations which are linked together with the word 'and'. The first two are the situations envisaged in section 2(1)(a) and (b) of the Act. Regulations may be necessary in order to provide for the safety of the public or the maintenance of public order or both, because the ordinary law of the land is inadequate for this purpose. Apart from this, powers are given to the State President to make regulations designed to end the emergency or for dealing with circumstances which have (arisen) or may arise because of the emergency- These are the second group of situations again conjoined with an 'or'".

Having said this, Kannemeyer J proceeded to reject the suggestion that "every regulation made to provide for public safety or the maintenance of public order must also have the ingredient of making adequate provision for terminating the emergency."

There/

30

There is only one further point in the

judgment in Tsenoli's case to which I wish to refer, viz

the learned Judge's suggestion that if sec. 3(1)(a) were

given the first of the two possible meanings mentioned'

by him (as quoted above) , persons whose activities were

in no way related to either the existence or continuance

of the state of emergency - such as those of common

criminals, "at any rate those with a propensity for

violence" - might be subject not only to arrest but also

to detention for as long as the state of emergency

exists. The suggestion is ill-founded. The power

which sec. 3(l)(a) confers on the State President is one

to make regulations for providing for the safety of

the public or the maintenance of the public order during

a/.....

31

a state of emergency, or for the termination of the

state of emergency. It is not a power which includes

the power to control (or curtail) the movement of persons,

such as common criminals, whose conduct is not related to

the existence or continuance of the state of emergency.

In view of the aforegoing I am of the

opinion that the judgment in Tsenoli's case was wrong,

In addition to contending that reg. 3(1) is

invalid for the reasons stated by Friedman J in Tsenoli's

case, counsel submitted that it is ultra vires

on certain other grounds, which I set out below. This

further argument was, it would seem, raised in Tsenoli's

case/.....

32

case, but Friedman J did not discuss it or give a

decision thereon. It was not advanced in the Court

a quo in Kerchoff's case. Counsel's argument may be

summed up as follows:

(a) The State President is entitled to make regula-

tions in which he provides for the arrest and detention

of persons (see sec. 3(4) and 3(4) bis of the Act), but

he may make such regulations only for the purposes set

forth in sec. 3(1) (a) of the Act. The regulations must,

therefore, be confined in their terms to the purposes

for which the State President is entitled to make

regulations. The State President, however, in

conferring powers of arrest and detention in reg. 3(1)

did so in terms which permit those powers to be used

for/......

33

for purposes other than those set forth in sec. 3(1)(a)

of the Act. He has accordingly exceeded his powers to

make regulations. The powers of arrest and detention,

it is said, are conferred in such wide terms that they may

be used for any purpose which the member of a Force who

arrests, or orders the detention of, a person, may wish,

Reg. 3(1) is accordingly invalid.

Counsel also submitted in this connection

that a member of a Force who orders the detention of a

person "is not required to have any opinion at all as

to any matter and (that) the validity of the detention

is determined by the existence of a written order.'

(The quotation is from counsel's heads of argument.)

(b)/......

34

(b) It is admitted that the function of arresting

a person is clearly to be carried out by someone other

than the State President, but it is contended that the

State President failed to set forth in the regulations

the circumstances in which, in his view, an arrest and

detention will be necessary to achieve the purposes

contemplated by sec. 3(1)(a) of the Act, and that he

delegated to others the task of determining what is

necessary to provide for the purposes mentioned in the

section. No guidelines or criteria, it is said, are

laid down in the regulations for the exercise of the

powers of arrest and detention, with the result

that members of the Forces have to form an opinion on

the/......

35

the very matters in regard to which Parliament vested

the responsibility for forming an opinion in the

State President. The State President, it is submitted,

should have laid down the necessary criteria in objective

terms, and should not have left it to the subjective

judgment of members of the Forces as to whether it is

necessary to arrest and detain someone in order to achieve

the purposes mentioned in reg. 3(1). He should also,

it is said, have circumscribed the sort of conduct which

is liable to lead to arrest and detention.

