Last updated 10th July 2024: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 16 January 2009
There is a memorable line at the end of the film classic, Casablanca. It is spoken by the Prefect of Police, Captain Renaud, to his men just after Rick (Humphrey Bogart) has shot Colonel Strasser. He says: “Colonel Strasser has been shot. Round up the usual suspects.” That rule or principle of action—of rounding up the usual suspects—writ large, captures the essence of the South African security system. The system may fairly be described as an elaborate mechanism designed to empower the security authorities to round up, or otherwise dispose of or deal with, suspects of their choice. The technique of empowerment is the conferment of statutory discretion upon some official or body to limit, suspend or terminate the basic liberties of any citizen or group of citizens. This discretion is usually couched in subjective terms.
1 SA Defence and Aid Fund v. Minister of Justice 1967 (1) S.A. 31 (C.) at 34–35.
2 1934 A.D. 11. Section 1(12) of the Riotous Assemblies Act 27 of 1914 empowered the Minister, “if satisfied” that any person was promoting inter-racial hostility, to prohibit such person from “being within any area defined in such notice”. The notice served on Solly Sachs excluded him from seven magisterial districts, including that of Johannesburg.
3 Albie Sachs, while a practising advocate in Cape Town, became one of the early victims of the first of the incommunicado detention laws introduced in the early 1960s. After leaving South Africa and working actively in exile for the African National Congress and the South African Communist Party, he almost lost his life in a car-bomb attack in Maputo organised by South African agents.
4 At p. 37.
5 By the Internal Security and Intimidation Amendment Act 138 of 1991.
6 Sections 4, 5, 18. 19 and 20 of the Internal Security Act 74 of 1982.
7 See sections 6 and 12 of Act 138 of 1991.
8 Section 46(3).
9 1985 (2)S.A. 280 (D.)
10 At pp. 283–284.
11 See regulation 6 of the Security Emergency Regulations promulgated for Natal under Proc. No. R 97 of 1990 (Reg. Gaz. No. 4504 of 8 June 1990) and regulation 5 of the Unrest Regulations promulgated by Proc. No. R2063 of 1990 (Reg. Gaz. No. 4547 of 24 August 1990).
12 Regulation 2 of the Security Emergency Regulations and the Unrest Regulations referred to in note 11 above.
13 Regulations 16 and 12 respectively of the regulations referred to in note 11 above.
14 See Metal & Allied Workers Union v. Castell N.O. above, which took over the expression from Sachs v. Minister of Justice, above.
15 Above.
16 Roux, Edward, Time Longer Than Rope (Univ. of Wisconsin Press, 1964) pp. 260–264.Google Scholar
17 Op. cit. pp. 263–264. His freedom was again removed in 1950 when new banning orders were imposed and a criminal conviction for violating them was upheld by the Appeal Court. He then left South Africa: op. cit. pp. 381–382.
18 SA Defence & Aid Fund v. Minister of Justice, note 1 above, pp. 34–35.
19 Mr. Justice Corbett became Chief Justice of the South African Appellate Court in February 1989.
20 1988 (3) S.A. 19 (A.)
21 Dempsey v. Minister of Law and Order 1986 (4) S.A. 530 (C.)
22 During N.O. v. Boesak 1990 (3) S.A. 661 (A.)
23 1988 (4) S.A. 224 (A.)
24 Chief Justice of the South African Appellate Division from 1982 to 1988. His appointment after reaching retirement as Acting Chief Justice was highly controversial partly because of the pro-executive judgments on emergency law handed down by the court during his period as Acting Chief Justice.
25 Kloppenberg v. Minister of Justice 1964 (4) S.A. 31, 35 (N.) The banned person's position has been improved somewhat by the subsequent appeal court decision in Nkondo and Gumede v. Minister of Law and Order 1986 (2) S.A. 756 (A.) in which the court distinguished “reasons” from “information” and strengthened the right to claim reasons from the minister.
26 Mathews, M.L.“OK For Starters” (1986) 3 SA Journal on Human Rights 333, 336–337.Google Scholar
27 Mohamed, I.“Disciplining Administrative Power—Some South African Prospects, Impediments and Needs” (1989) 5 SA Journal on Human Rights 345, 348.Google Scholar
28 Note 22 above.
29 At pp. 671–672. Although only Milne J.A. concurred in Groskopf J.A.'s judgment, there is no indication that the other judges disagreed with his description of the grounds for review
30 1987 (1) S.A. 695 (A.) at 743.
