- [1941] 3 All ER 338 especially at 361. Lord Atkin's approach was approved by the House of Lords in IRC v Rossminster [1980] 1 All ER 80 AC at 93. Here Lord Diplock declared: ‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong, and that the dissenting speech of Lord Atkin was right.’
- This dictum is cited in Nkwinti v Commissioner of Police 1986 (2) SA 421 (E) at 427; Bloem v State President 1986 (4) SA 1064(0) at 1076; and Omar v Minister of Law and Order 1986 (3) SA 306(C) at 325.
- 1962 (1) SA 647 (E) at 653.
- Cited in Bill v Stale President WLD Case No 15909/86, unreported at 4; the Bloem case(supra note 2) at 1078, and the Nkwinti case (supra note 2) at 426.
- 1879 Buch 45 at 66. Quoted with approval in Radebe v Minister of Law and Order WLD Case No 14862/86, unreported at 14–15.
- 1986 (3) SA 568 (A). Rabie CJ delivered the judgment.
- At 578–9. Section 29 can be distinguished from s 25 where a magistrate must have ‘reasonable grounds for believing’. These are not grounds measuring up to an objective standard but grounds which in the subjective opinion of the magistrate are reasonable: ibid 581. Compare also the case of Control Magistrate Durban v AZAPO 1986 (3) SA 394 (A) at 400.
- At 584.
- At 586.
- At 583.
- At 589.
- See reg 3(1) of Proc R121 GG 9877 of 21 July 1985.
- See note 2. At 434.
- At 430.
- At 435. Contrary to the Appellate Division in the Hurley case (supra note 4) the court seems to be of the opinion that the onus rests upon the applicant to make out a prima facie case. This would only be the correct position if an express provision of the regulations shifts the onus from the arresting officer to the applicant in the case where he is arrested without a warrant: compare the Radebe case(below note 24). Note that with regard to the magistrate acting under s 25 it was decided that the onus rests upon the applicant: the AZAPO case at 395 (note 7).
- Reg 3(1) of Proc R109 GG 10280 of 12 June 1986.
- See note 5 supra at 9.
- Ibid.
- At 9–10 and 17, respectively.
- At 13.
- At 11.
- At 18.
- At 7.
- At 7–8.
- 1986 (4) SA 530 (C) per Marais J.
- At 531H–I.
- At 532G–H.
- At 542B–H.
- 1986 (4) SA 377 (D).
- At 383B–C.
- At 379C-I. The court reaches this conclusion because, inter alia, the application of the audi alteram partem rule is not mentioned in s 30 at all while in other sections of the Act it is either expressly excluded or provided for (at 381). This supports the contention that its exclusion was not intended. This fact distinguishes s 30 from s 29 where express and detailed provision is made for the application of this rule. However, s29(3)(a) mentions nothing about the audi alteram partem procedure when the Minister authorizes further detention. Precisely because in s 29 itself there is provision that this rule is to be complied with, the court in Morarjee v Minister of Law and Order 1986 (3) SA 25 (DCLD) at 38, ruled that the legislature clearly did not intend the rule to apply to this sub-subsection (s 29(3)(a)) as well.
- At 380E-F. The court rejects the argument that the legislature intended to exclude the audi alteram partem rule in s 30 because it expressly provided for the application of this rule elsewhere in the Act. At 381C-J the court takes the opposite position: ‘One may cogently argue that the absence of express provision in a section affirms that those implied have not been replaced.’ The court also rejects the argument that s 30 provides for a ‘preventative measure’ which has to be promptly effected without complying with the rules of natural justice. Even if it is preventive, the Attorney-General must still observe a ‘fundamental principle of fairness’ before doing so (at 382G-J). Kumleben J supports the minority judgment of Stegmann J in S v Baleka 1986 (1) SA 361 (T) at 383–4. Another full bench judgment N and Another NO v Minister of Law and Order 1986 (3) SA 921 (C) at 925 and 926–7 deals with s50(2)(6) of Act 74 of 1982 which provides for the issue of a warrant by a magistrate to further detain a person under s 50. It was decided that this measure is preventive in nature and requires prompt action to combat unrest and that it only operates with a time limit of 14 days. The delay caused by allowing for the audi alteram partem rule would thus frustrate the very purpose of s 50. The submission that the absence of express exclusion of the application of this rule in s 50 indicates that the legislature intended not to exclude the audi alteram partem rule, was rejected by the court at 928. The judgment in the Buthelezi case, in which it was held that the rule is to be followed, even if the measure is of a preventive nature, is to be preferred.
- See note 12.
- See the Nkwinti case (note 2) at 438–9. Issue was joined before the new regulation which expressly excluded the audi alteram partem rule was promulgated. The court decided that it would not heed the changed reg 3(3) despite its apparent retrospective effect.
- See note 2.
- At 315. Friedman J dissented at 320. ‘It is of course correct that the State President has been given a wide discretion in terms of the Public Safety Act to make regulations. That wide discretion does not, however, in my judgment, authorize the exclusion of the audi alteram partem rule. The Act does not contain an express provision for such an exclusion nor is there to be found in the Act a necessary implication authorizing such exclusion.’
- 1986 (2) SA 264 (W) at 267.
- See note 33.
- See Momoniat (supra note 36) at 273.
- Ibid at 275.