With regard to the argument set out in

paragraph (a) above, it is no doubt correct, as counsel

submitted, that the State President, in making regulations

under/.....

36

under the powers conferred upon him by sec. 3(1)(a) of

the Act, must do so for the purpose of achieving the

purposes mentioned in the section. I do not, however,

agree with the submission that the powers conferred in

reg. 3(1) are so wide that they may be used for any

purpose which the member of the Force who effects an

arrest, or orders a detention, may wish. There is

nothing in the wording of reg, 3(1) which justifies

the submission. A member of a Force who arrests, or

causes the arrest of, a person and who detains, or

orders the detention of, a person may do so only if he

is of the opinion that it is necessary to do so for the

safety of the public, or the maintenance of public order,

or/....

37or the termination of the state of emergency. These purposes are mentioned in reg. 3(1) , and it can accordingly not be said that reg. 3(1) empowers, or permits, a member of a Force to arrest, or order the detention of, a person for a purpose not envisaged by sec. 3(1)(a) of the Act. (I leave out of account the power, mentioned in reg. 3(1), to arrest and detain a person when it is considered necessary "for .... the safety of that person himself." Friedman J, in his judgment in Tsenoli' s case, raised, in passing, the question of the validity of this provision, but it was not relevant to the case with which he was concerned and he gave no decision on it. I, too, do not propose to discuss the point, and would merely say that, even if this provision could be said not to fall within a purpose envisaged in

sec/

37(a)

sec. 3(1)(a) of the Act, it would clearly be severable

from the other provisions in reg. 3(1) and not affect

their validity.

The argument, mentioned in paragraph (a)

above, that the detention of a person may be ordered

by a member of a Force who is "not required to have any

opinion at all as to any matter and (that) the validity

of the detention is determined by the existence of; a

written order", is without substance. Reg. 3(1) does

not contemplate the detention of a person without a

member of a Force having formed the opinion that it is

necessary/.....

38

necessary that he should be arrested and detained. It

is true that reg. 3(1) contemplates that a "written

order11 as mentioned therein may be signed by a member

of a Force who did not form the opinion that the person

concerned is one whom it is necessary to. arrest and

detain ' for any of the purposes mentioned in the

regulation, but in such an event the member who signs the

order would merely be performing an administrative, or

secretarial, task - probably at the request of the member

who formed the required opinion, but who can, for some

reason, not himself sign the order. The order is, it

would seem, intended to authorise the officer in charge

of a prison to detain the person in question. (Cf. reg.

3/.......

39

3(3), quoted above.) An argument similar to the one advanced by counsel with regard to the "written order" was also advanced in the case of Phila Nqumba and Another v. The State President and Three Others, to which I referred earlier on. It was rejected by Kannemeyer J on the same grounds as those mentioned by me above.As to counsel's argument as summarized in paragraph (b) above, it is essential to have regard to the powers which sec. 3(1)(a) of the Act confers on the State President. As has been shown above, the section empowers him, when a state of emergency has been declared, to make such regulations "as appear to him to be necessary or expedient" for providing for the safety of the public,

40

the maintenance of public order, or the termination of

the state of emergency, etc. It is obvious that the

power is a most extensive one. (As to the words "as

appear to him to be necessary or expedient", see R. v.

McGregor 1941 A D 493; R v Beyers 1943 A D 404; Momoniat

& Naidoo v. Minister of Law and Order 1986(2) SA 264(W) at

268-272; R v Comptroller-General of Patents; Ex

parte Bayer Products Ltd (1941) 2 All E R 677 at 681.)

The State President can, it is clearly stated in sec. 3

(1)(a), make such regulations as appear to him to be

necessary or expedient for the purposes mentioned in the

section. He can, in regulations made by him, prescribe

the method and means to be employed for the achievement

of/......

