Term 3 Content

What are the *facts* of Incorporated Society v Wookey?

This was based on a decision that was appealed from the Cape Provincial Division, in an effort to get Ms Wookey's ariticle's registered to allow her to become an attorney as a woman.

What are the 3 fundamental concepts identified by Dicey in the rule of law?

1. Absolute supremacy of the law

2. Equality before the law

3. The law should be informed by people, built from a bottom up

What 3 kinds of law are identified in the rule by law?

Law as culture - top-down approach (legal culture is informed by those who practice and enforce the law)

Law as people

Law by governance

What are the 3 separations of power in South Africa?

* Legislative (Parliament)

* The Executive (Policy making)

* Judiciary (Courts)

What is the *legal issue* in Incorporated v Wookey?

Whether a woman is disqualified from being enrolled as an attorney, based on their exclusion in the term 'persons'.

What legislation is relied upon in Incorporated v Wookey?

* Schlesin v Incorporated Law Society

* Roman law principles - Voet and the Digest (all women were excluded from public office)

* Charter of Justice - they believed that use of the word persons, where it is highlighted, must have been intended to refer to 'male persons'.

What is the majority argument in Incorporated v Wookey?

In favour of the appeal being allowed, based on the fact that historically women have never been in the position of an attorney, they relied most on Roman Law to make this argument (Innes & Solomon)

They also relied on the argument that the court doesn't have the power to change legislation.

The term person should not be understood in terms of it ordinary/wider meaning.

What did the court decide in Incoporated v Wookey?

The court decided that the appeal was allowed, meaning that the decision of the Cape Provincial Division was overruled.

What was the judgement in Schlesin v The Law Society 1909 TS and how was it similar or different to the judgment in Wookey?

In Schlesin it was decided that women were not entitled to be admitted as attorneys, this was found in their decision that women were not included under the term "person".

Similarly in Wookey, it was held that the term 'persons' only applied to male persons.

What was the judgment in the court a quo (the Cape Provincial Division)?

They decided in favour of Miss Wookey, in stating that the applicant was entitled to enter into articles of clerkship as an attorney's clerk, and, upon attaining the required qualifications, to be enrolled as an attorney

How did the court a quo (The Cape provincial division) come to their conclusion?

The position of an attorney was not a public office and thus did not fall under the common law prohibition against women filling public offices.

The court was required to give effect to the wide language of the Charter of Justice, paritcularly in their use of the word 'persons'.

Why Did the AD Differ from the Judges in the Cape Provincial Division? (Wookey)

The AD argued that the role of a procureur (what is now known as an attorney) in Dutch law was considered to be a part of a public character.

In what manner did the social realities in 1912 affect the decision of the Court? (Wookey)

The court was forced to weigh modern societal progress against binding legislation authorities (precedent).

Despite the changing modern realities, concerning women - women being doctors, and serving on governing boards are given as examples.

What effect did the court's decision have on society in 1912? (Wookey)

* The prevention of widening 'women's economic activities' - which maintained the status quo.

What are the facts of R v Detody?

* South African statutes cannot be repealed, unless it is by Parliament - therefore, the assumption that a statute is abrogated by disuse is false.

* Miss Detody was found walking in the streets of Pretoria, past curfew (between 9pm and 4am) without a pass.

What is the legal issue in R v Detody?

Whether or not the section of the Transvaal Ordinance applied to women as well as men, in their use of the word 'native'

What legisalation is relied upon in R v Detody?

* Section 3 of the Transvaal Ordinance 43 of 1902

- this is where the pass law stemmed from

* Law 22 of 1985

- this is where the definition of native came from, which is found in S 2 of the Ordinance.

Section 135 of the South Africa Act*

- This is the law that states that all law remains in force (not practice) until it is repealed or amended by Parliament.

* Proclamation 37 of 1901

- The first pass law that expressly excluded women

What is the majority argument in R v Detody?

Innes, Solomon and de Villiers all argued in favour of Miss Detody (appellant) in stating that the Ordinance was not applicable to women:

* Language/Words are capable of having more than one construction, also, mention that had it been the intention of the law for women to be included, legislation would have expressly stated that.

- Historically, the term native was applied relative to men.

* Questions the intention/purpose of pass laws that were created.

- It is required for legislation to have explicit intentions to impose restrictions on women.

What is the minority judgment in R v Detody?

The plain meaning of words must be interpreted.

* The meaning of any native was required to receive its ordinary meaning.

What was the court's decision in R v Detody?

The appeal was allowed.

What was the wording of the pass law?

