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[2011] ZAECELLC 3
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Nel v Clur (Nel) and Another (EL744/2011, ECD1177/2011) [2011] ZAECELLC 3 (4 May 2011)
JUDGMENT
1
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE No.: EL744/2011
& ECD1177/2011
DATE: 4 MAY 2011
In the matter between:
LEON NEL
…....................................................................................................
Applicant
and
CHANTEL CLUR (born NEL)
…..........................................................
First
Respondent
GREGORY CLUR
….......................................................................
Second
Respondent
EX TEMPORE JUDGMENT
Y EBRAHIM J:
This is the return day of a
rule
nisi
which the applicant obtained on an urgent basis on 30 March
2011. The Rule reads as follows:
“
IT IS
ORDERED:
THAT a Rule Nisi do hereby issue
calling upon the respondents and/or any other interested party to
show cause on 3
rd
May 2011 at 09h30 why an order in the
following terms should not be made final:
1.1 That Warrant Officer MICHAEL
POTGIETER and/or any other member of the South African Police Service
be and is hereby authorized
and directed to arrest and detain the
First Respondent and thereafter to take all reasonable and necessary
steps to deliver the First
Respondent to the Niewefontein
Treatment Centre, De Aar (hereinafter referred to as “The
Treatment Centre”) for treatment
forthwith;
1.2 That the First Respondent remain
at the Treatment Centre and undergo treatment for a minimum period of
8 months;
That the Second Respondent be and is
hereby interdicted and restrained from contacting the First
Respondent whilst she is receiving
treatment at the Treatment
Centre.
THAT this matter is referred to the
Public Prosecutor for an enquiry in terms of the Prevention and
Treatment of Drug Dependency
Act 20 of 1992, which enquiry is to be
conducted as soon as practicable.
THAT pending the finalisation of this
application or the proceedings in terms of the Prevention and
Treatment of Drug Dependency
Act 20 of 1992, whichever occurs first,
paragraphs 1.1, 1.2 and 1.3 hereof shall operate as an
interim interdict/mandamus.
THAT warrant officer Michael
Potgieter be and is hereby authorized and directed to serve a copy
of this Order on the respondents
forthwith.”
Preceding the
rule nisi
the
applicant had the previous day, 29 March 2011, obtained an
interdict against the 1
st
and the 2
nd
respondents in the following terms:
“
IT IS
ORDERED:
THAT the First Respondent be and is
hereby interdicted and restrained from departing the Republic of
South Africa pending the
finalization of the application in the East
London Circuit Local Division under case no. EL744/11, ECD1177/11.
THAT a member of the South African
Police Service be and is hereby authorized to serve a copy of this
Order and the application
referred to in paragraph 1 above on the
First and Second Respondent.
THAT upon service referred to in
paragraph 2 above the First Respondent is to surrender her passport
to the member of the South
African Police Service.”
The applicant now seeks to have the
rule confirmed. The 1
st
and 2
nd
respondents
oppose confirmation of the rule and contend it should be discharged.
In view of the need for this Court to
render its decision urgently I do not have the luxury of time within
which to prepare a written
judgment which hopefully may have been far
more comprehensive than this
ex tempore
judgment.
The
rule nisi
raises crucial
issues concerning a person’s right to freedom and security,
freedom of association, freedom of movement, the
right to dignity and
the right to privacy. Each of these rights is entrenched in the Bill
of Rights in the Constitution, Act 108
of 1996. It appears, in view
of what has transpired in this matter, necessary to emphasise in
which terms these rights have been
entrenched in the Bill of Rights.
“
Section 12:
Freedom and Security of the Person:
Everyone has the right to freedom and
security of the person which includes the right –
not to be deprived of freedom
arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence
from either public or private sources;
not to be tortured in any way; and
not to be treated or punished in a
cruel, inhumane or degrading way.”
(I will not at this stage worry about
subparagraph (2)).
Section 18:
“
Freedom of
Association:
Everyone has the right to freedom of
association.”
