About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1991
>>
[1991] ZASCA 1
|
|
Jafta v Minister of Law and Order and Others (655/89) [1991] ZASCA 1; 1991 (2) SA 286 (AD); [1991] 4 All SA 234 (AD) (30 January 1991)
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
NOLAN JAFTA
Appellant
and
THE
MINISTER OF LAW AND ORDER
First Respondent
THE COMMISSIONER OF THE SOUTH AFRICAN
POLICE
Second Respondent
THE DIVISIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE - WITWATERSRAND
.. Third Respondent
Coram
: CORBETT CJ, HOEXTER, BOTHA, VAN HEERDEN, et E M GROSSKOPF
JJA.
Date of hearing
: 10 December 1990
Date of judgment:
30 January 1991
JUDGMENT
CORBETT
CJ:
The applicant, Nolan Jafta, made application to the
Witwatersrand Local Division, citing as respondents the Minister of Law and
Order
(first respondent), the Commis-
2
sioner of the South African Police (second respondent) and the
Divisional Commissioner of the South African Police for the Witwatersrand
(third
respondent) and claiming an order in the following terms:
"1. Dispensing with the usual forms and service provided for in the Rules of
this Honourable Court in order to dispose of this matter
at such time and place
and in such manner and in accordance with such procedures as it deems
appropriate and directing that:
1.1. the application is not placed on the ordinary Motion Court Roll;
1.2
directing that the
application be heard as one of urgency;
1.3
the application be heard in
camera
;
1.4
these proceedings not be made public, until the execution of the
order set out in paragraph 2
of
3 this notice.
2. The Station Commander of the Kliprivier Police Station, or, the person or
persons who exercise control over access to the building
and premises presently
occupied by the South African Police which are situated diagonally across the
road from the Kliprivier Police
Station and directly across the road from the
Kliprivier Post Office, are directed:
2.1 to permit the applicant, DESMOND JAFTA, (the deponent to one of the
affidavits made in support hereof) the Sheriff of Vereeniging
and either GREGORY
ANTHONY NOTT or JAMES ANGUS SUTHERLAND, being admitted attorneys of the law firm
Bell, Dewar and Hall, to be granted
immediate access to the aforesaid building
and premises immediately upon being presented with this
order;
2.2 to allow them thereupon to inspect
4
such portions of the said building and premises as may be pointed out by NOLAN
JAFTA and/or DESMOND JAFTA for the purpose of enabling
NOLAN JAFTA and/or
DESMOND JAFTA to point out and identify any apparatus or object which may be
present there; and
2.3 to allow them to examine and photograph any apparatus or object pointed out
by NOLAN JAFTA and/or DESMOND JAFTA which in the
opinion Of GREGORY ANTHONY NOTT
or JAMES ANGUS SUTHERLAND may be relevant as evidence in the proceedings to be
commenced by the applicant
arising out of the events set out in his
affidavit.
3. The aforesaid Sheriff is directed to prepare a detailed inventory of any and
all apparatus or objects pointed out and identified
in the manner described in
paragraph 2.3 above.
5
3.1 The aforesaid Sheriff is directed to provide the applicant's attorneys and
the aforesaid Station Commander with a copy of the
inventory referred to in
paragraph 3 above, and with copies of all photographs taken.
3.2 The aforesaid Sheriff is directed to retain such inventory and photographs
taken in terms of the order granted in paragraph 2.3
above under his control
until such time as this Honourable Court orders
otherwise.
4. The aforesaid Station Commander is ordered to retain the apparatus or objects
placed on the aforesaid inventory under his contrpl
until such time as this
Honourable Court orders otherwise.
5. In the carrying out of the order granted in terms of paragraph 2 above the
attorney accompanying the aforesaid
6 Sheriff shall:
5.1. supply to a responsible person
apparently in control of the
aforesaid
building and premises a
copy of this application;
5.2. explain the terms of this order to
such person; and
5.3 explain to such person that the respondents, or any of them, may apply to
this Honourable Court on short notice (such as is provided
for in terms of the
order granted in paragraph 8 below) to vary or discharge the
order.
6. The attorney accompanying the aforesaid Sheriff shall, within six days of the
execution of the order granted in terms of paragraph
2 above, cause to be filed
an affidavit or affidavits in this matter setting out:
(a) the manner in which the order
7
granted in terms of paragraph 2 above was executed;
(b) the portions of the aforesaid building and premises which were
inspected;
(c) the observations made by NOLAN JAFTA and Desmond JAFTA and himself in the
course of such inspection.
