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1987
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[1987] ZASCA 135
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Apleni v Minister of Law and Order and Others (436/86) [1987] ZASCA 135 (26 November 1987)
Case no 436/86
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
WELLINGTON APLENI
Appellant
(Applicant in the Court a quo
- and -
MINISTER OF LAW AND ORDER
First
Respondent
DIVISIONAL COMMISSIONER OF
S A POLICE EASTERN PROVINCE
Second Respondent
DISTRICT COMMANDER OF
S A POLICE PORT ELIZABETH
Third Respondent
STATION COMMANDER OF
S A POLICE BETHELSDORP POLICE STATION
Fourth Respondent
SERGEANT FAKU of S A POLICE
..... Fifth Respondent
Case no 437/86
2. Case No 437/86
In the matter between :
TANGO LAMANI
Appellant
(Applicant in the Court a
guo
)
- and -
MINISTER OF LAW AND ORDER
First Respondent
DIVISIONAL COMMISSIONER OF
S A POLICE EASTERN PROVINCE
Second Respondent
DISTRICT COMMANDER OF
S A POLICE PORT ELIZABETH
Third Respondent
STATION COMMANDER OF
S A POLICE ALGOA POLICE STATTON
Fourth Respondent
LIEUTENANT NIEUWOUDT of S A POLICE
Fifth
Respondent
SERGEANT JAM of S A POLICE
Sixth Respondent
Coram:
RABIE ACJ et VILJOEN, HEFER, GROSSKOPF et VIVIER JJA.
Heard:
3 November 1987.
Delivered
: 26 November 1987.
JUDGMENT
/ ...
3.
JUDGMENT
VIVIER JA
:-
In
separate applications, arising from similar circumstances, the two appellants
applied before MULLINS J in the South Eastern Cape
Local Division for
substantially similar relief. Both had been detained pursuant to the provisions
of reg 3 of the emergency regulations
promulgated by Proc R 109 in Government
Gazette 10280 of 12 June 1986 in terms of sec 3(1)(a) of the Public Safety Act 3
of 1953.
Both alleged that they had been assaulted and subjected to unlawful
interrogation, pressure and duress during their detention by
members of the
South
African / .......
4. African Police, resulting in their admission to
Livingstone Hospital where they were still receiving treatment at the time the
applications were lodged 45 days later on 1 September 1986. Both appellants
expressed a fear of similar unlawful conduct after their
discharge from
hospital. A rule nisi was sought in each case, operating as a temporary
interdict, restraining members of the South
African Police from assaulting or
subjecting the appellants to unlawful interrogation, pressure or duress during
their detention.
Certain additional relief was sought in order to provide the
appellants with evidence to support their allegations, relating to the
production
of / ...
5.
of hospital records and medical examinations by
the
District Surgeon. Both applications were opposed by the respondents who
filed opposing affidavits in which all the allegations of
assaults and other
unlawful conduct were specifically denied. The appellants in turn filed replying
affidavits.
At the hearing of the applications, in view of the disputes of fact which had
arisen, each appellant applied for an order that the
matter be referred for oral
evidence and that,pending the
hearing and adjudication thereon,an interim inter= dict be granted
restraining the police from assaulting or otherwise unlawfully
treating him. In
the
alternative each appellant sought an order post=
poning the matter for the hearing of oral evidence
to / ...
6. to a date after his release from detention and granting him an interim
interdict.
Both applications were dismissed with costs by MULLINS J, who
granted leave to the appellants to appeal to this Court. The learned
Judge in
effect found that, despite the disputes of fact on the affi= davits, each
appellant had satisfied all the requisites for
an interim interdict and that,
were it not for the provisions of reg 3(10) of the said regulations, he would
have made an order in
each application referring the matter for oral evidence in
terms of Rule of Court 6(5)(g) and granting an interim interdict pending
the
final determination of the matter.
Regulation / ...
7 . Regulation 3(10) provides as follows :-
"3 (10) No person,
other than the Minister or a person acting by virtue of his office in the
service of the State —
(a) shall have access to any person
detained in terms of the
pro=
visions of this regulation,
except with the consent of
and subject to such conditions as may be determined by the Minister or a
person authorized thereto by him; or
(b) shall be entitled to any official
information relating to
such
person, or to any other infor=
mation of whatever nature
obtained
from or in respect of such person."
The learned Judge held,following the decisions in
Schermbrucker v Klindt N
O
1965(4) SA 606 (A) at 619 D-H,625H-626C and
Ngxale v Minister of
Justice of the Ciskei and Others
, 1981(2) SA 554
(ECD) / ...
8.