The wording can be found in s 3 of Transvaal Ordinance 43 of 1902.

"Any native found in any street, ... between the hours of 9 p.m. and 4 a.m., without a written pass* or certificate from his employer or some person duly authorised by the Town Council... shall be liable to a specified penalty"

How is the term 'native' defined?

"every person belonging to any of the *aboriginal races or tribes of Africa South of the Equator*, and every person, one of whose parents belongs to any such race or tribe as aforesaid"

What role did Roman and Roman-Dutch law play in the adjudication process? ( R v Detody)

The Roman-Dutch law principle that laws could be abrogatd by disuse, was no longer in effect in the current South African context.

The principle of interpretation was used in the majority argument.

What were the relevant provisions in the South Africa Act 1909? (R v Detody)

Section 135 of the South Africa Act (1909)2932.

* "all laws in force in the several colonies at the establishment of the Union, shall continue in force in the respective Provinces until repealed or amended by Parliament"

What are the similarities and differences in the decisions made in Detody and Wookey?

They are similar in the fact that they question 'ambiguous' wording, and their use of restrictive interpretation.

They differ in their decision to reject, and accept the appeal and how that affected their livelihoods.

What are the facts of R v Padsha?

The Minister of Posts was instructed to create a provision for the State's benefit.

The minister issued a notice excluding all 'Asiatic' persons from the Union on 'economic' grounds.

The court was tasked with assessing if the Minister's decision was ultra vires or not

What is the legal issue in R v Padsha?

Whether the notice falls within the powers given to the Minister through s 4(1)(a) of the Act?

Was the minister's decision ultra vires?

What legislation is relied upon in R v Padsha?

s 4(1)(a) of the Immigrants Regulation Act 22 of 1913.

- Minister editing

Shidack v Union

- Ministers discretion

Moller v Keimos

- Asiatics as coloured.

Transvaal Act 3 of 1907.

- Used as a justification of the Minister's use of the term Asiatic.

What is the majority judgement in R v Padsha?

It was stated that the minister's decision was not ultra vires.

They argued that the court could not interfere with the Minister's discretion (in deciding who was unfit to live in the Union) - seeing that it was bona fide (in good faith) and reasonable.

They stated that the minister's classification based on 'race' was permissible due to there being "no limit to the manner in which persons may be classified" - provided they share a common attribute.

The term 'economic grounds' should be interpreted in its wider sense.

The term 'Asiatics' is understood as having a secondary meaning of 'coloureds' in a South African context.

What is the minority judgment in R v Padsha?

Since the economic attributes of Asiatics (from labourers to Rajahs) vary infinitely, race alone cannot be the sole common attribute for an economic classification.

The meaning of 'economic grounds' must be understood in a narrower sense.

The court, exclusive to the Province may have the duty to determine if the Minister acted ultra vires.

The term 'Asiatics' is very clear, in that it includes all inhabitants of Asia.

What was the court's decision in R v Padsha?

The appeal was dismissed.

The Minister's decision was not ultra vires.

Why was this a criminal case? (R v Padsha)

Conviction for aiding and abetting

Why did the Minister enact this regulation? (R v Padsha)

For the benefit of the Union.

How did the politics of 1923 influence the Minister and the Appellate Division?

The Minister was aware of the legislative history in the former Republics (Transvaal and Orange Free State) which had previously excluded Asiatics by name.

The AD's decision was influenced by concept of exectuive discretion, which gave significant weight to the Minister's decision. (Parliamentary sovereignty)

How was the Immigration Act interpreted in this case and what effect would this have on future cases?

They viewed it as granting the Minister the power of delegation.

The term Asiatics was interpreted in a South African sense, and 'economic grounds' was viewed widely which all justified the minister's decision.

What are the facts of Minister of Posts v Rasool?

The Post Master general issued a notice stating that from December, s 3(2) and 4 of Act 10 of 1911 would allow the action Indians being served at the Non-Europeans counter, even though previously they had been served with among white people.

What is the legal issue in Minister v Rasool?

Whether the Minsiter was valid in his decision to which enforced and enabled racial segregation for public services?

What legislation was relied on in Minister v Rasool?

Act 10 of 1911

s 3(2) and 4.

Krusse v Johnson

What was the majority judgment in Minister v Rasool?

The majority decided that the Minister's instruction was valid on the basis that his use of separation, on racial grounds, was reasonable (and effective)

His separation, based merely on classification, is not inherently unreasonable.

They also stated that the minister was within the confines of the powers given to him, under his instruction from the act.

What was the minority judgment in Minister v Rasool?

