Omar Case

Source:
South African Case Law, Juta's (1838 to date)/CHRONOLOGICAL LISTING OF CASES – 1838 to date/1987/Volume 3: 657 910 (September)/OMAR AND OTHERS v
MINISTER OF LAW AND ORDER AND OTHERS; FANI AND OTHERS v MINISTER OF LAW AND ORDER AND OTHERS; STATE PRESIDENT AND OTHERS v BILL
1987 (3) SA 859 (A)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/sacl/3/10243/10482/10501?f=templates$fn=default.htm
OMAR AND OTHERS v MINISTER OF LAW AND ORDER AND OTHERS;
FANI AND OTHERS v MINISTER OF LAW AND ORDER AND OTHERS;
STATE PRESIDENT AND OTHERS v BILL 1987 (3) SA 859 (A)
1987 (3) SA p859
Citation 1987 (3) SA 859 (A)
Court Appellate Division
Judge Rabie ACJ, Joubert JA, Viljoen JA, Hoexter JA and Boshoff AJA
Heard March 3, 1987
Judgment June 26, 1987
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Internal security Detention in terms of reg 3(3) of C emergency regulations made under s 3(1 )(a) of Public Safety Act 3 of 1953 as promulgated in
Proc R121 of 21 July 1985 Regulation 3(3) Validity of Wide discretion conferred by s 3(1 )(a) of Act on State President Not open to Court to
substitute its assessment of what would be D necessary or expedient to achieve purposes mentioned in section for that of State President But
exercise of those powers by State President open to attack if he did not apply his mind to the matter, did not act bona fide or did not exercise such
powers for purposes mentioned in section Regulation 3(3) cannot be said not to be related to such E purposes Although it is a drastic provision,
it cannot, in view of wording of s 2(1 )(c) of Act, be said to be so grossly unreasonable that Parliament could not have intended to authorise it
Exclusion of audi alteram partem rule in reg 3(3) likewise falling within State President's power and State F President not having acted improperly in
doing so.
Internal security Detention in terms of reg 3(3) of emergency regulations made under s 3(1 )(a) of Public Safety Act 3 of 1953 as promulgated in
Proc R121 of 21 July 1985 Regulation 3(10 )(a) and rule 5(1) and (3) of rules published under reg 3(9 )(a) Validity of Such regulation and rules,
insofar as they apply to legal advisers, cannot be said G not to be related to purposes mentioned in s 3(1 )(a) of Act Not ultra vires on that ground
Nor could it be said that State President did not apply his mind to the matter or that reg 3(10 )(a) and rule 5(1) and (3) are so unreasonable that
they cannot have been authorised by the Act Must be taken to be implied in rule 5(1) that leave to a detainee to H see a lawyer can be refused
only on grounds related to the emergency.
Internal security Detention in terms of reg 3(3) of emergency regulations made under s 3(1 )(a) of Public Safety Act 3 of 1953 as promulgated in
Proc R109 of 12 June 1986 Order by Minister for further detention of a detainee becomes effective immediately and is a final order No obligation
I on Minister to inform detainee of grounds on which order was made and, thereafter, to reconsider order if representations made by detainee
Regulation 3(3) in its effect a very harsh provision Having regard, however, to very wide powers conferred on State President by s 3(1 )(a) of Act,
it cannot be said that reg 3(3) is ultra vires Such J conclusion not
1987 (3) SA p860
A meaning, however, that detainee not entitled to make written representations concerning such detention after his further detention ordered But
Minister not obliged to furnish him with grounds upon which order made.
Headnote : Kopnota
The power which s 3(1)(a) of the Public Safety Act 3 of 1953 B (concerning the making of regulations in connection with a state of emergency)
confers on the State President to make regulations for the achievement of the purposes stated in the section is a most extensive one and is a
power not only to make such regulations as he considers to be necessary for those purposes but also to make such regulations as appear to him
to be expedient for achieving the said purposes. The test of what is expedient is obviously a less stringent one than that of C what is
necessary. This illustrates how wide the discretion is which the Act confers on the State President. It is clear from the terms of the section
that the State President is empowered to make such regulations for achieving the purposes mentioned in the section as appear to him, ie in his
subjective judgment, to be necessary or expedient. It follows from this that it is not open to a Court, when considering a regulation, to
substitute its assessment of what would be necessary or expedient to achieve the purposes mentioned in the D section for that of the State
President and to hold that the regulation is invalid because the State President could, in its judgment, have dealt with the matter in issue in
another, less harsh way. This does not mean, of course, that the exercise by the State President of the powers conferred upon him by the Act
is immune from attack. It need hardly be said that he must apply his mind to whatever matter may be in issue, that he must act bona fide and
that he must exercise the powers conferred on him by s 3(1)(a) of the Act for the purposes mentioned in the section.
E Having regard to the fact that the Act confers upon the State President the power to decide on the means and methods to be adopted to
achieve the purposes mentioned in s 3(1)(a) of the Act, it cannot be said that reg 3(3) of the emergency regulations made under s 3(1)(a) of
the Act as promulgated in Proc R121 of 21 July 1985 (Government Gazette 9877 of 21 July 1985) (which regulation (reg 3(3)) provides that
'(T)he Minister may, without notice to any person and without hearing any person, by written notice signed by him and addressed to F the head
of a prison, order that any person arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in
the notice, or for as long as these regulations remain in force') is not related to the said purposes and accordingly it cannot be held that reg
3(3) is ultra vires on the grounds that it is unrelated to the tenor and policy of the Act and served none of the purposes mentioned in s 3(1)(a)
of the Act.
G There is no doubt that reg 3(3) of the said emergency regulations is a drastic provision. However, when proper regard is had to the fact that
the regulation was made as an emergency measure which was to be of application in an emergency situation in which to use the words of s
2(1)(c) of the Act 'the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public or to maintain
public order', it cannot be said that the regulation is so grossly unreasonable as to justify the conclusion that H Parliament could not have
intended to authorise it.
Even though the audi alteram partem rule embodies a fundamental right and that a subordinate legislator such as the State President in this
case cannot deprive the subject of such a right unless he has expressly, or by necessary implication, been empowered by the enabling statute
to do so, reg 3(3) is an emergency measure that was intended to apply in an emergency situation as referred to in s 2(1)(c) of the Act, and it
falls I within the power given to the State President to make such regulations as appear to him to be necessary or expedient to achieve the
ends mentioned in s 3(1)(a) of the Act.
Whilst it is clear from the affidavits filed in the present case that the State President realised that there might be individual cases where the
exclusion of the audi alteram partem rule would not be necessary, the State President's decision nevertheless to make reg 3(3) in the form that
he did does not J show that he acted improperly in that he did not properly apply his mind to the matter in issue or that he had regard to
1987 (3) SA p861
improper or irrelevant considerations or that he acted with A gross unreasonableness. The State President could reasonably have thought that
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in view of the emergency situation seen as a whole it would be advisable to authorise the Minister to exclude the audi alteram partem rule in all
Whilst it is clear from the affidavits filed in the present case that the State President realised that there might be individual cases where the
exclusion of the audi alteram partem rule would not be necessary, the State President's decision nevertheless to make reg 3(3) in the form that
he did does not J show that he acted improperly in that he did not properly apply his mind to the matter in issue or that he had regard to
1987 (3) SA p861
improper or irrelevant considerations or that he acted with A gross unreasonableness. The State President could reasonably have thought that
in view of the emergency situation seen as a whole it would be advisable to authorise the Minister to exclude the audi alteram partem rule in all
cases, ie whenever the Minister considered that it should be done. Regulation 3(3) cannot be held to be invalid on the ground that the State
President acted improperly in making it. (Hoexter JA dissented insofar as he held that reg 3(3) goes no further than to deny a detainee the right
to be heard prior to the Minister's order B for the detainee's further detention, but that the detainee still had the right to make representations
to the Minister after the order and that the Minister was legally obliged to consider such representations.)
Regulation 3(10)(a) of the aforesaid emergency regulations and rule 5(1) and (3) of the rules published under reg 3(9)(a), limiting a detainee's
right of access to a legal adviser except with the consent and subject to the conditions referred to in C the regulation and rules, cannot be
said not to be related to the purposes mentioned in s 3(1)(a) of the Act and cannot therefore be held to be ultra vires on the ground. Having
regard to the affidavits filed in the present case, it cannot be said that the State President, in making reg 3(10)(a), and the Minister of Justice,
in publishing the said rules, failed properly to apply their minds to the matter or that they acted with gross unreasonableness and it cannot be
said that the regulation and rules in question are so unreasonable that they D cannot be held to have been authorised by the Act. (Hoexter JA
dissented, holding that reg 3(10)(a) and rule 5(1) and (3) were, insofar as they made access by a detainee to his lawyer dependent on
permission by others, ultra vires the powers of the State President and the Minister of Justice respectively.)
Rule 5(1) of the aforesaid rules published by the Minister of Justice contemplates that leave may be asked by a detainee to E see his legal
adviser and, although the rule does not expressly state on what grounds leave may be granted or refused, it must be taken to be implied that it
can be refused only on grounds which are related to the emergency.
The order which the Minister makes when, in terms of reg 3(3) of the emergency regulations made under s 3(1)(a) of the Public Safety Act 3 of
1953 as promulgated in Proc R109 in Government Gazette 10280 of 12 June 1986, he orders the further detention of a detainee is an order
which becomes effective immediately F on being made, and which determines the period of the further detention ordered. Therefore, when the
Minister makes an order for a person's further detention in terms of reg 3(3), the order is a final one, and there is thereafter no obligation on the
Minister to inform the detainee of the grounds on which it was made and then, after considering such representations as the detainee may wish
to make in regard to such grounds, to G reconsider the order previously made by him. Whilst this view of the matter entails that reg 3(3) does
away completely with the audi alteram partem rule and that it is not a view which should be lightly entertained, this is, however, what reg 3(3)
entails. There is no doubt that, if this is the effect of reg 3(3), as it must be held to be, it is a very harsh provision, but nevertheless, when
regard is had to the extremely wide powers which the Act confers on the State President to make such regulations as appear to him to be
necessary or expedient for coping with the emergency situation, it cannot be said that H reg 3(3) is ultra vires. (Hoexter JA dissenting.)
The Court must not be understood as saying that a detainee may not, after his further detention has been ordered, make written
representations to the Minister concerning such detention, for it would seem that he would be entitled to do so. However, the view that,
because he may make such representations, the Minister is obliged to furnish him with the grounds on which I his further detention was ordered
cannot be supported.
The decision in the Cape Provincial Division in Omar and Others v Minister of Law and Order and Others 1986 (3) SA 306 confirmed.
The decision in the Eastern Cape Division in Fani and Others v Minister of Law and Order and Others confirmed.
J The decision in the Witwatersrand Local Division in Bill v State President and Others 1987 (1) SA 265 reversed.
1987 (3) SA p862
A
Case Information
Appeals from decisions in the Cape Provincial Division (Munnik JP and Vivier J, Friedman J dissenting), the Eastern Cape Division (Eksteen J and Zietsman J) and the
Witwatersrand Local Division (Leveson J). The facts appear from the judgment of Rabie ACJ.
A Chaskalson SC (with him J J Gauntlett ) for the appellants in B Omar and Others v Minister of Law and Order and Others : Once it prima facie appears that a person is being
held by another even by warrant of the Minister he is entitled to ask for his release, and the Court is bound to grant it unless some lawful cause for his detention has
been shown. See Minister of Law and Order and Others v Hurley and Another (unreported AD 22 May 1986* at pp 53 et seq.); Wood and C Others v Ondangwa Tribal Authority and
Others1975 (2) SA 294 (A) at 309E, citing Wessels J in Principal Immigration Officer and Minister of Interior v Narainsamy 1916 TPD 274 at 276. See also Sigaba v Minister of
Defence and Police1980 (3) SA 535 (Tk) at 544H 545B; Katofa v AdministratorGeneral1985 (4) SA 211 (SWA) at 221B D. The basic question which D arises for decision in
relation to the application for the release of the appellants is whether the notices in terms of reg 3(3) of the emergency regulations, as promulgated in Proc R121 in
Government Gazette 9877 of 21 July 1985 (as amended) establish such lawful cause. The emergency regulations were promulgated by the State President purportedly acting
in terms of s 3 of the Public Safety Act 3 of 1953 (the Act). Provision E is also made in subparas (b) and (c) of s 2 for regulations to be made with retrospective effect and
for regulations to be made for different areas. In ss (3) it is expressly provided that the State President's power to make regulations is limited in certain defined respects.
Subsections (4) and (5) provide further for the tabling of certain information in Parliament. F Subsection (6) requires the State President to secure the approval of
Parliament to the regulations made by him during the session in which they are tabled. In Nkwinti v Commissioner of Police and Others1986 (2) SA 421 (E) it was held that reg
3(3) was subject to the audi alteram partem rule; this rule had not been complied with; and the applicants in that matter were accordingly entitled to be released. Following
argument in that G case, but before judgment was delivered, reg 3(3) was amended (with retrospective effect) by the substitution of the following subregulation: '(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 subreg (1), be H further detained in that prison for the period mentioned in the notice, or for as long as these regulations remain in force ' (emphasis
supplied). In effect, the amendment empowered the Minister to order the continued detention of any person held under the regulations for an indefinite period without
'hearing' such person. This is what happened in this case, and the issue was whether reg 3(3) (as amended) was valid.
I There is a presumption that the rule audi alteram partem applies to the exercise of judicial and quasijudicial power to affect prejudicially the freedom of the individual.
The presumption may be rebutted expressly or by implication. In the absence of express exclusion, it will, however, only J
1987 (3) SA p863
be held to have been implicitly excluded if that implication is A 'necessary' or 'the clear intention of Parliament'. See Sachs v Minister of Justice 1934 AD 11 at 38; R v

Ngwevela1954 (1) SA 123 (A) at 127F and 131H; Publications Control Board v CNA Ltd1970 (3) SA 479 (A) at 488H 489D. Audi alteram partem is not a rule of fixed content. It
varies with the circumstances. In its fullest extent, it may include the right to be apprised B of the information and reasons underlying the impending decision; to
disclosure of material documents; to a public hearing and, at that hearing, to appear in person with legal representation, and to examine and crossexamine witnesses.
See generally Baxter Administrative Law (1985) at 545 57. Everything, however, depends upon the circumstances. The test is always one of fundamental fairness and for
this reason the C principles of natural justice are always flexible. See Baxter Administrative Law at 546; RoseInnes Judicial Review of Administrative Tribunals in SA at 146 7.
In appropriate cases, the rule can be modified. See De Smith Judicial Review of Administrative Action 4th ed at 189 90; RoseInnes (op cit at 151 (last paragraph)). The
present case is concerned D with detention perhaps for long periods with the harshest consequences for the detainee. He may be detained on the ipse dixit of a 'raw
recruit' (Nkwinti v Commissioner of Police and Others1986 (2) SA 421 (E) at 438G) of any of the four services (defined in reg 1). He may be held indefinitely for as long as the
state of emergency (which is capable of extension) lasts. The regulations purport to deprive the E detainee of his right to reading material (other than magazines and
religious works), access to other persons, to subject him to disciplinary offences, and to be punished (even by solitary confinement and spare diet) without even the
entitlement which a convicted prisoner has to legal representation. It is above all others the sort of case where there ought to be a right to be heard. See Nkwinti v F
Commissioner of Police and Others (supra at 438I); Momoniat and Naidoo v Minister of Law and Order1986 (2) SA 264 (W) at 276C H, 277C G, 278J 279A. Regulation 3(3)
confers a discretion upon the Minister to order continued (and indefinite) detention. This discretion cannot be exercised fairly or properly by the Minister if he hears only one
side of the case and is in receipt of no representations whatever by or G on behalf of the detainee. See Ismail and Another v Durban City Council1973 (2) SA 359 (N) at 371H
372B, cited with approval by Wessels ACJ in Goldberg and Others v Minister of Prisons1979 (1) SA 14 (A) at 35B C and 48D. There is nothing in the general tenor or policy
of the Act which would justify the making of regulations which deny detainees the H right to be heard in any form whatever before being subjected (after the initial arrest and
detention) to what may be long periods of detention. See Nkwinti's case supra at 438D E. While the exigencies of the initial arrest and detention may militate against a
hearing in any form at that stage, different considerations entirely apply thereafter. As already emphasised, the audi alteram partem r u l e h a s a f l e x i b l e a n d I variable
content. Its exclusion in its widest form at one stage does not limit its applicability (even in an attenuated form) at a different stage (cf Momoniat and Naidoo v Minister of Law
and Order and Others1986 (2) SA 264 (W) at 275J 276J). The regulation in express terms empowers the Minister of Law and Order to authorise indefinite detention without
hearing 'any J person '. The State President had no power to make such a
1987 (3) SA p864
A regulation; it is grossly unreasonable, harsh and oppressive and, on the evidence, the State President failed to apply his mind properly to the purposes of the Act. The
further consequence was that he misconstrued his own jurisdiction. The consequence on any of these approaches is that reg 3(3) is invalid.
B The first question which arises in this regard is whether the Court may even embark upon an enquiry into the scope of the powers vested in the State President by virtue
of: (1) the ouster provisions of reg 11(2); and (2) the subjective formulation and wide terms of s 3 of the Act. As to (1), the Court is not prevented from granting the relief
sought by the statutory ouster (reg 11(2)). See Nkwinti v Minister of Law and C Order (supra at 427D) and Hurley v Minister of Law and Order (supra at pp 50 3 of the typed
judgment). Before the jurisdiction of a Court can be held to be ousted, the issue in question must be brought within the terms of the provision which provides for the ouster.
This is a question of law into which the Court itself will enquire in order to determine for itself whether or not it has jurisdiction to deal with the D matter. See R v Padsha
1923 AD 281 at 304 (per I n n e s C J dissentiente ); Union Government v Fakir 1923 AD 466 at 469; Narainsamy v Principal Immigration Officer 1923 AD 673 at 675; Sigaba v
Ministers of Defence and Police and Another1980 (3) SA 535 (Tk) at 553 4; SWAPDUF en 'n Ander v AdministrateurGeneraal, SWA, en Andere1983 (1) SA 411 (A) at E 429C H,
432G H; Minister of Law and Order and Others v Hurley and Another (supra at pp 39 53); Eshugbai Eleko v Government of Nigeria 1931 AC 662 at 670; AttorneyGeneral v Ryan
1980 AC 718 (PC) at 730. Once it is established that the decision taken by the State President was not 'duly' taken in accordance with the enabling Act, properly construed,
B The first question which arises in this regard is whether the Court may even embark upon an enquiry into the scope of the powers vested in the State President by virtue
of: (1) the ouster provisions of reg 11(2); and (2) the subjective formulation and wide terms of s 3 of the Act. As to (1), the Court is not prevented from granting the relief
sought by the statutory ouster (reg 11(2)). See Nkwinti v Minister of Law and C Order (supra at 427D) and Hurley v Minister of Law and Order (supra at pp 50 3 of the typed
judgment). Before the jurisdiction of a Court can be held to be ousted, the issue in question must be brought within the terms of the provision which provides for the ouster.
This is a question of law into which the Court itself will enquire in order to determine for itself whether or not it has jurisdiction to deal with the D matter. See R v Padsha
1923 AD 281 at 304 (per I n n e s C J dissentiente ); Union Government v Fakir 1923 AD 466 at 469; Narainsamy v Principal Immigration Officer 1923 AD 673 at 675; Sigaba v
Ministers of Defence and Police and Another1980 (3) SA 535 (Tk) at 553 4; SWAPDUF en 'n Ander v AdministrateurGeneraal, SWA, en Andere1983 (1) SA 411 (A) at E 429C H,
432G H; Minister of Law and Order and Others v Hurley and Another (supra at pp 39 53); Eshugbai Eleko v Government of Nigeria 1931 AC 662 at 670; AttorneyGeneral v Ryan
1980 AC 718 (PC) at 730. Once it is established that the decision taken by the State President was not 'duly' taken in accordance with the enabling Act, properly construed,
the F ouster clause has no effect. See Baxter Administrative Law (1985) at 726 7. As to (2) above, ie the scope of the powers conferred upon the State President, this
involves a consideration of the precise power given to the State President by s 3 of the Act. This section empowers the State President to make such regulations as appear
to him to be necessary or expedient for: 'providing for the safety of the public, or maintenance of public order and the making of adequate G provision for the termination
of the state of emergency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of the state of emergency'. In the
judgments of the Court a quo a number of cases dealing with the 1960 emergency are collected and discussed. Both judgments devote attention to and reject (correctly)
statements H in some of these cases to the effect that the State President's powers under the Public Safety Act are 'equal to those of Parliament'. This was also the
conclusion of a Full Bench of the Witwatersrand Local Division in Momoniat and Another v Minister of Law and Order and Others1986 (2) SA 264 (W). Vivier J specifically held in
the Court a quo that the State President exercises subordinate delegated authority under I the Public Safety Act 'which must be interpreted and determined in accordance
with the provisions of the Act and which is subject to judicial scrutiny' (at 312G H). See also Friedman J in the Court a quo at 325B F. The power conferred upon the State
President in terms of s 3(1) is not to legislate for a particular area; rather it is to make regulations in J particular areas for specific purposes. That power cannot be treated
as an 'unrestricted' or 'untrammelled', or
1987 (3) SA p866
A 681j ). See also Padfield v Minister of Agriculture, Fisheries and Food 1968 AC 997 ([1968] 1 All ER 694 at 699c); Katofa v AdministratorGeneral for SWA and Another1985 (4)
SA 211 (SWA) at 221I and 223E; Metal and Allied Workers Union v Castell NO1985 (2) SA 280 (D) at 287B; Hurley v Minister of Law and Order1985 (4) SA 709 (D) at 718B G.
B Audi alteram partem : 'The history of liberty has been the history of the observance of procedural safeguards', per justice Frankfurter in McNabb v United States 318 US 206
(1952) at 224. Audi alteram partem is the embodiment of procedural fairness: the power to detain an individual indefinitely 'without hearing any person' is the antithesis of
procedural fairness. The question is whether it was within the power of C the State President to confer such authority on the Minister of Law and Order. Whilst it is
acknowledged that the provision for arrest and the initial detention without a hearing may be necessary for the purposes of the statute, different considerations apply to
continued and indefinite detention thereafter. The arrest may have been effected on the D basis of the most insubstantial suspicion, by a 'raw recruit' of one of three
services other than the police force. The consequence of a failure to hear any person in such circumstances before directing that the detainee be held indefinitely may be
that an innocent person is unjustly and incorrectly cut off from his family and livelihood for months or even years. He is during that period to be treated in E important
respects less favourably than a convicted prisoner or a person held under the Internal Security Act. The initial consideration of a need for urgent and unfettered action has
passed (see Nkwinti's case supra at 437I 439B). Not to provide for the most elementary of checking mechanisms by provision at this stage for notice of the impending
decision, F and for an opportunity to make representations, is unrelated to the tenor and policy of the statute and serves no proper purpose. It promotes neither the
safety of the public nor the maintenance of public order nor the termination of the emergency which are the primary objectives of the legislation. It is highly prejudicial to
the detainee and can lead to irreparable harm. It is, in all the circumstances: (1) inconsistent with reason and justice; (2) unrelated to the G purpose of the legislation; (3)
so 'oppressive and gratuitous (an) interference with the rights of the subject... as could find no justification in the minds of reasonable men' (Kruse Johnson [1898] 2 QB 91,
cited with approval in R v Abdurahman1950 (3) SA 136 (A) at 143). There is no express authority in the present case that this be done. The question is whether the H Act
impliedly authorises such a result. This question is one of construction. On a proper approach to the construction of the Act, it cannot be found that it impliedly authorises
the exclusion of procedural fairness in the form of a right to be heard before a decision is taken to detain a person indefinitely. Accordingly, since s 3(3) has this result, the
State President acted ultra vires in making it. In Momoniat and I Naidoo v Minister of Law and Order1986 (2) SA 264 (W) Goldstone J (Coetzee J and Heyns J concurring) held
(approving and applying the unreported decision in Fani v Minister of Law and Order ) that s 3(3) was valid. Central to the reasoning of the Court was the consideration 'that
the number of detainees may make it impractical for representation by all of them to be J considered by the Minister during the initial 14day period' (at 275D). See too
Coetzee J
1987 (3) SA p867
at 278I. For the reasons given by Friedman J in the Court a quo A (at 327I 328H), this consideration is unsound. Once this reasoning is shown to be untenable, the basis for