(ECD) at 559 E, that reg 3(10) precluded the
appellants from giving
viva voce
evidence in court while they were in detention. This meant, the
learned Judge held, that the applications could not be referred for
oral
evidence for as long as the appellants remained in detention. The learned Judge
further held that he could not grant the alternative
orders sought and refer the
applications for oral evidence to be given only after the appellants' release
from detention as this
would amount to granting final interdicts in motion
proceedings where the facts were in dispute.
In my view, MULLINS J erred in
not referring both applications for oral evidence in terms of Rule
6(5)(g) / ...
9.
6(5)(g) and granting interim interdicts pending the
final
determination thereof. It is nowhere stated in
the affidavits, nor in the judgment of the Court a
guo
, nor was it
contended by counsel who appeared at the hearing before us, that the consent
required by reg 3(10) had been, or would
be refused. The mere fact that counsel
for the respondents resisted the application for referral
to oral evidence, does not mean that the Minister had refused to grant his
consent or that he would do so if the order was made. Indeed,
it seems to me
that the
Minister may well have given his consent for the appellants to give
viva
voce
evidence in Court in view of the serious nature of the allegations
against the Police and the strongly expressed disapproval of the
respondents'
replies by the Court a
guo
.
It / ...
10.
It should be borne in mind that the Minister had
given his
consent to the appellants consulting their
legal advisors for the purpose of
deposing to their
founding affidavits. If he was prepared to consent
to the appellants giving
viva voce
evidence, the question of the
applicability of reg 3(10) to the present cases would not have arisen for
decision.
Moreover, in concluding that he would have
referred the applications for oral evidence but for
the provisions of reg 3(10), MULLINS J seems to have
overlooked the distinct possibility that, in the cir=
cumstances of the present applications, it may not have
been necessary for either of the appellants to give
evidence at the hearing. As the learned Judge
correctly / ...
11.
correctly points out in his judgment, the replies of the police officers
concerned in both applications were unsatisfactory and evasive.
I share the
learned Judge's surprise at the respondents' failure in both applications to
place any medical evidence before the court.
The prohibition contained in reg
3(10)(b) is not directed against persons receiving such infor= mation, but
against anyone seeking
to obtain that information. While the appellants could
not, therefore, insist upon its production, the respondents were not precluded
from placing the medical evidence, which was obviously available to them, before
the Court a
quo
(see
S v Moumbaris and Others
1973(3) SA 109(T)
at
H6C-117A/.......
12. 116C-117A,
S v Mzo and Others
1984(3)'SA
945(ECD) at 948F-G and
Mkhize v Minister of Law and Order and Another
1985(4) SA 147(N) at 151 I-J). Depending on the nature of such evidence, or, if
no such evidence were adduced at the hearing, any
inference adverse to the
respondents the Court may then have drawn, the need for the appellants to
testify might not have arisen
at all.
The importance of the medical evidence
appears from the following facts. The appellant
Apleni alleged that as a result of the treatment
he received at the hands of members of the South
African / ...
13.
African Police on 18 July 1986 in the course of
interrogation, he lost consciousness. Later that
day a doctor was called and he immediately arranged
for the appellant to be admitted to Livingstone
Hospital where, at the
time of lodging his application
on 1 September 1985, he was still undergoing
treat=
ment. An entry in the occurrence book of the
Bethelsdorp police
station confirms that at 5 pm on
18 July 1986 Apleni was examined by a Dr du
Plessis
after complaining that he had been assaulted by members
of the
South African Police. He was referred to
Livingstone / ...
14.
Livingstone Hospital and escorted there by constable Van der
Linde. The reply to these allegations by Lieutenant Bezuidenhout of the
Security
Police was to the effect that after Apleni had been interrogated on 18 July 1986
he was taken back to the Bethelsdorp police
station. While he was being booked
in, he suddenly fell to the ground and began screaming. This only lasted for a
few seconds and
he then stood up again. The police thought that he was suffering
from epilepsy or something of that nature and for this reason immediately
arranged for a doctor to examine him.
Bezuidenhout/...
15.
Bezuidenhout denied that Apleni was assaulted in any
way
or that anything was done to him which could have
caused him to be admitted to hospital. No satisfactory
explanation was given by respondents as to why Apleni
was admitted to hospital and kept there for such a
long time. Apart from the medical evidence, the one
man who could say what Apleni's condition was when
he was taken to hospital, constable Van der Linde,
remained silent. No reason was advanced by
respondents as to why an affidavit had not been
obtained from Van der
Linde.
The appellant Lamani alleged in his appli=
cation
that both his hands were severely injured by excessively tight handcuffs,
resulting in a loss of
sensation/...
