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Case No 553/87

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

ABRAHAM JOHANNES VISAGIE Appellant
and
THE STATE PRESIDENT 1st Respondent
THE MINISTER OF LAW AND ORDER 2nd Respondent
THE COMMISSIONER OF SOUTH AFRICAN POLICE 3rd Respondent

CORAM: JOUBERT, HOEXTER, HEFER, VIVIER et KUMLEBEN, JJA

HEARD: 8 May 1989

DELIVERED: 1 June 1989

JUDGMENT

HOEXTER, JA
2 HOEXTER, JA,
Upon notice of motion in the Eastern Cape Division the appellant during December 1986 sought certain orders for relief against the three respondents. The second respondent, the Minister of Law and Order, resisted the application. After answering and replying affidavits had been filed the matter was argued before EKSTEEN, J (as he then was). The application was dismissed with costs. The appellant appeals, with leave of the Court below, against the whole of its judgment.
On 12 June 1986, and by virtue of the powers vested in him by the Public Safety Act, No 3 of 1953, the State President made regulations ("the regulations") providing, inter alia, for the arrest, detention and release of certain persons. The appellant is a minister of religion whose congregation is in Middelburg in the Cape Province. In terms of subreg 3(1) of the regulations the appellant was arrested on 13 June 1986 and there-

after

3

after he was detained in the cells at the Schoombee police station. On 23 June 1986, and in terms of subreg 3(3), the second respondent signed a written notice addressed to the station commander of the South African Police at Schoombee ("the station commander") ordering the appellant to be further detained "vir solank gemelde Regulasies van krag is." On 4 August 1986, and in terms of subreg 3(6), the second respondent signed a written notice to the station commander ordering the appellant to be released upon certain conditions ("the conditions of release") which were set forth in para-graphs (1) to (4) of an annexure to the notice. In terms of subreg 3(7) a copy of the said notice was duly delivered to the appellant.

In the annexure to the said notice it was stated that the appellant:-

" mag nie sonder die skriftelike toestem-

ming...

4.

ming van die Minister van Wet en Orde of die Afdelingskommissaris van die Suid-Afrikaanse Polisie vir die afdeling Suid-Westelike Distrikte, gedurende die tydperk vanaf die datum van sy vry-lating, tot en met 11 Junie 1987 -

(1) afwesig wees uit die landdrosdistrik van Middelburg (Kaap) nie;
(2) op enige wyse deelneem aan die be-drywighede of sake van die volgende organisasies nie :
Middelandse Raad van Kerke United Democratic Front Middelburg Youth Congress Middelburg Residents Association

(3) (i) enige publikasie soos omskryf

in artikel 1 van die Wet op Binnelandse Veiligheid, 1982 (Wet 74 van 1982) op enige wyse hoegenaamd voorberei, saamstel, publiseer of versprei nie; (ii) op enige wyse hoegenaamd deel-neem aan of hulp verleen by die voorbereiding, samestelling, publikasie of verspreiding van enige publikasie aldus omskryf nie;

(iii) Op enige wyse hoegenaamd enige stof bydra, voorberei of saam-stel vir publikasie in enige

publikasie

5

publikasie aldus omskryf nie; (4) enige byeenkoms bywoon waar enige staats-vorm of enige beginsel of beleid van, of optrede of voorgenome optrede deur die regering van die Republiek van Suid-Afrika aangeval, of gekritiseer word nie."

In his notice of motion the appellant sought (a) an order de-
claring the conditions of release to be invalid and (b) an
order that the costs of suit (including the costs of two
counsel) be paid by the second respondent; and, in the event
of opposition by tjhe first or third respondents, that the
costs be paid jointly and severally by those respondents so
opposing.

On appeal the contention that the conditions of

release were invalid rested on a number of separate arguments.
The first argument ("the audi alteram partem argument") was

to the effect that the second respondent had failed to observe

the principles of natural justice. It was common cause that

prior
6
prior to his signature of the notice dated 4 August 1986

the second respondent had not given the appellant an oppor-
tunity of being héard in regard to the conditions of release
therein set forth. It was submitted that the second re-
spondent was legally obliged to afford the appellant
such a prior opportunity. . The second argument ("the
extraneous factors argument") was that in deciding upon the
conditions of release the second respondent had taken into
account against the appellant irrelevant and impermissible
considerations. The third argument ("the inflexible period
argument") was that the conditions of release were ultra
vires for the reason that they were made to apply not merely
for the duration of the regulations but until 11 June 1987.
The fourth argument ("the gross unreasonableness argument")
was that the first and fourth conditions of release were

so capricious, oppressive, uncertain and grossly unreasonable

that

7

that it was to be inferred that the second respondent had
not applied his mind thereto properly or in good faith.
The correctness or otherwise of each of these four argu-
ments is considered hereunder.