confining the right to a hearing at some stage after not only the arrest but also the initial detention and the actual decision to detain 'further' by the Minister, falls away. In any event the
'right to object' to a decision without knowing why the decision has B been taken, or even that such 'right' exists (because the regulations prima facie deny its existence) cannot be
said to meet the requirements of procedural fairness. The affidavit filed by the State President in the present matter makes it apparent that the State President decided to
exclude a right to a hearing in any form at any stage of the detention. Even if evidence in this form as to the intention of a lawgiver were to C be held to be inadmissible (see
Steyn Uitleg van Wette 5th ed at 135 6 ad note 16), it is apparent that the regulation is enforced in this way. The matter was argued and determined by the Court a quo o n
that basis (see the judgment of Vivier J at 310B C). It would seem that, had such an affidavit been filed in the Momoniat case, the Court would on the reasoning it
adopted have been compelled to the conclusion D that reg 3(3) was ultra vires (see especially at 275J 277A, 278I 279A). In the present case, the State President has
given what would clearly be his principal reasons (notwithstanding the disclaimer as to exclusivity) for making the regulation. The Court is accordingly able to assess the
criteria actually used, and to determine whether in fact the State President properly applied his mind, or took into account E improper or irrelevant considerations, or acted
with gross unreasonableness. The analysis by Friedman J (at 329D 330B) is correct. In contrast, Vivier J (at 315E 316B) held that a decision by the State President to
exclude the audi alteram partem rule altogether in respect of all detainees at any stage of the detention, 'as a matter of policy' could not be set F aside. The State President
had no power to apply any 'policy' not authorised by the enabling statute and his reasoning is demonstrably fallacious. He has made a rule out of a possible exception
instead of acknowledging the basic right to a hearing and providing for possible exceptions or limitations to the rule. Where, in addition, the result of such policy total
exclusion of procedural fairness is not authorised by the G Legislature and leads to a result which is grossly unreasonable and repugnant to rightthinking men (see
Momoniat's case per Goldstone J at 276B J, and Coetzee J at 278J 279A), it falls to be reviewed. On this basis, too, reg 3(3) is invalid.
The right to access: The respondents dispute the right of a detainee held under reg 3(3) to access to legal H representatives. The first question which arises in this regard
is whether reg 3(3) clearly provides for the exclusion of this fundamental right. If it does, the further questions arise as to whether such provision is intra vires and whether
the decision of the State President is reviewable. As to the nature of the right to access to a legal adviser by a person held in custody, see per Jansen JA in Mandela v
Minister of Prisons1983 (1) SA 938 (A) at 957D. See also Raymond v Honey I [1982] 1 All ER at 760j ; Nestor and Others v Minister of Police1984 (4) SA 230 (SWA) at 248I
249I; Mokoena v Commissioner of Prisons1985 (1) SA 368 (W) at 373C 374E; Li Kui Yu v Superintendent of Labour 1906 TS 181 at 185 6, 187 8. Regulation 3(10) provides
that 'no person' (other than the Minister or a State official) shall have access to a J detainee save with the
1987 (3) SA p868
A consent of the Minister or Commissioner. Rule 5 purportedly made by the Minister of Justice pursuant to his power under reg 3(9)(a) to make rules 'to regulate the
detention of persons in terms of this regulation' provides for visits by 'any person' with the permission of the prison authorities 'acting with the concurrence of the
Commissioner'. This is subject to a proviso that legal representatives are to B be treated differently from other visitors: 'The permission of the Minister of Law and Order or
the Commissioner of the South African Police shall be obtained for such a visit.' If reg 3(10) is to be construed as including reference to legal representatives, it cannot
reasonably be related to the purposes contemplated by s 3 of the Act. The right of C access to a legal representative (subject of course to constraints to be imposed, 'as a
necessary consequence of incarceration' (Mandela's case supra )) cannot reasonably be considered to impinge upon those purposes. If reg 3(10) is not to be construed as
intending reference to 'legal representative', then it is submitted that rule 5 was made D without power. The Minister of Justice who has chosen to make access by legal
representatives more attenuated than that of 'any person' has power to make rules only 'to regulate the detention of persons in terms of this regulation'. It is no such
regulation of 'the detention of persons in terms of this regulation' to exclude the right of access to legal representatives (rather than to seek to regulate such access by
virtue of practical considerations). Nor is it such regulation E to exclude entirely the right of a detainee to legal representation in respect of disciplinary proceedings (rule
21(2)), a right held even by prisoners convicted of serious offences. To exclude all such right in respect of a detainee is grossly unreasonable (cf R v Slabbert and
Another1956 (4) SA 18 (T) at 21G). Again, the Court has before it the principal F grounds upon which the State President and the Minister based their decisions to make reg
3(10) and rule 5 respectively. As to the former, the State President manifestly did not apply his mind to the distinction between a recognition of the right o f a c c e s s t o
lawyers and its subsequent regulation by conditions appropriate in the circumstances, and the denial of the right, with an entirely discretionary grant of permission thereafter
G vesting in an official. In both respects, the State President failed properly to apply his mind to the matter and acted with gross unreasonableness. The stated danger of
contact between 'specific' or 'some' detainees and their legal representatives could be met by a spectrum of conditions ranging from restrictions on physical contact, to
some form of supervising H consultations, and to the making of even more onerous stipulations in the case of particular individuals. In contrast, it is unnecessary to
achieve the purposes of the Act and grossly unreasonable for detainees held for their own safety, or those who wish to establish that they have been wrongly or mistakenly
held, or those facing disciplinary proceedings, to be deprived ab initio of their fundamental I right, and thereafter to be dependent on a discretionary licence to gain access
to legal advisers. Moreover, all detainees may urgently require access to legal advisers for a variety of reasons unrelated to their detention or the emergency. Clearly a
refusal of permission could only be attacked on the narrowest grounds and with considerable difficulty, given the entire absence of any right to access to J persons outside
the prison. Parliament could not have intended such a prejudicial
1987 (3) SA p869
conundrum; that the State President, and the Minister, could A not properly have applied their minds to this result when removing the right of all detainess to access; and
with a result so grossly unreasonable to the minds of rightthinking men. Accordingly, reg 3(10) and rule 5 are also invalid. This is the conclusion which has been reached
by the Natal Provincial Division and the Witwatersrand Local Division (see Metal and Allied Workers Union and Another v State President B and Others (supra ) ; Kerchhoff and
Another v Minister of Law and Order and Others (supra ); Bill v State President and Others1987 (1) SA 265 (W)) though in Bloem and Another v State President and Others1986 (4)
SA 1064 (O) the judgment of Vivier J in the present case was followed on this issue.
W G Burger SC (with him C Y Louw ) for the respondents in Omar C and Others v Minister of Law and Order and Others : Respondents support the reasoning and conclusions of
Vivier J in the Court a quo, and therefore do not propose to repeat the various arguments and authorities here. The further submissions made below merely serve to
criticise, with respect, the basic D approach of Friedman J in the Court a quo. When one considers whether the Act has given the State President (fourth respondent) the
power to make a regulation providing for the detention of a person without the detainee having a right to be heard, it is essential to view the matter in the proper
perspective. The following points merit consideration in this regard: (a) T h e audi alteram partem rule is part of the ordinary law of the land. (b) A state of emergency is
declared E because inter alia (in the opinion of the State President) the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public or
to maintain public order. Section 2(1) of the Act. (c) The object of the Act is clearly to enable the Executive to exercise wider power than it would have under the ordinary law
of the land. Clearly, therefore, F the type of regulation that the State President is authorised to make is of a nature to cut across, or abrogate, principles of the ordinary law
of the land, including those principles which have been evolved to restrict or curtail the powers of the Government visàvis the subject. The audi alteram partem rule is one of
these. (d) Furthermore, in the very nature of things, the State President is in effect given power pro tanto G to govern, ie to decide upon what policy to pursue in combating the
state of emergency. From the wording of s 3(1)(a) it is clear that Parliament prescribed a subjective and not an objective limit to the State President's power to make
regulations. This appears from the words 'as appear to him to be necessary or expedient' and 'for dealing with any H circumstances which in his opinion... are likely to
arise'. (e) T h e r e a r e o t h e r indicia in s 3 of Parliament's intention to grant the State President very wideranging powers to deal with an emergency, and that it was
contemplated that the regulations could and would infringe the normal basic rights of individuals. Thus:(i) Section 3(2)(b) expressly grants the power to make regulations
with retrospective effect. (ii) Section 3(4) contemplates regulations which provide not only I for the summary arrest and detention of any person but also for such detention
to last for a period of longer than 30 days. (iii) The nature of the express limitation placed by Parliament on the regulationmaking powers of the State President in s 3(3)
(c) (which is clearly designed to present a usurpation of J the constitution) shows how extremely wide those powers
these. (d) Furthermore, in the very nature of things, the State President is in effect given power pro tanto G to govern, ie to decide upon what policy to pursue in combating the
state of emergency. From the wording of s 3(1)(a) it is clear that Parliament prescribed a subjective and not an objective limit to the State President's power to make
regulations. This appears from the words 'as appear to him to be necessary or expedient' and 'for dealing with any H circumstances which in his opinion... are likely to
arise'. (e) T h e r e a r e o t h e r indicia in s 3 of Parliament's intention to grant the State President very wideranging powers to deal with an emergency, and that it was
contemplated that the regulations could and would infringe the normal basic rights of individuals. Thus:(i) Section 3(2)(b) expressly grants the power to make regulations
with retrospective effect. (ii) Section 3(4) contemplates regulations which provide not only I for the summary arrest and detention of any person but also for such detention
to last for a period of longer than 30 days. (iii) The nature of the express limitation placed by Parliament on the regulationmaking powers of the State President in s 3(3)
(c) (which is clearly designed to present a usurpation of J the constitution) shows how extremely wide those powers
1987 (3) SA p870
A were intended to be. (f) It should be pointed out also that Parliament envisaged only one type of state of emergency and not different grades or types of emergency.
Hence, once a state of emergency has been declared, the State President has all the powers set out in s 3. From this it follows that, should it be B held that s 3 does not
give the State President the power to abrogate the audi alteram partem rule, it means that he will never have that power under any circumstances. Such a conclusion would in
effect elevate a rule or presumption to an inviolable principle of law. This is untenable. The presumption against excluding the audi alteram partem rule is one which
operates within the normal operation of the ordinary law of the land; it loses its force when ex hypothesi the ordinary law is C inadequate. The conclusion is inescapable that
Parliament intended that the emergency regulations could abrogate the audi alteram partem rule.
Furthermore, it has to be kept in mind that emergency regulations can cover a very wide range of topics and can impinge on very many aspects of the ordinary citizen's life
a n d D activities. The State President must decide what policy he will pursue in combating the emergency. All these aspects may or may not be dealt with in emergency
regulations according to the policy decided on by the State President and, if he should decide to deal with a particular aspect, he has a discretion (fettered only by the limits
of bona fides ) as to how he will deal with it. In the present case, attention has been E concentrated on two limited fields only regarding the rights of persons who have been
detained. Friedman J and appellants have lost sight of the fact that these two issues are only two particular instances of the application of a broad policy to which the State
President has applied his mind. Before one can say that a person has failed to apply his mind to a matter one F must be clear as to precisely what the 'matter' is to which
he had to apply his mind. Requiring the State President to apply his mind to the pros and cons of each particular instance as if those were the parameters of his discretion i s
to apply the wrong perspective. The exercise of the State President's overall discretion must be looked at. If the State President decides as a matter of policy to abrogate
audi alteram partem in the case of detentions because in some cases (but not all) G it would hamper the police, that is simply an indication that he has decided to follow a
strict policy. Some people may think that a softer or more flexible policy should be followed. To argue that the State President should have allowed the audi alteram partem
rule to apply in those cases where the police would not be hampered is merely to criticise his policy on this H aspect and has nothing to do with the question whether he has
properly applied his mind to the matter. The 'matter' to which the State President must apply his mind in terms of s 3 of the Act is the formulation of his whole policy,
expressed in a set of regulations, and not each or any particular aspect of these regulations which in the opinion of the Court should have been framed differently. The
position can be summed up as follows: I (a) If s 3 of the Act does not give the State President the power to abrogate the audi alteram partem rule at all, caedit quaestio a n d
the appeal must succeed. (b) If s 3 of the Act does give the State President the power to abrogate the audi alteram partem rule, then the extent of his power so to abrogate
it must be coextensive with his power to deal with J the emergency. (c) In such an event it is pointless to argue that in such or such a case he should not have
1987 (3) SA p871
A abrogated the rule, for this amounts merely to criticising individual aspects of the State President's policy and does not touch on the question whether he has properly
exercised the very wide discretion given to him by s 3.
Chaskalson SC in reply.
A Chaskalson SC (with him G J Marcus ) for the appellants in Fani and Others v Minister of Law and Order and Others : T h e B Court is not precluded from granting the relief