7. A copy of this application together with a copy of the affidavit or
affidavits referred to in paragraph 6 above shall be served
by the applicant on
each of the respondehts within seven days of the execution of the order granted
in terms of paragraph 2 above.
8. The respondents are given leave to apply to this Honourable Court, on not
less than 24 hours written notice to the applicant,
to vary or discharge this
order."
The applicant filed a founding affidavit in
which
8 he alleges that he was detained and taken into custody by certain
members of the South African police on the evening of 12 September
1990 and was
kept in custody at the Kliprivier police station until his release on the
afternoon of 19 September 1990. While in custody
the applicant was, so he avers,
taken on two occasions to a building across the road from the police station,
referred to in his
affidavit as "the court building". (This is the building
identified in par 2 of the above-guoted order claimed in applicant's notice
of
motion.) Applicant further avers that on these occasions he was interrogated in
the court building and during the course of interrogation
assaulted and
tortured. The torture consisted in giving him electric shocks.
This is a much-abbreviated summary of the considerably longer and more
circumstantial account of what happened, as alleged in the
founding
affidavit.
The applicant stated further that the assaults
9 upon him committed by the police were unlawful and that he intended to
institute legal proceedings against the respondents for damages.
He also
intended to claim damages for unlawful detention if an investigation by his
attorneys showed his detention to have been unlawful.
A supporting affidavit by the applicant's brother, Desmond Jafta, who was
also in custody at the Kliprivier police station over approximately
the same
period as the applicant, provided material corroboration of applicant's
allegations of torture and assault.
In par 20 of his affidavit the applicant
stated:
"20 Proof of the presence in
the court building, of the apparatus or object
which the police used to shock
me will,
I am advised, be material and indeed
decisive in the above legal
proceedings.
My own testimony and that of my brother,
Desmond Jafta, will
provide further
relevant evidence. I am concerned, and
10
I am advised that such concern is fully justified, that my own testimony,
even to the extent that it is corroborated by the circumstantial
evidence of my
brother, will be insufficient to outweigh that of a number of policemen who may
be called to contradict what I have
to say.
There are no marks on my body to show that I was assaulted in the manner in
which I have described above. I conseguently respectfully
state that it will
only be by obtaining photographs of the eguipment which was used to shock me
that I will be able to support my
version of the events. No other direct
evidence is available to me."
Applicant went on to express the fear that if apprised of his intentions the
police would attempt to conceal or destroy the apparatus
used to shock him in
order to frustrate his claim against the respondents; and to aver that the order
sought by the notice of motion
was the only
11
practical means of preserving evidence relating to the presence in the court
building of the apparatus in question. For these reasons
he asked that the
application be heard iri
camera
and without prior service of the papers
on the respondents. He further asked that the matter be heard as an urgent
application.
The application was accompanied by a certificate signed by applicant's
counsel, Mr L Bowman SC and Mr B du Plessis, certifying that
they had read the
application and were of the view that the matter ought to be heard in
camera
and that the usual forms, procedures and services should be dispensed with
and that it was an appropriate matter in which to claim
the relief set forth in
the notice of motion
ex parte
and without notice to the respondents.
The case came before Streicher J on 25 September 1990. The learned judge
granted the relief asked for in pars 1.1, 1.2 and 1.3 of
the notice of motion
and proceeded
12 to hear argument in
camera
,
ex parte
and
without notice to the respondents. At the conclusion of the argument he
dismissed the application on the ground that he was precluded
by the decision of
the full court of the Transvaal Provincial Division in the case of
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another
1984 (4) SA
149
(T) from granting the remainder of the relief claimed. Thereafter and on
application by the applicant he granted leave to appeal
to this Division and
ordered that the proceedings should not be made public pending the appeal.
Applicant's attorneys timeously noted an appeal to this Court, but did not
lodge notices of appeal with the respondents or their attorneys.
In addition
they filed a petition addressed to this Court in which the applicant, as
petitioner, prayed for an order -
(a) Directing that this application and the appeal in the matter between
your
13
Petitioner and the Minister of Law and Order, the Commissioner of the South
African Police and the Divisional Commissioner of the
South African Police -
Witwatersrand be heard in
camera
.
(b)
Excusing your Petitioner, the Appellant, from compliance with Rule
5(1) of the Rules of this Honourable Court insofar as your Petitioner,
the
Appellant, failed to lodge notices of appeal in this matter with the Respondents
or their attorney.