Section 21:
“
Freedom of
movement and residence:
Everyone has the right to freedom of
movement.
Everyone has the right to leave the
Republic.
Every citizen has the right to enter,
to remain in and to reside anywhere in the Republic.
Every citizen has the right to a
passport.”
Section 10:
“
Human
Dignity:
Everyone has inherent dignity and the
right to have their dignity respected and protected.”
Section 14:
“
Privacy:
Everyone has the right to privacy
which includes the right not to have –
their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications
infringed.”
It may be appropriate, since it has
been raised during argument, that section 36 of the Constitution
governs circumstances in which
rights in the Bill of Rights may be
subject to limitation. In this regard section 36 reads as follows:
“
S 36.
Limitation of Rights:
1. The rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom
taking into account
all relevant factors including -
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the relations between the
limitation and its purpose; and
(e) less restrictive means to achieve
the purpose.
2. Accept as provided in subsection
(1) or in any other provision of the Constitution no law may limit
any right entrenched in the
Bill of Rights.”
It needs to be emphasised at the
outset that the 1
st
respondent is an adult woman, 21 years
old, and is married to the 2
nd
respondent. As an adult the
1
st
respondent is vested in law with full capacity to make
decisions on her own behalf, which include the right to determine her
own
future and more specifically whether or not a particular course
of action affecting her well-being is acceptable or not to her.
Her
rights in this regard cannot be curtailed by another person, nor may
anyone else determine how she may exercise her rights.
I exclude, for
present purposes, those instances where a Court has empowered someone
else to make such decisions on her behalf
consequent upon a proper
application to exercise such rights and provided appropriate medical
evidence regarding her mental well-being
has been presented and the
requisite legal basis therefor has been laid.
Some attempt has been made by Mr
Clark, who appears for the applicant, to suggest that the 1
st
respondent is incapable of independent decision making but there is
no acceptable medical evidence to justify such a conclusion.
In my
view, the mental capacity of the 1
st
respondent is beyond
question and the attempt by the applicant to suggest otherwise lacks
any proper foundation either medically
or legally. I am not called
upon to determine her mental capacity in this matter but on all the
available evidence I am satisfied
that the 1
st
respondent
appears to be capable of making decisions on her own behalf. What is
very evident is that her decisions do not meet
with the approval of
the applicant.
The gist of the applicant’s
case, as it emerges from the papers, which runs into over 500 pages,
is that his daughter, the
1
st
respondent, is a drug addict
and in urgent need of treatment for her addiction or else she will
suffer irreparable harm. In this
regard he says that he fears she may
resort to sexual acts in order to obtain drugs and could
contract HIV/Aids that could
lead to her ultimate death. It is very
obvious from what the applicant has stated that he blames the 2
nd
respondent for the 1
st
respondent’s ill considered
decision to partake of drugs and the unfortunate consequences that
flow from this, namely
drug abuse and, more unfortunately, ultimately
drug addiction. It is necessary that I stress that the pertinent
issue in this case
is not the protection of the right of the 1
st
respondent to partake in and abuse drugs and pursue a lifestyle with
detrimental consequences for her health. What is in issue,
as I have
said at the outset, is the freedom of the 1
st
respondent
and certain ancillary rights that the Bill of Rights enjoins must be
respected.
Mr De La Harpe, who appears for both
respondents, has, quite understandably, attacked the
rule nisi
for
its violation of the Constitutional rights of the respondents. He has
directed trenchant criticism not only at the applicant
for having
sought a
rule nisi
in such terms but also at the Court for
granting it. I accept that the respondents, driven by what they
consider is an injustice
perpetrated against them, are aggrieved that
the Court granted an order of this nature, but categorising it as one
unprecedented
even in the pre-Constitutional era is unwarranted
hyperbole.