claimed by reason of the 'ouster clause' contained in reg 11(2). The general principle, recognised in many decisions, is that provisions purporting to exclude or limit the
right of recourse to the courts of justice are subjected to strict construction: 'Conditions which clog the ordinary right of an aggrieved C person to seek the assistance of a
court of law, should be strictly construed and not extended beyond the cases to which they expressly apply.' Benning v Union Government (Minister of Finance ) 1914 AD 180 at
185. It is well established that when a question of law is raised as to whether or not the jurisdiction of the Court has been ousted by a particular statute, the Court D will
enquire into the question and decide for itself whether or not it has jurisdiction to deal with the matter. Union Government v Fakir 1923 AD 466 at 469; Narainsamy v Principal
Immigration Officer 1923 AD 673 at 675; SWAPDUF v AdministrateurGeneraal, SWA1983 (1) SA 411 (A) at 429C H, 432G H; Minister of Law and Order v Hurley1986 (3) SA
568 (A) at 584F 586I. In the context of the state of emergency, E it has been held that reg 11(2) does not constitute a bar to the Court's jurisdiction. See Nkwinti v
Commissioner of Police1986 (2) SA 421 (E) at 427D E. On the basis of the aforegoing, the Court is not precluded from enquiring into the legal validity of any regulation
promulgated in terms of the Public Safety Act 3 of 1953, notwithstanding the ouster clause F contained in reg 11(2).
The emergency regulations were promulgated by the State President purportedly acting in terms of s 3 of the Public Safety Act 3 of 1953. Provision is also made in
subparas (b) a n d (c) of s 2 for regulations to be made with retrospective effect and for regulations to be made for different areas. The State President's power to make
regulations is specifically circumscribed by the provisions of s 3(3). Subsections (4) and G (5) provide for the tabling of certain information in Parliament. Subsection (6)
requires the State President to secure the approval of Parliament for the regulations made by him during the session in which they were tabled. (The Act has since been
amended but this appeal is concerned with the situation which prevailed prior to amendment.) In terms of Proc H R121 published in Government Gazette 9877 of 21 July
1985, the State President promulgated regulations in terms of the Act. In Nkwinti v Commissioner of Police1986 (2) SA 421 (E) it was held that reg 3(3) was subject to the
audi alteram partem rule. In consequence of a failure to comply with that rule, the applicants in that case were held to be entitled to their I release. Following argument in
that case, but before judgment was delivered, reg 3(3) was amended by Proc R207 published in Government Gazette 10003 of 31 October 1985. The regulation was made
retrospective to 21 July 1985. The continued detention of the detainees was unlawful on the following grounds: reg 3(3) does not exclude the audi alteram partem rule.
Although the J Minister may make an order in terms of that regulation 'without
1987 (3) SA p872
A hearing any person', he is not entitled to do so without affording the detainee an opportunity of making written representations. His failure to do so renders the orders
of further detention invalid. If it is held that on a proper construction of reg 3(3) the audi alteram partem rule does not apply, then reg 3(3) itself is ultra vires. The argument
advanced in the Court below concerning the invalidity of the B retrospective operation of reg 3(3) is not persisted with in this appeal. The following must be considered: (1)
the scope of the State President's powers in terms of the Public Safety Act; (2) the ambit of the audi alteram partem rule; (3) the applicability of the audi alteram partem rule
to reg 3(3) and the nature of the Minister's discretion.
C (1) The scope of the State President's powers: The powers conferred upon the State President are selfevidently wide. Nevertheless, they remain delegated powers and
are accordingly subject to judicial scrutiny. Those powers are confined to the purposes authorised by the enabling D legislation. See State President v Tsenoli1986 (4) SA
1150 (A). See also AttorneyGeneral for Canada v Hallett and Carey Ltd 1952 AC 427 at 450; Momoniat v Minister of Law and Order1986 (2) SA 264 (W) at 268 72 which was
cited with approval in Tsenoli's case at 40. In a number of recent decisions (including the judgment of the Court below) consideration has been given to certain dicta arising
out of cases dealing with the 1960 emergency to the effect that the State President's powers are E 'equal to those of Parliament'. See Momoniat v Minister of Law and
Order1986 (2) SA 264 (W); Omar v Minister of Law and Order1986 (3) SA 306 (C); Metal and Allied Workers Union v State President1986 (4) SA 358 (D). These decisions have
correctly rejected the notion that the State President's powers are equal F to those of Parliament. They recognise that, notwithstanding the breadth of these powers, they
are nevertheless subject to judicial scrutiny. See Momoniat's case supra at 270I 271A, referring to a dictum of Van den Heever JA in R v Pretoria Timber Co (Pty) Ltd1950 (3)
SA 163 (A). See also S v Concalves1975 (2) SA 51 (T) at 55H. A common theme emerging from these decisions is that the powers of the State President, albeit expressed
in wide terms, must fall within the ambit of the G enabling statute and must be exercised in good faith and for proper purposes. This principle was expressed by Harcourt J
in Ismail v Durban City Council1973 (2) SA 362 (N) at 372A B. Ismail's case was cited with approval by Wessels ACJ in Goldberg v Minister of Prisons1979 (1) SA 14 (A) a t
35BC and H by Corbett JA at 48D. See also Dedlow v Minister of Defence and Provost Marshal 1915 TPD 543 at 560 1. On the basis of the aforegoing decisions, it is clear
that the State President's powers are subject to judicial review at least on the following grounds: (a) If the regulations are unrelated to the purpose of the enabling
legislation. State President v Tsenoli (supra at 44); AttorneyGeneral for Canada v Hallett and Carey Ltd 1952 I AC 427 at 450; Momoniat v Minister of Law and Order1986 (2) SA
264 (W) at 273D F and 277H 278C. (b) If the regulations are so grossly unreasonable that they give rise to the inference that the State President acted in bad faith or
for an ulterior purpose or that he failed to apply his mind properly to the matter. R v Pretoria Timber Co (Pty) Ltd1950 (3) SA 163 (A) at 181G 182B; Momoniat v Minister of
Law and Order J (supra at 270I 271A, 272I 273F and 277H 278D).
1987 (3) SA p873
(2) The ambit of the audi alteram partem rule: The requirement A that the other side be heard is fundamental to all civilised legal systems. Two basic requirements of
natural justice which apply to persons whose rights may be prejudicially affected by administrative action are (a) notice of the intended action, and (b) a proper opportunity
to be heard, which usually includes informing the person affected of the substance of the allegations against him. B Both requirements are expressed and understood by
the maxim audi alteram partem. The basis of the audi alteram partem rule is natural justice or fundamental fairness. See Winter v AdministratorinExecutive Committee1973 (1)
SA 873 (A) at 890H; Turner v Jockey Club of South Africa1974 (3) SA 633 (A) at 645C 646E; Momoniat v Minister of Law and Order (supra at 274B C). There is a presumption
C that the audi alteram partem rule applies to the exercise of judicial and quasijudicial power to affect prejudicially the interests of the individual. It will be held to have been
implicitly excluded if that implication is 'necessary' or emerges from the 'clear intention' of Parliament. See Sachs v Minister of Justice 1934 AD 11 at 38; R D v Ngwevela1954
(1) SA 123 (A) at 127F and 131H; Publications Control Board v CNA Ltd1970 (3) SA 479 (A) at 488H 489D. Audi alteram partem is not a rule of fixed content. It varies with the
circumstances. In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material
documents; to a public hearing and, at that hearing, to appear in person with legal representation E and to examine and crossexamine witnesses. See, generally, Baxter
Administrative Law at 545 57. Everything, however, depends upon the circumstances. The test is always one of fundamental fairness and for this reason the principles of
natural justice are always flexible. See Baxter Administrative Law at 546; RoseInnes Judicial Review F of Administrative Tribunals in South Africa at 146 7. In appropriate
cases, the rule can be modified. See De Smith Judicial Review of Administrative Action 4th ed at 189 90. The underlying philosophy of the audi alteram partem rule was
eloquently articulated by Megarry J in John v Rees [1970] 1 Ch 345 at 402c e. Of particular significance to this appeal is the fact that the rule does not necessarily or even
ordinarily require G that the subject be afforded a hearing in person. Depending upon the circumstances, written representations may suffice. That would be the case where
the statute precludes a hearing in person or where written representations would meet the underlying demand of fundamental fairness. See RoseInnes Judicial Review of
Administrative Tribunals in South Africa a t H 160 1; Baxter Administrative Law at 552; R v Ngwevela1954 (1) SA 121 (A) at 128E F. There is a logical concomitant to the
aforegoing two principles (that the maxim applies unless excluded expressly or by clear implication and that the maxim itself is of variable content). It is the following.
There are cases where the rule need not be complied with to its fullest extent, because such compliance is precluded by statutory I proscription or because it is not possible
or reasonable in the circumstances. That would not lead to an inference that the Legislature intended to dispense entirely with compliance with the rule altogether. The
maxim refers to a group of rights. The fact that in any given case they cannot or need not all be complied with does not warrant an inference that they can all J b e
dispensed with. Only those aspects of the maxim which are
1987 (3) SA p874
A expressly or by necessary implication excluded may be dispensed with. See R v Ngwevela1954 (1) SA 123 (A) at 129E F. In determining whether or not the audi alteram
partem rule is curtailed or excluded it must be borne in mind that subordinate legislation which interferes with a fundamental right is prima facie unreasonable and will be
ultra B vires the enabling statute unless the enabling enactment expressly or by necessary implication authorises such interference. See R v Slabbert1956 (4) SA 18 (T) a t
21G H and 22A H; R v Heyns 1959 (3) SA 18 634 (A) at 637E F; Mandela v Minister of Prisons1983 (1) SA 938 (A) at 959G H; E Mureinik 'Fundamental Rights and
© 2018 Juta and Company (Pty) Ltd.
Delegated Legislation' (1985) 1 South African Journal on Human Rights 111. Downloaded : Thu Apr 01 2021 09:39:09 GMT+0200 (South Africa Standard Time)
C (3) The ambit and validity of the powers conferred by reg 3(3): The present appeal is concerned with powers of preventive detention perhaps for long periods with
1987 (3) SA p874
A expressly or by necessary implication excluded may be dispensed with. See R v Ngwevela1954 (1) SA 123 (A) at 129E F. In determining whether or not the audi alteram
partem rule is curtailed or excluded it must be borne in mind that subordinate legislation which interferes with a fundamental right is prima facie unreasonable and will be
ultra B vires the enabling statute unless the enabling enactment expressly or by necessary implication authorises such interference. See R v Slabbert1956 (4) SA 18 (T) a t
21G H and 22A H; R v Heyns 1959 (3) SA 18 634 (A) at 637E F; Mandela v Minister of Prisons1983 (1) SA 938 (A) at 959G H; E Mureinik 'Fundamental Rights and
Delegated Legislation' (1985) 1 South African Journal on Human Rights 111.
C (3) The ambit and validity of the powers conferred by reg 3(3): The present appeal is concerned with powers of preventive detention perhaps for long periods with
the harshest consequences for the detainee. He may be detained on the ipse dixit of a 'raw recruit' (Nkwinti v Commissioner of Police1986 (2) SA 421 (E) D at 438G) of any
of the four services comprising the 'Force' as defined in reg 1. He may be held indefinitely for as long as the state of emergency (which is capable of extension) lasts. The
regulations purport to deprive the detainee of his rights to reading material (other than magazines and religious works) and access to other persons. The detainee may be
subjected to disciplinary offences and to be E punished (even by solitary confinement and spare diet) without the entitlement which a convicted prisoner has to legal
representation. It was considerations of this nature which led Kannemeyer J (Smalberger and Jennett JJ concurring) to make the observation in Nkwinti's case at 4381
439A. It remains to be considered whether reg 3(3) as F amended excludes even the right to make written representations and, if so, whether the regulation is valid.
Under the amended regulation, the Minister may firstly order the continued detention of a detainee 'without notice to any person' ('sonder kennisgewing aan enigiemand').
This exclusion might mean, either (a) that the Minister is not required to notify a detainee that the extension of his detention was being considered; or (b) that the order
extending a detainees detention G need not be communicated to him. Whatever the true intention, it does not exclude the Minister's duty to inform detainees generally
that they may make representations concerning the extension or otherwise of their detention and to afford the detainee an opportunity of making such representations.
Accordingly, the right to make representations is not excluded by this provision. That could not have been the intention. H This much is manifest from the fact that, if the
exclusion were to be interpreted to exclude the right to be heard, it would render superfluous the second exclusion entitling the Minister to make order 'without hearing any
person'. The second exclusion entitles the Minister to order the continued detention of a detainee 'without hearing any person' ('sonder om enigiemand I aan te hoor').
This exclusion is capable of a wide and a narrow interpretation. In the wide sense, it excludes the right to make any representations, whether orally or in writing. In the
narrow sense, it excludes merely the right to an oral hearing. The narrow interpretation is the appropriate one. See The Shorter Oxford English Dictionary J sv 'hearing'. In its
ordinary grammatical sense, therefore, the word usually carries a connotation of an oral communication.
1987 (3) SA p875
It would make good practical sense to exclude the right A to an oral hearing. It is selfevident that the Minister cannot afford every detainee an oral hearing. Our Courts
have recognised that oral hearings are quite impractical in some cases, especially where decisions by senior central Government officials are required. Porter v Union
Government 1919 TPD 234 at 242. The same consideration, however, does not apply to the right to make written representations. See, further, The King v B Tribunal of Appeal
under the Housing Act [1920] 3 KB 334 at 340. If the intention was to exclude the right to make any representations at all, the State President would have said so clearly
and unambiguously. He could, for instance, have used the phraseology employed in s 29 of the Fund Raising Act 107 of 1978 as amended by s 1 of Act 92 of 1981. The
amendment was C made in consequence of the decision in Federation of South African Trade Unions v Minister of Health, Welfare and Pensions1981 (4) SA 894 (N) which held
that before the Minister made a decision prohibiting the collection of contributions for any purpose or in any manner or by or for or on behalf of any person or organisation,
he was obliged to observe the audi D alteram partem rule. The section was thereafter amended to provide as follows: 'If the Minister deems it to be in the public interest, he
may, notwithstanding the provisions of this Act, and without giving any person or organisation notice or any opportunity to make representations, by notice in the Gazette
prohibit the collection of contributions for any purpose or in any manner or by or for or on behalf of any E person or organisation mentioned in such notice.' (My italics.) To
the extent that there is any ambiguity in the regulation, its narrow rather than its wide interpretation is to be preferred. That is so, firstly, because the presumption of the
application of the audi alteram partem rule can be rebutted only by necessary or clear implication; and, secondly, F because it is an accepted canon of construction that
where two meanings may be given to an enactment and the one leads to harshness and injustice, while the other does not, it is assumed that the Legislature intended the
milder rather than the harsher interpretation. See Principal Immigration Officer v Bhula 1931 AD 323 at 336 7; R v Milne and Erleigh1951 (1) SA 791 (A) at 823A F. If it is
held that on a proper construction of reg 3(3) the right to make any representations G whatsoever is excluded, the regulation is ultra vires the enabling legislation.
Regulation 3(3) confers a discretion upon the Minister to order the continued detention of a detainee. This discretion cannot be exercised fairly or properly by the Minister if
he hears only one side of the case and is in receipt of no representations whatever by or on behalf of the H detainee. See the dictum of Halsbury LC in Sharp v Wakefield
1891 AC 173, cited with approval by Harcourt J in Ismail v Durban City Council1973 (2) SA 362 (N) and Wessels ACJ in Goldberg v Minister of Prisons1979 (1) SA 14 (A) at 35B
C and Corbett JA at 48D. Lord Halsbury's dictum was also cited with approval in Nathan Brothers v Pietermaritzburg Corporation I 1902 NLR 108 where Finnemore J also quoted Lord
Coke's famous dictum in Rooke's case 77 ER 209: '... Discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows
and substance, between equity and colourable glosses and pretences and not to do according to their private wills and affections.' There is nothing in the general tenor or
policy of the J Act which would justify the making of
1987 (3) SA p876
A regulations which deny detainees the right to be heard in any form whatever before being subject to what may be a long period of detention (see Nkwinti's case supra a t
438D E). While the exigencies of the initial arrest and detention may militate against a hearing in any form at that stage, different considerations entirely apply
thereafter. As already emphasised, the audi alteram partem r u l e h a s a f l e x i b l e a n d B variable content. Its exclusion in its widest form at one stage does not limit its
applicability (even in an attenuated form) at a different stage. See R v Ngwevela (supra at 129E F); Momoniat v Minister of Law and Order (supra a t 2 7 5 J 2 7 6 J ) . T h e
regulation in express terms empowers the Minister of Law and Order to authorise indefinite detention without hearing C 'any person'. Taken at face value, the Minister
would be entitled to act without hearing representations from the arresting officer as to the necessity or otherwise of an order for continued detention. The State President
has no power to make such a regulation and it is grossly unreasonable, harsh and oppressive. The consequence on any of these approaches is D that reg 3(3) is invalid.
Whilst it is acknowledged that the provision for arrest and the initial detention without a hearing may be necessary for the purposes of the statute, different considerations
apply to continued and indefinite detention thereafter. The arrest may have been effected on the basis of the most insubstantial suspicion by a 'raw recruit' of one of the
three services other than the police force. The E consequence of a failure to hear any person in such circumstances before directing that the detainee be held indefinitely
may be that an innocent person is unjustly and incorrectly cut off from his family and livelihood for months or even years. He is during that period to be treated in
important respects less favourably than a convicted F prisoner or a person held under the Internal Security Act. The initial consideration of a need for urgent and unfettered
action has passed (see Nkwinti's case supra at 437I 439B). Not to provide for the most elementary of checking mechanisms by provision at this stage for notice of the
impending decision, and for an opportunity to make representations, is unrelated to the tenor and policy of the statute and serves no proper purpose. It promotes neither
the safety of the G public nor the maintenance of public order nor is it conducive to the termination of the emergency which are the primary objectives of the legislation. It
is highly prejudicial to the detainee and can lead to irreparable harm. It is, in all the circumstances, inconsistent with reason and justice; unrelated to the purposes of the
legislation; so 'oppressive and gratuitous (an) interference with the rights of H the subject... as could find no justification in the minds of reasonable men' (Kruse v Johnson
[1898] 2 QB 91, cited with approval in R v Abdurahman1950 (3) SA 136 (A) at 143). The audi alteram partem rule is the embodiment of procedural fairness: the power to
detain an individual indefinitely 'without hearing any person' is the antithesis of procedural fairness. I There is no express authority for the exclusion of any form of
hearing. On a proper approach to the construction of the Act, it cannot be found impliedly to have authorised the exclusion of procedural fairness in the form of a right to
be heard before a decision is taken to detain a person indefinitely. Accordingly, since reg 3(3) has this result, it is ultra vires. In the Court J below, it was held that 'practical
considerations may make it impossible for (the Minister) to observe the audi alteram
1987 (3) SA p877
partem rule'. A similar approach was adopted in Momoniat v A Minister of Law and Order (supra at 275D). In both cases, the Courts were motivated by the apparently large

number of detainees involved. This line of reasoning is fallacious for a number of reasons. The reasoning is based upon the extraordinary assumption that procedural
safeguards diminish in proportion to their repeated violation. The greater the number B of detainees, the less likely the observance of procedural safeguards. It is
precisely the sort of situation in which people are detained in large numbers which demands the strictest of safeguards: 'The history of liberty has been the history of the
observance of procedural safeguards.' Per Justice Frankfurter in McNabb v United States 318 US 206 at 224. The practical difficulties in coping with a large number C o f
detainees may give rise to an argument for the delegation of the Minister's powers but certainly not for an abrogation of the right to be heard. (In stating that the
Minister's power may be delegated, it is not suggested that ultimate responsibility for an order of further detention be taken away from the Minister. It is merely suggested
that it D may be possible for officials within the Department of Law and Order to screen representations received and to advise the Minister accordingly but leaving the
ultimate decision to the Minister.) There is no magic in the 14day period prescribed by reg 3(3). See the dicta of Friedman J (dissenting) in Omar v Minister of Law and
Order1986 (3) SA 306 (C) at 328F H. See also State President v Tsenoli (supra at 47 8, 50). Having E regard to the fact that reg 3(3) purportedly authorises the Minister to
act 'without hearing any person', it is palpably impossible for the Minister to form an opinion as to the necessity for further detention. It follows that the Legislature could
never have intended to exclude altogether the F right of the person affected to make representations.
J H Coetzee SC (with him C J Mouton ) for the respondents in Fani and Others v Minister of Law and Order and Others : Regulation 3(3) did exclude the audi alteram partem rule,
including the right to make written representations. The phrase 'without notice to any person and without hearing any person' in the amended reg 3(3) should neither be
divided into two separate parts nor should it be viewed in isolation. The first G portion thereof ('without notice to any person') may encompass both the meanings referred
to in the appellants' heads of argument, but it certainly carries the first meaning, namely that the Minister of Law and Order ('the Minister') is not required to notify a
detainee that the extension of his detention was being considered. That being the case, it becomes H clear that it was the intention of the State President in effecting the
amendment to reg 3(3) to exclude any form of representation by a detainee altogether, ie not to 'hear' him at all before considering whether his further detention should
be ordered. The right to a hearing implies a right to be informed of facts and information which may be detrimental to I the interests of a detainee. In the absence of a
right to be informed, not only of detrimental facts or information but also of the consideration of the matter, the 'right to a hearing' automatically falls away. Momoniat and
Naidoo v Minister of Law and Order and Others1986 (2) SA 264 (W) at 267A. If the respondents are correct in submitting that audi alteram partem has been abrogated in its
entirety by reg 3(3) (save in the J respects referred to hereunder), then there
1987 (3) SA p878
A is no duty on the Minister to inform detainees generally of a 'right' which no longer exists. There is no ambiguity in the phrase 'without hearing any person' and the
appellants contend, on the contrary, for a very strained and artificial interpretation of that phrase when they say that it only connotes oral representations. Cf Omar and
Others v Minister of B Law and Order and Others (supra at 310A); Momoniat's case supra at 267A. The word 'hearing' has the same meaning as the word 'audi ' in the phrase
audi alteram partem. It is a rule which need not be restated that the audi alteram partem rule does not necessarily require oral representation. R v Ngwevela1954 (1) SA 123
(A) at 128C F; Beier v Minister of the Interior1948 (3) SA 409 (A) at 451; S v Shangase1963 (1) SA 132 (A) C at 147. In all these cases and also in Nkwinti v Commissioner of
Police and Others1986 (2) SA 421 (E) 'the right to be heard' was always understood to mean the right to make representations and not only oral representations. This is the
ordinary usage of the term. Even in terms of Nkwinti the detainee had no right to an oral hearing. The amendment, which D was retroactive, would have been senseless if it
was introduced merely to state an ageold principle. Practical considerations further compel one to conclude that both forms of representation have been intended to be
excluded by reg 3(3): apart from the fact that any form of representation will often be an exercise in futility as a detainee would normally not know during the 14day
period or at least the first E days thereof whether his detention will be extended, it is just not conceivable that, given the large number of detainees, the Minister will
receive such written representations in time for consideration or that he will be able properly to consider such representations before taking a decision in terms of reg 3(3).
Furthermore, the 14day period was a creature of the F State President himself in reg 3(2) and there was no obligation on him to introduce such a period. It was probably
for the very reason, however, that a 'raw recruit' of one of the forces might have effected the initial arrest and detention (at which stage, it is common cause, audi alteram
partem does not apply), that the regulations provide that the further detention, beyond the period of 14 days, can only be considered G and ordered by a responsible and
highranking person, namely the Minister. The amended reg 3(3), by dispensing both with the need to notify and to 'hear ' a detainee who may be prejudicially affected by
the Minister's decision, clearly does away with the audi alteram partem rule in all respects, save in the sense that written representations may be made to the Minister after a
detention had been extended.
H Regulation 3(3) (as amended) was not ultra vires the Public Safety Act 3 of 1953: One must have regard to the nature of the enabling legislation and the evil that it was
designed to combat in order to appreciate the breadth of the language used. Rossouw v Sachs1964 (2) SA 551 (A) at 563H 564A; Omar's case supra at 314G H. There is
receive such written representations in time for consideration or that he will be able properly to consider such representations before taking a decision in terms of reg 3(3).
Furthermore, the 14day period was a creature of the F State President himself in reg 3(2) and there was no obligation on him to introduce such a period. It was probably
for the very reason, however, that a 'raw recruit' of one of the forces might have effected the initial arrest and detention (at which stage, it is common cause, audi alteram
partem does not apply), that the regulations provide that the further detention, beyond the period of 14 days, can only be considered G and ordered by a responsible and
highranking person, namely the Minister. The amended reg 3(3), by dispensing both with the need to notify and to 'hear ' a detainee who may be prejudicially affected by
the Minister's decision, clearly does away with the audi alteram partem rule in all respects, save in the sense that written representations may be made to the Minister after a
detention had been extended.
H Regulation 3(3) (as amended) was not ultra vires the Public Safety Act 3 of 1953: One must have regard to the nature of the enabling legislation and the evil that it was
designed to combat in order to appreciate the breadth of the language used. Rossouw v Sachs1964 (2) SA 551 (A) at 563H 564A; Omar's case supra at 314G H. There is
no doubt that the doctrine of audi alteram partem is part of the 'ordinary law of the land'. I In s 2(1)(c) of the Act, the Legislature clearly envisages that the State President,
whom Parliament has entrusted with the responsibility of evaluating the circumstances, could make regulations which override the ordinary law of the land. Contrary to the
submissions made by the appellants, there is therefore explicit authority to be found in the enabling J legislation for excluding rules of law in a state of emergency, even
as 'sacred' a rule (or
1987 (3) SA p879
rather a complex of rules) as audi alteram partem. Omar's case A supra at 314H; Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 at 38. Parliament further
provided in s 3(1)(a) of the Act that the State President may make regulations 'as appear to him to be necessary or expedient', thus indicating that there are no objectively
justiciable limits to the State President's power to make such regulations B (subject, of course, to the wellrecognised principles of bona fides, application of mind and
fulfilment of the purpose of the enabling legislation). The simple question is what, in the opinion of the State President, is necessary or expedient for dealing with any
circumstances which in his opinion have arisen or are likely to arise as a result of such emergency? That is the only 'jurisdictional fact' which must exist. C Section 3(1)(a) of
the Act. South African Defence and Aid Fund and Another v Minister of Justice1967 (1) SA 31 (C) at 34. This Court cannot enter into the question whether the State President's
opinion was wrong or whether the regulations were not, in its view, necessary or expedient. R v McGregor 1941 AD 493; R v Pretoria Timber Co (Pty) Ltd and Another1950 (3) SA
163 (A) D at 181. It is further to be noted that: (a) the State President may make regulations with retrospective effect (s 3(2)(b) ); (b) detention in excess of a period of
30 days is envisaged in the Act (s 3(4)); (c) the limited interference with the State President's regulationmaking powers in s 3(3)(c) is a strong indication of how wide those
powers were intended to be. All these factors point to the fact that the E Legislature has intended, in specifically circumscribed circumstances, that the State President
should have extremely wideranging powers to govern and to make laws according to his honest and bona fide insight and the demands of the occasion. It is further clear
that it is inherent in the Nkwinti case that the Act can exclude the operation of the audi alteram F partem rule. Any other view would mean even the arrest and initial
detention must be preceded by a hearing. The appellants make the mistake of using reg 3(3) per se as a base for attacking the alleged wrong exercise of the State
President's discretion. The approach and the emphasis are wrong: one must look at the Public Safety Act (which envisages only one type of 'state of emergency') to see if
the State President is G empowered to exclude audi alteram partem. It is not the exercise o f t h e Minister's discretion in terms of reg 3(3) which is under scrutiny in an
argument based on ultra vires. One of the limited or attenuated forms in which the audi alteram partem rule could be applied is to provide an opportunity for a hearing (the
making of representations) after the decision prejudicially affecting the individual's rights H had been taken. In the context of the Act and reg 3(3), this is the only extent
to which that rule could be complied with. Cf Momoniat's case supra at 275J and 278I; Bill v State President and Others1987 (1) SA 265 (W). In the premises this Court is
requested to dismiss the appeal with costs, such costs to include the costs attendant upon the employment of two counsel.
I Chaskalson SC in reply.
R Kruger SC for the appellant in The State President and Others v Bill : In terme van die kennisgewing van mosie in die Hof a quo was daar geen versoek om enige regulasie
of reëls ultra vires te verklaar nie. Toe hierdie aangeleentheid in die Hof a quo geargumenteer is op 1 Augustus het die eerste aanduiding J gekom dat daar 'n argument
oor ultra vires sal wees in
1987 (3) SA p880
A die argument van die respondent. Dit het die gevolg gehad dat die bepalings van art 5B van die Wet op Openbare Veiligheid 3 van 1953 nie ter sprake gekom het nie.
Deur hierdie uitsluitingsbepaling ('ouster clause') het die Hof a quo g e e n r e g g e h a d o m e n i g e u i t s p r a a k t e g e e o p ' n b a s i s v a n ultra vires B nie. Voorbeelde van
uitsluitingsklousules is byvoorbeeld te vinde in verskeie Wette, soos art 18(2) van die Republiek van SuidAfrika Grondwet 110 van 1983 wat sê dat geen Hof bevoeg sal wees om die
Staatspresident se beslissing of iets eie sake is aldan nie, te toets nie. Verskeie beslissings van ons Howe het al die lig gesien ten opsigte van hierdie sogenaamde uitsluitingsklousules.
Die mees onlangse Appèlhofbeslissing (ten tye van die opstel van hierdie C betoogshoofde) is die geval van Minister of Law and Order v Hurley and Another 1986 (3) SA 568 waar
verwys is na die belangrikste sake oor hierdie aangeleentheid, naamlik Schermbrucker v Klindt NO1965 (4) SA 606 (A) te 618A en Lenz Township Co (Pty) Ltd v Lorentz NO en
Andere1961 (2) SA 450 (A). In die Schermbrucker saak supra het dit gegaan oor art 17 D van die Algemene Regswysigingswet 37 van 1963 waar daar 'n bepaling was tot
die effek dat geen hof jurisdiksie sal hê om die vrylating van 'n persoon wat aangehou is te gelas nie. Die meerderheid van die Hof, Botha AR, Steyn HR en Trollip Wn AR,
het saamgestem dat die Hof nie die vrylating van 'n persoon kon beveel nie maar dat dit die enigste beperking is wat daargestel is en dat die gewone hersieningsgronde
nog bestaan. Vgl die
E uitspraak van Trollip Wn AR te 623F G. Rumpff AR het 'n minderheidsuitspraak geskryf en daarop gewys dat die Hof ook daarop kon ingaan of die persoon eksplisiet
in terme van art 17 aangehou word. In die beslissing in die saak van South West African People's Democratic United Front en 'n Ander v AdministrateurGeneraal, SuidWest Afrika,
en 'n Ander1983 (1) SA 411 (A) F , het Jansen AR bevind dat die jurisdiksie van die Hof nie uitgesluit is nie waar bepaal is dat 'n Hof geen jurisdiksie het om 'n handeling
te toets wat ingevolge 'n sekere Wet gedoen is nie. Die Hof kan nog altyd daarna kyk of die stappe ingevolge die Wet was. Hierdie laasgenoemde punt is dan ook
goedgekeur in die beslissing in Minister of Law and Order v Hurley (supra ). Dit sou beteken dat 'n G uitsluitingsklousule, soos gesê deur prof Baxter in sy werk Administrative
Law te 726, 'almost meaningless' is. Die huidige art 5B is 'n absolute uitsluitingsklousule want in hierdie geval het die Parlement besluit dat die Hof nie ondersoek kan
instel na die geldigheid van enige proklamasie, kennisgewing of H regulasie nie. Dit sou beteken dat die Parlement die Ministers carte blanche gegee het en bedoel het om
hulle carte blanche te gee om op te tree in hierdie gevalle. Ek besef die impak van hierdie argument terdeë en dat daar al oor en oor bevind is deur ons Howe dat hulle nie
goedsmoeds hulle pligte moet laat vaar as gevolg van uitsluitingsklousules nie. Dit is egter duidelik dat Parlement soewerein is en dat die Parlement die basisse van
natuurlike regspleging kan uitsluit. So byvoorbeeld I is in die jongste verlede die audi alteram partem reël uitgesluit. Momoniat and Naidoo v Minister of Law and Order1986 (2)
SA 264 (W). Waar die Parlement dus die reg het om enige reël van natuurlike geregtigheid uit te sluit, waarom kan mens retories vra, het dit nie die reg om 'n ondersoek
na geldigheid van 'n proklamasie, regulasies of kennisgewings uit J te sluit nie? Met die wyer magte wat hier gegee is aan die Staatspresident en die betrokke Ministers
was die kwessie van ultra
1987 (3) SA p881
vires prakties die enigste toetsingsreg wat oorgebly het A behalwe die gewone toetsingsreg ten opsigte van handelinge wat mala fide verrig is. Indien bevind word dat die