- At 275–276. In the unreported full bench judgment of the Transvaal Provincial Division Suttner v State President Case No 13500/1/86 at 14–15 the court referred to Momoniat's case but found it unnecessary to decide on the facts whether and to what extent the Minister must comply with the requirement of allowing representations after an order for continued detention had been made. Compare also: Akweenda v Cabinet for the Transitional Government for SWA 1986 (2) SA 548 (SWA) where it was decided that as the audi alteram partem rule is not excluded in the Namibian security legislation regulating the further detention of detainees, this rule had to be complied with.
- See note 16.
- 1987 (1) SA 265 (W).
- At 271.
- At 276.
- 1986 (3) SA 306.(C).
- At 317.
- See note 2.
- At 67.
- 1986 (4) SA 358 (D).
- At 375.
- 1983 (1) SA 938 (A) at 957.
- The MAWU case (note 49) at 375.
- See note 42.
- At 24.
- See note 49.
- At 365 and 368–73.
- At 365, 366–67 and 368–73.
- At 367–68.
- See note 57.
- Judgment of the Natal Provincial Division 1986 (4) SA 1109 (N) especially at 1114.
- At 1115–17. With regard to unreasonableness the court refers to Momoniat's case (note 36) at 273 where it is said that regulations will be invalid if (1) the person exercising the power acted otherwise than bona fide, or (2) the legislature could never have contemplated that such a measure be countenanced. Note also that the Hurley case (note 6) was followed with regard to the fact that the ouster clause does not preclude the courts from declaring the regulations ultra vires (at 15–16).
- At 1120–1. The court rejects the argument that if a regulation can be related to the enabling purposes the fact that the conferred powers are open to misuse by an official does not render the regulation as such ultra vires: a wide regulation can not be rescued merely because its consequences (the misuse of powers) can subsequently be confined or struck down.
- At 1126–7.
- At 1131.
- At 1131–2.
- At 1133–4.
- TPD Case No 12721, 86. unreported especially at 3–5.
- At 5.
- See note 40. This full bench judgment was subsequently followed in the unreported judgment of the Transvaal Provincial Division in Southern African Catholic Bishops' Conference v Minister of Law and Order Case No 13598/86.
- At 8–9. The court approved the unreported full bench judgment of the Eastern Cape Division in Fredericks v Minister of law and Order Case No 619/86.
- 1959 (4) SA 712 (A) at 718.
- See Itsweng supra note 67 at 11.
- Ibid.
- NPD Case No 1912/86, unreported.
- At 14–15.
- At 8.
- At 10.
- At 13.
- At 17–20.
- Stale President v Tsenoli: Kerchhoff v Minister of Law and Order 1986 (4) SA 1150 (A) especially at 1185–6.
- See notes 12–27.
- Compare the unreported full bench judgment of the Witwatersrand Local Division UDF v Die Staatspresident Case No 16433/86.
- At 3–4.
- See the amendment of the regulations issued by Proc R140 GG 10382 of 1 August 1986.
- The MAWU case (note 49) at 4; the Nkwinti case(note 2) at 430; and the Bloem case (note 2) at 1092.
- See note 49 at 361–3.
- At 364.
- See note 2 at 1079–85.
- At 1085–8. The court stated that South African constitutional law follows the Westminster pattern in this regard.
- At 1087.
- At 1088.
- At 1089. Another argument which supports the contention that non-tabling of the regulations does not lead to invalidity is the fact that the provisions which require tabling are merely directory and not mandatory; accordingly non-compliance does not lead to invalidity (at 1989–1).
- See note 80. This decision rejects the findings in Tsenoli v State President DCLD Case No 4988/1986, unreported, in favour of the views approved by the full bench of the Natal Provincial Division in the Kerchhoff case (see note 74).
- Ibid Tsenoli's case 16–17 and 23–7.
- Ibid 12–15.
- Ibid 23–4. At 28. The court approved of the unreported judgment of the Eastern Cape Division in Nqumba v Stale President Case No Ml 173/1986. The court also rejected the argument that persons whose activities were in no way related to the state of emergency (such as common criminals) might now also be subject to the emergency regulations (at 30–1). It is clear that s 3(1)(a) of the enabling Act does not make provision for powers to curtail the movement of persons whose conduct is not related to the state of emergency.
- Ibid 36–7. Accordingly the powers conferred in reg 3(1) are not so wide that they may be used for any purpose which the arresting officer may wish and therefore, it could not be said that the sub-section empowers the arrest or detention of a person for a purpose not envisaged by the enabling s 3(1)(a). The State President is entitled to delegate these powers and the guidelines which are laid down are to be found in the fact that the powers of arrest and detention may only be exercised for the purposes mentioned (at 41–2). The powers of the enabling Act are accordingly wide enough to include the power to make reg 3(1) (at 43).
- Ibid 36–7,
- Ibid 43–51.
- Ibid 60–4.
- For a comprehensive discussion of judicial activism in South Africa, see DA Basson Die Regbank en ‘n Menseregtehandves, an address delivered on 2 May 1986 at the Symposium on a Bill of Rights for South Africa at the University of Pretoria (to be published). The cases which illustrate the activist judicial trend of 1985 include N k ondo and Gumede v Minister of Law and Order 1986 (2) SA 734 (A); Mkhize v Minister of Law and Order 1985 (4) SA 147 (N); and S v Ramgobin 1985 (4) SA 130 (?) and 1985 (4) SA 587 (N).
South African Journal on Human Rights
Volume 3, 1987 - Issue 1