41

of the purposes stated in the section. (See Attorney-General for Canada and Another v. Hallet & Carey Ltd and Another 1952 AC 427, where the Court said (at 448, per Lord Radcliffe), with regard to the power of the Governor in council to do such things and to make such regulations in a time of emergency as he may "deem necessary or advisable" for certain stated purposes, that those words gave him "the amplest possible discretion in the choice of method.") There is no doubt that the State President was entitled to delegate powers with a view to achieving the purposes mentioned in sec. 3(l)(a). This is not disputed. The complaint is, as indicated above, that the regulations do not provide proper guidelines to members

42

of the Forces, and, more particularly, that reg. 3(1)

leaves it to the subjective opinion of members of the

Forces as to whether it is necessary to detain an individual

It is not correct to say that no guidelines are laid down

for the direction of members of the Forces • It is clear

from reg. 3(1) that a member may arrest a person only

if he has formed the opinion that the detention of that

person is necessary for one or more of the purposes

mentioned in reg, 3(1). As to the fact that reg. 3(1)

entrusts the decision as to whether someone should be

detained to the subjective judgment of members of the

Forces, it may be pointed out that in ordinary - i.e.

non-emergency -legislation the fact that a decision is left

to the discretion of an official is not per se sufficient

to/........

43

to invalidate the regulation permitting the delegation. A complaint of a lack of guidance in a regulation, it has been held, is valid only if such lack offends against the enabling statute. See e.g. R v Zondo 1942 TPD 187 at

192; R v Ngati and Others 1948(1) SA 596(C) at 602-604; Arenstein v Durban Corporation 1952(1) SA 279(A) at 297 A-C.. The ultimate inquiry is, therefore, what powers the enabling Act confers. In the present case I am of the opinion that the powers conferred on the State President by sec, 3(1) (a) of the Act are so wide as to include the power to make a regulation as contained in reg. 3(l).

Counsel also contended that reg. 3(3) is

invalid. His submission is that reg. 3(3) goes beyond the powers conferred on the State President by sec. 3(1)(a) of the Act in that it empowers the Minister to

extend/ 44

extend the detention of* a person arrested and detained

under reg. 3(1) without confining that power to the

purposes stated in sec. 3(1). Reg. 3(3), it is said,

leaves the Minister free to order the further detention

of a person for whatever reasons he deems fit, including

reasons quite unrelated to the purposes mentioned in

sec. 3(l)(a) or reg. 3(1), and it is accordingly ultra

vires and invalid.

The argument cannot be sustained. It is

true that reg. 3(3) does not state in express terms on

what grounds, or for which purposes, the Minister can

extend the detention of a person arrested under reg. 3(1),

but that is not the end of the matter. Reg. 3(3) should

not be read in isolation. It is one of a number of

subregulations/........

45

subregulations which comprise regulation 3, and it should

be read together with such other subregulations as have a

bearing on the question of detention. Subreg. (1) provides

that a member of a Force may arrest a person if it is, in

his opinion, necessary to detain that person for the

purposes mentioned in subreg. (l), i.e. for the

maintenance of public order, or the safety of the public,

or the termination of the state of emergency. Subreg.

(2) provides that no person shall be detained in terms

of subreg. (l) for a period of more than 14 days unless that

period is extended by the Minister in terms of subreg,

(3). Subreg. (3) refers, in terms, to subreg. (l),

and provides that the Minister may, by written notice

signed by him, order that a person arrested and detained

in/....

46

in terms of subreg. (l) be further detained for the period stated in the notice, or for as long as the regulations remain in force. Subreg. (4), which also refers in terms to subreg. (1), provides that a person who is detained in terms of subreg. (1), or in terms of a notice under subreg. (3), may be removed from one prison to another if the Minister so directs. Subreg. 5 provides that a member of a Force may, "with a view to the maintenance of public order, the safety of the public or the termination of the state of emergency, interrogate any person arrested or detained in terms of this regulation", i.e. regulation 3, which includes subregulations (1) and (3). Subreg. (6) provides that the Minister may at any time order that "a person detained in terms of this regulation"

(i.e./

47

(i.e. reg. 3, which includes subreg. (1) and subreg. (3))

be released on such conditions as he, the Minister, may

determine.