(1) The audi alteram partem argument:

In the course of his judgment EKSTEEN, J re-

viewed a number of decided cases dealing with the appli-
cation of the audi alteram partem principle, and then
observed:-

"From these authorities it appears that the
rule of natural justice requires that when-
ever an act will affect the property or
liberty of an individual adversely or pre-
judicially, then he must be afforded an
opportunity of submitting representations
in defence of his rights. Where, however,
the proposed act will not affect him pre-
judicially or adversely, but would benefit
or ameliorate his circumstances the same
considerations would in all fairness seem
not to apply

but

8

but in any event, even if it be held that the principle of audi alteram partem should apply, it seems to me that the applicant would always have the opportunity of making representations to the Minister after his release with a view to the amelioration of the conditions imposed. That this would in certain circumstances be an adequate compliance with the rule has been

recognised in cases such as Everett v Minister of Interior 1981 (2) SA 453 (C) and Momoniat v Minister of Law and Order and Others 1986 (2) SA 264 (W). There is no allegation in the papers before me to suggest that the applicant has been denied such a right, or that the second respondent has refused to consider any representations the applicant may wish to make, and the circumstances of the present case seem to me to favour a subsequent rather than a prior opportunity being afforded. To hold that the second respondent, after having decided to release a detainee under certain conditions, should delay his release until he placed the detainee in possession of all the information which had prompted him to impose the conditions he had decided on, and then to give the detainee a reasonable time to assemble what he may regard to be relevant information and to prepare such representations as he may be advised, seems to me to import an unwarranted extension of the deprivation of that detainee's liberty. On the other hand to release the detainee forthwith

and

9

and to consider representations on the ambit of the restrictions afterwards, would seem to me to be in the general interest of the detainee himself. I do not think therefore, that this first objection can be sustained."

It is no doubt true that the conditional release of a detai-

nee in terms of subreg 3(6) represents a lesser infraction

of his right to liberty than that involved in his further

detention under subreg 3(3). I am nevertheless unable to

agree, with respect, with the suggestion contained in the

first portion of the excerpt from the learned Judge's

judgment quoted above to the effect that, since an order

for conditional release represents an amelioration in the

condition of a person detained, such detainee may in fact

have no right at all to be heard in regard to the conditions

for his release. The subject's liberty is his supreme

right; and true liberty is liberty unimpaired. In the

instant case the conditions of release involved very serious

invasions

10
invasions of the appellant's liberty. They drastically cur-
tailed his right of freedom of movement; his rights of free
association; and his right of free self-expression.

Subreg 3(3) expressly provides that in the case of

a detainee who has been arrested and detained in terms of
subreg 3(1) the Minister may -

"....without notice to any person and without hearing any person...."

order the further detention of such detainee. Subreg 3(6) reads:-

"The Minister may at any time by a notice in writing signed by him order that a person de-tained in terms of this regulation, be released on such condition or conditions, if any, as may in his discretion be determined by the Minister in such notice."

In contrast to subreg 3(3), subreg 3(6) embodies no specific negation or renunciation of the audi alteram partem principle. Counsel for the appellant submitted that subreg 3(6), viewed in its contextual setting, indicated neither expressly nor by implication a clear intention on the part of the subordinate .

legislator

11

legislator to exclude a detainee's right to be heard in relation to the matter of the conditions governing his release. See: 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) at 893E; Attorney-General, Eastern Cape v Blom and Others 1988(4) SA 645(A) at 662G/I. In my view this submission is well-founded.
Accepting then that the maxim audi alteram partem applied in this case, one turns to the next limb of the inquiry. This is to determine, with reference to the particular circumstances encountered in this appeal, what the ambit of the appellant's right to be heard was. The Court a guo considered that, even if the maxim did apply, a hearing after the detainee's release would represent sufficient recognition thereof. Counsel for the appellant,

on

12
on the other hand, forcibly argued that an application of
the maxim usually required a prior rather than a subsequent
hearing of the person affected; and that in the instant
case the appellant should have been accorded a prior hearing.