woorde van hierdie artikel sodanig is dat die Hof ondersoek kan instel na 'n ultra vires optrede dan is die inplasing van hierdie art 5B sinneloos. Hierdie artikel het ter
sprake gekom in die saak van Natal Newspapers (Pty) Ltd and Others v State President of the B Republic of SA and Others1986 (4) SA 1109 (N) voor die Natalse Provinsiale
Afdeling en dear is bevind dat die bepalings van art 5B geensins die toetsingsreg ten opsigte van ultra vires uitsluit nie. Indien dié beslissing korrek is kan mens maar art
5B as pro non scripto beskou.
Die beslissing dat die derde appellant redes moet gee vir die verdere aanhouding aan die aangehoudene: Hierdie beslissing C spruit voort uit 'n obiter dictum i n d i e

Momoniat saak supra waar gesê is dat die reg om vertoë te rig nog altyd oop bly. Dear moet ook mooi opgelet word dat in die uitspraak van Coetzee ARP spesifiek net die
woord 'vertoë' gebruik word en die voorbeeld wat die geleerde Regter gee is interessant aangesien 'n persoon mag aantoon dat hy bloot 'n nuuskierige toeskouer was in
die omgewing van 'n klipgooiery. D Regter Goldstone spreek die mening uit dat die aangehoudene die reg het om vertoë te rig na die Minister sy voortgesette aanhouding
goedgekeur het. Hierin het die Regter gelyk. Bale gaan hier oor die betekenis van die woord 'vertoë'. In die Handboek van die Afrikaanse Taal deur Schoenees, Swanepoel,
Du Toit en Booysen, word dit soos volg E uiteengesit: 'Vertoog: (Vertoë) verhandeling; betoog; pleidooi; beswaar; bewys; versoek; petisie; protes; 'n vertoog lewer oor 'n
saak; 'n vertoog indien by 'n owerheid; vertoë tot die Ragering rig. ' I n d i e Shorter Oxford English Dictionary word een van die betekenisse van die woord 'representation'
uiteengesit as synde '4. The action of F placing a fact etc before another or others by means of discourse; a statement or account, esp one intended to influence opinion
or action.' Dit was dan ook die bedoeling in terme van reg 3(10)(b) van die regulasies dat geen persoon enige informasie ten opsigte van die aangehoudene mag kry nie
en waar die wydste terme 'niemand' of 'no person' gebruik word, is dear geen ruimte vir 'n afwyking van die woordelike interpretasie daarvan nie en die bevinding van die
Hof a quo G data' "no person" must necessarily be a person other than the detainee himself' is een waarvoor daar hoegenaamd geen gronde of rede is nie. Die Hof a quo het fouteer
deur 'n ander betekenis aan gewone woorde te gee as wat hulle normaalweg het. Verder moet daarop gewys word dat die persoon wat aangehou word nie een is wat
aangehou word op 'n klagte nie. Hy kan aangehou H word vir die openbare veiligheid en selfs vir sy eie veiligheid. Die aanhaling uit Kadalie v Hemsworth NO 1928 TPD 495
te 506 deur die Regter a quo is dus nie van toepassing nie. Die reg dus om vertoë te rig sluit nie 'n noodwendige reg in om die redes vir die aanhouding aan te hoor nie.
Dit is allerdaagse ondervinding dat vertoë gerig word oor verskeie aangeleenthede, byvoorbeeld oor 'n straf opgelê, aan die I Minister van Justisie en baie keer vertoë om
'n deportasiebevel op te hef. Baie mense weet waaroor hulle gaan gedeporteer word net soos baie persone weet waaroor hulle aangehou word. Die feit dat hulle vertoë wil
rig beteken nie dat hulle geregtig is op enige informasie op 'n klagstaat nie. Die rig van vertoë is iets wat eensydiglik gedoen word J en die vertoë word oorweeg deur die
persoon aan
1987 (3) SA p882
A wie hulle gerig word. Alternatiewelik, al sou daar bevind word dat hierdie 'n vorm van audi alteram partem is, in navolging van die beslissing van Colman R in Heatherdale
Farms (Pty) (Ltd) and Others v Deputy Minister of Agriculture and Another1980 (3) SA 476 (T) dat waar 'n persoon geregtig is op die voordeel van die audi alteram partem reël, is
hy nie geregtig op al die voordele wat aan 'n litigant gegee word nie. B Hy hoef nie 'n kans gegee te word om te kruisverhoor nie en hy is nie geregtig op blootlegging nie
en, wat belangriker is, is dat die persoon moet 'n redelike tyd kry waarin hy self die relevante informasie moet kry en sy vertoë rig. Dit is wel waar dat Colman R bevind het
dat die persoon in besit gestel moet word van sodanige informasie as wat sy reg om vertoë te rig 'n werklikheid maak.
C Die reg van die aangehoudene dat sy regsverteenwoordigers toegang tot hom mag hê vir die doeleindes van die maak van geskrewe vertoë: Regulasie 3(10)(a)
verbied toegang tot enige persoon met sekere uitsonderings wat nie regsverteenwoordigers insluit nie behalwe met die toestemming van en onderhewig aan D d i e
voorwaardes wat opgelê word deur die Minister of 'n persoon wat deur hom daartoe gemagtig is. Die Minister van Justisie het dan ook reël 5(1) uitgevaardig waarin gesê
word dat 'n regsverteenwoordiger met die toestemming van die Minister van Wet en Orde of die Kommissaris van die SuidAfrikaanse Polisie of 'n persoon daartoe
gemagtig deur die Kommissaris toegang tot 'n aangehoudene mag hê. Toegang deur E regsverteenwoordigers is dus nie verbied nie. Dit is wel aan bande gelê en selfs in
normale gevalle is dit aan bande gelê deur oorwegings van tyd en gerief. Mens sou nie kan kla indien mens om agtuur namiddag toegang tot 'n gevangene geweier word
wat nie dringend is nie en wat kan oorstaan tot die gewone kantoorure die volgende dag. Hierdie kwessie F van toegang is iets wat gekontroleer moet word want dit kan
nouliks gesê word dat daar geen regsverteenwoordigers is wat ook 'n gevaar is vir die openbare veiligheid nie. Die geskiedenis het maar te duidelik die teendeel bewys.
Die vereiste om in 'n noodtoestand dus spesiale verlof te verkry om 'n aangehoudene te sien is verstaanbaar. Die voorbeeld wat die Regter a quo gee dat die reg afhanklik
is van die wil van die Minister of die G Kommissaris is ook op die voorbeelde wat hy aangee onvanpas. Dit is ondenkbaar dat 'n Minister sou weier dat 'n dokter 'n persoon
wat baie siek word, sien of dat 'n prokureur vir hom sy testament kom opstel. Die feit dat 'n ad hoc toegang gegee kan word ten einde vertoë op te stel wys dan ook weer
eens duidelik wat die bedoeling van reg 3(10)(a) H was want al sou die redenasie van die Regter a quo korrek wees dat dit nie die aangehoudene uitsluit nie, kan hy dit
nie aan sy regsverteenwoordiger wys nie en sou dit van baie min hulp wees met die opstel van vertoë. Ons is bewus dat dit 'n fundamentele reg is om 'n regsadviseur te
sien maar die beperking wat hier opgelê word kan 'n 'inroad' wees soos bedoel in die dictum van Jansen AR in Mandela v Minister of Prisons1983 (1) SA 938 (A) I op 959
960B en dit is duidelik dat dit vir sekuriteitsdoeleindes daargestel is. Dit is dus duidelik dat geen onredelike stap hier gedoen is soos voorsien in die saak van Kruse v
Johnson [1898] 2 QB 91 en Sinovitch v Hercules Municipal Council 1946 AD 783 nie. Die Hof a quo het die beperking wat op die toegang van regsverteenwoordigers gelê is, J
verhef na 'n verbod en op dié basis kom hy ten spyte van art 5B van die Wet tot die gevolgtrekking dat dit ultra vires is.
1987 (3) SA p883
is van die wil van die Minister of die G Kommissaris is ook op die voorbeelde wat hy aangee onvanpas. Dit is ondenkbaar dat 'n Minister sou weier dat 'n dokter 'n persoon
wat baie siek word, sien of dat 'n prokureur vir hom sy testament kom opstel. Die feit dat 'n ad hoc toegang gegee kan word ten einde vertoë op te stel wys dan ook weer
eens duidelik wat die bedoeling van reg 3(10)(a) H was want al sou die redenasie van die Regter a quo korrek wees dat dit nie die aangehoudene uitsluit nie, kan hy dit
nie aan sy regsverteenwoordiger wys nie en sou dit van baie min hulp wees met die opstel van vertoë. Ons is bewus dat dit 'n fundamentele reg is om 'n regsadviseur te
sien maar die beperking wat hier opgelê word kan 'n 'inroad' wees soos bedoel in die dictum van Jansen AR in Mandela v Minister of Prisons1983 (1) SA 938 (A) I op 959
960B en dit is duidelik dat dit vir sekuriteitsdoeleindes daargestel is. Dit is dus duidelik dat geen onredelike stap hier gedoen is soos voorsien in die saak van Kruse v
Johnson [1898] 2 QB 91 en Sinovitch v Hercules Municipal Council 1946 AD 783 nie. Die Hof a quo het die beperking wat op die toegang van regsverteenwoordigers gelê is, J
verhef na 'n verbod en op dié basis kom hy ten spyte van art 5B van die Wet tot die gevolgtrekking dat dit ultra vires is.
1987 (3) SA p883
A Chaskalson SC (with him G J Marcus ) for the respondent in A State President and Others v Bill : In the heads of argument filed on behalf of the appellants, it is submitted
in limine that s 5B of the Public Safety Act precludes a judicial enquiry into the validity of the regulations and rules in question. Contrary to the appellants' submissions, the
question of the legal validity of the relevant rules and regulations was pertinently raised in the founding affidavit. B The Court is not precluded from granting the relief
claimed by reason of the 'ouster clause' contained either in s 5B of the Public Safety Amendment Act or in reg 16(3) of the regulations. It is well established that, when a
question of law is raised as to whether or not the jurisdiction of the Court has been ousted by a particular statute or regulation, the Court will enquire into C the question
and decide for itself whether or not it has jurisdiction to deal with the matter. Ouster clauses apply only if the order or regulation in question is a lawful one. It cannot be
construed as preventing the Court from enquiring into the legality of the regulation or order itself. Union Government v Fakir 1923 AD 466 at 469; R v Padsha 1923 AD 281 D
at 304; Narainsamy v Principal Immigration Officer 1923 AD 673 at 675; SWAPDUF v AdministrateurGeneraal, SWA1983 (1) SA 411 (A) at 429C H, 432G H. The most recent
Appellate Division decision in which the authorities are collected is Minister of Law and Order v Hurley1986 (3) SA 568 (A) at 584F 586I. In dealing with the ouster clauses
contained in s 5B of the Public Safety Amendment Act as well as in reg E 16(3) of the regulations (including the ouster contained in the previous emergency regulations)
the Courts have consistently held that they are not precluded from enquiring into the validity of the rule, order or regulation in question. Nkwinti v Commissioner of
Police1986 (2) SA 421 (E) at 427D E; Metal and Allied F Workers Union v State President1986 (4) SA 358 (D) at 367B 368A; Natal Newspapers v Stale President1986 (4) SA
1109 (N) at 1117I 1118F; Bloem v State President1986 (4) SA 1064 (O) at 1079C H; United Democratic Front v State President (ECD, case No 1074/86, unreported) at pp 25
6; Nqumba v State President1987 (1) SA 456 (E) at 460G 461H. Once it is established that the decision taken by the appropriate authority was not taken 'under' or
'kragtens' the enabling provision, the ouster clause has no effect. See Baxter G Administrative Law (1985) at 726 7.
The statutory framework. The parameters of the regulations which may be promulgated by the State President are explicitly set out in s 3(1) of the Public Safety Act 3 of
1953. These powers conferred upon the State President are selfevidently H wide. Nevertheless, they remain delegated powers and are accordingly subject to judicial
scrutiny. Those powers are confined to the purposes authorised by the enabling legislation. State President v Tsenoli1986 (4) SA 1150 (A) at 1180B C. The regulations
made by the State President are subordinate delegated legislation, subject to the tests applicable to such legislation. See Momoniat v Minister of Law and Order1986 (2) SA
264 (W) at 268 72 which was cited with I approval in Tsenoli's case at 1182C; Natal Newspapers (Pty) Ltd v State President1986 (4) SA 1109 (N) at 1113J 1114I; Nqumba v
State President1987 (1) SA 456 (E) at 462E I. The narrower powers conferred on the Minister of Justice by regulation, being subdelegated, are a fortiori subject to such
tests. A common theme emerging from J the decisions is that discretionary powers,
1987 (3) SA p884
A even those of the State President, albeit expressed in wide terms, must fall within the ambit of the enabling statute and must be exercised in good faith and for proper
purposes. This principle was expressed by Harcourt J in Ismail v Durban City Council1973 (2) SA 362 (N) at 372A B and cited with approval by Wessels ACJ in Goldberg v
Minister of Prisons1979 (1) SA 14 (A) at 35B C and by Corbett JA at 48D. On the B basis of the aforegoing decisions, it is clear that the regulations made by the State
President and the rules made by the Minister of Justice are subject to judicial review at least on the following grounds: (a) That they are in whole or in part unrelated to the
purpose of the enabling legislation. State President v Tsenoli (supra at 1180B C); Momoniat v Minister C of Law and Order1986 (2) SA 264 (W) at 273D F and 277H 278C;
Nqumba v State President1987 (1) SA 456 (E) at 462E I. (b) That they are so grossly unreasonable as to give rise to the inference that the authority in question acted in
bad faith or for an ulterior purpose or that he failed to apply his mind properly to the matter. R v Pretoria Timber Co (Pty) Ltd D 1950 (3) SA 163 (A) at 181G 182B; Momoniat v
Minister of Law and Order1986 (2) SA 264 (W) at 270I 271A, 272I 273F and 277H 278D; Nqumba v State President1987 (1) SA 456 (E) at 462E I. Wide though the State
President's powers of regulation may be, even he may not do as he pleases. See the judgment of Van den Heever JA in R v Pretoria Timber Co (Pty) Ltd1950 (3) SA 163 (A)
at 181 2. See also State President v E Tsenoli (supra at 1180B C). A fortiori is this true of the subdelegated powers of the Minister of Justice. Further, a regulation may be
held invalid if it is 'unreasonable' in the specialised sense that this term is used by Lord Russell CJ in Kruse v Johnson [1898] 2 QB 91 at 99 100. This test was cited with
approval in the context of emergency powers, inter F alia, in Natal Newspapers v State President (supra at 1113H I, 1116B F, 1117E F) and United Democratic Front v State
President (ECD, case No 1074/86 unreported) at pp 14 15.
The duty to furnish reasons. All civilised legal systems have mechanisms for ensuring that persons are not unlawfully and arbitrarily deprived of their liberty. In the absence
of such protection '... the uncontrolled and arbitrary exercise of....... G power might lead to serious abuses'. Per Bale CJ in In re Cakijana and Tobela (1908) 29 NLR 193 at
202. The unlawful deprivation of liberty'..... is a threat to the very foundation of a society based on law and order'. Per Rumpff CJ in Wood v Ondangwa Tribal Authority1975
(2) SA 294 (A) at 310G. Since 'all interferences with the liberty of the citizen are prima facie odious' (per Vieyra AJ in Ingram v Minister of Justice1962 (3) SA 225 (W) a t
227D), it has been held that he who deprives a person of his liberty bears the onus of establishing why such interference is legally justified. Minister of Law and Order v
Hurley1986 (3) SA 568 (A) at 589E F. The scope and ambit of the powers of an arresting officer and the Minister in terms of the emergency regulations have been
considered by this Court in State President v Tsenoli1986 (4) SA 1150 (A) at 1181C E. The Minister of Law and Order, like the arresting officer, is not entitled to do as he
pleases. The Minister's power was also considered in State President v Tsenoli (supra at 1183H 1184C). Once the further detention of a detainee has been ordered by the
Minister after the initial 14day period, the detainee is, for all practical purposes, at the mercy of the Minister. It is the Minister alone who holds the power to
1987 (3) SA p885
order the detainees release. By virtue of the powers and duties A vested in him by the State President, the Minister is, as it were, the upper guardian of all detainees. The
furnishing of reasons for the detention of a person is a fundamental safeguard against the unlawful abuse of power. Concerning s 33(2) of the Criminal Procedure Act 31 of
1917, which required a person making an arrest without a warrant forthwith to inform the arrested person of the cause of the arrest, B see the judgment of Gardiner JP in R
v Markoes 1929 CPD 41 at 42. Similar provisions are embodied in s 39(2) of the Criminal Procedure Act 51 of 1977. The rationale underlying the requirements that reasons
for an arrest, with or without warrant, be furnished, is that in the absence of such reasons the legality of the detention can never be tested. The C Minister, not being the
arresting officer, presumably acts on information he receives (although in terms of reg 3(3) he need not hear any person). The information may be false, inaccurate and
almost certainly incomplete. It may have been received from paid informers who have a motive to misrepresent. There may be instances where an arrest D h a s b e e n
executed in good faith but the wrong person mistakenly detained. Innocent bystanders may be swept up in a mass arrest. Only once reasons have been furnished can the
legality of the order of further detention be ascertained. Nqumba v State President1987 (1) SA 456 (E) at 470EF. The submission in appellants' heads of argument that
many people know why they are detained and therefore do not require E reasons for their detention is repugnant to any society predicated on civilised legal norms. In this
regard, the comments of De Wet JP in S v National High Command1964 (1) SA 1 (T) at 2D F are particularly apposite. A reply of such a nature given to a person who is not
charged with any criminal offence and who does not enjoy the luxury of a trial in open court at which he can be defended and lead F evidence and crossexamine
witnesses, is all the more repugnant. The only potential obstacle to the furnishing of reasons for the further detention of a detainee is the provisions of reg 3(10)(b).
Regulation 3(10)(b), however, cannot be relied upon by the appellants to deny furnishing the information sought to the detainee himself. The regulation clearly envisages
three separate 'groups' of persons, namely: G (a) the Minister or a person acting by virtue of his office in the service of the State; (b) the person detained (referred to in this
regulation as 'such person'); (c) other persons, namely persons seeking access or information concerning 'such person'. Properly construed, therefore, the regulation denies
'Persons' other than the detainee or the Minister information obtained H from or in respect of such detainee. Nqumba v State President1987 (1) SA 456 (E) at 481A E. To
interpret this regulation as precluding the detainee himself from receiving the reasons for his detention would render it ultra vires the Act: (a) it would be unrelated to the
purpose of the legislation; (b) it would constitute so 'oppressive and gratuitous (an) interference with the rights of the subject... J as could find no justification in the minds
of reasonable men' (Kruse v Johnson [1898] 2 QB 91); (c) it would be so grossly unreasonable as to give rise to the inference that the State President acted in bad faith or
with an ulterior purpose or failed altogether to apply his mind to the matter. A further reason which entitles a detainee to reasons for his continued detention flows from the
detainees right to make J representations to the
1987 (3) SA p886
A Minister concerning his further detention. This submission is predicated upon this assumption that a detainee does indeed enjoy a right to make such representations.
It matters not for the purposes of this argument whether the right to make representations arises after the Minister has ordered the detainees further detention (as was
held in Momoniat B v Minister of Law and Order1986 (2) SA 264 (W)) or before the Minister exercises his discretion. The appellants in their notice of appeal and heads of
argument do not dispute the existence of the right to make representations to the Minister. The argument is simply that the right to reasons for the further detention does
not flow from the right to make representations concerning the order of further detention. C Having regard to the drastic consequences which flow from detention in terms
of the emergency regulations, it is inconceivable that a detainee wishing to make representations for his release from detention should be deprived of the reasons for his
detention. Such deprivation would effectively preclude the detainee from demonstrating in any meaningful way D either why he should not be detained at all or why he
should be released subject to conditions. The right of a person against whom prejudicial action has been taken to be apprised of the prejudicial information against him is
