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[1988] ZASCA 33
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Nkwentsha v Minister of Law and Order, Republic of South Africa and Another (554/86) [1988] ZASCA 33; [1988] 2 All SA 420 (A) (30 March 1988)
Case no 554/86 /MC
LINDIWE MONICA NKWENTSHA
and
THE MINISTER OF LAW AND ORDER
,
REPUBLIC OF SOUTH AFRICA
and
THE COMMISSIONER, SOUTH AFRICAN POLICE
VIVIER JA.
Case no 554/86
/MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION
)
Between
LINDIWE MONICA NKWENTSHA
Appellant
- and -
THE
MINISTER OF LAW AND ORDER,
REPUBLIC OF SOUTH AFRICA
First
Respondent
and
THE COMMISSIONER, SOUTH AFRICAN POLICE
Second Respondent
Coram
: RABIE ACJ et VAN HEERDEN, HEFER, GROSSKOPF, VIVIER JJA.
Heard
: 23 February 1988.
Delivered
: 30 March 1988.
JUDGMENT
2.
VIVIER JA
:-
This appeal raises the question of the Court's
power to order that a person, detained under the emergency regulations,appear
personally
before it for the purpose of giving viva voce evidence. The emergency
regulations were promulgated by Proc R109 in Government Gazette
10280 of 12 June
1986 in terms of sec 3(1)(a) of the Public Safety Act 3 of 1953.
The
appellant applied in the Eastern Cape Division for an order for the release of
her husband, Thozamile Winston Nkwentsha ("the
detainee"),who had béen
arrested and detained in terms of reg 3 of the aforesaid regulations. She
alleged that the arrest
and detention were unlawful on the grounds
that / ....
3.
that the detainee had been arrested in the Ciskei
which is outside
the borders of the Republic of South
Africa,and furthermore that the arrest
was not justified
in terms of reg 3(1). The application was opposed by
the
respondents. Two entirely different versions as
to where and under what
circumstances the detainee had
been arrested, emerged from the supporting and
answering
affidavits. The version put forward
by the appellant was,
briefly, that at about half past eight on the morning of 1 July 1986 two members
of the Ciskeian Police, one
Sofoyiya and one Mncono, arrested the detainee at
his home at Zwelitsha in the Ciskei. They were accompanied at the time by two
unknown
men
who / ...
4. who were allegedly members of the South
African Police. The respondents' version was that Sofoyiya and Mncono took the
detainee
from his home at Zwelitsha to the local Police Station for questioning,
after which they told him that he was free to go. At his
request they gave him a
lift to King William's Town where he was arrested shortly after their arrival by
warrant officer Stander
of the South African Security Police, who had been
looking for him. Stander dealt at length in his affidavit with his reasons for
arresting the detainee. In reply the appellant filed an affidavit deposed to by
the detainee himself in which he confirmed that he
had been arrested at his home
at Zwelitsha on
the / ...
5. the day in question by Sofoyiya and
Mncono who were accompanied by two other men whom he believed to be members of
the South African
Police. After questioning him the four policemen took him to
the police station at King william's Town where Mncono handed him over
to
Stander. The detainee denied that his arrest was justified by reg 3(1).
In
view of the disputes of fact which had arisen, an order was made by consent at
the hearing of the application, referring the application
for
oral evidence in terms of Rule 6(5)(g) of the Uniform Rules of Court on the
following issues: where and
by whom the detainee had been arrested; whether the
member / ...
6. member of the force who arrested him
held the requisite
opinion in terms of reg 3(1) and whether or not the detention was lawful. The
order provided for the
parties to subpoena any person to give oral evidence
at the hearing, and a subpoena, substantially in
accordance with Form 16 in the First Schedule to the Rules, directing the
detainee to attend in order to testify, was duly issued
and served.
At the
resumption of the hearing the detainee was not present as the first respondent,
purporting to act in terms of reg 3(10), had
refused permission for him to come
to Court. A preliminary application by the appellant for an order in terms of
Rule 6(5)(g)
that / ...
7. that the detainee be produced in Court
so that he
could testify, was refused with costs by EKSTEEN J,
who granted leave to the appellant to appeal to this
Court.
The first question for decision is
accordingly
whether there is anything in the
provisions of reg 3(10)
which precludes a Court from granting an order that
a
detainee be brought to Court to testify on the issue
whether or not he
was lawfully arrested or is
being lawfully detained in terms of reg 3. Reg
3(10)
reads as follows :-
"(10) No person, other than the Minister or a person acting by virtue of his
office in
the /
8.
the service of the State -
(a)
shall have access to any
person detained in terms of the provisions of this regulation, except with the
consent of and subject to
such con= ditions 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 information of whatever nature obtained from
or in
respect of such person."