I turn to the issue of the applicant’s
locus standi
which is interrelated with the requirement that
an applicant must establish a clear right that needs protection. It
must not be
a mere moral right – it must be a strict legal
right. See:
PRETORIUS STATE & MARKET COMPANY LIMITED AND
ANOTHER v ROODS TRUSTEES
1910 (TPD) 1080 at 1084. The fact that
the applicant is the father of the 1
st
respondent does not
per se
vest him with the right to institute proceedings on her
behalf, nor does it vest him with the right to seek relief that
personally
affects and impacts on her no matter how much he may
consider that such relief is in her best interest and is for her
benefit.
As I have said the 1
st
respondent is an adult
vested with all the legal rights that such status entails. I cannot
sufficiently stress this and it is self-evident
what such legal
capacity entails. The Court may not disregard her legal capacity and
must strive to protect her from any unjustified
intrusion of her
rights in every respect, no matter how well intentioned her father’s
actions may be.
Mr De La Harpe is correct that it
behoves this Court to protect an individual’s rights as
entrenched in the Bill of Rights.
Mr Clark was at pains to argue that
the applicant had a right to seek the order he did as he could not
stand idly by and let his
daughter pursue a path of drug addiction
and an early death. These are admiral sentiments, but do not
translate into a legal right
as that required for an interdict. When
Mr Clark was confronted by the unassailable legal mountain he had to
climb in this regard
he resorted to contending that all the applicant
was required to show was a
prima facie
right even though it
may be open to doubt.
In my view, no matter how much one may
attempt to dress up the concern of the applicant for his daughter as
a right, it remains
a concern and not a right actionable in law.
I asked Mr Clark to address me on the
issue of the
rule nisi
in effect being a final order and not a
temporary interdict. Needless to say, despite his vigorous efforts to
the contrary he was
unable to present cogent reasons to support
his contention that the interdict was of a temporary nature. In this
regard he relied
on the fact that paragraph 2 of the Order was that
this matter be referred to the Public Prosecutor for an enquiry into
the Prevention
and Treatment of Drug Dependency Act 20 of 1992 which
was to be conducted as soon as practical.
I need to observe that in the
application the applicant clearly stated that he could not rely on
the provisions of Act 20 of 1992
as to seek relief in terms of that
Act would be a lengthy process and an urgent order was needed to have
the 1
st
respondent committed to an institution. I find it
ironical and it is contrary to what the applicant has asserted that
the applicant
now seeks to rely on the provisions of Act 20 of 1992.
It seems to me a case of saddling two horses at the same time without
being
aware that they are heading in different directions.
Mr De La Harpe adopted a contrary
view. He pointed out that the order provided that the 1
st
respondent be arrested and detained and delivered to the Niewefontein
Treatment Centre at De Aar for treatment. This was put into
effect
and the 1
st
Respondent is presently at this centre against
her will. The order provided further that the 1
st
respondent remain there for a minimum period of 8 months. In addition
the 2
nd
respondent has been interdicted from contacting
the 1
st
respondent. These aspects of the order are not of
a temporary nature but permanent and paragraph 3 of the rule endorsed
this as
a mandamus.
I cannot but agree with the
submissions of Mr De La Harpe. The respondents were not called on to
show cause why these provisions
should not be put into effect, but
were subjected to the consequences thereof on service of the order
being effected on them. It
is clear therefore that these provisions
of the order were final in nature and not temporary.
Much of the criticism Mr De La Harpe
has directed at the rule and its effects and more particularly at the
manner that it has violated
the Constitutional rights of the 1
st
and 2
nd
respondents is well founded. I set out at the
outset that the interdict the applicant obtained on the 29
th
March 2011 prevented the 1
st
respondent from leaving
the Republic of South Africa. I assume this was granted after the
Judge had been presented with the
application as the order also
provided that the application is served on the respondents. In my
view, the 1
st
respondent was entitled to be heard on
the question of the right to depart from the Republic of South Africa
and on the surrender
of her passport which the order required her to
do. It seems to me that the 1
st
respondent’s right
to be heard on these issues prior to any determination thereof was
not recognised. Our Courts have repeatedly
stressed via the
audi
alteram partem
rule that an individual has a right to be heard
when there is a likelihood of a decision being taken that may
adversely affect
such person’s rights. It is regrettable that
this was not honoured.