fundamental to our system of law. See the judgment of Feetham JA in Loxton v Kenhardt Liquor Licensing Board 1942 AD 275 at E 315. See also the reference to a dictum o f
Lord Loreburn in Board of Education v Rice 1911 AC 179 by Wessels JA in Builders Ltd v Union Government (Minister of Finance ) 1928 AD 46 at 60 1 and see further Minister of
the Interior v Bechler1948 (3) SA 409 (A) at 451 2; R v Ngwevela1954 (1) SA 123 (A) at 129B F; Kadalie v Hemsworth NO 1928 TPD 495 at 506; AdjunkMinister van Landbou
v Heatherdale Farms (Pty) Ltd1970 (4) SA 184 (T) at 190B 191D; Huyser v Louw NO F 1955 (2) SA 321 (T) at 323D G; Heatherdale Farms v Deputy Minister of Agriculture1980
(3) SA 476 (T) at 486H. The appellants (respondents in the Court below) did not file any answering affidavits and accordingly did not contend that it would not be in the
public interest to disclose the reasons for the detainees further detention or that the G security of the State might be threatened by such disclosure. The only issue,
therefore, is whether the Minister is obliged to furnish such information. Once a detainee has the right to make representations concerning his further detention, the
Minister cannot frustrate that right and render it nugatory by refusing to furnish the information sought. It may well be that there H are cases where the disclosure of
certain information could endanger the security of the State. This argument was dealt with by this Court in the context of the Internal Security Act in Minister of Law and Order
v Hurley1986 (3) SA 568 (A) at 583E G. It is not contended that the Minister, when furnishing reasons for the further detention of a detainee, is obliged to quote chapter
and verse. The formulation by the Court below, namely 'that the person affected is entitled only I to so much information as will enable him to know why he has been
detained' is correct.
The right to access. The appellants dispute the right of a detainee held under reg 3(3) to have access to his legal representative. For this the appellants rely on reg 3(10)
(a) J and rule 5 of the rules made by the Minister of Justice. Regulation 3(10)(a) provides that no person other than the
1987 (3) SA p887
Minister (of Law and Order) or a person acting by virtue of his A office in the service of the State shall have access to a detainee except with the consent and subject to
such conditions as may be determined by the Minister or a person authorised thereto by him. This regulation deals with persons seeking to have access to the detainee. It
prohibits such access (subject to exception) and thereby makes clear that nobody can demand to see a detainee. It is only if permission is given that a wife B or husband
or friend or relative or other person wishing to see a detainee may do so. The right of a detainee to have access to persons whom he may need to see such as doctors,
lawyers, priests, business associates, friends, relatives or other persons is not dealt with by reg 3(10)(a). It is governed by the rules made by the Minister of Justice in
terms of reg C 3(9)(a) which regulates the conditions of detention. Thus the right of a detainee to see a doctor or a lawyer, to be ministered to by a priest or to be visited
by any other person is dealt with in the rules. These matters are not made subject to the permission of the Minister of Law and Order. They are regulated by the provisions
of the rules D themselves. Thus the right to religious ministration is regulated by rule 19, the provision of medical treatment is regulated by rule 20 and the right to receive
visits (including legal visits) is regulated by rule 5. The provisions of rule 5, insofar as they deny the right of a detainee to have access to a legal adviser without the
consent of the Minister of Law and Order or the Commissioner of the South African Police, are ultra vires. The right of a person held in custody to have access to a legal E
Minister (of Law and Order) or a person acting by virtue of his A office in the service of the State shall have access to a detainee except with the consent and subject to
such conditions as may be determined by the Minister or a person authorised thereto by him. This regulation deals with persons seeking to have access to the detainee. It
prohibits such access (subject to exception) and thereby makes clear that nobody can demand to see a detainee. It is only if permission is given that a wife B or husband
or friend or relative or other person wishing to see a detainee may do so. The right of a detainee to have access to persons whom he may need to see such as doctors,
lawyers, priests, business associates, friends, relatives or other persons is not dealt with by reg 3(10)(a). It is governed by the rules made by the Minister of Justice in
terms of reg C 3(9)(a) which regulates the conditions of detention. Thus the right of a detainee to see a doctor or a lawyer, to be ministered to by a priest or to be visited
by any other person is dealt with in the rules. These matters are not made subject to the permission of the Minister of Law and Order. They are regulated by the provisions
of the rules D themselves. Thus the right to religious ministration is regulated by rule 19, the provision of medical treatment is regulated by rule 20 and the right to receive
visits (including legal visits) is regulated by rule 5. The provisions of rule 5, insofar as they deny the right of a detainee to have access to a legal adviser without the
consent of the Minister of Law and Order or the Commissioner of the South African Police, are ultra vires. The right of a person held in custody to have access to a legal E
adviser has been described by Jansen JA in Mandela v Minister of Prisons1983 (1) SA 938 (A) at 957D. See also Raymond v Honey [1982] 1 All ER at 760j ; Nestor v Minister of
Police1984 (4) SA 230 (SWA) at 248I 249I; Mokoena v Commissioner of Prisons1985 (1) SA 368 (W) at 373C F 374E; Li Kui Yu v Superintendent of Labour 1906 TS 181 at
185 6, 187 8. The appellants argue that it cannot be said that there are no lawyers who do not constitute a danger to public safety. If this be the reason for the
prohibition it can be met by a spectrum of conditions ranging from restrictions on physical contact, to some form of supervising consultations. In contrast, it is unnecessary
to achieve the G purposes of the Act and grossly unreasonable for detainees held for their own safety, or those who wish to establish that they have been wrongly or
mistakenly held, or those facing disciplinary proceedings, to be deprived ab initio of their fundamental right, and thereafter to be dependent on a discretionary licence to
gain access to legal advisers. H Moreover, all detainees may urgently require access to legal advisers for a variety of reasons unrelated to their detention or the
emergency. Clearly, a refusal of permission could only be attacked on the narrowest grounds and with considerable difficulty, given the entire absence of any right to access
to persons outside the prison. Parliament could not have intended such a prejudicial conundrum; the State President, and the Minister, could not properly have applied their
minds to this result when removing the right of all detainees to access; and I with a result so grossly unreasonable to the minds of rightthinking men. If reg 3(1) is
construed as denying both access to and access by a detainee, it is for the same reason ultra vires. This was the conclusion of the Court below as well as that of the Full
Bench of the Natal Provincial Division in Metal and Allied Workers Union v State J President1986 (4) SA 358 (D) (although a
1987 (3) SA p888
RABIE ACJ
A contrary view was taken in Bloem v State President1986 (4) SA 1064 (O) and by the majority in Omar v Minister of Law and Order1986 (3) SA 306 (C)). If reg 3(10) is to be
construed as including reference to legal representatives, it cannot reasonably be related to the purposes contemplated by s 3 of the Act. The right of access to a legal
representative (subject B of course to constraints to be imposed, 'as a necessary consequence of incarceration' (Mandela's case supra )), cannot reasonably be considered to
impinge upon those purposes. See Katofa v AdministratorGeneral for SWA1985 (4) SA 211 (SWA) at 217A F, 220B H and 225B F. If reg 3(10) is not to be construed as
intending reference to C 'legal representative', then rule 5 was made without power. The Minister of Justice who has chosen to make access by legal representatives more
attenuated than that of 'any person' has power to make rules only 'to regulate the detention of persons in terms of this regulation'. It is no such regulation of 'the
detention of persons in terms of this regulation' to exclude the right of access to legal D representatives (rather than to seek to regulate such access by virtue of practical
considerations). Nor is it such regulation to exclude entirely the right of a detainee to legal representation in respect of disciplinary proceedings (rule 21(2)), a right held
even by prisoners convicted of serious offences. To exclude all such right in respect of a detainee is grossly unreasonable. (Cf R v Slabbert and Another1956 (4) SA 18 (T) a t
21G.)
E Kruger SC in reply.
Cur adv vult.
Postea (June 26). F
Judgment
Rabie ACJ: These three appeals were heard on the same day and can conveniently be dealt with in the same judgment. All three of the cases are concerned with the
detention of persons in pursuance of regulations made by the State President in terms of the Public Safety Act 3 of 1953. The judgments given in the Courts below in the
first and third of the cases have been G reported: see Omar and Others v Minister of Law and Order and Others1986 (3) SA 306 (C) and Bill v State President and Others1987 (1)
SA 265 (W).
On 21 July 1985 the State President, acting in terms of s 2(1) of the aforesaid Public Safety Act 1953 (hereinafter referred to as 'the Act'), declared, in Proc R120 of 1985,
the existence H of a state of emergency in a number of areas, including those in which the detainees in Fani's case resided. On the same date the State President, acting
in terms of the powers vested in him by s 3(1)(a) of the Act, issued Proc R121 of 1985,* which contained regulations which were to apply in the said areas. On 26 October
1985, in Proc R200 of 1985, the State President, acting in terms of s 2(1) of the Act, declared the existence of I a state of emergency in a further number of areas, and
the next day, in Proc R201 of 1985, he declared that the aforesaid regulations would also apply in these other areas as from 26 October 1985. One of these areas was the
magisterial district of the Cape, in which the applicants in Omar's case resided.
1987 (3) SA p889
RABIE ACJ
Section 2 of the Act (reading 'State President' for A 'GovernorGeneral' and 'Republic' for 'Union') provides as follows:
'2(1) If in the opinion of the State President it at any time appears that
(a) any action or threatened action by any persons or body of persons in the Republic or any area within the Republic is of such a nature and of such an
extent that the safety of the public, or the maintenance of public order is seriously B threatened thereby; or
(b) circumstances have arisen in the Republic or any area within the Republic which seriously threaten the safety of the public, or the maintenance 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 Republic or within such area, C as the case may be.
(2) No proclamation issued under ss (1) shall remain in force for more than 12 months: Provided that nothing in this subsection contained shall be construed as
precluding the issue of another proclamation in respect of the same area at or before the expiration of the said period of 12 months.
(3) The State President may at any time and in like manner D withdraw any proclamation issued under ss (1).'
The declaration of a state of emergency by the State President by Proc R120 of 1985 read as follows:
'Whereas in my opinion it appears that circumstances have arisen in the areas mentioned in the schedule which seriously threaten the safety of the public and the
maintenance of public E order, and the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public and to maintain public
order,
Therefore I, in terms of s 2(1) of the Public Safety Act 3 of 1953, hereby declare that as from 21 July 1985 a state of emergency exists within the areas
mentioned in the Schedule.'
The declaration of a state of emergency by Proc R200 of 1985 was in the same terms as those contained in Proc R120 of 1985, F save that the emergency was declared to
exist as from 26 October 1985.
Section 3(1)(a) of the Act empowers the State President to make regulations in an area in which a state of emergency has been declared. It provides as follows (reading
'State President' for 'GovernorGeneral'):
'3(1)(a) The State President may in any area in which the G existence of a state of emergency has been declared under s 2, 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 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.'
Regulation 3 of the regulations which were of application at H the time of Fani's case and Omar's case read, insofar as relevant, 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 of a Force, detain I or cause to be detained, any such person in custody in a prison.
(2) No person shall be detained in terms of subreg (1) for a period exceeding 14 days from the date of his detention, unless that period is extended by the
Minister in terms of subreg (3).
(3) The Minister may, without notice to any person and without J hearing any person, by written notice signed by him and addressed to the head of a prison,
order that any
1987 (3) SA p890
RABIE ACJ
A person arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in the notice, or for as long as these
regulations remain in force.
.........
(9)(a) The Minister of Justice may make rules to regulate the detention of persons in terms of this regulation.
......... Downloaded : Thu Apr 01 2021 09:39:09 GMT+0200 (South Africa Standard Time)
B (10) No person, other than the Minister or a person acting by virtue of his office in the service of the State
A person arrested and detained in terms of subreg (1), be further detained in that prison for the period mentioned in the notice, or for as long as these
regulations remain in force.
.........
(9)(a) The Minister of Justice may make rules to regulate the detention of persons in terms of this regulation.
.........
B (10) No person, other than the Minister or a person acting by virtue of his office in the service of the State
(a) shall have access to any person detained in terms of the provisions of this regulation, except with the consent of and subject to such conditions as may be
determined by the Minister or the Commissioner of the South African Police; or
(b) shall be entitled to any official information relating to C such person, or to any information of whatever nature obtained from such person.'
Subregulation (3), in the form quoted above, was substituted for the subregulation as originally promulgated by Proc R207 of 1985 (dated 31 October 1985), which made
the new subregulation retroactive to 21 July 1985 in the case of the regulations D p r o m u l g a t e d b y P r o c R 1 2 1 o f 1 9 8 5 , a n d t o 2 6 O c t o b e r 1 9 8 5 i n t h e c a s e o f t h e
regulations promulgated by Proc R201 of 1985. The State President is empowered to make regulations with retrospective effect by s 3(2)(b) of the Act. Regulation 3(3) as
originally promulgated did not contain the words 'without notice to any person and without hearing any person', nor the words 'or for as long as these regulations remain in
force'.
E The Minister of Justice, acting in terms of reg 3(9)(a), made certain rules relating to the detention of persons detained in terms of the regulations. Rule 5(1) and (3) of
these rules (which were published in Government Notice 2483 of 26 October 1985) provided as follows:
'5(1) No person detained under the regulations shall during his F detention be visited by any person, except with the permission of the person in command of the
prison in question, acting with the concurrence of the Commissioner of the South African Police or any person acting on his authority: Provided that if a legal
representative desires to visit such a detainee, the permission of the Minister of Law and Order or the Commissioner of the South African Police shall be obtained
for such a visit.
(2)...
(3) The person in command of the prison shall ensure that no G physical contact takes place between the detainee and a visitor and that the interview between
the detainee and the visitor takes place within sight and hearing of a member of the Prisons Service.'
Fani's case was an earlier case than Omar's case, but it will be convenient to deal with the latter case first.
Omar's case
H The applicants in this case (now the appellants) were arrested during the last week of October 1985 in terms of reg 3(1) of the aforesaid regulations. Thereafter, during
the first week of November 1985, the Minister of Law and Order (hereinafter referred to simply as 'the Minister'), acting in terms or reg 3(3), ordered that they be further
detained for as I long as the regulations remained in force. It is common cause that they were not notified of the Minister's intention to order their further detention and,
also, that they were not given a hearing of any kind before their further detention was ordered. They contended in the Court a quo, as they did in this Court, that reg 3(3)
was ultra vires the powers of the State J President and that their detention was, therefore, invalid. They contended, also,
1987 (3) SA p891
RABIE ACJ
that reg 3(10) and rule 5 were invalid. As to the latter A contention, it should perhaps be said that the appellants were not, in fact, denied access to their attorney. Their
complaint was that they had to ask for permission to see him. They also complained about having to consult with him within sight and hearing of a member of the Prisons
Service as provided for in rule 5(3). As a result of their objection, they were allowed to consult with the attorney within sight, but B not within hearing, of a member of the
Prisons Service.
Before dealing with the argument that reg 3(3) was ultra vires the powers of the State President, I should say that counsel's first argument regarding this regulation was that
it merely relieved the Minister of the obligation to give a person whom C he intended detaining an opportunity of making oral representations to him, and not of the
obligation to allow such person to make written representations to him. Regulation 3(3), it was said, merely provided that the Minister could act 'without hearing any
person', and not that he could act without first having considered representations made to him in writing. D The same argument was advanced in the Court a quo. It would
seem, however, that counsel was rather doubtful of the validity of the argument. (See 1986 (3) SA at 309I 310B.) In this Court he indicated that he now has rather more
confidence in the argument than he had in the Court a quo. I think, however, that the diffidence with which the argument was advanced in the Court a quo was wholly
justified. The same argument was E advanced in the Court below in Fani's case. The Court (per Zietsman J, with whose judgment Cloete JP and Eksteen J agreed) rejected
the argument, and in the course of his judgment Zietsman J said:
'... the words used must be interpreted in the context in which they are used. The phrase used here is "without notice to any person and without hearing any
person". If the Minister is not obliged to give notice to the detainee of his intention to consider an extension of his period of detention I cannot see F how it can
be intended that he must nevertheless furnish the detainee with the opportunity of submitting representations to him before he can decide upon the possible
extension of his detention period. In my opinion the words used in the subregulation, taken in their context, are unambiguous and mean that the need to observe
the audi alteram partem rule is entirely excluded.'
This was, in my opinion, a short and effective answer to the G argument. I would merely add that normally when one says that someone is entitled to be heard before a
decision which may be prejudicial to him is taken, one does not refer only to the right to heard in the literal sense of that word, but also to the right of making written
representations.
With regard to the appellants' argument that reg 3(3) was H invalid for excluding the need to observe the audi alteram partem r u l e , I f i n d m y s e l f , i n v i e w o f t h e