The audi alteram partem principle is a malleable

one. As has been stressed by H Corder, "The content of the
audi alteram partem Rule in South African administrative law"

1980 THRHR 156 at 159:-

" it is well-nigh impossible to lay
down any rigid rules as regards the content of audi alteram partem, as practical circum-stances vary so much from case to case."

In practice our Courts have recognised that in certain
situations the precepts of natural justice may have to be
accommodated by giving an affected party a hearing only
after the prejudicial order has already been made. In the
case cited in the judgment of the Court below, Everett v

Minister

13

Minister of the Interior (supra), FAGAN, J points out

(at 458D/E) that such a situation may arise where time is
of the essence and prompt action is necessary -

"The more usual application of the rule in quasi-iudicial decisions is for a hearing to take place, or representations to be received, prior to the decisipn being arrived at. But that is not always the position. Where expe-dition 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 oppor-tunity of persuading the official to change his mind."

Counsel for the appellant urged upon us that in the circum-
stances of the present case there had been no real need
for expedition. I cannot assent to that proposition.
Subreg 3(6) creates a procedural device for the release from
prison of persons who have been summarily detained without

trial. There can, I consider, be few examples of a
ministerial order in which the need for expedition would

be

14

be more pressing than it is in the situation contemplated by subreg 3(6). Prompt implementation of the ministerial
order so manifestly promotes both the public good and the
welfare of the detainee concerned that the contrary argu-
ment must be rejected as unrealistic. In so saying I
do not overlook that upon the detainee's conditional re-

lease the conditions imposed become immediately effective;
and (see subreg 3(8)) that non-compliance with them
renders the detainee liable to prosecution. Making full
allowance for these substantial factors it nevertheless
appears to me that where the Minister has decided to make
an order in terms of subreg 3(6), whether for unconditional
or conditional release, the speedy setting free from prison
of the detainee is a matter of paramount importance. Any

construction of subreg 3(6) which encumbers and retards

its procedure for conditional release by requiring that

the

15
the Minister's order should be preceded by a hearing of the
detainee would, in my opinion, be alien to the purview and
spirit of its provisions. It would involve, in the words of

the Court a quo "an unwarranted extension of the depriva-
tion of that detainee's liberty."

It follows, in my judgment, that when the Minister

orders the conditional release of a detainee in terms of

subreg 3(6) the detainee cannot assert any legal right to a

prior hearing. The requirements of fairness are sufficient-

ly met by a hearing afforded the detainee after the notice in
question has been delivered to him. In my view the Minister is

at that stage legally obliged to give due consideration to such

representations as the conditionally released detainee may wish

to make in regard to the conditions of release imposed. In

the instant case the appellant preferred not to avail himself

of that right. Inasmuch as the right to a hearing was thus
circumscribed
16 circumscribed, it follows that the audi alteram partem argument was rightly rejected by the Court below.

(2) The extraneous factor argument:
This argument was based on certain averments in the answering affidavit filed by the second respondent ("the answering affidavit"), and for a proper assessment of the argument it is necessary to quote at some length from
the answering affidavit. Paragraphs 3, 4, 5 and 6 of the
answering affidavit are quoted hereunder, and for the sake
of easy reference three of the sub-paragraphs in paragraph

3 have been underlined by me:-

"3. Voordat ek die voorwaardes in die bylae tot die skriftelike kennisgewing vervat, bepaal het, het ek deeglik oorweging geskenk aan die feite wat toepaslik was en wat aan my voorgelê is. Die volgende feite is aan my voorgelê en deur my oorweeg:

3.1 Dat

17

3.1 Dat die Applikant die voorsitter
van die Middellandse Raad van
Kerke is en dat hy as voorsitter
I die dryfveer agter die Middellandse Raad van Kerke is;
3.2 Dat die Middellandse Raad van Kerke fondse, wat afkomstig was van die Suid-Afrikaanse Raad van Kerke, deur middel van die Applikant se leidinq gekanaliseer het na "alter-natiewe strukture" soos die De Aar Residents Association en die Cradock Advice Office, welke "alter-natiewe strukture" as doel het die diskreditering van bestaande ge-meenskapsorganisasies wat as re-geringsinstellings beskou word;
3.3 Dat die Middellandse Raad van Kerke verskeie aksies koordineer wat daarop gemik is om die beleid van die huidige regering te diskredi-teer;
3.4 Dat die Applikant h organiseerder van die United Democratic Front is en dat hy as sulks betrokke is by die beplanning en loodsing van United Democratic Front-aksies wat gemik is op die omverwerping van

