Related topics

Court Upholds Emergency, But Strikes Down Some Clauses

July 16, 1986

DURBAN, South Africa (AP) _ A three-judge court on Wednesday upheld the legality of the nationwide state of emergency, but declared void some clauses of the emergency decrees and ruled that detainees could see their lawyers.

The Natal province Supreme Court dismissed procedural arguments in the suit filed by the mainly black Metal and Allied Workers Union to have all the June 12 emergency regulations declared invalid.

The ruling, which both sides can appeal, means the state of emergency declared by the government remains in effect.

But the court accepted the union argument that President P.W. Botha exceeded his legal powers in preventing detainees from seeing lawyers and ordered that such access be granted.

Estimates of the number of detained activists range from 3,500 to 5,000. The government has given no figure.

Justice John Didcott, head of the court, also agreed that parts of the definitions of ″subversive statements,″ which may not be spoken or published under the decrees, were void because they were vague.

Didcott found fault with five of the six clauses, ordering that two be scrapped altogether and three be revised to eliminate unclear phrases.

It was the first court challenge of the emergency decrees and marked the first decision by a court against some of the provisions.

Opponents of the decrees expressed disappointment that the judges did not go further. Didcott stressed, however, that the courts have no authority to overturn laws, and only can interpret whether they are administered properly.

The union had challenged the emergency decrees on two technical points.

First, it argued Parliament had not been formally notified of the regulations within the required 14 days. In his two-hour oral judgment, Didcott accepted the government’s contention that Parliament had recessed before the 14 days were up, and could still be informed of the regulations when the session reconvenes Aug. 18.

The judge also rejected the union’s claim that Botha had improperly announced the emergency proclamation and accompanying regulations at the same time. Didcott found no problem with a simultaneous announcement.

But the ban on subversive statements has been the cornerstone of the government’s restrictions on anti-government statements and on news reporting of protests and violence.

The regulations also bar reporting on and filming of security force action in combating unrest.

Didcott emphasized that the regulations are aimed at restricting incitement, and do not prohibit criticism of the government.

″Opposition in the ordinary way of expressing opinions, even strongly, even vehemently opposed to the government, does not amount to incitement to oppose or resist the government,″ he said. ″It must be a matter of resisting - it must be much more than simply expressing opposition.″

Of the six clauses defining subversive statements, which the union said severely hampered its communications with members, Didcott found only one - inciting people to take part in illegal strikes, boycotts, civil disobedience or to oppose compulsory military service - precise enough that a person could understand what was permitted and what was prohibited.

Didcott ruled against the bans on statements:

- Likely to promote any object of any unlawful organization, saying, ″If it does mean ‘any object,’ then it strays way beyond the president’s powers.″

- That engender hostility between persons or groups, calling it ″unintelligible.″

- That could incite the public to oppose the administration of justice in dealing with the emergency.

- That could lead to a ″weakening of public confidence″ in the emergency or the maintenance of public order.

Didcott accepted a clause prohibiting encouragement of disinvestment or sanctions against South Africa, but struck down a phrase outlawing support for ″foreign action″ against the country.

″What is foreign? What is action? The words ‘foreign action’ must go,″ he said.

Archie Gumede, a president of the United Democratic Front coalition, said the judgment meant ″a lot of our guys will remain imprisoned.″

Mewa Ramgobin, a leader of the Natal Indian Congress, a Front affiliate, said: ″My personal view is that the judiciary should take a more activist, interventionist role before it’s too late for all South Africans. The judgment didn’t relate to the core issue, but to peripheral, almost technical issues.″

In other developments Wednesday:

-The government dropped a charge against Cape Times editor Tony Heard, who had been accused of violating the Internal Security Act by quoting Oliver Tambo, president of the banned African National Congress guerrilla group. The prosecutor in Cape Town said the case would be pursued against the owner, South African Associated Newspapers, but not against Heard personally.

-In Soweto, the black township of Johannesburg, a local reporter said about 5,000 people gathered outside the town council office to protest a deadline on rent payments. Police used tear gas to disperse the crowd, which the government said numbered 500.

About 20,000 Soweto families haven’t paid their rents in two months. They are demanding the town council resign, troops withdraw from the tounwships, rents be reduced and services improved. The council said it would start evictions Tuesday, but delayed enforcement for another week.

-The government’s Bureau for Information said that in another Soweto incident, police fired four shotgun rounds at a crowd that threw stones and gasoline bombs at the home of a town councilor, but it was not know if anyone was wounded. The bureau said police had no reports of deaths.

Update hourly