late state security case

Question 1

Hurley issue

Answer 1

Section 29(1) if the Internal Security Act permitted any police officer of or above the rank of lieutenant-colonel to arrest and detain without trial any individual who he had reason to believe had committed or was about to commit crimes of terrorism or that he had information about the commission of such crimes.

Question 2

Hurley Ouster clause

Answer 2

Furthermore, s29(6) of the Act stipulated “no 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.”

Question 3

hurley Judgment

Answer 3

Rabie CJ determined that the reasonableness of the arrest was objectively justiciable in a court of law and went on to hold that officer Coetzee, on whom the onus of proof of reasonableness rested, had not proven that the grounds of arrest were reasonable. Hence the arrest was not in accordance with the requirements of the s29(1) and subsequently the jurisdiction and power of the court to release the detainee was not ousted by s29(6).

Question 4

Hurley interesting points

Answer 4

Section 29(1) “rudely mocked the rule of law” by placing incredibly wide powers upon the police to make arrests. Although their arrest had to be reasonable, they still had considerable powers to detain individuals that they believed were a threat. Furthermore, s29(6) infringed the separation of powers doctrine. The case is a very good example of how some judges and lawyers took a gap in legislation and protected the rights of the individual.