This treatment, regardless of equal facilities, was an impairment of the dignitas (status) of the person affected - sepration based on race, which ultimately was inherently 'unequal' and 'bad'.

What did the court decide in Minister v Rasool

The appeal (made by the minister) was allowed.

Was this law-making authority limited, why or why not?

Yes, the Postmaster-General's authority to issue instructions under Section 3 of Act 10 of 1911 was limited, primarily by the implied legal requirement of reasonableness.

Which legal principle did the court derive from Kruse v Johnson 1898?

The rule of reasonableness:

* Used to judge the validity of the bye-laws - a bye-law or instruction may be invalidated if found to be unreasonable

• "Partial and unequal in their operation as between different classes" was considered an unreasonable groudn.

Which Rule of Law element was undermined by the court's decision?

* The rule that all are equal before the law (equality)

By holding that discrimination based purely on race (European vs. Non-European) was not unreasonable per se when services were admitted to be equal, the court effectively validated legal segregation based on race.

What are the facts of R v Abdurahman?

The appellant was charged with inciting other persons to commit an offence.

What is the legal issue in R v Abdurahman?

Whether the Administration's application of Regulation 20 resulted in partial or unequal treatment to a substantial degree as between Europeans and non-Europeans

What legislation is relied on in R v Abdurahman?

s 36(b) of Act 22 of 1916

- provides that a person may be subject to criminal sanction for entering reserved parts of the railway.

s 4(6):

empowers the Administration to make regulations for "the reservation of railway premises (including conveniences), or of any railway coach"

What was the majority judgment in R v Abdurahman?

The appeal was allowed, the regulation enabling the reservation resulted in partial or unequal treatment, therefore the reservation was void, which makes Abdurahman's inciting of the incident invalid.

What did the regulations provide in this case?

Regulation 20:

* The power to reserve a train or portion of it

What is the significance of the wording of the statue, particularly the legislature's use of 'or'?

The use of 'or was intended' to exectued to both classes, avoids preventing the service from one class.

How did Centlivres interpret this regulation?

The separation caused partial and unequal treatment.

The action was ultra vires, the regulation (separation of parts of the train) was not.

Did the court agree with or differ from the court in Rasool?

Agreed with the legal principles, but differed in their application, rule of reasonableness. In Raool, there was no inequality of treatment caused by the seperation, but in Abdurhahman there was.

What are the facts of Loza v Police?

The re-arrest of Elijah Loza was the reason for litigation, because it was immediate. He was rearrested on the suspicion of commiting or intention to commite another offence. The case was initially decided in the Cape Provincial Division.

What is the legal issue in Loza v Police?

Whether the legislation prohibited the immediate re-arrest and continuous detention of an individual for a second 90-day period for the same reason as the previous one?

What legislation is relied on in Loza v Police?

S 17(1) of the General Law Amendment Act, 37 of 1963

* granted the power to a commissioned officer to arrest and detain without warrant persons suspected of certain security offences

What was the majority judgment in Loza v Police?

They decided that the section of the Act aurthorised re-arrest, and then detention. The Leutnant's confirmation that he received new information was enough reason for re-arrest.

What did the court decide in Loza v Police?

It was decided that the appeal be dismissed.

What was the primary purpose of the 90-day detainment period?

It allowed people to be subject to interrogation, following their detention, until a perso has in the opinion of the Commissioner of the South African Police replied satisfactorily to all questions.

Why would it be unreasonable to immediately rearrest an individual?

It defeats the protection for 90 days, for being rearrested.

What were some of the questionable terms used by the legislator?

• "from time to time" (regarding the power to arrest)

"on any particular occasion" (regarding the 90-day limit)

Why did the legislator make use of this language?

The vague language, was formed with the intention of being widely interpreted, ultimately achieving the State's objective.

Is Parliament's intention clear?

Parliament's intention in the act is clear.

What are the facts of Roussouw v SACHS?

Sachs who was a practicing advocate was arrested and detained on the suspicion that he had committed, intending, or having intended to commit an offense under the Suppression of Communism Act (44 of 1950). Sachs seeks the right to exercise daily, educational reading material and writing materials, which was granted in the court a quo, the second in command files this decision for appeal in the AD.

What is the legal issue in Roussouw v SACHS?

Whether people in detention, under s 17 of Act 37 of 1963 are entitled to rights?

What legislation is relied upon in Rossouw v SACHS?

s 17 of Act 37 of 1963

This section permits a commissioned officer to arrest and detain any person whom he suspects of having committed or intending to commit any offense under the following legislation, or who possesses information related to such an offense.

