Civil rights lawyers believe their cause has been dealt a major – possibly irreversible – blow by a recent judgement handed down by the Appeal Court in Bloemfontein. The judgement was written by the Chief Justice, PJ Rabie, with three other Appeal Court judges in agreement.
A fifth judge, GG Hoexter, gave a dissenting judgement, disagreeing with his colleagues on several key issues. So tough are the implications of the decision that a security law expert commented: “The message to civil rights lawyers working on the Emergency is basically to pack up their bags.” He said the decision gave the State President the right to make any regulation or order he wanted, virtually unfettered by the courts.
The judgement concerned three appeals involving Emergency detainees, all of which were argued on March 3 and judgement was handed down at the end of June. In each case, the majority judgement went against the rights of detainees, and at the same time dealt a blow to two other judgements from the lower courts on which human rights lawyers had relied heavily. The better known of these two was the Metal and Allied Workers application, heard by a full bench of the Natal Supreme Court in Durban.
In this case, amongst other things, the three Natal judges declared invalid the restrictions governing access to detainees by lawyers. Under the regulations controlling conditions of detention, lawyers had to get special permission for a visit from the Minister of Law and Order or someone designated by him.
The Natal judges in the Mawu case said the State President had no power to make such a regulation. They referred to the established principle that access to a legal adviser was a common law right. They said while parliament could make laws in which such visits were prohibited, “subordinate legislation”, such as Emergency regulations, could not contain such an infringement “There is nothing whatsoever in the enabling act which attenuates the right to even a whole host of visits by legal advisers to a detainee,” declared Judge Didcott, who delivered the ruling. The Mawu judgement enabled lawyers to see their detained clients under the normal conditions operating when lawyers visit any client in prison.
However, this key ruling has now been nullified by the Appeal Court in the judgement on the case of Abdullah Omar and several other Emergency detainees arrested in October 1985. During November, the Minister ordered that they would be held for “as long as the regulations remained in force”. Their case challenging this order concerned several important issues, including the right of detainees to be heard before an order for their further detention could be made (the audi alteram partem rule). The detainees also complained about the rule stating that a lawyer had to obtain permission from the minister or his appointee before being allowed to visit a detained client.
On the question of a hearing, the appeal judges said parliament had indeed contemplated that the need to ensure the safety of the public might necessitate the taking of extraordinary measures which might make drastic inroads into the rights and privileges normally enjoyed by individuals”. They agreed that the provision allowing the minister to order indefinite detention was “drastic”: but added “When proper regard is had to the fact that the regulation was made as an emergency measure … 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.”
It was a correct statement of law that the principal allowing a person to be heard and put their point of view “embodies a fundamental right”, but the judges said they could not accept the argument that the State President was not empowered w make a regulation which removed that fundamental right”, but the judges said they could not accept the argument that the State President was not empowered w make a regulation which removed that fundamental right. “It is an emergency measure that was intended to apply in an emergency situation.”
On the question of legal access, they were equally adamant that the State President had the power to issue orders as he chose to contain an “emergency situation” and that the court could not intervene on the issue. “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 (agree that the provisions) are so unreasonable that they cannot be held to have been authorised by the Act”.
In their dismissal of the appeal they took a legal swipe at the crucial Mawu judgement, saying ii was, in their view, incorrect. Ruling on the appeal by Mary Bill, wife of the then detained Presbyterian minister, Francois Bill, they again took the attitude that the State President has virtually, unfettered powers.
The Acting Chief Justice said he “appreciates” that his view of the regulation under consideration did away completely with the audi alteram partem rule (that a person has the right to be heard), “and that this is not a view which one should lightly entertain.
I think however that this is what (the regulation) entails. “There is no doubt that if this is the effect of the (regulation) 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 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 the regulation is ultra vires.”
Twilight of the liberal view
In his dissenting judgement, Judge Hoexter disagrees with the other judges on several issues and speaks strongly on at least one. Commenting on the possibility that a person detained solely for the purpose of securing his own personal safety (as the Emergency regulation permits) will be dependent on the permission of others for access to a lawyer, Hoexter says, “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.”
Natal University’s Professor Tony Mathews said all the painstaking gains made through a number of enlightened judgements were “swept away” by the latest ruling. “It seems that after this judgement the room for improvement under the Emergency is reduced almost to nothing. “What is so depressing is that the State of Emergency is a programme of lawless official behaviour and the attempt of the law courts to make officials more accountable to law are simply dashed by this judgement.
“The courts should be furthering the law wherever possible and making people accountable to it instead of virtually putting them beyond the law.” He said there had recently been a number of “very courageous, well’ reasoned and enlightened judgements”, and that in the face of these, the latest rulings seemed to be a case of “the old guard striking back”.
This article originally appeared in the Weekly Mail newspaper