A further issue that arises from this
order is that the application was to be served on the respondents.
The fact that the order
did not specify it should be served on them
personally does not derogate from the fact that the Rules of Court
make it sufficiently
clear that this should have been the case and
specifies how service should be affected if personal services was not
possible. The
manner in which service was effected here flouted the
provisions of Rule 4.
Mr Clark tried to paint a picture of
the respondents avoiding service of the application and could
therefore not claim that they
were unaware of the application, nor
could they complain if the rule was granted in their absence.
I can only express my dismay at these
submissions. The applicant had a duty to ensure that proper service
was effected. He was seeking
an order invasive of the rights of the
respondents and if the concern he professed for his daughter was
genuine he would have taken
whatever steps were necessary to ensure
that she was aware of what was going to happen. The applicant has
sought to use his supposed
good intentions in an attempt to obscure
the reality of what was taking place. In order to have the 1
st
respondent committed to the Niewefontein Treatment Centre he was
prepared to go to any lengths to do this. It is the duty of this
Court to protect the vulnerable from those who are able to rely on
greater resources to obtain their goals. I can do no better
than
quote the well-know adage that “the end does not justify the
means” to underscore the unjustness of the applicant’s
actions.
The respondents denied receipt of the
application, which was thrown through a window, and I must accept
this. Mr Clark sought to
cast doubt on this denial by submitting that
the 1
st
respondent was a liar and could not be
believed. I find no merit in this submission.
Mr De La Harpe has referred me to
numerous cases in his Heads of Argument in support of his submissions
that the respondents’,
and especially the 1
st
respondent’s, right to freedom of movement and freedom from
arrest, detention and incarceration were violated.
It should be apparent from what I have
said that I am in complete agreement with Mr De La Harpe that these
rights, and others I
have mentioned, were indeed violated. It would
serve us well to note the remarks of the Constitutional Court on the
issue of detention
and I refer to
DE LANGE v SMUTS NO & OTHERS
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC) at para
[26]
:
“……
the
first and most egregious form of deprivation of civil liberty which
springs to mind when considering the construction of the
expression
“detained without trial” in section 12(1)(b), is the
notorious administrative detention without trial
for purposes of
political control. This took place during the previous Constitutional
dispensation under various statutory provisions
which were
effectively insulated against meaningful judicial control. Effective
judicial control was excluded prior to the commencement
of the
detention and throughout its duration. During such detention, and
facilitated by this exclusion of judicial control, the
grossest
violations of the life and the bodily, mental and spiritual integrity
of detainees occurred. This manifestation of detention
without trial
was a virtual negation of the rule of law and had serious negative
consequences for the credibility and status of
the judiciary in this
county.”
Mr De La Harpe has made much of this
in conveying to the Court that it appeared that the Court that
granted the
rule nisi
paid absolutely no regard to this. I
have made my comments insofar as that is concerned and, save to say
that it appears that the
Judge may have been swayed by the emotional
content of what appeared in the applicant’s affidavits, I do
not consider
it necessary to comment further thereon.
Mr De La Harpe has also referred to the case of
THANDANI v THE MINISTER OF LAW AND ORDER
1991 (1) SA 702
(ECD) at 707A-B:
“……
sight
must not be lost of the fact that the liberty of the individual is
one of the fundamental rights of a man in a free society
which should
be jealously guarded at all times and there is a duty on our Courts
to preserve this right against infringement. Unlawful
arrest and
detention constitutes a serious inroad into the freedom and the
rights of an individual. In the words of Broome JP
in
MAY
v UNION GOVERNMENT
1954 (3) SA 120 (N) at 130F:
‘
Our law has
always regarded the deprivation of personal liberty as a serious
injury.’”
Then, he has also referred to
ZEALAND
v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND ANOTHER
[2008] ZACC 3
;
2008 (4) SA 458
(CC) at para
[24]
:
“
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.”