considerations mentioned below, in agreement with the judgment of Vivier J, with which Munnik JP agreed.
Section 2(1) of the Act, quoted above, states when a state of emergency may be declared. It will be observed that the decision as to whether circumstances in the country
are such I that a state of emergency should be declared is that of the State President and of the State President alone. It is important to note, too, that such a
declaration may be made only if the State President is of the opinion that
'the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or the J maintenance of public order'.
1987 (3) SA p892
RABIE ACJ
A This indicates that Parliament contemplated that the need to ensure the safety of the public or to maintain public order might necessitate the taking of extraordinary
measures which might make drastic inroads into the rights and privileges normally enjoyed by individuals.
Section 3(1)(a) of the Act, quoted above, confers on the State B President the power to make regulations in any area in which a state of emergency has been declared
under s 2. It authorises him, as stated in s 3(1)(a), to make such regulations 'as appear to him to be necessary or expedient' to achieve the purposes stated in the
section. The power is a most extensive one. It entitles the State President to prescribe the methods or means to be employed for the achievement of the C purposes
stated in the section. See the judgment of this Court in State President and Others v Tsenoli ; Kerchhoff and Another v Minister of Law and Order and Others1986 (4) SA 1150 (A)
at 1182C E. It gives him, as was said in that case (at 1182E F), quoting from the judgment of Lord Radcliffe in AttorneyGeneral for Canada and Another v Hallett D & Carey
Ltd and Another 1952 AC 427 (PC) at 448, 'the amplest possible discretion in the choice of method'. It will be observed that the power which s 3(1)(a) confers on the State
President to make regulations for the achievement of the purposes stated in the section is a power not only to make such regulations as he considers to be necessary for
those purposes but also to make such regulations as appear to him to be expedient for achieving E the said purposes. The test of what is expedient is obviously a less
stringent one than that of what is necessary. This illustrates how wide the discretion is which the Act confers on the State President. It is clear from the terms of the section
that the State President is empowered to make such regulations for achieving the purposes mentioned in the section as appear F to him, ie in his subjective judgment, to
be necessary or expedient. It follows from this that it is not open to a Court, when considering a regulation, to substitute its assessment of what would be necessary or
expedient to achieve the purposes mentioned in the section for that of the State President and to hold that the regulation is invalid because G the State President could, in
its judgment, have dealt with the matter in issue in another, less harsh way. This does not mean, of course, that the exercise by the State President of the powers conferred
upon him by the Act is immune from attack. It need hardly be said that he must apply his mind to whatever matter may be in issue, that he must act bona fide H and that
he must exercise the powers conferred on him by s 3(1)(a ) of the Act for the purposes mentioned in the section. See Tsenoli's case supra at 1187B C.
Counsel for the appellants contended that reg 3(3) was ultra vires because it was unrelated to the tenor and policy of the Act, and served none of the purposes mentioned
in s 3(1)(a) of the Act. I do not agree with this contention. It is true, as stated above, that the State President must, when he makes I regulations, do so with a view to
achieving the purposes mentioned in s 3(1)(a), but, as I indicated above, the Act confers upon him the power to decide on the means and methods to be adopted to
achieve the said purposes. Furthermore, and in any event, I do not think it can be said that reg 3(3) is not related to the said purposes.
Counsel argued, next, that reg 3(3) must be held to be ultra J vires because it is so grossly unreasonable that it must be concluded that Parliament
1987 (3) SA p893
RABIE ACJ
could not have authorised it, wide though the powers are which A the Act confers on the State President. The regulation, counsel submitted, quoting from a passage in
Kruse v Johnson [1898] 2 QB 91 ([1895 99] All ER Rep 105) which was approved of in R v Abdurahman1950 (3) SA 136 (A) at 143C E, involves such 'oppressive and
gratuitous interference' with the rights of the subject as can find B 'no justification in the minds of reasonable men', and that it should accordingly be said that Parliament
could not have intended to give the State President authority to make it. Counsel also referred us to the judgment of Van den Heever JA in R v Pretoria Timber Co (Pty) Ltd
and Another1950 (3) SA 163 (A) at 182A. There is no doubt that reg 3(3) is a drastic provision, but I nevertheless find myself unable to accede to counsel's argument. I am
o f t h e C opinion that, when proper regard is had to the fact that the regulation was made as an emergency measure which was to be of application in an emergency
situation in which to use the words of s 2(1)(c) of the Act 'the ordinary law of the land is inadequate to enable the Government to ensure the D safety of the public or to
maintain public order',
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could not have authorised it, wide though the powers are which A the Act confers on the State President. The regulation, counsel submitted, quoting from a passage in
Kruse v Johnson [1898] 2 QB 91 ([1895 99] All ER Rep 105) which was approved of in R v Abdurahman1950 (3) SA 136 (A) at 143C E, involves such 'oppressive and
gratuitous interference' with the rights of the subject as can find B 'no justification in the minds of reasonable men', and that it should accordingly be said that Parliament
could not have intended to give the State President authority to make it. Counsel also referred us to the judgment of Van den Heever JA in R v Pretoria Timber Co (Pty) Ltd
and Another1950 (3) SA 163 (A) at 182A. There is no doubt that reg 3(3) is a drastic provision, but I nevertheless find myself unable to accede to counsel's argument. I am
o f t h e C opinion that, when proper regard is had to the fact that the regulation was made as an emergency measure which was to be of application in an emergency
situation in which to use the words of s 2(1)(c) of the Act 'the ordinary law of the land is inadequate to enable the Government to ensure the D safety of the public or to
maintain public order',
it cannot be said that the regulation is so grossly unreasonable as to justify the conclusion that Parliament could not have intended to authorise it.
Counsel contended also, referring to R v Slabbert and Another1956 (4) SA 18 (T) at 21G H and R v Heyns and Others1959 (3) SA 634 (A) at 637D E (see also Mandela v
Minister of E Prisons1983 (1) SA 938 (A) at 959G H), that the audi alteram partem rule embodies a fundamental right and that a subordinate legislator such as the State
President in the present case cannot deprive the subject of such a right unless he has expressly, or by necessary implication, been empowered by the enabling statute to
do so. The submission contains a correct statement of the law, but I cannot accept F the argument that s 3(1)(a) of the Act does not empower the State President to make
reg 3(3). It is, as I said above, an emergency measure that was intended to apply in an emergency situation where
'the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public, or to maintain G public order'
(s 2(1)), and in my opinion it falls within the power given to the State President to make such regulations as appear to him to be necessary or expedient to achieve the
ends mentioned in s 3(1)(a) of the Act.
Counsel's final argument with regard to reg 3(3) is founded in a passage on the affidavit made by the State President in which H he states why he amended reg 3(3) a
matter to which I referred above and made it retrospective as set out in Proc R207 of 1985. The passage (which is quoted in the judgments given in the Court a quo bu t
which I repeat for the sake of easy reference) reads as follows:
'Ek was van oordeel dat onder gegewe omstandighede voldoende feite vasgestel mag wees of omstandighede mag bestaan om die I voortgesette aanhouding
van 'n persoon te magtig sonder dat hy die geleentheid gegee sou word om gehoor te word. Ek is verder van mening dat die bekendmaking van inligting aan 'n
aangehoudene met betrekking tot die rede vir sy verdere aanhouding tot gevolg mag hê dat die bron van die inligting bekend mag word, en dit sal na my
mening nie in belang van die veiligheid van die publiek, die handhawing van die openbare J orde of die beëindiging van die noodtoestand wees nie.'
1987 (3) SA p894
RABIE ACJ
A The argument is that this passage shows that the State President did not properly apply his mind to the matter in issue, or that he had regard to improper or irrelevant
considerations, or that he acted with gross unreasonableness. The result is that reg 3(3) is invalid. Thus the argument. The first sentence of the passage shows, as counsel
correctly said, that the State President realised that there might be B individual cases where the exclusion of the audi alteram partem rule would not be necessary, but I do
not agree with the submission that the State President's decision nevertheless to make reg 3(3) in the form that he did shows that he acted improperly in the respect, or
respects, suggested by counsel. He could reasonably have thought, in my opinion, that in view C of the emergency situation seen as a whole it would be advisable to
authorise the Minister to exclude the rule in all cases, ie whenever the Minister considered that it should be done. With regard to the State President's statement that
'die bekendmaking van inligting aan 'n aangehoudene met betrekking tot die rede vir sy verdere aanhouding tot gevolg mag hê dat die bron van die inligting
bekend mag word',
D and that such disclosure would not be
'in belang van die veiligheid van die publiek, die handhawing van die openbare orde of die beëindiging van die noodtoestand',
I find myself quite unable to agree with the suggestion that it was not a proper consideration to take into account. It may be, as counsel argued, that a hearing given to
someone whose E detention is being considered need not necessarily, or always, result in the disclosure of the source of information that ought not be disclosed, but this is
no justification for saying that the State President went beyond the powers given to him by the Act when he decided to make a regulation which was designed to avoid all
danger of the disclosure of potentially harmful information.
F I turn now to the appeal against the decision of the majority of the Court a quo that reg 3(10)(a) and rule 5(1) and (3) of the rules published under reg 3(9)(a) are not
ultra vires. Friedman J, having found that reg 3(3) was invalid and that the detainees were, on that ground, entitled to their release from detention, did not deal with the
question of the validity of G reg 3(10)(a) and rule 5(1) and (3).
Counsel for the appellants commenced his argument on this part of the case by saying that, if reg 3(10)(a) is to be construed as including a reference to legal advisers,
then it is ultra vires. The regulation, it will be recalled, provides that 'No person', save the Minister or a person acting by virtue of his H office in the service of the State,
'shall have access to any person detained in terms of the provisions of this regulation' except with the consent of and subject to such conditions as may be determined by
the Minister or the Commissioner of the South African Police. While submitting that the right of the individual to have access to his legal adviser has been described by this
Court as a fundamental right which cannot be interfered with save where interference is authorised in I express language or by necessary implication (see Mandela v Minister
of Prisons (supra at 957D and 959G H), counsel did not contend in specific terms, if I understood him correctly, that the regulation does not apply to legal advisers. Nor
could it have been so argued, for even if one accepts what has been said in the cases about the taking away of a fundamental right, J it cannot validly be said that the
words 'No person' should be taken to mean
1987 (3) SA p895
RABIE ACJ
'No person except a legal adviser'. See Bloem and Another v State President of the Republic of South Africa and Others1986 (4) SA 1064 (O) at 1093H I. It may be pointed out,
too, that rule 5 was made on the basis that access to detainees by legal advisers is prohibited save when permitted by the Minister or the Commissioner of Police.
Counsel contended, as stated above, that if reg 3(10)(a) is to be read as being of application to legal advisers as it B must, in my opinion, be read then it is ultra vires
because it cannot reasonably be related to the purposes mentioned in s 3(1)(a) of the Act. The right of free and unconditional access, it was argued, cannot reasonably
impinge upon those purposes. It cannot in my opinion be said that the regulation is not related to the purposes mentioned in the C section, and I do not agree with the
submission.
It was contended, next, that the State President failed properly to apply his mind to the matter and that he acted with gross unreasonableness. The affidavit made by the
State President, counsel submitted, shows that he did not apply his D mind to the matter. In his affidavit the State President, after stating that he had been advised that it
was not necessary for him to mention
'al die faktore... wat ek oorweeg het alvorens ek regulasies ingevolge art 3 van die Wet op Openbare Veiligheid 3 van 1953 met betrekking tot die tansbestaande
noodtoestand in sekere landdrosdistrikte uitgevaardig het',
went on to say the following about the question of access to E legal advisers:
'13. Ek is bewus daarvan dat die reg op toegang tot 'n regsadviseur 'n basiese reg is en dat die reg om mediese behandeling te ontvang wanneer nodig ook 'n
basiese reg is.
14. Die omstandighede wat dit noodsaaklik gemaak het om 'n noodtoestand af te kondig bring egter na my mening mee dat dit nodig en raadsaam mag wees om
onder gegewe omstandighede 'n spesifieke aangehoudene nie toe te laat om in aanraking te kom F met persone buite die plek van aanhouding nie.
Daar is persone buite die plekke waar aangehoudenes aangehou word, wat die openbare orde wil versteur, wat die veiligheid van die publiek bedreig en wat die
omstandighede wat dit noodsaaklik gemaak het om 'n noodtoestand te verklaar, wil laat voortduur en vererger en dus die beëindiging van 'n noodtoestand wil
teenwerk.
Gevolglik mag dit die veiligheid van die publiek, die handhawing van die openbare orde en die beëindiging van die noodtoestand bevorder as 'n besondere
aangehoudene onder gegewe omstandighede nie toegelaat word om kontak te hê met sodanige G persone buite die gevangenis nie.
15. Kontak tussen 'n aangehoudene en sodanige persone kan plaasvind deur bemiddeling van 'n regsadviseur or private mediese praktisyn.
16. Die vraag of 'n spesifieke aangehoudene kontak met persone buite die plek van aanhouding geweier moet word aidan nie, kan slegs behoorlik beslis word
met inagneming van inligting H aangaande die aangehoudene se deelname en rol in die oproer en geweld wat gepleeg is of verwag kan word. Die Kommissaris
van Polisie en Minister Van Wet en Orde het toegang tot die bronne waaruit bepaal kan word of sodanige inligting bestaan aldan nie en gevolglik het ek in reg
3(10) bepaal dat die aansoeke om toestemming tot toegang tot 'n aangehoudene oorweeg moet word deur die Kommissaris van Polisie of die Minister Van Wet
en Orde en dat hulle sodanige voorwaardes mag oplê as wat hulle nodig ag. Ek herhaal dat ek sodanige regulasie as nodig en raadsaam beskou het om die
oogmerk te bereik soos in art 3 van I die Wet op Openbare Veiligheid vermeld.'
Counsel relied on the contents of para 14 for his argument that the State President did not properly apply his mind to the question of access to legal advisers. I do not
agree with the submission. The passage shows that the State President realised J that it might not always, or in all cases, be
1987 (3) SA p896
RABIE ACJ
A necessary to exclude access, but this does not justify the charge that his decision to make access in every case dependent on permission being granted by the Minister
or the Commissioner of Police is indicative of a failure to apply his mind to the matter. The statements made by him in his affidavit show, in my B view, that he gave
earnest consideration to the question of access to detainees and to the manner in which it should be dealt with. The same can be said, in my opinion, about what the
Minister of Justice says in his affidavit regarding the question of access in the case of legal advisers. He states inter alia :
'15. Met betrekking tot die reël wat bepaal dat niemand, gevolglik ook nie 'n regsverteenwoordiger of private mediese C praktisyn, 'n aangehoudene mag besoek
sonder die toestemming van die Minister van Wet en Orde of die Kommissaris van Polisie nie moet in gedagte gehou word dat 'n noodtoestand verklaar is na 'n
toestand van onrus wat 'n geruime tvd in die betrokke distrikte bestaan het. Die onrus het gepaard gegaan met geweld, moorde, brandstigting, sabotasie en
ander vorms van geweld, op ongekende skaal, waardeur die veiligheid van die publiek en die handhawing van die openbare orde ernstig bedreig was en die
A necessary to exclude access, but this does not justify the charge that his decision to make access in every case dependent on permission being granted by the Minister
or the Commissioner of Police is indicative of a failure to apply his mind to the matter. The statements made by him in his affidavit show, in my B view, that he gave
earnest consideration to the question of access to detainees and to the manner in which it should be dealt with. The same can be said, in my opinion, about what the
Minister of Justice says in his affidavit regarding the question of access in the case of legal advisers. He states inter alia :
'15. Met betrekking tot die reël wat bepaal dat niemand, gevolglik ook nie 'n regsverteenwoordiger of private mediese C praktisyn, 'n aangehoudene mag besoek
sonder die toestemming van die Minister van Wet en Orde of die Kommissaris van Polisie nie moet in gedagte gehou word dat 'n noodtoestand verklaar is na 'n
toestand van onrus wat 'n geruime tvd in die betrokke distrikte bestaan het. Die onrus het gepaard gegaan met geweld, moorde, brandstigting, sabotasie en
ander vorms van geweld, op ongekende skaal, waardeur die veiligheid van die publiek en die handhawing van die openbare orde ernstig bedreig was en die
veiligheid van die Staat in gevaar gestel kon word. D Tydens so 'n noodtoestand mag omstandighede bestaan wat op 'n gegewe plek en onder gegewe
omstandighede en plek dit noodsaaklik of raadsaam maak dat 'n spesifieke aangehoudene nie enige kontak hoegenaamd moet hê met persone buite die
gevangenis nie. Die reëlings wat so 'n persoon se aanhouding reël, moet gevolglik bepalings bevat wat so 'n persoon se aanhouding reël op 'n wyse wat sy
afsondering van die buitewêreld meebring. Ongelukkig is die situasie ernstig genoeg dat die reg om 'n regsverteenwoordiger te mag spreek beperk moet word
en onder gegewe omstandighede, waar dit geregverdig E is, vir 'n tydperk altans, geweier moet word. 'n Versoek om 'n private mediese praktisyn te mag
spreek sal insgelyks oorweeg moet word in die lig van die tersaaklike feite en omstandighede.
16. Ek is gevolglik adviseer, en ek was van oordeel, soos bedoel in art 3 van die Wet op Openbare Veiligheid 3 van 1953, dat dit raadsaam sou wees, as gevolg
van die bestaan van 'n noodtoestand, om die reg op toegang tot 'n regsverteenwoordiger, onderhewig te maak aan toestemming. F Dieselfde geld met
betrekking tot 'n versoek om 'n private mediese praktisyn te mag spreek. Omdat die reg op toegang tot 'n regsverteenwoordiger 'n basiese reg is en omdat ek
wil verseker dat sodanige toegang slegs beperk sou word as daar goeie rede daarvoor bestaan, het ek besluit dat aansoeke om 'n regsverteenwoordiger te mag
spreek, slegs op hoogste vlak besleg sou word, naamlik deur die Minister van Wet en Orde of die Kommissaris van Polisie. Daardeur het ek verseker dat die
mees verantwoordelike persone die aansoeke sou oorweeg. Om so 'n aansoek behoorlik te kan oorweeg, moet inligting by die G polisie bekom word aangaande
die betrokke aangehoudene en sy omstandighede. Dit was dus my oordeel dat die aansoeke deur die Minister van Wet en Orde of die Kommissaris van Polisie
oorweeg moes word.'
It is the appellants' contention that it is grossly unreasonable that detainees should be deprived of the fundamental right of access to their legal advisers and to be H
made dependent on 'a discretionary licence', as their counsel put it, to gain such access. Detainees, counsel said, may urgently require access to their legal advisers for a
variety of reasons unrelated to their detention or the emergency. This is, of course, possible, but it is, at the same time, not to be supposed that the Minister or the
Commissioner of Police may, I or will, refuse leave for the necessary access on just any ground whatsoever. Rule 5(1) contemplates that leave may be asked to see one's
legal adviser and, although the rule does not expressly state on what grounds leave may be granted or refused, it must, in my opinion, be taken to be implied that leave
can be refused only on grounds which are related to the J emergency. See Tsenoli's c a s e supra where it was contended inter alia that reg 3(3) was invalid because it
purported to
1987 (3) SA p897
RABIE ACJ
empower the Minister to order the further detention of a person A arrested and detained under reg 3(1) on whatever grounds he deemed fit, including grounds quite
unrelated to the purposes mentioned in s 3(1)(a) of the Act or in reg 3(1). (See at 1183A B of the report of the judgment.) This Court rejected the argument and held
that the Minister's power under reg 3(3) must, by necessary implication, be taken to be subject to the limitation that he could order the further detention of a B person
already detained under reg 3(1) only if he was of the opinion that it was necessary to do so for the purposes stated in reg 3(1). (See at 1184F of the report.) In the same
way, in the present case, it is in my opinion not correct to suggest that access may be refused on a ground not related to the state of emergency. (This does not mean, of
course, that C legal advisers need not comply with prison regulations regarding access to persons held in a prison.)
Counsel contended also, with regard to his submission as to the unreasonableness of reg 3(10)(a) and rule 5(1), that the State President could have avoided security risks
arising from contact between a detainee and his legal adviser by I D quote from counsel's written heads of argument 'a spectrum of conditions ranging from restrictions
on physical contact, to some form of supervising consultations, and to the making of even more onerous stipulations in the case of particular individuals'.
This may, or may not have been, feasible. I do not know. It may E even be that the State President and the Minister of Justice considered measures of the kind suggested
but decided against them on the ground that they would be impracticable. As to the whole of counsel's argument about unreasonableness it should be borne in mind, as I
have said before, that the Act empowers the F State President to make such regulations as appear to him to be necessary or expedient to combat the emergency
situation, and that the Court cannot substitute its view of what measures would be necessary or expedient for that of the State President. As to the question of
reasonableness, also, I find myself unable to accede to the argument that reg 3(10)(a) and rule 5(1) are so unreasonable that they cannot be held to have G b e e n
authorised by the Act.
There is one further argument to which I must refer. It runs as follows. The Minister of Justice, it is said, is given the power by reg 3(9)(a) to 'regulate the detention of
persons in terms of this regulation' (ie reg 3), and it is no such regulation of the 'detention of persons' to exclude the right of access to legal representatives, rather than to
seek to H regulate such access by virtue of practical considerations. I do not agree with the submission. The Minister of Justice has the power to regulate the detention of
persons, and this includes, in my view, the power to regulate access to persons in detention.
It was not argued before us that rule 5(2), (3) and (7) should be held to be invalid even if it were found that rule 5(1) was I not invalid.
In view of all the aforegoing I am of the opinion that the appeal against the judgment of Vivier J concerning the validity of reg 3(10)(a) and rule 5(1) cannot succeed. It
follows, too, that in my view the decision in Metal and Allied Workers Union and Another v State J President of the Republic of South Africa1986 (4) SA 358 (D), to which we were
referred in argument,
1987 (3) SA p898
RABIE ACJ
A that reg 3(10)(a) and rule 5(1) are ultra vires, is incorrect. (See at 373C 375G of the report of the judgment.)
Fani's case
Fani's case was an application for the release from detention B of six persons who had been arrested and detained in terms of reg 3(1) of the aforesaid emergency
regulations and who were thereafter further detained in terms of the provisions of reg 3(3). Their further detention was ordered without their having been given an
opportunity of making representations to the Minister, and the issue which the Court was called upon to C decide was whether reg 3(3) was ultra vires on the ground that
the State President did not have the power to make a regulation which deprived persons who had been arrested and detained under reg 3(1) of the right of being heard
before their further arrest was ordered. The Court (per Zietsman J, with whom Cloete JP and Eksteen J agreed) held that reg 3(3) was not invalid and dismissed the
application with costs. The appeal is against D this judgment.
In arguing the appeal, counsel relied on the same arguments as those advanced by him in Omar's case. It follows from what I have said above regarding Omar's case that
in my view the decision of the Court in Fani's case was correct and that the appeal against it can accordingly not succeed.
E Bill's case
The state of emergency which was declared by the State President on 21 July 1985 (Proc R120 of 1985) was lifted after some months and the regulations and rules which
were in force at the time were repealed. On 12 June 1986 the State President, F acting in terms of s 2(1) of the Act, by Proc R108 again declared the existence of a state
of emergency, this time not within certain areas only, but within the whole of the Republic. On the same date, regulations made by the State President in terms of s 3(1)(a)
of the Act were promulgated by Proc R109.* On the same date, too, rules made by the Minister G of Justice in terms of reg 3(9)(a) of the new regulations were published
in Government Notice 1196. The regulations and rules which have a bearing on the present case are, save in a few immaterial respects, in the same terms, and also have
the same numbers, as those which were in force during the earlier state of emergency. They need not be quoted again.
The husband of the applicant (now the respondent) was arrested H and detained in terms or reg 3(1) on 20 June 1986. The Minister, acting in terms of reg 3(3), thereafter
ordered his detention to be extended for as long as the emergency lasted. The detainee had not been given a hearing before the order was made. The respondent
thereupon made an application to the I Witwatersrand Local Division. The appellants filed no affidavits but were represented by counsel at the hearing. The main relief
claimed by the respondent was, according to the notice of motion, an order directing the Minister of Law and Order to furnish her (or the detainee) 'with the reasons for and
the information upon which the order was issued' and 'to allow the detainees legal representatives to interview
1987 (3) SA p899
RABIE ACJ
him with a view to making representations to the Minister of A Law and Order for his release'. In her affidavit supporting the notice of motion the respondent stated that, if
the Court held that she was not entitled to be furnished with the reasons for and the information upon which the Minister's order had been issued and that the detainee was
not entitled to be interviewed by his legal representative with a view to making B representations to the Minister, she would contend that the relevant regulations and rules
were ultra vires the State President's powers under s 3 of the Act. If the detainee was not entitled to the relief claimed, she said, it would mean that he had been deprived
of 'his common law right to be heard' even after the order under reg 3(3) had been made. Public safety and the maintenance of public order, she added, could C not
conceivably be prejudiced by the exercise of such a right. The Court a quo (Leveson J) made the following order:
'1. That the Minister of Law and Order is to furnish the detainee in writing with the grounds for his continued detention in terms of reg 3 of the emergency D
regulations.
2. That the detainee is entitled to consult his legal representatives (lawyers) who shall have access to him in terms of and in accordance with the Prisons Act
and the regulations promulgated thereto, for the purpose of advising with regard to the representations which he has the right to make to the Minister of
Law and Order.
3. The detainee is to be furnished with such writing E materials as will enable him to make such representations.
4. The respondents are ordered to pay the costs of this application.'
As to this order, it may be said at once that para 2 thereof was, in my opinion, wrongly made. It appears from the learned Judge's judgment (1987 (1) SA 265 at 275H I)
that he granted F that part of the order because of his finding that reg 3(10)(a) and rule 5(1) are ultra vires. In coming to that conclusion, he differed from the judgment of
2. That the detainee is entitled to consult his legal representatives (lawyers) who shall have access to him in terms of and in accordance with the Prisons Act
and the regulations promulgated thereto, for the purpose of advising with regard to the representations which he has the right to make to the Minister of
Law and Order.
3. The detainee is to be furnished with such writing E materials as will enable him to make such representations.
4. The respondents are ordered to pay the costs of this application.'
As to this order, it may be said at once that para 2 thereof was, in my opinion, wrongly made. It appears from the learned Judge's judgment (1987 (1) SA 265 at 275H I)
that he granted F that part of the order because of his finding that reg 3(10)(a) and rule 5(1) are ultra vires. In coming to that conclusion, he differed from the judgment of
Vivier J in Omar's case on the question of the validity of reg 3(10)(a) and rule 5(1), and agreed with that of Didcott J in Metal and Allied Workers Union and Another v State
President of the Republic of South Africa and Others (supra at 373C 375G) on the same G issue. As I stated above in my discussion of Omar's case, I am of the opinion that
the judgment of Vivier J was correct and that of Didcott J incorrect. I consider, therefore, that Leveson J erred in holding that reg 3(10)(a) and rule 5(1) are ultra vires a n d
that the detainees legal advisers are, for that reason, entitled to have access to him, subject only to the provisions of the Prisons Act and the regulations made H
thereunder.
As to para 1 of the order, it orders the Minister to furnish the detainee in writing with the grounds on which he (the Minister) decided to order the further detention of the
detainee in terms of reg 3(3). In I concluding that the Minister was obliged to furnish the detainee with the grounds for his order, the Court a quo reasoned as follows:
(a) Regulation 3(3) deprives a detainee of the right of being heard before an order is made by the Minister, but does not exclude the right
being part of the right embodied in the audi alteram partem rule of a detainee to make written representations to the J
Minister after the order has been made.
1987 (3) SA p900
RABIE ACJ
A (b) Counsel for the Minister conceded rightly so, the learned Judge said that a detainee is entitled to make written representations
'to be released from further detention at some time after the further order pursuant to reg 3(3) is made by the Minister'. (See at
270D of the report of the judgment.)
B (c) Because the detainee has the right to make written representations to the Minister, he also has the right to be furnished with
writing materials which would enable him to accomplish this objective.
(d) Because he has the right to make representations to the Minister, the detainee must be put in possession of such information by the
Minister as would make the C right to make representations a real one. Without such information, the right will be an illusory one.
With regard to what is said in (a) above, it is clear the reg 3(3) does not say that a detainee is not entitled to make written representations to the Minister after an order for
his further detention has been made. D This does not, however, justify the conclusion that a detainee can, after such an order has been made, call upon the Minister to
furnish him with the grounds on which the order was made. I do not wish to be understood as saying that a detainee may not, after his further detention has been ordered,
make written representations to the E Minister concerning such detention, for it seems to me that he would be entitled to do so. I do not, however, agree with the view that,
because he may make such representations, the Minister is obliged to furnish him with the grounds on which his further detention was ordered. The regulation empowers
the Minister to order the further detention of a person within 14 days after such person's arrest and detention in terms of reg F 3(1) without having to inform him of the
grounds on which he may possibly be further detained, and without having to give him an opportunity of being heard as to why he should not be further detained. This
being so, I find it difficult to accept that it was nevertheless the intention that the Minister would be obliged, after he has made an order, to inform the detainee of the
grounds on which he made the G order. The order which the Minister makes when he orders the further detention of a detainee is an order which becomes effective
immediately on being made, and which determines the period of the further detention ordered. It seems to me, therefore, that when the Minister makes an order for a
person's further detention in terms of reg 3(3), the order H is a final one, and that there is thereafter no obligation on the Minister to inform the detainee of the grounds
on which it was made and then, after considering such representations as the detainee may wish to make in regard to such grounds, to reconsider the order previously
made by him. I appreciate that this view of the matter involves that reg 3(3) does away completely with the audi alteram partem rule, and that this is I not a view which one
should lightly entertain. I think, however, that this is what reg 3(3) entails. The question which then arises is whether a regulation which has this effect is intra vires t h e
powers conferred on the State President by s 3(1)(a) of the Act. There is no doubt that, if this is the effect of reg 3(3), as I consider it to be, it is a very harsh provision, but
it nevertheless seems to me that, when regard is had to the extremely wide powers (discussed earlier in the J judgment) which the Act confers on the State President to
make such regulations as appear to him to be necessary
1987 (3) SA p901
RABIE ACJ
or expedient for coping with the emergency situation, it cannot A be said that the regulation in issue is ultra vires.
The Court a quo, in holding that reg 3(3) does not exclude the right of a detainee to make written representations to the Minister after the latter has ordered his further
detention, and that a detainee is, for B the purpose of making such representations, entitled to be furnished with the grounds on which the Minister's order was made,
adopted (at 269G H of the report of the case) what is stated in the following passage in the judgment of Goldstone J in the case of Momoniat v Minister of Law and Order and
Others ; Naidoo and Others v Minister of Law and Order and Others1986 (2) SA 264 (W) at 276B C:
'Public safety and the maintenance of public order could C conceivably be prejudiced if the Minister is obliged in the case of every detention to allow a hearing
prior to his making an order within a specified period after the initial arrest. That would depend, inter alia, upon the period and number of detainees in question.
However, after such order has been made I can conceive of no prejudice at all in the exercise of a right by such a detained person to make written
representations to the Minister.'
(The view that practical considerations may justify the D exclusion of the audi alteram partem rule when the Minister has to make a decision as to a person's further