According to reg 1
"Minister" means the Minister of Law
and Order. The proper approach to the interpretation of
a statutory provision such as reg 3(10), i e one which interferes with the
rights of the individual but which, at the same time, is
designed for the
protection of the public in an emergency situation, was laid down by this Court
in
Rossouw v Sachs
1964(2) SA 551(A) and followed
in / ....
9.
in
Schermbrucker v Klindt NO
1965(4) SA 606(A) at
617E - 618C, 620G-H and
State President and Others
v
Tsenoli
;
Kerchhoff and Another v Minister of Law
and
Order and Others
1986(4) SA 1150 at 1175 A-I.
Dealing with
sec 17 of the General Law Amendment Act
37 of 1963, OGILVIE THOMPSON JA said
the following
in
Rossouw's
case at 563 in
fine
to 564 A :-
"I accordingly conclude that in interpreting sec 17 this Court should accord
preference neither to the 'strict construction' in favour
of the individual
indicated in
Dadoo's
case,
supra
, nor to the 'strained
construction' in favour of the Executive referred to by LORD ATKIN in
Liversidge's
case,
supra
, but that it should determine the meaning
of the section upon an exami= nation of its wording in the light of the
circumstances whereunder
it was enacted and of its general policy and
object."
(The / ...
10. (The decisions referred to are:
Dadoo Ltd and Others v Krugersdorp
Municipal Council
1920 AD 530
and
Liversidge v Anderson and Another
[1941] UKHL 1
;
(1941) 3 All ER 338
(HL)).
In determining the meaning of reg 3(10) it must be
emphasised,at the outset, that the Court's jurisdiction to order the release of
a detainee who has been unlawfully arrested or is being unlawfully detained,
remains unimpaired by the emergency regula= tions. The
ouster provision in reg
16(3) relates only to steps taken "under these regulations" and does not
preclude the Court from enquiring
into the question whether or not the arrest or
detention is unlawful.
(Cf / ...
11.
(Cf
Schermbrucker v Klindt NO
,
supra
at 613 E-F, 618 C-D, 623
F-G and
Minister of Law and order v Hurley and Another
1986(3) SA 568(A)
at 583H - 5861).
The Court a
guo
in effect held that it was precluded
by the decision in
Schermbrucker's
case from granting the order sought,
and it is therefore necessary to look more closely at the grounds for that
decision. The question
for decision there was whether the Court's power in terms
of Rule 9(a) of the Transvaal Rules of Court to order that a witness appear
personally before it to give
viva voc
e evidence in motion proceedings,
could be exercised in respect of a person who was being detained under the
provisions of sec 17
of the General
Law / ...
12. Law Amendment Act 37 of 1963. It was common cause between
the parties that the detention of the said person was lawful. The main
relief
claimed was for an interdict restraining members of the South African Police
from continuing with an alleged unlawful method
of interrogating the detainee.
The Minister had refused permission for the detainee to come to Court to give
viva voce
evidence. Sec 17(1) of that Act provided for the detention of
not more than 90 days on any particular occasion for interrogation
at a place
determined by the police, of anyone suspected of or thought to know about the
commission of certain speci= fied offences.
Sec 17(2), which was the
counterpart
of / ...
13. of reg 3(10)(a) now under consideration, provided that "no
person shall, except with the consent of the Minister of Justice or
a
commissioned officer as aforesaid, have access to any person detained", but
required a weekly. visit in private by a magistrate.
There was no provision in
sec 17 similar to that found in reg 3(10)(b). Sec 17(3) contained similar pro=
visions to those in reg
16(3) and 3(6) of the present regulations by providing
that no Court would have jurisdiction to order the release of a "person so
detained" but empowering the Minister to do so at any time. This Court decided
by a majority of three to two that the Court did not
have the power to grant
an
order /...
14. order that the detainee be brought before it to testify.
BOTHA JA, with whom STEYN CJ and TROLLIP AJA agreed, pointed out in his
judgment
(at 618 E-G) that although the Court certainly had jurisdiction to grant the
order sought, the consent of the Minister or
an officer was required in terms of
the Act to enable the detainee to be brought to Court. This finding was based on
the kind of
detention pre= scribed by sec 17 and the purpose of that section, i
e to induce the detainee to speak (at 619 8). BOTHA JA concluded
that if a
detainee were brought to Court the manner of the detention prescribed
by /...