(c)
Excusing your
Petitioner, the Appellant, from compliance with Rule 5(4) of the Rules of this
Honourable Court in that your Petitioner,
the Appellant, failed to deliver
copies of the record in this matter to the
Respondents.
(d)
Excusing your Petitioner, the
Appellant, from compliance with Rule 8 of the Rules of this Honourable Court in
that your Petitioner,
the Appellant, failed to deliver heads of argument in this
matter
14 to the Respondents.
(e)
Dispensing with the
requirement that your Petitioner, the Appellant, serve a copy of
this application on the Respondents.
(f)
Directing that the present proceedings and the proceedings in the
appeal not be made public until this Honourable Court gives its
judgment in the
appeal and, in the event of this Honourable Court granting the Petitioner, the
Appellant, the relief sought in paragraph
2 of its Notice of Motion in the
application in the Court a
quo
, until the execution of the order granted
in terms of that paragraph."
In the petition the
reasons for these prayers are set forth. They are broadly the same as the
reasons advanced for asking in the Court
a
quo
that the matter be heard
in
camera
and without notice to the respondents, viz. that unless secrecy
were preserved until the order was
15 executed there was a possibility that
the real evidence consisting of the apparatus allegedly used to inflict electric
shocks upon
the applicant would be concealed or destroyed. The applicant added
that he had no reason to believe that the apparatus was no longer
in the court
building.
The matter was heard by us out of term as a case of urgency. With regard to
the practical difficulty relating to the hearing of that
part of the application
directed to an order that the application itself be heard in
camera
(see
prayer (a) above), this Court ordered
in limine
that its doors be closed
prior to the hearing of the application (cf.
Cerebos Food Corporation
case,
supra
, at 159 E-G and
Universal City Studios Inc and Others v
Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A), at 755 E). It did so partly on
the strength of the certificate by counsel which was placed before the Court a
quo
and of a letter written by
16
applicant's attorneys to the Registrar of this Division again explaining the
need for the preservation of secrecy concerning the application
to this Court
and the appeal. The reasons given in the letter are the same as were advanced to
and accepted by the Court a
quo
in the proceedings before it. In future
such an application to this Court should be accompanied by a fresh certificate
by applicant's
counsel expressing the view that it is in the interests of
justice that the application be heard in
camera
and furnishing in brief
the reasons therefor. It is to be understood that in so doing counsel expresses
a professional opinion and
is not merely making a submission on behalf of his
client. (Cf the practice note issued by the Court of Appeal in England as
published
in
[1982] 3 All ER 924.)
At the outset and in addition to directing that the application be heard in
camera
this Court made an order dispensing with the requirement that the
applicant serve a
17 copy of the application on the respondents (see prayers
(a) and (e) ) . For convenience and in order to obviate a further hearing
we
heard argument both on the application and on the merits of the appeal.
In the
Cerebos Food Corporation
case,
supra
, at 164 A - C it
was stated that the order generally referred to under the name
Anton
Piller
comprised, or could comprise, the following types of order:
(1) an order authorising the search for and attachment of property in the
possession of the defendant where the plaintiff has a real
or personal right to
the property;
(2) an order for the disclosure of names of sources and retail outlets of the
defendant as they enable the defendant to operate unlawfully,
thus infringing
the plaintiff's
18 rights;
(3) an order for the attachment of documents and other things to which no right
is claimed except that they should be preserved for
and produced as evidence in
an intended court case between the parties; and
(4) an order for the production and handing over of a thing to which no right is
claimed but as part of an interdict to make the
interdict effective, for example
the erasure of a trade mark from the defendant's
goods.
The full court held that an
order falling under par (1) above, which was supported by authority in our law,
was not a true
Anton Piller
remedy. As regards the orders described in
paras (2), (3) and (4), it was held that South African courts do not have the
power or
jurisdiction to
19 make them. It was stated,
inte
r
alia
, (at p 173 F):
"The South African Courts have therefore no jurisdiction to grant an order for
the attachment of the property of another where no
right of the applicant
therein exists, merely for the purpose of its production as
evidence."
