Section 213: Separation of powers – Bail – principles—The applicant was arrested

213. Separation of powers – Bail – principles—The applicant was arrested after he was suspected of being in possession of heroin. He was denied bail CON – 223 [Issue 1] The Constitution on the basis of section 46 (2) of the Dangerous Drugs Act 1986 and sought a declaration that section 46 (2) of the Act violated sections 3 and 5 of the Constitution. The respondents submitted, inter alia, that section 5 of the Constitution did not give the suspect the right to be at large and that the Court should not question the wisdom of the Legislature. It was also in issue whether an application seeking redress for a violation of Chapter II of the Constitution should be made by the complainant or could be made by other persons on behalf of the complainant. HELD section 5 of the Constitution indicates that the suspect remaining at large is the rule; his detention on the ground of suspicion is the exception, and he must be tried within a reasonable time or released. It is for the Court to determine what is a reasonable time. It is not in accordance with the letter and spirit of the Constitution to legislate to allow the Executive to overstep the Judiciary’s role in ensuring the citizen the protection afforded by the law. Within the framework of the Constitution, Parliament’s right to pass laws remains unfettered and a law which passes the test of constitutionality could not be questioned. The Court’s power to control the Executive in accordance with its constitutional role also remains unfettered. Section 46 (2) of the Dangerous Drugs Act 1986 is void. Noordally v Attorney-General (1986).