15. by sec 17 would be interfered with and the purpose of the
section defeated (at 619 D to the foot of the page). According to BOTHA
JA it
was, therefore, not the detainee's
viva voce
evidence as such, but the
inevitable practical consequences of bringing him to Court, which would lead to
a conflict with sec 17
and be likely to defeat the purpose of that section. cf
Nxasana v Minister of justice and Another
1976(3) SA 745 (D & CLD) at
752 G-H. TROLLIP AJA, in a separate judgment with which STEYN CJ also agreed,
said that in view of
the conceded fact in.that case that the detainee had been
lawfully arrested and was being lawfully detained, the detainee was not
a free
agent,
so /...
16. so that the ordinary process of subpoenaing him, not being
directed at his custodian, was ineffective (at 624 F to the foot of
the page).
what was required in such a case was a writ of
habeas corpus ad
testificandum
. TROLLIP JA went on to say that although our Courts may have
the power -
whether it
be inherent, implied or
at common law - to issue such a writ, calling upon the detainee's custodian to
produce him in Court so that
he could tes= tify, such power had not been invoked
by the appellants (at 625 D-F). The learned Judge concluded by saying (at 626
in
fine
to 627 C) that in a case where the legality of the arrest or
detention was in issue, the arrest or detention could not be relied
upon by the
detaining authority, so that it may be that in such a
case /....
17. case the Court could ordec that the detainee be brought up to testify and
that he could not be prevented by the detaining authority
from coming to
Court.
To hold that the moment the legality of the arrest or detention is put in
issue, those facts (i e the arrest or detention) can no
longer be relied upon by
the detaining authority in contesting that issue,
would mean, it seems to me, that reg 3(10) has no
application until such time as the Court has ruled on the issue of legality
and, taken to its logical conclusion, would also mean
that the detainee must be
released until the Court has held his arrest and detention to be valid. This can
clearly not be correct.
In my view the detention
order applies and must be obeyed until the Court has
ruled otherwise.
Returning / ....
18.
Returning to
Schermbrucker's
case,
supra
,
RUMPFF JA, who wrote one of the
minority judgments,
also emphasised (at 613 E-F) that the Court's juris=
diction to determine the legality of the detention
was not affected by sec
17, and went on to say the
following (at 613 G-H) :-
"Indien aanvaar word dat die Wetgewer die bedoeling gehad het om die jurisdiksie
van die hof in stand te hou, wanneer dit gaan om
die vraag of die bepalings van
die artikel regmatiglik toegepas word, kan m i onmoontlik in dieselfde asem
aanvaar word dat sub-art
(2) so vertolk moet word dat die Wetgewer ooit die
bedoeling kon gehad het om die jurisdiksie van die hof wat hy nie wou wegneem
nie steriel te maak in 'n saak waarin dit gaan oor die wettige toepassing van
die artikel en nog wel deur 'n bepaling soos die bevat
in art
17(2)".
RUMPFF JA further said (at 615 D-F) that if
sec 17(2)
were /...
19.
were held to prevent a detainee from testifying, it
would mean that the Legislature intended that whenever
the Police contravened sec 17(1), they could none the
less arbitrarily prevent the detainee from testifying
in order for the Court to correct an injustice. In
view of the acknowledged right of every person to
testify, the learned Judge said, he could not find such
an intention in sec 17. After quoting an extract from
Wigmore on
Evidence
3rd ed, vol 8, pp 66-7, para 2192,
dealing with "society's right to our testimony",
RUMPFF JA, referring to
that right, continued as
follows (at 615 in
fine
- 616 A) :-
"Hierdie reg, hoe belangrik ook al, kan natuurlik deur die Wetgewer weggeneem of
tydelik opgeskort word. Met art. 17 is die reg,
in die algemeen gesproke,
in
bepaalde / ...
20.
bepaalde omstandighede tydelik opgeskort. Daar sal egter altyd 'n vermoede
wees dat die Wetgewer so 'n reg weggeneem of opgeskort
het alleen vir sover die
uitdruklike taal van die wetgewer dit regverdig of vir sover dit 'n noodwendige
afleiding van die bewoording
van die wetgewer is."
WILLIAMSON JA, who wrote the other minority judgment,
was the only one of
the Judges in
Schermbrucker's
case
to deal expressly with the meaning
of the words "no
person shall have access to any person
detained" in sec
17(2). He held that neither the Court,
nor any person leading his evidence or
cross-examining
him, would be having "access" to a detainee in the sense
in which the word is used in the section. The learned Judge
expressed
himself thus in this regard (at 622 B-D):-
"If /...