Questions relating to the grant of
Anton Piller
orders were considered by this Court in
Universal City
Studios Inc and Others v Network Video (Pty) Ltd
,
supra
. Reference
was made to the inherent powers which the Supreme Court has to regulate its
procedures in the interests of the proper
administration of justice and, with
reference to what was stated in the
Cerebos Food Corporation
case
concerning the type of order described in par (3) above, this Court made the
following obiter observation (at p 755 A - E):
"In a case where the applicant can establish
prima facie
that he has a
cause of
20
action against the respondent which he intends to pursue, that the respondent
has in his possession specific documents or things which
constitute vital
evidence in substantiation of the applicant's cause of action (but in respect of
which the applicant can claim no
real or personal right), that there is a real
and well-founded apprehension that this evidence may be hidden or destroyed or
in some
manner be spirited away by the time the case comes to trial, or at any
rate to the stage of discovery, and the applicant asks the
Court to make an
order designed to preserve the evidence in some way, is the Court obliged to
adopt a
non possumus
attitude? Especially if there is no feasible
alternative? I am inclined to think not. It would certainly expose a grave
defect in
our system of justice if it were to be found that in circumstances
such as these the Court were powerless to act. Fortunately I am
not persuaded
that it would be. An order whereby the evidence was in some way recorded, eg by
copying documents or photographing
things or even by placing them temporarily,
ie
pendente lite
, in the
21
custody of a third party would not, in my view, be beyond the inherent powers
of the Court. Nor do I perceive any difficulty in permitting
such an order to be
applied for ex
parte
and without notice and in
camera
, provided
that the applicant can show the real possibility that the evidence will be lost
to him if the respondent gets wind of the
application."
(I have corrected the misprints which appeared in the published version of
the judgment.)
In the present case the applicant claimed from the Court a
quo
orders
designed to give him and his attorneys access to the court building, the power
to inspect portions of this building for the
purpose of finding and identifying
the alleged torture apparatus and the right to examine and photograph any such
apparatus for the
purpose of preserving evidence of it (par 2); as well as an
order upon the station commander of the Kliprivier police station to
22
retain the apparatus until the Court otherwise orders (par 4). The draft
order attached to the heads of argument presented to this
Court is substantially
in the same terms.
It seems to me that the Judge a
quo
was correct in holding that he was
precluded from granting these orders (and the ancillary orders contained in
paras 3, 5, 6, 7 and
8 of the notice of motion) by what was held in the
Cerebos Food Corporation
case and that the above-quoted remarks in the
Universal City Studios
case, being obiter, did not result in the decision
in the
Cerebos Food Corporation
case being overruled in this respect. For
the applicant to succeed in this Court it would thus be necessary for us to
translate this
obiter dictum into a positive decision and to overrule
pro
tanto
the judgment in the case of
Cerebos Food Corporation
.
There is some authority on this point: see Ex
parte Matshini and
Others
1986 (3) SA 605
(E) and
Ex parte
23
Dyantyi and Another
1989 (4) SA 826
(CK). In each of
these cases it was alleged that the applicants concerned had been unlawfully
assaulted by the police by being subjected to electric
shocks and
Anton
Piller
-type orders were sought which aimed at a search for the torture
apparatus at a police station and its preservation in order that
it should be
used as evidence in an intended action for damages. The applications were made
and heard ex
parte
,
in camera
and without notice to the
respondents.
In
Matshini
's case a full bench of the Eastern Cape Division expressly
held that, contrary to what had been decided in the
Cerebos Food
Corporation
case,
supra
, the court had the power to compel disclosure
of a thing which was necessary for the purposes of an intended action, even if
the
applicant had no proprietary or other right or interest in the thing in
question (see particularly p 611 E - H). The court went on,
however, to hold
that the test
24
was whether the administration of justice would (not might) be defeated
unless an order was made for the production of the real evidence
which was
essential or absolutely necessary for the prosecution of the plaintiff's case
(see p 613 A - B). Applying this test, the
Court found that, inasmuch as there
was the evidence of the applicants, supported by medical evidence, to establish
that the assaults
had taken place, the applicants had failed to show that real
evidence of the existence of the torture apparatus was essential or
absolutely
necessary in order for them to prove their claims and that its non-availability
would result in the administration of
justice being defeated (see p 613 B - F).
The application was accordingly dismissed.
In passing I would point out that
Matshini
's case was decided some
months before delivery of judgment in the
Universal City Studios
case,
supra
, and it would seem that the full bench posed a rather more
stringent test than that
25
suggested by this Court in the obiter dictum quoted above, which speaks
of -
"... vital evidence in substantiation of the applicant's cause of
action...."
(see p 755 B). But for
reasons which will later emerge it is not necessary to pursue the point.
