South Africa Case Law

During NO v Boesak and Another (10/89)

During NO v Boesak and Another (10/89) [1990] ZASCA 51; 1990 (3) SA 661 (AD); [1990] 2 All SA 347 (A) (23 May 1990)

Court

Supreme Court of Appeal

Case number

10/89

Judges

Joubert, Botha, E M Grosskopf, Nestadt, Milne

The majority held that the appellant, as the functionary empowered under regulation 10(1)(c), bore the onus to prove that he properly exercised his discretion in prohibiting the concert. The discretion was not objectively justiciable, but the appellant was required to show that his decision was made in good faith, with proper consideration of relevant facts. The information relied upon by the appellant was vague and did not establish a sufficient nexus between the anticipated activities of certain black youths and the necessity to prohibit the concert. The appellant failed to discharge the on…

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• Onus Of Proof
• Review Of Administrative Action
• Regulation 10 1 C
• Fundamental Rights
• Ultra Vires
• State Of Emergency

Minister of Law and Order and Another v Argus Printing and Publishing Company Ltd. and Another (250/88)

Minister of Law and Order and Another v Argus Printing and Publishing Company Ltd. and Another (250/88) [1989] ZASCA 158 (28 November 1989)

Court

Supreme Court of Appeal

Case number

250/88

Judges

Corbett, Botha, Smalberger, Vivier, F H Grosskopf

The court held that the Commissioner was not empowered under reg 7(1)(b)(ii) or reg 7(1)(d) of the Security Regulations to issue an order controlling what may be published in newspapers, magazines, and other periodicals throughout the Republic. The phrase 'any particular area' in reg 7(1)(b)(ii) could not be interpreted to mean the whole of South Africa, and the general powers in reg 7(1)(d) did not extend to media control, especially in light of specific regulations dealing with such matters. Interpreting these provisions to allow the order would render the specific media regulations redunda…

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• Ultra Vires
• Press Freedom
• State Of Emergency
• Statutory Interpretation

Minister van Wet en Orde v McKenzie (439/87)

Minister van Wet en Orde v McKenzie (439/87) [1989] ZASCA 14 (21 March 1989)

Court

Supreme Court of Appeal

Case number

439/87

Judges

Hefer, Grosskopf, Vivier, Steyn, Eksteen

The appellate court held that the continued detention was lawful and that the High Court wrongly inferred the minister had not considered post-26 December detention.

• Detention Under Emergency Regulations
• Judicial Review Of Executive Action
• Burden Of Proof
• Public Safety
• State Of Emergency
• Administrative-law

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)

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)

Court

Supreme Court of Appeal

Case number

68/87

Judges

Rabie, Joubert, Viljoen, Hoexter, Boshoff

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…

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• State Of Emergency
• Detention Without Trial
• Audi Alteram Partem
• Ultra Vires
• Access To Legal Representative

State President and Others v Tsenoli Kerchff and Another v Minister of Law and Order and Others (124/86)

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)

Court

Supreme Court of Appeal

Case number

124/86

Judges

Rabie, Jansen, Corbett, Joubert, Viljoen

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 guideli…

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• State Of Emergency
• Ultra Vires
• Delegation Of Powers
• Arrest And Detention
• Statutory Interpretation