The power given to the Minister under subreg,

(3) is a power to extend the period of detention of a

person "arrested and detained in terms of subregulation

(1)", and it seems to me to follow as a matter of necessary

inference that it was intended by the State President

that the Minister should, when considering whether he should

act under subreg. (3), decide whether the person concerned

should, in his opinion, be further detained for the

purposes for which he was previously arrested and detained,

I find it impossible to accept that the State President,

after/........

48

after providing in subreg. (1) that a person may be arrested

and detained if it were thought necessary that it be done

for the purposes mentioned in subreg. (1), would have

intended to provide in subreg- (3) that the Minister should

be free to extend such person's detention without having

regard to the purposes for which he was previously detained,

and without forming an opinion as to the necessity for his

further detention for those same purposes. If, as was

contended, the State President intended that the Minister

could order the further detention of persons without having

regard to the purposes stated in reg. (3), it would seem

that the reference in the subregulations to persons detained

in terms of subregulations (1) and (3) would be a reference

not only to persons detained for the purposes mentioned

in/.......

49

in subreg. (1), but also to persons whose detention may-have been ordered by the Minister under subreg. (3) for purposes not connected with those stated in subreg. (1). This is wholly unlikely. Subreg. (5) contains a strong indication, I think, that detentions under subreg, (3) are required to be for the same purposes as those mentioned in subreg. (1). It provides that a member of a Force may "with a view to the maintenance of public order, the safety of the public or the termination of the state of emergency" - i.e. for the purposes mentioned in subreg. (l) - interrogate "any person arrested or detained in terms of this regulation", i.e. regulation 3, which includes subregulations (1) and (3). Subreg. (5) therefore contemplates that a person detained under subreg. (3) is

a/ 50

a person who has been detained for the purposes mentioned

in subreg. (l), which indicates, in turn, that a detention

under subreg. (3) is a detention that was ordered for the

same purposes as those mentioned in subreg. (1). It is

hardly conceivable that subreg. (5) was intended to provide

for the interrogation of persons "with a view to the main-

tenance of public order, the safety of the public or the

termination of the state of emergency", if their detention

was ordered for purposes other than those stated in reg.

In view of the aforegoing I consider that

the Minister's power under reg. 3(3) must, by necessary

implication, be taken to be subject to the limitation

that/......

51

that he may order the further detention of a person

already detained under reg. 3(1) only if he is of the opinion

that it is necessary to do so for the purposes stated in

reg. 3(1). If reg. 3(3) is so construed, as I think it must

be, it is not ultra vires the State President.

In the appeal in Kerchoff's case the legality

of the detention of the 2nd appellant (to whom I shall

refer as "the appellant" in the paragraphs that follow) was.

attacked on a further ground, viz. that he was not arrested

as required by reg. 3(1). Counsel's argument on this point

is to the following effect: (a) on a proper construction of

reg. 3(1) and reg. 3(3) an arrest is a necessary prerequisite

to/.......

52

to detention, and according to the affidavits filed the appellant was not formally arrested; (b) no one had the requisite intention to arrest the appellant; and (c) , alternatively to (a) and (b), Brigadier Beukes (who caused the appellant to be detained) could not bona

fide have been of the opinion that the detention of the appellant

was necessary for the safety of the public or the maintenanceof public order.