16.
sensation in both hands and an inability to grip properly. Partly as a result
of these injuries
and partly due to a chest complaint he was admitted
to Livingstone Hospital on 17 July 1986 where he
had since received
treatment for his hands as well
as for his chest complaint. Upon his
admission
to hospital the scars on his wrists were considered
to be so
serious that they were photographed by
a doctor. Lieutenant Nieuwoudt's reply
to these
allegations was that he denied all knowledge of
any / ...
17. any injuries to Lamani's wrists or of any photo= graphs
taken of the wrists and he added that if Lamani's wrists had been injured
such
injuries were self inflicted. As in the case of Apleni, the Court a
guo
was left totally in the dark by the respondents as to why it had been
necessary
to keep Lamani in hospital for such a long time.
In these circumstances it seems to me
that MULLINS J
prematurely held that reg 3(10) precluded a detainee from giving
viva
voce
evidence in Court. In my view he should have granted the main orders
sought, namely, to
refer / ...
18. refer the matters for oral evidence to be heard as soon as possible and
to grant the interim interdicts sought, pending the final
determination of the
applications.
I should add that I cannot agree with the reasoning of MULLINS
J, following similar reasoning of CLOETE JP in
Ngxale's
case, supra, at
561F-H, that he could not refer the applications for oral evidence to be heard
after the appellants' release from
detention and grant the interim interdicts
sought, as this would amount to granting final interdicts on motion where the
facts are
in dispute. The interim interdicts sought would have been operative
for the
duration / ...
19.
duration of the appellants' detention. In this sense
it would have had final effect in that nothing which
may subseguently have been decided could detract from the efficacy which the
orders enjoyed while they were in
force (see the judgment of GROSSKOPF JA in
Airoadexpress
(Pty) Ltd v Chairman, Local Road Tranportation Board,
Durban,
and Others
1986(2) SA 663(A) at 677 C-D).
However, on the facts of the present applications, the grant of interim
interdicts did not involve a final
determination of the rights of the parties and did not affect such
determination (Joubert,
LAWSA
Vol II, para 321),
The grant of interim interdicts did not amount to any finding on the facts,
which would only have been made, together with appropriate
orders as to costs,
upon the
final / ...
20.
final determination of the issues between the parties.
Although final in effect, the interdicts sought were thus certainly not final
in
substance. The fact that the determination of the issues would only have taken
place after the risk of injury had passed, was
obviously no bar to the grant of
the orders. (See
Fourie v Uys
1957(2) SA 125(C) at 127D-128G;
Van
Niekerk v Van Rensburg
1959(2) SA 185(T) at 187H-188B and
Gosschalk v
Rossouw
1966(2) SA 476(C) at 488 B-D, 494 B-F.) In my view, therefore, the
Court a
guo
should at least have granted the alternative orders
sought.
In the result both appeals succeed with costs,
including the costs of two counsel.
The / ...
21. The following order is substituted in each case for
order in the Court a
guo
:
1.
The matter is referred for
the hearing of oral evidence on a date to be fixed by the Registrar of the South
Eastern Cape Local Division
as a matter of urgency for the purposes of
determining whether or not the interdict sought in terms of prayer 2(a) of the
Notice
of Motion should be granted.
2.
The
evidence shall be that of any witnesses whom the parties or any of them may
elect to call, subject however, to what is provided
in paragraph 3
hereunder.
3.
Save in the case of those
witnesses whose affidavits have already been filed of record in the application,
no party shall be entitled
to call any witnesses
unless:
(a) He has served on the other parties at
least 10 days before the date appointed for the hearing,a statement setting out
the evidence
to / ...
22.
to be given in chief by such person; or
(b) The Court, at the hearing, permits such person to be called despite the
fact that no such statement has been so served in respect
of his evidence.
4.
The fact that a party has
served a statement in terms of paragraph 3 hereof, or has sub= poenaed a
witness, shall not oblige such
party to call the witness
concerned.
5.
Pending the final determination
of the matter, the South African Police are interdicted and restrained for the
duration of the detention
in custody of the applicant, from either directly or
indirectly, through their own actions, or those of anyone under their command
or
control:
(i) Assaulting; (ii) Interrogating in any
manner other than that prescribed or permitted by law;
(iii)/...
23.
(iii) Employing any undue or unlawful pressure on; (iv) Subjecting any form
of unlawful duress on the applicant.
6. The costs of the application are reserved for decision by the Court
hearing the evidence.
W. VIVIER JA.
RABIE ACJ)
VILJOEN JA) Concur. HEFER JA) GROSSKOPF JA)