die

18

die huidige staatsbestel in Suid-
Afrika;
3.5 Dat die Applikant gereeld toegelaat
het dat die Middelburg Residents
Association by sy huis vergader en
by sulke vergaderings leiding gegee
het;
3.6 Dat die Middelburg Residents Associa-
tion verantwoordelik is vir agitasie
betreffende kwessies soos hoë huis-
huur; die teenwoordigheid van die
Suid-Afrikaanse Polisie en die Suid-
Afrikaanse Weermag in swart woonbuurte;
en afdreiging van verbruikersboikotte;
3.7 Dat die Applikant 'n orgahiseerder van
die Middelburg Youth Congress is,
welke organisasie gereeld by die
Applikant se woning vergader het.
3.8 Dat die Middelburg Youth Congress
h organisasie is wat deur middel
van geweld, intimidasie, brandstig-
ting, verbruikersboikotte, skool-
boikotte, ens. die owerheid teen-
staan;
3.9, Dat die Middelburg Youth Congress by verskeie voorvalle van onrus en geweldpleging betrokke was;

3.10 Dat

19

3.10 Dat die Middelburg Youth Congress
vanaf die Middellandse Raad van Kerke
finansiele steun kry, welke finansiële
steun deur die Applikant belowe is en
deur hom aan die Middelburg Youth
Congress gekanaliseer is;
3.11 Dat die Applikant groot aansien en
status as predikant van die N G Sen-
dingkerk geniet en dat hy van sy
aansien misbruik maak om organisasies
en mense te beïnvloed teen die
huidige staatsbestel in Suid-Afrika.

4. In my destydse hoedanigheid as Minister van Wet en Orde is ek gereeld op hoogte gehou en in kennis gestel van al die tersaaklike inligting betreffende die onrustoestand wat in groot dele van die land geheers het voor en na af-kondiging van die noodtoestand op 12 Junie 1986. Ek was te alle tersaaklike tye bewus van die intimidasie, geweld, georganiseerde verset-aksies en ander algemeen georganiseerde optredes wat dit uitsluitlik ten doel gehad het om die staatsgesag te ondermyn en mettertyd met geweld omver te werp. Die aard en intensiteit van die onrustoestand is ook gereeld gemonitor. Ek was ook daarvan bewus dat die onrustoestand ook in die swart woongebiede van Middelburg (Kaap) en omringende dorpe posgevat het en dat daar georganiseerde intimidasie, geweld en verset-

aksies,

20

aksies, (soos wegbly-aksies), boikot-aksies,

ens.) plaasgevind het.

5. Ek het al die bogenoemde inligting in die
konteks van die tersaaklike omstandighede sorg-
vuldig oorweeg en tot die gevolgtrekking gekom
en die oordeel gevorm dat dit noodsaaklik is
vir die handhawing van die openbare orde, vir
die veiligheid van die publiek en vir die
beëindiging van die Noodtoestand om die voor-
waardes, waarna hierbo verwys word, vir die
Applikant se vrylating te bepaal.

6. By die neem van die besluit om gemelde voor-
waardes te bepaal, het ek onafhanklik opgetree,
my diskresie behoorlik en bona fide uitgeoefen
nadat ek alles deeglik oorweeg het."

In paragraph 3 of the answering affidavit the

second respondent says that before imposing the conditions
of release he considered the facts submitted to him. These
facts are catalogued in the eleven sub-paragraphs in paragraph 3.
The contention advanced on behalf of the appellant is that

the facts set forth in sub-paragraphs 3.2, 3.3, and 3.11
represent matters quite improper for the second respondent's

consideration

21

The gist of the submission made in this connection in the
Court below was summarised thus by EKSTEEN, J in his
judgment:-