- No person, including a legal adviser, shall have access to the detainee except with the consent of the Minister of Justice or a commissioned officer

s 21 of Act 37 of 1962

The offense of sabotage (in not wanting to devulge information)

What is the majority (unanimous based on single judgment) judgment in Rossouw v SACHS?

People who are detained under s 17 aren't given the right outlined by Sachs, therefore granting them in his case would inconsistent with the Act.

The rights given were typically to prisoners awaiting trial, and not detainees.

What did the court decide in Rossouw v SACHS?

The appeal was allowed, with costs.

Were Sachs' demands reasonable?

Since the detainee was already receiving one hour of exercise daily, the Appellate Division found that the lower court erred in making any order in relation to exercise.

Would you agree that the procedure was "novel" and "drastic"?

Section 17 required a person suspected of a crime to incriminate himself under interrogation, unlike general principles of criminal law.

Did the judge agree with or differ from Loza?

The judge in Rossouw v Sachs aligned with and applied the same interpretative approach

Was the judge's ratio decidendi sound/logical/fair?

Consistency in logic and law.

Which alternative interpretative approach could the judge have taken here?

This alternative approach would have required the Court to prioritize the elementary rights and liberty of the individual.

Since the Legislature did not explicitly state that reading matter and writing materials were prohibited, the failure to state the deprivation in plain terms should be construed as revealing the contrary intention

What are the facts of Schermbrucker ?

An urgent application was brought by the appellant seeking an interdict against the S.A. Police for their alleged unlawful method of interrogating her husband, who was being detained under the provisions of Section 17 of Act 37 of 1963, and being subjected to torture and violent interogation.

What is the legal issue in Schermbrucker?

Whether the Court possessed the power, in terms of Rule 9(a) of the Transvaal Rules of Court, to order a person detained for interrogation under section 17 of Act 37 of 1963 to appear personally before it for the purpose of giving viva voce evidence

What legislation is relied upon in Schermbrucker?

S 17 of Act 37 of 1963

Rule 9(a) of the Transvaal Rules of Court: This rule empowered the Court in motion proceedings to "order any person to appear personally to be examined and cross-examined

What was the majority judgment in Schermbrucker?

the detention order pursuant to Rule 9(a) was contrary to the express terms and objectives of the Act, and therefore invalid

What was the minority judgment in Schermbrucker?

The minority judges argued that the court retained jurisdiction to investigate the lawfulness of the detention and the method of interrogation, and that Section 17(2) should not render that jurisdiction "sterile"

What did the court decide in Schermbrucker?

The Appellate Division dismissed the appeal with costs

Would you agree with the minority or majority and why (Schermbrucker)?

Minority.

What are the facts of Minister of Law and Order v Hurley?

Kearney had been arrested (by colonel Coetzee) under the suspicion that he was withholding information about an offence, made under the provisions of s 29(1) of the Internal Security Act 74 of 1982.

Coetzee stated that the facts forming the basis of his suspicion were "uiters vertroulik" (extremely confidential) and could not be disclosed.

What is the legal issue in Hurley?

Whether the officer's decision to arrest under Section 29(1) was objectively justiciable.

What legislation is relied on in Hurley?

Section 29(1) and (6).

his grants a commissioned officer of or above the rank of lieutenant-colonel the power to arrest and detain without warrant if "he has reason to believe" that a person has committed an offence under Section 54(1), (2) or (4), or is "withholding" related information.

[n]o court of law shall have jurisdiction to pronounce upon the validity of any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section"

What is the majority judgment in Hurley?

Subjective test 'if he has reason to believe' must be based on reasonabe grounds.

The onus rests on the appellants (the State/Police) to prove that the arresting officer had reasonable grounds for his alleged belief

What did the court decide in Hurley?

The appeal was dismissed with costs.

What were the similarities between the provisions in the Internal Security Act 74 of 1982 and the acts which it repealed?

The empowerment of commissioned officers to arrest individuals without a warrant, 'reason to believe' was deemed enough.

Did the AD agree or differ from Judge Leon?

Agreed.

How did the AD guard its jurisdiction?

By ruling that the officer's belief must be based on reasonable grounds (an objective criterion), the Court retained the power to inquire into the existence of those reasonable grounds.

Does the Hurley case uphold the rule of law?

By confirming the objective test for police belief, narrowing the effect of the ouster clause, and placing the burden of justification on the state, the Court asserted judicial oversight over executive detention powers, thereby upholding fundamental principles of the rule of law against serious statutory encroachment.