21.
"If a Court considered it absolutely necessary in the interests of the
administration of justice as soon as
possible to hear the detainee in evidence and that to that end he should be
produced to the Court, the Court would not be having
access to the detainee in
the sense in which that word is used in the section. Nor would any person
leading his evidence or cross-examining
him have access to him in the sense of
breaching that isolation sought to be effected by the
section."
The legislation which was considered in
Schermbrucker's
case,
supra
, differs in one important respect from
that presently under consideration. As I have pointed out, the purpose of the
detention under
the former legislation was to induce the detainee to speak
(
Rossouw v Sachs, supra,
at 561 A-B), and the
ratio / ...
22.
ratio decidendi
of the majority judgment of BOTHA JA
was that if
the detainee were brought to Court to testify,that purpose would be defeated. I
cannot infer such a purpose from the wording
of the present regula= tions and
from the circumstances under which they were enacted, nor from their genera)
policy and object.
Reg 3, which provides for the arrest and detention of
persons, was designed to combat subversive activities of various kinds which
threaten the maintenance of public order or the safety of the public or the
safety of the detainee himself. One of the methods or
means employed for the
achievement of those purposes (cf
Tsenoli's
case,
supra
, at 1182
C-E) is the complete isolation of the
detainee / ...
23.
detainee from all contact with the outside world and that, in my view,
was what reg 3(10) was intended to maintain. That subregulation
was never
intended to deal with a situation where the detainee wanted to give evidence in
court. Had it been intended to deprive
him of the right to testify, one would
have expected clear and unambiguous language to that effect. Instead the phrase
"no person
.... shall have access to any person detained" is used in reg
3(10)(a). In my view it cannot be said that when a witness is produced
in Court
and is then under the control of the presiding Judge, the latter or any person
leading his evidence or cross-examining him
would be having access to him
in /
24. in the sense in which that word is used in reg 3(10). This was readily
conceded by counsel for the respondents. (Cf the above-quoted
passage from the
judgment of
WILLIAMSON JA in
Schermbrucker
's case,
supra
at 622 B-D
and
S v Heyman and Another
1966(4) SA 598(A) at 605 in
fine
to 606 B). Nor can it be said that unlawful access
by others
will inevitably result, or that the purposes
of the regulations will be
defeated if the detainee is
brought to Court to testify. I cannot conceive
that the
security authorities would be unable to prevent any unlawful access to the
detainee or that they would not be able to ensure his continued
isolation when
he is
brought to Court to testify. Reg 3(10)(b) does not apply either. The
"information" prohibited by that
subregulation / ...
25.
subregulation does not, in my view, include a reference to evidence given in
Court by the detainee. The pro= hibition is, furthermore,
directed only against
a person seeking to obtain the "information" and is not directed against the
possessor of the information.
(See
S v Moumbaris and Others
1973(3) SA
109(T) at H6C-H7A,
S v Mzo and Others
1984(3) SA 945 (ECD) at 948 F-G and
Mkhize v Minister of Law and Order and Another
1985(4) SA 147(N) at 151
I-J).
I am accordingly of the view that a detainee is not precluded by reg
3(10) from giving
viva voce
evidence in Court. I should point out that
the question of the detainee's access to his legal advisers was not in issue in
the present
case. The appellant did not
ask / ...
26.
ask the Court a
guo
to order that the detainee be
allowed to consult with his legal advisers for the
purpose of giving
viva voce
evidence,and at the
hearing of the appeal counsel for the appellant
conceded that reg 3(10) prohibited consultations with
legal advisers save with the requisite consent.
This concession was, no
doubt, made in view of the
judgment of this Court in
Omar and others v Minister
of Law and
Order and Others
;
Fani and Others v
Minister of Law and Order
and Others
;
State President
and Others v Bill
1987(3) SA
859(A) where it was
held (at 894G-895C) that reg 3(10)(a) applies to
legal
advisers.
I must finally deal with the issue raised
by
TROLLIP / ...
27.
TROLLIP JA in
Schermbrucker's
case,
supra
(at 624 E -625 G) as
to whether or not our Courts have the power to issue a writ of
habeas
corpus
ad
testificandum
to produce a witness who is in custody to
give evidence in a civil matter. TROLLIP JA referred in this regard to the
practice in
England and America where the matter is largely regulated by statute
and to the absence of similar statutory provisions in our law.
