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)

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)

The Supreme Court of Appeal held that regulation 3(1) of Proclamation R109 of 1986 was not ultra vires the powers conferred by section 3(1)(a) of the Public Safety Act, 1953. The Court found that the Act empowered the State President to make regulations for the safety of the public, maintenance of public order, and termination of the state of emergency as distinct purposes, and that the regulations were not limited to only those that also provided for termination of the emergency. The Court rejected the argument that the regulations unlawfully delegated discretion or lacked sufficient guidelines, holding that members of the Force could only arrest and detain persons if they formed the...

Citation
[1986] ZASCA 118
Parties
Appellant: The State President; Appellant: The Minister of Law and Order; Appellant: The Minister of Justice; Respondent: Solomon Lechesa Tsenoli; Appellant: Joan Lynette Kerchoff; Appellant: Peter Campbell Kerchoff; Respondent: The Minister of Law and Order; Respondent: The Minister of Justice; Respondent: The Commissioner of Police; Respondent: The Officer Commanding The New Prison, Pietermaritzburg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 September 1986
Case Number
124/86
Procedural Posture
Civil Appeal / Appeal From Decisions of the Durban and Coast Local Division and the Natal Provincial Division
Outcome
The appeal in Tsenoli's case is upheld; the appeal in Kerchoff's case is dismissed.
Judges
Rabie, Jansen, Corbett, Joubert, Viljoen
Legal Topics
State of Emergency, Ultra Vires, Delegation of Powers, Arrest and Detention, Statutory Interpretation
Constitutional Law Administrative Law State of Emergency Ultra Vires Delegation of Powers Arrest and Detention Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 25 Party arguments 2
Sign in to unlock

Parties

The State President

Appellant

The Minister of Law and Order

Appellant

The Minister of Justice

Appellant

Solomon Lechesa Tsenoli

Respondent

Joan Lynette Kerchoff

Appellant

Peter Campbell Kerchoff

Appellant

The Minister of Law and Order

Respondent

The Minister of Justice

Respondent

The Commissioner of Police

Respondent

The Officer Commanding The New Prison, Pietermaritzburg

Respondent

Procedural Posture

Civil Appeal / Appeal From Decisions of the Durban and Coast Local Division and the Natal Provincial Division

Legal Issues

  1. 1 Whether regulation 3(1) and (3) of Proclamation R109 of 1986 are ultra vires the powers conferred by section 3(1)(a) of the Public Safety Act, 1953.
  2. 2 Whether the regulations unlawfully delegate powers or lack sufficient guidelines.
  3. 3 Whether the arrest and detention of Peter Campbell Kerchoff were lawful under the regulations.

Ratio Decidendi

The Supreme Court of Appeal held that regulation 3(1) of Proclamation R109 of 1986 was not ultra vires the powers conferred by section 3(1)(a) of the Public Safety Act, 1953. The Court found that the Act empowered the State President to make regulations for the safety of the public, maintenance of public order, and termination of the state of emergency as distinct purposes, and that the regulations were not limited to only those that also provided for termination of the emergency. The Court rejected the argument that the regulations unlawfully delegated discretion or lacked sufficient guidelines, holding that members of the Force could only arrest and detain persons if they formed the...

Court Disposition

The appeal in Tsenoli's case is upheld; the appeal in Kerchoff's case is dismissed.

Orders

  • In Tsenoli's case: The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs, including the costs of two counsel.'