"Mr Selikowitz submitted that there was nothing unlawful in anyone setting out to discredit the government or any of its institutions or even the prevailing con-stitutional system. This was after all the democratic right of any law-abiding citizen. In relying on these irrelevant considerations, he submitted, the second respondent had failed properly to apply his mind to the matter under consideration."
From the tenor of the judgment of the Court a quo

it would seem that EKSTEEN, J dealt with the extraneous

factors argument on the footing that the facts mentioned

in the aforementioned three sub-paragraphs might not have

been germane to tqe second respondent's decision to impose

conditions of release. EKSTEEN, J considered, however,

that, in the light of the further facts detailed in paragraph

3

22

3 of the answering affidavit, the matters whereof the appel-lant complained paled into insignificance; and, according-ly, that it could not be said that the second respondent's decision had been substantially affected thereby.
Mr Gauntlett contended that in so reasoning the Court below had erred by substituting its own opinion
(namely, that the' facts stated in 3.2, 3.3 and 3.11 were of trivial significance) for the opinion of the second re-spondent. I do not propose to consider this particular objection any further for the reason that in my view there is a fatal flaw to the whole extraneous factors argument. It is trite, of course, that the second respon-dent, as the person to whom the duty was delegated, could not exercise his discretion under subreg 3(6) in an arbitrary or capricious fashion. He had to apply his mind to the issue before him (whether to release the appellant, and, if

so,

23

so, whether to do so conditionally or unconditionallý)

honestly and in good faith. In the answering affidavit
the second respondent said that he had done so; and counsel
for the appellant disavowed any imputation of mala fides on
the part of the second respondent. It is to be noticed
at once, however, that subreg 3(6) prescribes no rules for
the guidance of the Minister in the exercise of his discre-
tion. His discretion is a general one. In a situation

such as this, so it seems to me -

"It is quite beyond the powers of a Court of Law to say on what evidence the Minister should be satisfied and on what he should not."

(per STRATFORD, JA in Union Government (Minister of Mines

and Industries) v Union Steel Corporation (South Africa) .

Ltd 1928 AD 220 at 237.)

As long as the Minister bona fide considers a

fact

24

fact to be relevant no Court may disturb his exercise of discretion simply because the Court itself regards that fact as being unhelpful or indeed entirely irrelevant. Whether in the result, in the instant case, the second respondent exercised the discretion entrusted to him wisely or unwisely is a matter with which the Court has no concern. It seems to me that in terms of subreg 3(6) it is for the Minister, and for him alone, to ponder and weigh those facts which appear to him in the honest exercise of his discretion, to bear upon a particular
detainee's case. A succinct statement of the legal

principle here involved is to be found, I think, in the following passage in the judgment of LORD BRAMWELL in Allcroft v Lord Bishop of London; Lighton v Lord Bishop of London 1891 Appeal Cases 666 HL(E) at 678 -

"Then it was said that there was something

he

25

he had considered which he ought not have considered, and something he had not con-sidered which he ought to have, and so he had not considered the whole circumstances and them only. It seems to me that this is equivalent to saying that his opinion can be reviewed. I am clearly of the opinion that it cannot be. If a man is to form an opinion, and his opinion is to govern, he must form it himself on such reasons and grounds as seem good to him."

In my view the extraneous factors argument cannot succeed.
There is nothing on the affidavits before us to show that
the second respondent failed to apply his mind to the
issue before him, or that he improperly exercised the dis-
cretion entrusted to him in terms of subreg 3(6).

(3) The inflexible period argument:
There is no merit in this argument, and it cannot be sustained. The regulations were promulgated in terms of sec 3(1) (a) of the Public Safety Act No 3 of 1953. Sec 3(1 )(a)

reads

26 .

reads as follows:-

"The Governor-General may in any area in which the existence of a state of emergency has been declared under section two, and for as long as the proclamation declaring the existence of such emergency remains in force, by proclama-tion in the Gazette, make such rêgulations 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 emer-gency or for dealing with any circumstances which in his opinion have arisen or are likely to arise as a result of such emergency."

In rejecting the inflexible period argument EKSTEEN, J

remarked as follows:-

"Once the state of emergency is terminated the regulations automatically fall away, and once the regulations fall away the authority of the second respondent to enforce the con-ditions imposed in terms of those regulations ceases. I cannot agree with Mr Selikowitz's submission that the restrictions imposed on the applicant may apply for a longer period than the duration of the state of emergency
as I have indicated, the conditions cannot,

as

27

as a matter of law, endure beyond the period of the state of emergency. This objection to the validity of the conditions cannot, therefore, at this stage when the state of emergency still exists, be sustained."

Suffice it to say in regard to the inflexible period
argument that I agree with both the reasoning and the
conclusion reached by the learned Judge.