detention within 14 days after such person's initial arrest and detention in terms of reg 3(1), but that there could be no prejudice to the safety of the public or the
maintenance of public order if a detainee were allowed to make E written representations to the Minister thereafter (ie after he has been furnished with the grounds for the
order made against him), is also expressed in the judgment of Coetzee J in Momoniat's case supra at 278I 279A.) In my view it cannot be accepted, as seems to have
been done in Momoniat's case, that it was only because of practical considerations that the State President decided, when making F reg 3(3), that a detainee should not be
entitled to be heard when the Minister considers whether he should make an order for the detainee's further detention. It is quite conceivable that it was thought that the
audi alteram partem rule should be excluded in order to avoid the danger of sensitive information, or the sources of such information, being disclosed to detainees. (In fact,
in Omar's case, as was indicated above, G counsel for the appellants based part of his argument on a passage in the affidavit of the State President in which he says that
he amended reg 3(3), as originally worded, to its present form, which provides for the exclusion of the audi alteram partem rule, because of the danger of H the disclosure
of sources of information that ought not to be disclosed.) A consideration of this kind could be of application to the whole period of a detainee's detention.
With regard to counsel's concession in the Court a quo, as referred to in para (b) above, concerning the right of a detainee to make written representations to the Minister
concerning his further detention, I the position appears to be that counsel (Mr Kruger ) conceded that a detainee could make such representations, but that he did not
concede that a detainee would, for the purpose of making such representations, be entitled to be informed of the grounds on which his further detention was ordered. I
should add, also, that it was a matter of dispute between the parties in the Court a quo as to whether a person who had J been further detained in terms of reg 3(3) was
entitled to be apprised of the grounds for
1987 (3) SA p902
RABIE ACJ
A the order, and, this being so, it is unlikely that counsel for the Minister would have made a concession which would have been in conflict with the case he was presenting
to the Court. It may be said in this connection that counsel contended inter alia that reg 3(10)(b) p r e c l u d e s a d e t a i n e e f r o m b e i n g i n f o r m e d o f t h e r e a s o n s f o r h i s
detention. B (This argument, I may add, was also advanced in this Court. I do not propose to deal with it, save to say that, on the wording of the regulation, the words 'No
person' cannot be read as including the detainee himself.) With regard to the question of making written representations to the Minister, it may be said at this point that it
C was not alleged by respondent that the detainee had been refused writing materials for the purpose of making such representations. (See para (c) above, and para (3)
of the Court a quo's order.)
Leveson J was of the opinion that the decisions of this Court in Turner v Jockey Club of South Africa1974 (3) SA 633 (A) a n d Minister of Law and Order and Others v Hurley and