The facts relating to this argument are as follows. The appellant was arrested in the early hours of 12 June 1986 under the provisions of sec. 50 of the Internal Security Act, No. 74 of 1982, on the instructions of Brig. B J Beukes, the Commanding

Officer/

53

Officer of the Security Branch of the South African Police

in Pietermaritzburg. He was lodged in the New Prison

in Pietermaritzburg. Later on the same day Brig. Beukes

directed that the appellant be detained under the provisions

of reg. 3(1), and a written order for the appellant's

detention was signed by an officer in the Security Branch

of the South African Police. The appellant was on the

same day, while still in custody in the New Prison,

Pietermaritzburg, informed that he was no longer being

detained under the provisions of sec. 50 of the Internal

Security Act, but would be kept in detention under

the provisions of reg. 3(1). On 21 June

1986 the Minister, by a written notice signed by him,

ordered in terms of reg. 3(3) that the appellant be further

detained/.....

54

detained in the New Prison, Pietermaritzburg, for as long as the regulations remained in force.

Sec. 50 of the Internal Security Act, No. 74 of 1982, in so far as relevant, reads as follows:

"50. (1) If a police officer of or above the rank of warrant officer is of the opinion -

(a) (i) that the actions of a particular

person contribute towards the continuation of a state of public disturbance, disorder, riot or public violence which exists at any place within the Republic; and

(ii) that the detention of that person

will contribute towards the termination or combating of that state of public disturbance, riot or public violence: or

(b) that the detention of a particular personwill contribute towards the prevention ofthe resumption, at the same place or at anyother place in the Republic, of such a stateof public disturbance, disorder, riot orpublic violence,

he/....

55

he may without warrant arrest that person or cause him to be arrested and, subject to the provisions of this section, cause him to be detained in a prison referred to in section 20 (l)(a) or (b) of the Prisons Act, 1959 (Act No. 8 of 1959), or a police cell or lock-up.2 (a) Any person arrested in terms of the provisions of subsection (1) may at any time be released from detention, but shall at the expiration of a period of forty-eight hours as from the time of his arrest be released from detention unless a warrant for his further detention has in terms of the provisions of paragraph (b) been issued before the expiration of the said period: Provided that no such person shall on any particular occasion when he is being detained in terms of the provisions of this section be so detained for a period exceeding fourteen days as from the date of his arrest.

(b) Whenever a magistrate is of the opinion, on the ground of information submitted to him upon oath by a police officer, that the further detention of any person arrested in terms of subsection (1) is justified on the ground of a consideration contemplated in paragraph

(a)/..... 56

(a) or (b), as the case may be, of that subsection, he may on the application of the said police officer issue a warrant for the further detention of such person.

(c) (d)

(3) Any person being detained in terms of the provisions of this section shall be so detained in accordance with the provisions of the Prisons Act, 1959, which relate to un-convicted prisoners awaiting trial for an alleged offence.

As to the contention referred to in (a)above, counsel's argument was that, after the appellant had been informed that he was no longer being detained under the provisions of the aforesaid sec. 50, he should again have been arrested since arrest is a prerequisite to detention under reg. 3(1) and reg. 3(3) , and that he

was not so arrested. It was, rightly in my view.

not/.......

57

not contended that an arrest as contemplated in reg. 3(1)

is an arrest as provided for in sec. 39 of the Criminal

Procedure Act, No. 51 of 1977. (An arrest as contemplated

in sec. 39 of the latter Act is an arrest that is intended

to bring a person before a Court of law to answer a criminal

charge. See R. v. Malindisa 1961(3) SA 377(T) at 380 C;

Wiesner v. Molomo 1983 (3) SA 15l(A) at 158 E-F.) The

submission is, however, that the appellant should have

been "formally arrested" and that, because he was not so

arrested, his subsequent detention was unlawful - The

same argument was advanced in the Court a quo. The Court

dealt with it at some length in its judgment and, correctly

in my view, rejected it. As to the argument that the

appellant should have been "formally arrested" after he

had/......