31 SirWade, WilliamAdministrative Law, 6th ed. (Oxford 1988) p. 446.Google Scholar
32 Ibid
33 TheState (Lynch) v. Coony [1982] I.R. 337, 361.
34 Ibid
35 Th e quotations from th e judgment are take n from the review of the case of Buransa v. IDF O.C. Central Command in (1987) 17 Israel Yearbook on Human Rights 300–301. The English courts have, of course, moved away from Liversidge v. Anderson and no longer acknowledge wholly unfettered executive discretion. See, e.g., R. v. Tower Hamlets LBC, ex p. Chetnik Developments Ltd. [1988] A.C. 858 at 872–873 (Lord Bridge).
36 See the review of the Elon Moreh case (concerning the taking possession of land on the West Bank ) by Shimon Shetreet in (1988) 18 Israel Yearbook on Human Rights 35, 44.
37 1986 (3) S.A. 568 (A.) The amended section 29 no longer permits indefinite detention for interrogations: see section 13 of the Internal Security and Intimidation Amendment Act 138 of 1991. Section 29 now authorises 10-day detentions renewable for further periods of 10 days under Supreme Court order.
38 Diakonia is an ecumenical body established on the initiative of the Catholic Church in South Africa to promote peace and justice.
39 1989 (3) S.A. 679 (A.)
40 Manning v. Minister of Law and Order (unreported judgment of the DCLD , case No. 2517/87 p. 11).
41 For a trenchant criticism of this judgment see Jonathan Burchell, “Judicial Control of Arrests and Detention: Theory and Reality” (1987) 3 SA Journal on Human Rights 377.
42 Minister of Law and Order v. Azanian People's Organisation (unreported judgment of the NPD, case No. AR 502/87).
43 1986 (4) S.A. 822 (V.)
44 At p. 836.
45 1987 (2) S.A. 321 (V.)
46 At p. 329.
47 Ibid
48 Farisani, T.S.Diary from a South African Prison (Philadelphia, 1987).Google Scholar
49 1990 (3) S.A. 937 (W.)
50 Windhoek Advocate and executive member of the South West African People's Organisation.
51 Jeffrey Jowell, “The Legal Control of Administrative Discretion” [1973] Public Law 178, 179.
52 It is salutary, in this connection, to recall Lord Upjohn's remark in Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 that even the inclusion in an Act of Parliament of the adjective “unfettered” in describing discretion “can do nothing to unfetter the control which the judiciary have over the executive” (at p. 1060).
53 Note 37 above.
54 See note 24 above.
55 At p. 580.
56 See Baxter, LawrenceAdministrative Law (Cape Town, 1984), p. 317.Google Scholar
57 For example, the notorious Liversidge v. Anderson decision on the meaning of “having reason to believe” is no longer acceptable in Britain: see Inland Revenue Commissioners v. Rossminster Ltd. [1980] A.C. 952 (H.L.) The Namibian court in Katofa v. Administrator-General for South West Africa 1985 (4) S.A. 211 (S.W.A.) decided that “is satisfied” did not imply a grant of subjective discretion.
58 1989 (2) S.A. 242 (A.)
59 At p. 251.
60 [1917] A.C. 260 (H.L.)
61 At pp. 268–269.
62 [1977] A.C. 1014, 1025 (C.A.)
63 At p. 1025.
64 Ibid
65 At p. 1047.
66 1948 (3) S.A. 409 (A.)
67 At p. 442.
68 1945T.P.D. 179.
69 See also Tefu v. Minister of Justice 1953 (2) S.A. 61 (T.) in which the issue of whether persons were “office-bearers, officers, members or active supporters” of an unlawful organisation was held to be objectively justiciable.
70 [1957] A.C. 288, 310 (P.C.)
71 Where the suit in the case originated.
72 At p. 315.
73 Ibid
74 Gemayel Balthish v. Minister of Defence AAD 18/82.
75 Grant, R.G.MIS M16: Britain's Security and Secret Intelligence Services (London, 1989), p. 18.Google Scholar
76 Philip Heymann, Criminal Justice in Conflict Ridden Societies, 80th Anniversary Lecture delivered at the School of Law, University of Natal, in August 1990. (Italics supplied.)
77 Working Paper of the South African Law Commission on Group and Human Rights (Working Paper No. 25), p. 479. The recently published Bill of Rights for a New South Africa (ANC Constitutional Committee 1990) introduces the more stringent test of gross unreasonableness for judicial review of administrative actions. (See Article 2 clause 24). This has rightly been criticised as introducing “a parsimonious form of administrative review”: see Gilbert Marcus and Dennis Davis, “Judicial Review Under An ANC Government” (1991) 7 SA Journal on Human Rights 93, 96.
