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UNIVERSITY OF KWAZULU-NATAL SCHOOL OF LAW Towards establishing the ‘security laws’ interpretation regime’ which will facilitate the interpretation of state security laws in a manner that upholds and protects the rule of law and human rights: A South African perspective Khulekani Khumalo 209512054 This thesis is submitted in pursuance of the requirements for the degree of Doctor of Philosophy Supervisor: Professor Shannon Hoctor 2020 DECLARATION REGARDING ORIGINALITY I, Khulekani Khumalo, declare that: A. The research reported in this dissertation, except where otherwise indicated, is my original research. B. This dissertation has not been submitted for any degree or examination at any other university. C. This dissertation does not contain other persons’ data, pictures, graphs or other information, unless specifically acknowledged as being sourced from other persons. D. This dissertation does not contain other persons’ writing, unless specifically acknowledged as being sourced from other researchers. Where other written sources have been quoted, then: E. their words have been re-written, but the general information attributed to them has been referenced; F. where their exact words have been used, their writing has been placed inside quotation marks, and referenced. G. Where I have reproduced a publication of which I am an author, co-author or editor, I have indicated in detail which part of the publication was written by myself alone and have fully referenced such publications. H. This dissertation does not contain text, graphics or tables copied and pasted from the Internet, unless specifically acknowledged, and the sources being detailed in the dissertation/thesis and in the References sections. Signed: Date: 19/10/2020 ii ACKNOWLEDGEMENTS I wish to thank my supervisor, Professor Shannon Hoctor, for his patience, advice and all the assistance he provided to me throughout my research. To my family, friends and colleagues, your words of wisdom, encouragement and moral support is much appreciated. Special gratitude also goes to my wife for being patient with me while I was busy with research. I also wish to also express my most sincere gratitude to the law library staff for their assistance and diligence in securing the material which I needed. I am certainly indebted to each one of you. A special thanks also goes to the University of KwaZulu-Natal for affording me the opportunity to complete my PhD thesis with the institution, and for providing full funding. Studying at the university has immensely improved my research, writing and analytical skills. I am confident that the skills I have acquired will bode well for my academic career. iii ABSTRACT One issue that has confronted democratic states for many years is the often broad and vague nature of security laws, and the consequent need for striking a balance between security laws and the rule of law as well as human rights. A number of democratic states currently rely on legal interpretation as a method for striking the requisite balance. However, it is unfortunate that the courts do not have a consistent record when it comes to interpreting security laws consistently with the rule of law and human rights. To try and solve this conundrum, this thesis studies and analyses the South African security and emergency laws, and thereafter concludes that certain techniques which have evolved over time, can be used to secure the interpretation of security laws in a manner that is cognisant and respectful of the rule of law and human rights. Taken together, these techniques constitute what in this thesis is termed the ‘security laws’ interpretation regime’. Thus, the present thesis proposes the formal establishment of the said interpretation regime. Once established, the interpretation regime will become a precedent for how judges in democratic states can achieve a transformative, liberal, purposive and substantive interpretation of security laws that is cognisant and respectful of the rule of law and human rights. The envisaged interpretation regime will also set South Africa on the right path to being a precedent of good practice when it comes to the interpretation of security laws consistently with the rule of law and human rights. iv TABLE OF CONTENTS DECLARATION............................................................................................................ii ACKNOWLEDGEMENTS………….............................................................................iii ABSTRACT………………………………………………………………………………….iv CHAPTER 1 – INTRODUCTION 1.1 INTRODUCTORY REMARKS …...........................................................1 1.2 PURPOSE OF THE STUDY……………………………………………...20 1.3 STRUCTURE OF THE THESIS………………………………………….23 1.4 METHODOLOGY AND RESEARCH QUESTIONS……………………26 CHAPTER 