And further down at para [25]:
“
It has long
been firmly established in our common law that every interference
with physical liberty is prima facie unlawful. Thus,
once the
claimant establishes that an interference has occurred, the burden
falls upon the person causing that interference to
establish a ground
of justification.”
Mr De La Harpe has referred to a
number of cases but I think the three adequately demonstrate the high
regard and the seriousness
with which our Courts regard the
deprivation of liberty of an individual. I do not think it necessary
to stress this further save
to say that the
rule nisi
also
violated the 1
st
respondent’s freedom of
movement and her right to dignity and her right to privacy. In
respect of both the respondents
it violated their right to freedom of
association. It appears from the 1
st
respondent’s
answering affidavit that she was arrested or detained by Warrant
Officer Michael Potgieter who then instead
of immediately taking her
to the Niewefontein Treatment Centre, as stipulated in the rule,
decided to incarcerate her at a police
station overnight. She spent
the night in a prison cell with another individual who had been
arrested for some criminal offence.
The 1
st
respondent has
described how distressed she was by what had occurred. In my view, it
requires little imagination to realise that
she was subjected to
treatment which was totally uncalled for and certainly not authorised
in terms of the
rule nisi.
The applicant has tried to downplay
this but I think he cannot escape full responsibility for the fact
that she had to suffer such
indignity.
Insofar as the 1
st
respondent’s right to privacy is concerned I am
constrained to state that the social worker, Angel Nokuthokoza
Mngadi,
and the psychiatric social worker, Peter George Clarke
McLeod, appear not to have paid much regard to this. Their claims to
be
concerned about the welfare of the 1
st
respondent did
not bestow the right on them to disclose information of a personal
nature that they obtained when counselling or
interviewing her. This
information was private information and not subject to disclosure to
any other person. I would have thought
that they, more than anyone
else, given their claims of the extensive experience they had in
assisting persons who had abused drugs,
would have realised how
important it was not lose the confidence of the drug user. In my
view, they appear to have disregarded
their ethical duties in this
regard.
It should be apparent from what I have
said that the applicant has failed to show that there is any basis
for the
rule nisi
to be confirmed. For the sake of clarity, I
should also state that if the rule falls to be discharged then the
interdict obtained
on 29
th
March 2011 must also be set
aside, even though the
rule nisi
does not address this
situation.
Insofar as costs are concerned, Mr De
La Harpe seeks an order for costs on an attorney and client scale. In
his heads of argument
he addresses this and has said that the 1
st
respondent has been put to extra costs in being at Niewefontein
Treatment Centre, which is some 500 km away. I am of the view
that the circumstances of this matter require special consideration.
These are: the manner in which the order was sought –
it was
sought and obtained without proper service having been effected on
the respondents and in their absence despite the fact
that it
involved serious inroads into their rights, particularly those of the
1
st
respondent; the order also sought, and in fact
provided, for the 2
nd
respondent not communicate with the
1
st
respondent. The two of them are married, and I fail to
understand on what basis they should not be able to communicate with
each
other as husband and wife. I accept that their right of freedom
of association was violated in this regard. The drastic consequences
of the order speak for themselves. The 1
st
respondent was
incarcerated and removed to the Niewefontein Treatment Centre and is
presently still there. In terms of the order
she should remain there
for a period of 8 months. I take into account that there is no legal
basis for the applicant to have obtained
the order that he did. I am
in the circumstances persuaded that costs should be awarded on an
attorney and client scale.
In the result there is an order as
follows:
The rule granted on 30 April 2011 is
discharged.
The interdict granted on 29 April
2011 is set aside.
The applicant is to pay the costs of
the 1
st
and the 2
nd
respondent, in respect of
the application, on an attorney and client scale.
____________________
Y EBRAHIM
Heard on: 3 May 2011
Counsel for the Applicant: S Clark
Attorneys for the Applicant: Andre
Schoombee Attorneys
Counsel for the Respondents: D H De La
Harpe
Attorneys for the Respondents: Bax
Kaplan Inc
Nel
v Clur & Ano.CVJ