(4) The "grossly unreasonable" argument:

In his founding affidavit the appellant says,

inter alia:-

"I say that in framing the first condition of my release, the Second Respondent mani-festly failed to apply his mind, or to act within his powers, and acted capriciously and grossly unreasonably and oppressively.
I submit that condition four is similarly invalid. I submit that it is in the first instance void for vagueness, in that it lacks any substantial core of certainty. Furthermore, it is grossly unréasonable,

harsh.......

28

harsh and oppressive, and the Second Re-
spondent. could never have properly applied
his mind in making the condition "

The first condition prohibits the appellant from absenting
himself from the magisterial district of Middelburg without
the written consent of the second respondent or the Divi-
sional Commissioner of the SAP for the South-Western Dis-
tricts. Although the appellant's congregation is in
Middelburg some members of his flock live beyond the magi-
sterial district. The appellant occupies various eccle-
siastical offices in the Dutch Reformed Church circuits
of Middelburg, Cradock, Steynsburg, Molteno, Aliwal North,
Adelaide and Bedford, and his clerical duties require his
presence from time to time beyond the Middelburg magisterial dis-
trict. The appellant suffers from a heart condition
known as hypertrophic cardiomyopathy and this requires him
to pay regular visits to his cardiologist who practices in

Cape

29

Cape Town.
It is not difficult to imagine that observance of the first condition of release, to an appreciable extent, dislocated the appellant's' work as a cleric; and that in other respects it caused him to suffer frustration and in-convenience. From the affidavits filed it appears, however, that the appellant on more than one occasion did in fact seek and obtain from the SAP permission to travel far beyond the confines of the Middelburg magisterial district. In the judgment of the Court a quo the whole history of the appellant's applications to the SAP for permission to travel elsewhere, and the manner in which the SAP responded thereto, is carefully explored.

The appellant's personal circumstances are fully detailed in the affidavits before us. Suffice it to say that upon an examination of the full circumstances of the

appellant's

30

appellant's case it cannot be said, in my judgment, that in determining the first condition of release the second re-spondent failed to apply his mind to the matter. Nor, in my view can it be said that in its operation the first condition is grossly unreasonable and oppressive. I think that EKSTEEN, J was right in concluding that the objection
to the first condition of release could not be sustained.

I turn to a consideration of the fourth condition -
of release. For the sake of convenience I quote again here

(but without recapitulation of the preamble) the terms of

that condition:-

"(4) ...enige byeenkoms bywoon waar enige

staatsvorm of enige beginsel of beleid van, of optrede deur die regering van die Republiek van Suid-Afrika aangeval, of gekritiseer word nie."

Stressing that any breach of the conditions of release

entailed

31

entailed penal consequences, and that the subject should not be put in peril for ambiguity, counsel for the appel-lant attacked the fourth condition as being so vague and uncertain in its terms as to be legally void. It need hardly be said, of course, that conditions of release should be stated in plain and intelligible language; and that a detainee conditionally released should not be exposed to the risk of criminal liability without knowing with cer-tainty how and to what extent his daily existence is con-strained thereby. It seems to me, however, that the fourth condition of release cannot be declared void for uncertainty unless upon an interpretation of its terms this Court is quite unable to reach any conclusion as to what was in the mind of its draftsman. Such a declaration would involve a finding that the meaning of the prohibitions therein contained cannot be determined at all. In my view the prohibitions listed in

the

32

the fourth condition, although they are extremely broad in their compass, do not defy construction; and they have an ascertainable meaning. Accordingly the complaint based upon their vagueness and uncertainty is not well-founded. This last conclusion does not, however, end the inquiry. Although the Minister's discretion under reg 3(6) is a general one, this does not mean that he enjoys án uninhibited freedom of choice to impose whatever conditions of release may take his fancy. The power conferred upon the Minister is not an unlimited one. It is a limited power conferred only for the statutory purposes stated in sec 3(1) of Act 3 of 1953. The conditions of release imposed by the Minister must be fairly and reasonably re-ferable to those statutory purposes. The conditions must relate either to the safety of the public, or to the main-tenance of public order, or to the ending of the state

of

33

of emergency. It is with these fundamental considerations in mind that the propriety or otherwise of the prohibitions set forth in the fourth condition of release must be scrutinised.