2 – THE CENTRALITY OF THE RULE OF LAW AND HUMAN RIGHTS IN THE SOUTH AFRICAN LEGAL SYSTEM 2.1 GENERAL…………..............................................................................28 2.2 THE HISTORY OF THE RULE OF LAW AND HUMAN RIGHTS IN SOUTH AFRICA..................................................................................29 2.3 THE PRINCIPLE OF LEGALITY..........................................................40 CHAPTER 3 – THE ORIGINS OF SECURITY AND EMERGENCY LAWS 3.1 GENERAL…………..............................................................................46 3.2 ROMAN LAW.......................................................................................47 3.3 ROMAN-DUTCH LAW.........................................................................50 3.4 ENGLISH LAW……………………………………………………………..52 v 3.5 SUBSEQUENT DEVELOPMENTS………………………………………55 CHAPTER 4 – EARLY DEVELOPMENT OF SOUTH AFRICAN SECURITY AND EMERGENCY LAWS 4.1 GENERAL............................................................................................77 4.2 EARLY SOUTH AFRICAN SECURITY LAWS.....................................78 4.3 EARLY SOUTH AFRICAN EMERGENCY LAWS................................86 4.4 DRACONIAN SECURITY AND EMERGENCY LEGISLATION………92 4.5 PREVENTION OF LEGAL CHALLENGES TO, OR BASED ON, THE APARTHEID SECURITY AND EMERGENCY LEGISLATION……………………………………………………............100 CHAPTER 5 – THE DELINEATION OF SOUTH AFRICA’S POST-APARTHEID EMERGENCY JURISPRUDENCE 5.1 GENERAL…………..………...............................................................109 5.2 DELINEATION OF THE EMERGENCY JURISPRUDENCE……………………………………………………….109 CHAPTER 6 – THE DELINEATION OF SOUTH AFRICA’S POST-APARTHEID SECURITY JURISPRUDENCE 6.1 GENERAL…………..………...............................................................127 6.2 DELINEATION OF THE STATE SECURITY JURISPRUDENCE……………………………………………………….127 vi CHAPTER 7 – THE PROPOSED SECURITY LAWS’ INTERPRETATION REGIME 7.1 GENERAL…………..………...............................................................163 7.2 TECHNIQUE 1: ENSURING THE PROPER AND FULL ENJOYMENT OF THE RIGHT OF ACCESS TO THE COURTS IN RESPECT OF SECURITY MATTERS ………...........................................................164 7.3 TECHNIQUE 2: THE USE OF RESTRICTIVE INTERPRETATION, SEVERANCE, READING-DOWN AND READING-IN.………………176 7.4 FURTHER JUSTIFICATIONS FOR THE INTERPRETATION REGIME.…………………………………………………………………..178 CHAPTER 8 – OVERVIEW AND CONCLUSION…...............................................193 BIBLIOGRAPHY.....................................................................................................196 vii CHAPTER 1 INTRODUCTION 1.1 INTRODUCTORY REMARKS There are three premises from which this thesis proceeds. The first is that the state of emergency jurisprudence emerging on the international stage places at the forefront, among others, the ordinary state security laws (this being a concept denoting those laws (whether common-law or statutory) which deal with threats against the security of the state, and which are permanent within a particular legal system and do not amount to emergency provisions) as the ideal measure for democratic states to invoke during an emergency. However, even though this is the case, state security laws still typically comprise provisions which are overly broad and vague and therefore stand in violation of the rule of law and human rights. The second premise is that there are certain developments taking place mainly within the South African political landscape, which developments are indicative of the need to be vigilant and to take whatever steps necessary to guard against the use of security laws in a manner that compromises the rule of law and human rights. At the same time, however, there are also developments that indicate the need to have security laws readily in place to deal with legitimate security threats (which, in turn, also threaten the rule of law and human rights). From a legal perspective, both the first and second premise call for the striking of a balance between security laws, on the one hand, and the rule of law as well as human rights, on the other. Consequently, the third and last premise is that the courts’ power of legal interpretation, as informed by the separation of powers doctrine,1 seems to be 1 The Constitutions of South Africa have historically been modelled on the British Westminster system, which is mainly characterised by a sovereign legislature to which the judiciary, the Executive and other organs of state are subordinate. However, elements of the American constitutional model also infiltrated the South African law. Chief amongst these was the separation of powers doctrine, in terms of which the division of state power is such that the Legislature is empowered to make the law,
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