Another1986 (3) SA 568 (A) provide support for his view that in the present D case the Minister is obliged to inform a detainee of the grounds on which he ordered his
further detention. (See at 271 2 of the report of the judgment.)
Turner's case was the case of a jockey (Turner) who was alleged to have bribed another jockey to induce the latter deliberately to lose a race. Turner was charged with
corrupt practice under E the respondent club's rules, which were held by the Court to constitute the terms of a contract between jockeys and the respondent. The board of
inquiry which found Turner guilty was, under the respondent's rules, obliged to conduct an investigation into the truth of the allegations made against him. The board was in
possession of certain affidavits which contained allegations against Turner, but it showed these to F him at such a late stage of the proceedings that he did not have time
to read them or to prepare a defence to the allegations made against him. The Court held that Turner had not been given the fair and impartial hearing to which he was
entitled under the respondent's rules (see 1974 G (3) SA at 653G H and 658G H), and that the finding made against him could, therefore, not stand. Turner's c a s e
provides no support for the learned Judge's finding that, in a case such as the one with which we are here concerned, a detainee is entitled to be informed of the grounds
on which the Minister ordered his further detention. It was a case where allegations which affected the question of the guilt of the person charged had, by reason of the
terms of the contract H which existed between him and the respondent, to be disclosed to him at the inquiry into the question of his guilt, and the Court's decision affords
one no basis for saying that, in the present case, the Minister is obliged to inform the detainee of the grounds on which he (the Minister) ordered his further detention
under reg 3(3).
With regard to the judgment of this Court in Hurley's case I supra, Leveson J relied on the following passage therein for his view that in the present case the Minister was
obliged to inform the detainee of the grounds on which he made the order in terms of reg 3(3):
'I turn now to counsel's final argument in support of his contention that the Legislature did not, when using the words "if he has reason to believe..." in s 29(1) of
the Act, intend that the decision of J the officer who arrested or caused the arrest of someone should be subject to objective inquiry by the Court. Such an
inquiry, counsel Downloaded : Thu Apr 01 2021 09:39:09 GMT+0200 (South Africa Standard Time)
1987 (3) SA p903
under reg 3(3).
With regard to the judgment of this Court in Hurley's case I supra, Leveson J relied on the following passage therein for his view that in the present case the Minister was
obliged to inform the detainee of the grounds on which he made the order in terms of reg 3(3):
'I turn now to counsel's final argument in support of his contention that the Legislature did not, when using the words "if he has reason to believe..." in s 29(1) of
the Act, intend that the decision of J the officer who arrested or caused the arrest of someone should be subject to objective inquiry by the Court. Such an
inquiry, counsel
1987 (3) SA p903
RABIE ACJ
says, could result in the police being forced to disclose A information which, if divulged, could endanger the security of the State, and the Legislature could not
have intended such a result. It must be accepted that occasions may arise when the police will, for security reasons, not be able to disclose information available
to them, and it must be acknowledged, in my view, that there is force in counsel's argument. At the same time it should not, I think, be assumed that occasions
of the kind mentioned will frequently arise. It is, B also, not to be assumed that the police will on such occasions necessarily have to disclose all the information
of which they are possessed, or the sources of their information. Section 29(1) requires merely that it be shown that there were grounds on which the officer
concerned could reasonably have held the belief that the person whom he arrested or caused to be arrested was a person as described in the subsection. I
would sum up my view of counsel's argument by saying that, while it must be recognised that it has some force, it does not outweigh the considerations,
discussed above, which indicate, in my opinion, that the words "if he has reason to believe..." in C s 29(1) should be construed as constituting an objective
criterion.'
(See 1986 (3) SA at 583D H and 1987 (1) SA at 272B D.) What is stated in this passage cannot, in my opinion, be regarded as authority for the view expressed by the
learned Judge. In Hurley's case, which was concerned with the validity D of an arrest made under s 29(1) of the Internal Security Act 1982, this Court held that the Minister
of Law and Order had to establish that the police officer who caused the arrest to be made had reason to believe that the person concerned was a person as described in s
29(1) of the said Act. Counsel for the Minister contended that the police officer's decision to have the arrestee in that case (one Kearney) arrested was not E objectively
justiciable, and in the course of his argument he submitted that, if the Courts could objectively inquire into the question whether reasonable grounds existed for the belief
held by a police officer who caused an arrest to be made under s 29(1) of the said Act, the police might be forced to disclose the information on the strength of which the
arrest was made. F The disclosure of such information, counsel submitted, could be harmful to the security of the State, and the Court should therefore hold that action
taken in reliance on the provisions of s 29(1) was not objectively justiciable. The Court, while of the view that the argument had some force, held that, since the Minister
had to establish that the police officer concerned had reason to believe that the person whom G he caused to be arrested was a person as described in the section, and
since the Court was entitled to inquire into that question, the test of reasonable belief being an objective one, the Minister was obliged ie if he wished to discharge the
said onus to disclose information possessed by the police. As to the quantum of information to be disclosed, the Court said that the disclosure need go no further than H
to show that there were grounds on which the police officer concerned could reasonably have held the belief that the person whom he caused to be arrested was a person as
described in the section. Leveson J said (at 272E F of the report of the judgment):
'In my opinion, in the same way as the officer concerned has to show grounds (but not the evidence) for his belief, so also must the Minister reveal the grounds
(again, not the evidence) I for the continued detention of the detainee.'
In Hurley's case the Minister was obliged to show grounds for the police officer's belief, as required by s 29(1) of the Internal Security Act 1982. That obligation, which arose
from the provisions of the said section, is not authority for the view that in the present case the Minister is obliged to reveal the grounds for his decision to order J the
further detention of the
1987 (3) SA p904
HOEXTER JA
A detainee. The question in the present case is whether the audi alteram partem rule obliges the Minister to inform a detainee of the grounds on which he ordered his
further detention, or whether the rule is inapplicable because of the provisions of reg 3(3).
In view of the aforegoing I consider that the decision of the B Court a quo was incorrect. It follows that in my opinion Kannemeyer J, too, erred when he held in Nqumba and
Others v State President and Others1987 (1) SA 456 (E) at 481, agreeing with the judgment of Leveson J, that the Minister is obliged to furnish the grounds for an order made
by him under reg 3(3) when requested to do so by the detainee.
It is unnecessary to discuss Mr Kruger's argument that s 5B of C the Act precludes a Court from considering the validity of reg 3(3).
The following orders are made:
(1) In the case of Omar and Others v Minister of Law and Order and Others : The appeal is dismissed with costs, including the costs of
two counsel.
D (2) In the case of Marjorie Fani and Others v Minister of Law and Order and Others : The appeal is dismissed with costs, including
the costs of two counsel.
(3) In the appeal of Bill v State President and Others :
(a) The appeal is upheld with costs, including the costs of two counsel.
E (b) The order of the Court a quo is set aside, and the following order is substituted therefore
'The application is dismissed with costs, including the costs of two counsel.'
Joubert JA, Viljoen JA and Boshoff AJA concurred in the F judgment of Rabie ACJ.
Judgment
Hoexter JA: In these three appeals I have had the advantage of reading the judgment prepared by Rabie ACJ. In the Fani case I agree with Rabie ACJ that the appeal
should be dismissed with G costs, including the costs of two counsel. In the Omar case I am unable to agree that the appeal should be dismissed with costs. For the
reasons set out later in this judgment I consider that in the Omar case the applicants in the Court below were entitled to some of the relief claimed by them. Although I
would allow the appeal in part only, the order I have in mind represents substantial success on appeal and in my H view they should be awarded the costs of the appeal. In
the Omar case I would make the following order:
(1) The appeal succeeds to the limited extent hereunder indicated. The respondents will bear the costs of the appeal including the costs
of two counsel.
(2) The order of the Court a quo is set aside and the I following order is substituted therefor:
'(a) It is declared that the detainees are entitled as of right to access to their legal advisers and that the consent of the first and/or fifth respondents is
not required for such access;
(b) It is declared that reg 3(10)(a) and rules 5(1), (2) and (7) are invalid in that they J are ultra vires the empowering provisions of s 3 of Act 3 of
1953;
1987 (3) SA p905
HOEXTER JA
(c) The respondents will pay the costs of these A proceedings including the costs of two counsel.'
In the Bill case I am unable to agree that the appeal succeeds. I am of the opinion that the judgment of Leveson J should be affirmed. I would dismiss the appeal with
costs, including the costs of two counsel.
In order to shorten this judgment it is convenient at the B outset to indicate in summary form the larger respects in which I find myself in disagreement with the views
expressed and the conclusions reached by the Acting Chief Justice.
(1) I respectfully disagree with the conclusions reached by Rabie ACJ that reg 3 does away completely with the C audi alteram partem
rule.
(2) I find myself in entire agreement with the view stated by Goldstone J (and concurred in by Coetzee DJP and Heyns J) in Momoniat v
Minister of Law and Order and Others ; Naidoo and Others v Minister of Law and Order and Others1986 (2) SA 264 (W) at 275I
276A that reg 3(3) goes no further than to deny a detainee the D right to be heard prior to the Minister's order for the detainee's
further detention; and that reg 3(3) in no way excludes the right of a detainee to make representations to the Minister after the
latter has ordered the former's further detention. I further agree with Goldstone J (at 276F G) that the Minister is legally obliged
to consider such E representations.
(3) I agree with the criticism made by Rabie ACJ of the reliance which the Court a quo in the Bill case placed on the decisions of this
Court in Turner v Jockey Club of South Africa1974 (3) SA 633 (A) and in Minister of Law and Order and Others v Hurley and
Another1986 (3) SA 568 (A). I nevertheless consider that the reasoning of Leveson J is in the main correct; and that he F properly
granted the order (at 276B D) which he did. In order to avoid any misunderstanding I should add that I fully endorse the following
observations of Kannemeyer J in Nqumba and Others v State President and Others1987 (1) SA 456 (E) at 481D E in regard G to
latter has ordered the former's further detention. I further agree with Goldstone J (at 276F G) that the Minister is legally obliged
to consider such E representations.
(3) I agree with the criticism made by Rabie ACJ of the reliance which the Court a quo in the Bill case placed on the decisions of this
Court in Turner v Jockey Club of South Africa1974 (3) SA 633 (A) and in Minister of Law and Order and Others v Hurley and
Another1986 (3) SA 568 (A). I nevertheless consider that the reasoning of Leveson J is in the main correct; and that he F properly
granted the order (at 276B D) which he did. In order to avoid any misunderstanding I should add that I fully endorse the following
observations of Kannemeyer J in Nqumba and Others v State President and Others1987 (1) SA 456 (E) at 481D E in regard G to
the effect of the judgment of Leveson J:
'I do not understand the judgment in Bill's case supra to mean that the Minister is compelled to provide reasons in every case in which he makes an
order in terms of reg 3(3). He is only required to do so if he is asked to do so.'
(4) I agree that the phrase 'no person, other than the Minister......' in reg 3(10) clearly includes a legal H representative of the detainee.
I differ, however, from the view of Rabie ACJ that reg 3(10)(a) is not ultra vires the Act. I likewise differ from the view that
subrules 5(1) and 5(2) are not ultra vires the regulations. In this respect I agree (albeit for somewhat different reasons) with the
conclusion reached by the Natal Full Court in Metal and Allied I Workers Union and Another v State President of the Republic of
South Africa and Others1986 (4) SA 358 (N) at 376H I that, insofar as they make access by a detainee to his lawyer dependent
on permission by others, reg 3(10)(a) is ultra vires the power of the State President and rule 5(1) is ultra vires the power of the
Minister of Justice. In my judgment rule 5(2) J is likewise ultra vires.
1987 (3) SA p906
HOEXTER JA
A I shall begin by considering the appeal in the Bill case. In terms of reg 3(3) the Minister ordered the detainees detention to continue for the duration of the emergency.
Regulation 3(3) empowers the Minister to order the further detention of a detainee without having to hear the detainee before making the order. In his judgment Rabie ACJ
remarks:
B 'This being so, I find it difficult to accept that it was nevertheless the intention that the Minister would be obliged, after he has made an order, to inform the
detainee of the grounds on which he made the order.'
I prefer to adopt a rather different approach to the inquiry. When one deals with an enactment which empowers a functionary C to make an order prejudicially affecting the
rights of another the principle which ordinarily governs the situation is enshrined in the maxim 'audi alteram partem '. That is the broad and inveterate rule. It at once
follows, so it seems to me, that in the instant case the question to be asked is not whether, in the light of the abrogation in D reg 3(3) of the detainee's right to be heard
before the ministerial order is made, one is nevertheless able to perceive an intention in the regulations that the detainee has a right to be heard while he remains in
detention after the ministerial order. The correct approach, with respect, is surely the directly opposite one. The real question to be E asked is whether the contrary intention
is manifest. One must examine the regulations in order to see whether they indicate, expressly or by necessary implication, that after the ministerial order has been made
the detainee is deprived of his right to be heard.
As a matter of everyday psychology it is no doubt true (as is pointed out by H Corder 'The Content of the Audi Alteram Partem Rule in South African Administrative Law' 1980
THRHR 156 at 162) that it is far more difficult to induce an official to F change his mind after he has made it up than before. Our Courts nevertheless recognise that in a
given situation the dictates of natural justice may be satisfied by affording an affected person some sort of hearing only after the prejudicial order has been made. The
following remarks of Fagan J in Everett v Minister of the Interior1981 (2) SA 453 (C) at 458D E represent, I think, a fair statement of the position:
G 'The more usual application of the rule in quasijudicial decisions is for a hearing to take place, or representations to be received, prior to the decision being
arrived at. But that is not always the position. Where expedition is required, it might be necessary not to give the affected person the opportunity of presenting
his case prior to the decision, but only after. He thus obtains the opportunity of persuading the official to change his mind.'
H (See further the authorities cited and discussed by Goldstone J in Momoniat's case supra at 274D 275C.)
Having mentioned that the ministerial order for further detention takes effect immediately, Rabie ACJ proceeds to say in his judgment:
'It seems to me, therefore, that when the Minister makes an I order for a person's further detention in terms of reg 3(3), the order is a final one, and that there
is thereafter no obligation on the Minister to inform the detainee of the grounds on which it was made and then, after considering such representations as the
detainee may wish to make in regard to such grounds, to reconsider the order made by him.'
It is clear, of course, that if the ministerial order for further detention were in truth to be a 'final' one, there J would be no room for the application of the audi alteram partem
rule subsequent to the making of the order.
1987 (3) SA p907
HOEXTER JA
However, the order cannot be regarded as 'final' unless its A subsequent revocation or variation by the Minister at any time during the further detention is legally
impermissible. Now, although the power conferred on the Minister in terms of reg 3(3) is an awesome one, it is not an arbitrary or autocratic power. The Minister may make
an order for further detention only if he is of the opinion that such order B is necessary for the purposes stated in reg 3(1) see State President and Others v Tsenoli1986 (4)
SA 1150 (A) at 1184E F. Not surprisingly, the regulations make express provision for the very contingency that the opinion entertained by the Minister at the time when he
makes his order for further detention in terms of reg 3(3) may undergo change during the course of the detainee's further C detention. Regulation 3(6) provides that the
Minister may at any time by notice in writing signed by him order that a person detained in terms of reg 3 be released on such condition or conditions, if any, as may be
determined in the notice. Since the ministerial order in terms of reg 3(3) is final only unless and until he changes his mind, the application of the audi alteram partem rule
during detention D subsequent to the order is not excluded.
The burden clearly rests on him who seeks to displace the application of the audi alteram partem rule in a particular case to make out that the ordinary rule must of
necessity be ousted. In regard to the period of further detention following upon the Minister's order in terms of E reg 3(3), counsel for the Minister has not persuaded me
that such necessity exists.
For the reasons aforegoing I am impelled to the conclusion that after the Minister has in terms of reg 3(3) ordered the further detention of a detainee the latter is entitled
to require the Minister to furnish him in writing with the grounds for such further detention; that the Minister is in law obliged to F inform the detainee in writing of such
grounds; and that the Minister is in law obliged to give due consideration to such written representations as the detainee may make in response thereto.
I pass then to a consideration of the validity of reg 3(10)(a) and rule 5(1). Their validity is in issue in both the Bill and Omar cases. It is useful to begin by examining the
scope and G purview of reg 3(1). That subregulation reads:
'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 of a Force, detain or cause to be detained, any such person in custody or in H prison.'
(My italics.) The detention of persons authorised by reg 3(1) is designed to serve the following different purposes: (a) the maintenance of public order; or (b) the safety of
the public; or (c) the safety of I the person detained; or (d) the termination of the state of emergency. Of particular relevance in the context of these two appeals is the
following feature of reg 3(1). It is apparent at once that purposes (a) a n d (b) o n t h e o n e h a n d , a n d p u r p o s e s (c) on the other, contemplate two separate and distinct
classes or categories of detainees. In what follows I shall, for the sake of brevity, refer to the former class of detainees as 'category 1'; and to the latter as J 'category 2'.
1987 (3) SA p908
HOEXTER JA
A In times of national crisis the detention of category 1 detainees is an expedient not infrequently adopted. It is conveniently described as 'preventive justice'. A pithy
definition of the notion underlying preventive justice was given by the House of Lords seventy years ago in the case of R v Halliday 1917 AC 260 (HL). Observing in the
course of his B speech that in the laws of England it was no new thing, Lord Atkinson remarked (at 273):
'Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act
injurious to members of the community which he may do but has not yet done...'
(Reference to the above definition is made by Stratford ACJ in C Sachs v Minister of Justice ; Diamond v Minister of Justice 1934 AD 11 at 36.) On the other hand the

detention without trial of a category 2 detainee represents perhaps a more recent and novel expedient. However that may be, one thing is tolerably clear. The detention of
a category 2 detainee is very far removed from the concept of preventive justice D as expounded by Lord Atkinson in R v Halliday (supra ). Preventive justice provides for
the detention without trial of a person suspected of having a propensity to the commission of future crimes or future acts injurious to the public. A category 2 detainee is
not suspected of a propensity to any sort of wrongdoing. It is simply thought that his E detention is necessary in the interests of his own safety; that is to say, in order to
shield him from danger to life and limb. For purposes of this judgment the detention of category 2 detainees may conveniently be referred to as 'protective justice'. To sum
up: preventive justice is designed to nip in the bud latent criminal or subversive tendencies F on the part of persons suspected of being potential wrongdoers. Protective
justice is designed to protect persons whose safety may be in jeopardy. Whereas detainees in category 1 are seen as potential criminals, detainees in category 2 are seen
simply as potential victims of the violence of others.
In connection with rule 5(1) Rabie ACJ expresses the opinion that
'... it must... be taken to be implied that leave can be refused only on grounds which are related to the emergency'.
G If in the abovequoted statement the words 'grounds which are related to the emergency' are intended to signify 'grounds which are related to the purposes of the
emergency', I would respectfully assent to the proposition. Since those purposes are clearly reflected in reg 3(1) it is not difficult to imagine grounds for refusal of access
justice is designed to protect persons whose safety may be in jeopardy. Whereas detainees in category 1 are seen as potential criminals, detainees in category 2 are seen
simply as potential victims of the violence of others.
In connection with rule 5(1) Rabie ACJ expresses the opinion that
'... it must... be taken to be implied that leave can be refused only on grounds which are related to the emergency'.
G If in the abovequoted statement the words 'grounds which are related to the emergency' are intended to signify 'grounds which are related to the purposes of the
emergency', I would respectfully assent to the proposition. Since those purposes are clearly reflected in reg 3(1) it is not difficult to imagine grounds for refusal of access
to H lawyers which are related to the purposes of the emergency. For example, if a detainee is denied access to his lawyer because it is believed that such access, directly
or indirectly, might imperil the maintenance of public order or public safety, these would be grounds related to the purposes of the emergency. And if the detainee in
question were a category I detainee there might well be room for such belief. It is I noteworthy, for instance, that, in dealing with the whole problem of communication
between a detainee and persons outside the place of detention, the State President in para 16 of his affidavit says, inter alia :
'Die vraag of 'n spesifieke aangehoudene kontak met persone buite die plek van aanhouding geweier moet word aldan nie, kan slegs behoorlik beslis word met
inagneming van inligting J aangaande die aangehoudene se deelname en rol in die oproer en geweld wat gepleeg is of verwag kan word.'
1987 (3) SA p909
HOEXTER JA
But what of the category 2 detainee? One asks oneself what A possible room there could be for a belief that access to his lawyer by a person detained solely in order to
promote his own personal safety might imperil his own personal safety; or imperil public order or public safety. In my opinion no possible room for such a belief exists.
In the judgment of Rabie ACJ there are fairly lengthy B quotations for the affidavits respectively filed by the State President and the Minister of Justice. Upon a careful
reading of these two affidavits I find in them nothing at all which, in relation to a category 2 detainee, suggests the remotest justification for denying him access to his lawyer.
In my view no such justification exists. In these circumstances one must find readily applicable to the present case the C oftquoted dicta of Van den Heever JA in R v
Pretoria Timber Co (Pty) Ltd and Another1950 (3) SA 163 (A) at 181F G:
'Where Parliament has conferred vast powers of legislation upon the Executive, the Courts should not in my opinion be astute to divest themselves of their
judicial powers and duties, namely to serve as buttresses between the Executive and the subjects. D A point may arise where a regulation made pursuant to
such powers is so unreasonable that the Courts will say Parliament could, although it used the widest language, never have contemplated that such a measure
be countenanced.'
Insofar as the provisions of reg 3(10)(a) and rule 5(1) enact that access to his lawyer by a person detained solely for the purpose of securing his own personal safety is
dependent upon E the permission of others, I have no hesitation in concluding that the critical point to which Van den Heever JA made reference is reached in the present
case. I find myself quite unable to assign to Parliament the contemplation of so manifestly indefensible an encroachment on a right which our law properly regards as a
fundamental one.
By making access to a lawyer in the case of a category 2 F detainee subject to permission, reg 3(10)(a) and rule 5(1) enjoin something to be done which cannot in any
reasonable way advance or be related to the purposes mentioned in reg 3(1). To that extent they are bad in law.
The question which then arises is this. How stands the matter if it is to be supposed that in relation to category 1 G detainees, at any rate, the restrictions on access to
lawyers imposed by reg 3(10)(a) and rule 5(1) are valid? It seems to me that even on that supposition the position cannot be retrieved. Inasmuch as the provisions of reg
3(10)(a) in no way differentiate categories of detainees those H provisions must, in the present context, be seen as one and inseparable. Exactly the same is true of rule
5(1). One does not know and one cannot know whether a detainee has been detained because his detention is considered necessary for the maintenance of public order or
for reasons of public safety or, on the other hand, whether his detention has been prompted by a tender regard for his own safety. It follows that the I provisions of each of
these enactments must stand or fall together. If the provisions are bad in part, they are in law bad altogether. My conclusion is accordingly that since those provisions are
obnoxious in regard to category 2 detainees they are in law totally obnoxious and void in regard to all detainees. To the extent that reg 3(10)(a) and rule 5(1) make a
detainee's access to his lawyer dependent on the permission of another or others, each J enactment is, in my opinion, ultra vires and invalid.
1987 (3) SA p910
HOEXTER JA
A In the view which I take of the matter it is unnecessary to determine the more difficult question whether, assuming that reg 3(1) had omitted the words 'or that person
himself' reg 3(10)(a) and rule 5(1) would be legally valid; and I refrain from expressing any opinion thereon.
Omar and Others v Minister of Law and Order and Others : B Appellants' Attorneys: Mallinick, Ress, Richman & Closenberg Inc, Cape Town; Israel & Sackstein, Bloemfontein.

Respondents' Attorneys: State Attorneys, Cape Town and Bloemfontein.
Fani and Others v Minister of Law and Order and Others : Appellants' Attorneys: Cheadle, Thompson & Haysom, C Braamfontein; Webbers, Bloemfontein. Respondents' Attorneys:
Whitesides, Grahamstown; State Attorney, Bloemfontein.
State President and Others v Bill : Appellants' Attorneys: State Attorneys, Johannesburg and Bloemfontein. Respondent's Attorneys: Kathleen Satchwell, Johannesburg; Israel &
Sackstein, Bloemfontein.
* See 1986 (3) SA 568 (A) Eds.
* See Government Gazette 9877 of 21 July 1985 Eds.
* Government Gazette 10280 of 12 June 1986 Eds.

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be held to have been implicitly excluded if that implication is A 'necessary' or 'the clear intention of Parliament'. See Sachs v Minister of Justice 1934 AD 11 at 38; R v

at 278I. For the reasons given by Friedman J in the Court a quo A (at 327I 328H), this consideration is unsound. Once this reasoning is shown to be untenable, the basis for

A Chaskalson SC (with him G J Marcus ) for the appellants in Fani and Others v Minister of Law and Order and Others : T h e B Court is not precluded from granting the relief

partem rule'. A similar approach was adopted in Momoniat v A Minister of Law and Order (supra at 275D). In both cases, the Courts were motivated by the apparently large

vires prakties die enigste toetsingsreg wat oorgebly het A behalwe die gewone toetsingsreg ten opsigte van handelinge wat mala fide verrig is. Indien bevind word dat die

Die beslissing dat die derde appellant redes moet gee vir die verdere aanhouding aan die aangehoudene: Hierdie beslissing C spruit voort uit 'n obiter dictum i n d i e

With regard to the appellants' argument that reg 3(3) was H invalid for excluding the need to observe the audi alteram partem r u l e , I f i n d m y s e l f , i n v i e w o f t h e

(The view that practical considerations may justify the D exclusion of the audi alteram partem rule when the Minister has to make a decision as to a person's further

Leveson J was of the opinion that the decisions of this Court in Turner v Jockey Club of South Africa1974 (3) SA 633 (A) a n d Minister of Law and Order and Others v Hurley and

(Reference to the above definition is made by Stratford ACJ in C Sachs v Minister of Justice ; Diamond v Minister of Justice 1934 AD 11 at 36.) On the other hand the

Omar and Others v Minister of Law and Order and Others : B Appellants' Attorneys: Mallinick, Ress, Richman & Closenberg Inc, Cape Town; Israel & Sackstein, Bloemfontein.

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Omar Case

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Omar Case

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Copyright

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Omar Case

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be held to have been implicitly excluded if that implication is A 'necessary' or 'the clear intention of Parliament'. See Sachs v Minister of Justice 1934 AD 11 at 38; R v

at 278I. For the reasons given by Friedman J in the Court a quo A (at 327I ­ 328H), this consideration is unsound. Once this reasoning is shown to be untenable, the basis for

A Chaskalson SC (with him G J Marcus ) for the appellants in Fani and Others v Minister of Law and Order and Others : T h e B Court is not precluded from granting the relief

partem rule'. A similar approach was adopted in Momoniat v A Minister of Law and Order (supra at 275D). In both cases, the Courts were motivated by the apparently large

vires prakties die enigste toetsingsreg wat oorgebly het A behalwe die gewone toetsingsreg ten opsigte van handelinge wat mala fide verrig is. Indien bevind word dat die

Die beslissing dat die derde appellant redes moet gee vir die verdere aanhouding aan die aangehoudene: Hierdie beslissing C spruit voort uit 'n obiter dictum i n d i e

With regard to the appellants' argument that reg 3(3) was H invalid for excluding the need to observe the audi alteram partem r u l e , I f i n d m y s e l f , i n v i e w o f t h e

(The view that practical considerations may justify the D exclusion of the audi alteram partem rule when the Minister has to make a decision as to a person's further

Leveson J was of the opinion that the decisions of this Court in Turner v Jockey Club of South Africa1974 (3) SA 633 (A) a n d Minister of Law and Order and Others v Hurley and

(Reference to the above definition is made by Stratford ACJ in C Sachs v Minister of Justice ; Diamond v Minister of Justice 1934 AD 11 at 36.) On the other hand the

Omar and Others v Minister of Law and Order and Others : B Appellants' Attorneys: Mallinick, Ress, Richman & Closenberg Inc, Cape Town; Israel & Sackstein, Bloemfontein.

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at 278I. For the reasons given by Friedman J in the Court a quo A (at 327I 328H), this consideration is unsound. Once this reasoning is shown to be untenable, the basis for