The Court below considered that the restrictions

in the fourth condition seemed to be directed to the main-
tenance of public order and to the termination of the
emergency; and that they could not be said to be ultra
vires. For the reasons which follow I am, with respect,
unable to share that view. In my judgment the scope
of the prohibitions in the fourth condition is so mani-

festly extravagant that the condition is legally

impeachable in its entirety.

The first limb of the prohibition forbids atten-

dance at any gathering at which "enige staatsvorm" is sub-

jected to attack or criticism. Prima facie, so it seems

to

34

to me, "staatsvorm" does not refer to the "staatsvorm" of the Republic of South Africa. Had that been the inten- tion of the draftsman the word "staatsvorm" would hardly have been preceded by the word "enige", since the Republic of South Africa has now, and had on 4 August 1986, but one "staatsvorm". Upon a literal construction of the fourth condition the words "enige staatsvorm" would seem to sig-nify the abstract notion of any constitutional system of any state at any time, whether past, present or future. Due observance of the terms of the fourth condition would therefore have prevented the appellant's attendance at a purely academic constitutional law lecture devoted to a critical analysis of such a topic as, for example, the forms of government in ancient Greece, or in mediaeval Italy, or in modern Switzerland; and this would have been the consequence despite the fact that in the course of

the

35

the lecture there was made not the slightest reference, however oblique, to the constitutional system in South Africa or the government.
It is apparent at once, I consider, that a prohibition having such an effect represents a glaring absurdity. It is at once entirely repugnant to ordinary common sense and wholly unrelated to any of the statutory purposes envisaged by sec 3(1) of Act 3 of 1953.
The second leg of the prohibition is in my opinion . likewise objectionable. It prohibits attendance at any gathering at which any principle or policy or action of the government of the Republic of South Africa is subjected to attack or criticism. A moment's reflection will show, I think, that few if any topics of commonplace and daily discussion do not directly or indirectly touch

upon

36

upon either the principles or the policies or the actions of the government. To reguire a clergyman with a congre-gation to observe a condition such as this is to consign him to an existence of intolerable and near-monastic seclu-sion. So drastic an inhibition of the appellant's rights of freedom of association and freedom of expression cannot, I consider, be fairly and reasonably related to the aforementioned statutory purposes of sec 3(1) of Act 3 of 1953. In my view the inordinate latitude of the fourth condition of release vitiates it. An examination of its sweeping and indiscriminate terms sustains the clear inference that in framing it the second respondent overlooked the tenor and policy of the statute which gave him his discretion under subreg 3(6). In formulating the fourth condition the second respondent was no doubt honestly acting in what he conceived to be the interests

of

37

of public security; but the fact remains that instead of exercising his discretion for a proper purpose he abused it by an insupportable abridgement of the appellant's rights. In framing the condition of release in excessively wide terms the second respondent travelled beyond the precincts of his legitimate powers. See: Broadway Mansions Ltd v Pretoria City Council 1955(1) SA 517(A) per VAN DEN HEEVER, JA at 522B. Such an exercise of discretion is in breach of the law and impeachable in our Courts. It follows that the fourth condition of release was bad in law and void. To this limited extent the appeal must succeed.
In the Court below the appellant attacked the yalidity of all four conditions of release. The appel-lant's complaint has been sustained in regard to the fourth

condition only. It remains to consider, in the light

of

38

of the appellant's limited success on appeal, what order of costs would be fair and appropriate.
In the Court below either side was represented by two counsel. On appeal Mr Gauntlett alone appeared for the appellant. Although the appellant's success on appeal is a relatively modest one, his case concerns a matter of importance, the liberty of the subject; and it raises issues of some difficulty. In all the circumstances it seems to me that justice will be met by awarding the appellant the costs of the appeal but only one half of the costs of the application in the Court below.

In the result the following orders are made:-

(1) The appeal succeeds. Thé costs of the appeal

will be paid by the second respondent. The

appellant will pay the costs of the application

for condonation.

(2) The

39

(2) The orders made by the Court a quo are set aside and the following orders are substituted

therefor:-

"(a) The application succeeds to the limited extent that the fourth condition of release imposed by the second respondent on the applicant is declared void.

(b) Save that the applicant will bear the wasted costs on Friday 5 December 1986 the second respondent is ordered to pay one-half of the costs of the application, including the costs consequent upon the employment of two counsel."

G G HOEXTER, JA

JOUBERT, JA )

KUMLEBEN, JA )

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