58

had been told that he was no longer being detained under the provisions of sec. 50 of the Internal Security Act, but would be detained under the provisions of reg. 3(1), it was not suggested that a member of a Force should actually have touched' the appellant's body. Nor could it reasonably have been so suggested. The appellant was informed that his detention under the said sec. 50 had come to an end, and that he would remain in detention under reg. 3(1). Having been thus kept in prison, he was, in my view, under arrest. As Hoexter J said in R. v. Mazema 1948(2) SA 152 (E) at 154, "A person is under arrest as soon as the police assume control over his movements." The suggestion seems to be, however, that, to effect the arrest of the appellant, he should have been told, in so many words,

that he was being arrested. It is common cause that

he/.....

59he was not told in express terms that he was being arrested, but I cannot accept the argument that the fact that he was not so informed means that there was not an arrest as contemplated in reg. 3(1). An arrest under reg. 3(1) is, in my view, intended to be a means to secure the detention of a person whose detention is considered to be necessary for any of the purposes stated in reg. 3(1), and where, as happened in the present case, the person whom it is sought to detain is already confined in prison, and is, in addition, informed that he is being detained in terms of reg. 3(1), it can hardly serve any purpose to require that he should also be told that he is under arrest. To hold that the failure to inform the appellant in express terms that he was being

arrested/

60

arrested has the effect of rendering his detention under

reg. 3(1) invalid, would, therefore, in my opinion, be

to pay undue reverence to formalism.

As stated above, it was also contended that

the appellant's detention was unlawful because there was

no intention to arrest him. In the light of what I have said

above, I consider this argument to be unsound, and I do not

propose to discuss it.

It remains, finally, to consider the argument

that the appellant's detention is invalid because Brig.

Beukes could not bona fide have been of the opinion

that his detention was necessary for the safety of the

public or the maintenance of public order. The argument

is/.....

61

is that, since the appellant was already in detention

for the relevant period (i.e. 14 days as from 12 June

1986) under the provisions of sec. 50 of the Internal

Security Act, Brig. Beukes could not bona fide have held

the opinion he alleges that he did, and that it was

'accordingly not competent for him to order the detention

of the second appellant in terms of reg. 3(1)".

(Quotation from counsel's heads of argument.) The

submission is - to quote from counsel' s heads of argument -

that "the only bona fide approach which Beukes could have

adopted would have been to continue the second appellant's

detention under sec. 50 and then to reconsider the

entire position on the 26th June, 1986 ". The

argument/.....

62

argument has no merit. I can see no reason why Beukes'

decision to detain the appellant under reg. 3(1) rather than

under sec. 50 of the Internal Security Act should be

considered to afford proof of mala fides on his part

Detention under reg. 3 is intended as a means of

providing for the safety of the public, the maintenance

of the public order or the termination of the state of

emergency, and Brig. Beukes, who states that he was of

the opinion that the appellant' s detention was necessary

for the safety of the public and the maintenance of

public order, would have been fully entitled to think

that detention under reg. 3 was a more effective means of

achieving the purposes mentioned by him than detention

63

under sec. 50 of the Internal Security Act. It may be

pointed out in this connection that reg. 3(5) provides

that a member of a Force may, "with a view to the maintenance

of public order, the safety of the public or the termination

of the state of emergency, interrogate any person arrested

or detained in terms of this regulation." Sec. 50 of the

Internal Security Act does not provide for the interrogation

of a detainee. According to subsection (3) thereof a

person detained under the provisions of the section is

to be detained as if he were an unconvicted prisoner

awaiting trial for an alleged offence.

In/......

64

In view of all the aforegoing I am of the opinion

(a) that the appeal in Tsenoli 's case must succeed, and (b) that the appeal in Kerchoff' s case must be dismissed.

The following orders are made:(A) In the first appeal (Tsenoli's case):

(1) The appeal is upheld with costs, including the costs of two counsel. (2) The order made by the Court a quo is set aside and the following order is substituted therefor, viz.: "The application is dismissed with costs, including the costs

of two counsel."

(B) In the second appeal (Kerchoff's case):

The appeal is dismissed with costs, including the costs of two counsel.

JANSEN JA

P J RABIE CORBETT JA

JOUBERT JA CONCUR CHIEF JUSTICE

VILJOEN JA