He expressed a
doubt as to whether our Courts had the power to grant a writ of
habeas
corpus
ad
testificandum
. In England the attendance of a prisoner to
give evidence in Court is procured not only by a writ of
habeas corpus
ad
testifi= candum
but also by a warrant or order granted by a Judge.
The / ...
28
The writ of
habeas corp
us ad testificandum to produce a prisoner
to testify in a civil matter is granted by a Judge of the High Court under
common law powers,
and, for the purposes of trials in the High Court, under the
Habeas Corpus Act 1804 (Jacob,
The Supreme Court Practice,
1988, Vol 1 p
815). In
Jenks v Ditton
(1897) 76 LT 591
, STIRLING J, however, held that
a judge's order on the governor of the prison, and not a writ of
habeas
corpus ad testificandum,
was the proper method of securing the attendance in
Court of a prisoner detained under civil process. The same process (i e a
judge's
order instead of a writ) is authorised by the Criminal Procedure Act
1853 when the witness is in custody on a criminal charge
and / ...
29.
and his evidence is required in a criminal or civil matter. For this purpose
RSC Ord 54, r 9(2) expressly provides for "an application
for an order to bring
up a prisoner, otherwise than by writ of
habeas
corpus, to give evidence
in any cause or matter, civil or criminal, before any Court, tribunal or
justice, to be made on affidavit
to a judge in chambers." See generally in
regard to the practice in England: Taylor on
Evidence
, 12th ed, vol 2,
para 1272-1277 and Phipson on
Evidence,
13th ed at p 683, para 30-16. For
the practice in America see Wigmore on
Evidence
(McNaughton
rev 1961, vol 8, para 2199, p 121).
I should mention that although we have no legislative enactment similar to
the Habeas Corpus Act
of / ....
30. of the English Law, the common law remedy known as
the
interdictum
de
libero homine exhibendo
is well established
in our law. The order or
writ de libero
homine exhibendo
, which may be applied for whenever a
person has been unlawfully deprived of his freedom, is
directed at the custodian of the prisoner, and is
analogous to the writ of habeas corpus ad subjiciendum
(commonly known as
habeas corpus
) of the English law.
See D.43.29.1, 3 and 4; Voet 43.29;
Wood and Others
vOndangwa
Tribal Authority and Another
1975(2) SA 294(A)
at 310 D and
Kabinet van die Tussentydse Regering vir
Suidwes-Afrika en 'n Ander v Katofa
1987(1) SA 695(A) at
727 F.
To revert to the question of the Court's power to order the production of a
detainee in order to
testify /
31.
testify, our own Uniform Rules of Court, which are largely based on the
English Rules, contain no express
provision similar to those found in RSC ord 54, r 9 of
the English Rules. Our own Rule 6(5)(g), which is of
application in the present case, is, however, of wide
import, and empowers the Court, whenever an application
cannot properly be decided on affidavit, to "make such
order as to it
seems meet with a view to ensuring a
just and expeditious decision". The Court is further
empowered "in
particular, but without affecting the
generality of the aforegoing", to
direct that oral
evidence be heard on specified issues, and to that
end
the Court "may order any deponent to appear personally
or grant leave
for him or any other person to be
subpoenaed" / ...
32.
subpoenaed". In my view the power to grant an order to produce a prisoner in
Court to give
viva voce
evidence, is impliedly contained in this
sub-rule. It is a purely procedural matter, and in view of the aforegoing I
would hold that
such power is in any event authorised under the Court's inherent
jurisdic= tionto regulate its procedure in the interests of the
proper
administration of justice. (
Cerebos Food Corporation Ltd v Diverse Foods SA
(Pty) Ltd and Another
1984(4) SA 149(T) at 171A-173D and
Universal City
Studios Inc and Others v Network Video (Pty) Ltd
, 1986(2) SA 734(A) at 754
G-J). This was, in effect, the ocder which was sought by the appellant in the
Court a
quo
, and for the reasons which I have given that Court
erred / ...
33. erred in not granting the order (cf Van Zyl,
Judicial
Practice
, 269). It is accordingly not necessary to
deal with the alternative argument advanced by counsel
for the appellant that reg 3(10) is void for vagueness.
In the result the appeal succeeds with costs,
including the costs of two counsel. The order of
EKSTEEN J is altered to read : It is ordered that the
detainee be brought to Court on a date to be fixed by
the registrar to give
viva voce
evidence in the present
proceedings. Respondents are ordered to pay the costs
occasioned by the
application.
W. VIVIER JA.
RABIE ACJ)
VAN HEERDEN JA)
HEFER JA) Concur.
GROSSKOPF JA)