In
Dyantyi
's case,
supra
, Heath J, sitting in the Ciskei
General Division, also declined to follow the
Cerebos Food Corporation
case and granted an order in terms very similar to that applied for in the
present case. The Court referred (at p 837 E - F) to the
evidence in question,
consisting of an instrument used to produce electric shocks, a T-shirt allegedly
used to try to suffocate the
applicants and a tube, as being objécts
which -
if they exist, and if they are
available at the trial, are obviously of importance and can
constitute deciding evidence on
26
the question whether the applicants' version is true and whether on the
probabilities they were in fact assaulted in the manner as
alleged by
them."
Thus, the Court does not appear to have
applied as stringent a test as that formulated in
Matshini
's case.
In the course of the hearing before us counsel for the applicant were asked
whether there were any statutory provisions which prevented
an order being
granted against one or more of the respondents ex
parte
and without
notice; and in this connection reference was made to sec 35 of the General Law
Amendment Act 62 of 1955 and to sec 32
of the Police Act 7 of 1958. As counsel
had not previously considered this aspect of the matter, the Court when
reserving judgment
requested counsel to furnish additional heads of argument
dealing with the possible applicability of these statutory provisions and
any
others which might be relevant. These heads of argument were subsequently
filed.
27
In them counsel have referred, in addition to the above-mentioned statutory
provisions, to sec 32
bis
of the Police Act,
sec 3
of the
State Liability
Act 20 of 1957
, secs 34 and 34A of the Public Service Act 111 of 1984 and Rule
6(13) of the Uniform Rules of Court.
Of these sec 35 of Act 62 of 1955 appears,
prima facie
, to be the most
pertinent. It provides as follows:
"35. Notwithstanding anything to the contrary contained in any law, no court
shall issue any rule
nisi
operating as an interim interdict against the
Government of the Union including the South African Railways and Harbours
Administration
or the Administration of any Province, or any Minister,
Administrator or other officer of the said Government or Administration in
his
capacity as such, unless notice of the intention to apply for such a rule,
accompanied by copies of the petition and of the affidavits
which are intended
to be used in support of the application, was served upon the
said
28
Government, Administration, Minister, Administrator or officer at least
seventy-two hours, or such lesser period as the court may
in all the
circumstances of the case consider reasonable, before the time mentioned in the
notice for the hearing of the
application."
It is evidently accepted
by the applicant that the respondents in the present case fall under the
categories of persons against whom,
in terms of the section, a rule
nisi
operating as an interim interdict may not be issued without notice. The main
arguments advanced in the additional heads as to why
the section does not apply
here are -
(a) that none of the orders sought amounts to an interdict;
(b) that in any event none of these orders is a rule
nisi
having interim
effect; and
(c) that no substantive relief is sought against the respondents, the remedies
being merely
29
procedural.
In support of the first
argument it was submitted that the word "interdict" should bear its "ordinary
English meaning", ie an order
forbidding or restraining the doing of an act. I
am by no means convinced that this is correct. The word "interdict" is a
technical
legal one and would seem to cover not only orders forbidding the doing
of an act, styled "prohibitory interdicts", but also orders
enjoining the doing
of an act, known as "mandatory interdicts" (see LAWSA vol 11, par 310; Nathan,
Interdicts
, pp 1 - 4). I can discern no reason why the Legislature, in
enacting sec 35, should have intended to include the one but not the
other.
Moreover, the distinction between prohibitory and mandatory orders is somewhat
technical and one which it is not always easy
to draw. Thus for example an order
upon a gaoler to release a prisoner may be regarded both as a mandatory order to
set him free
and, in effect at any rate,
30
as a prohibitory order against continuing to hold him in custody (cf
Allie v De Vries NO en h Ander
1982 (1) SA 774
(T), at 779 D - G). Nor do
I think that the problem is avoided in the present case (as suggested by
counsel) by the orders being
so worded as to merely "authorize and instruct" the
sheriff to enter the premises, inspect them, etc. The draft order, as framed,
contains orders upon the station commander of the Kliprivier police station and
others to
permit
the sheriff, the applicant, his attorney and Desmond
Jafta to enter the court building, to
allow
them to inspect portions of
the building and to
allow
them to examine and photograph any apparatus or
object pointed out by the applicant or his brother. The station commander is
also
ordered to
retain
under his control any such apparatus, if found.
These orders all require either forbearance or action on his part.
Prima
facie
they seem to me to be interdictory in character.
31
The arguments listed under (b) and (c) above raise a number of problems, to
which I shall allude briefly. While it is true that strictly
the orders sought
in this case do not take the form of a conventional rule
nisi
, they are
also not final, in the sense that the respondents are given the right to move
for them to be varied or set aside. On the
other hand, of course, the order is
executed before such variation or setting aside can take place. Nevertheless,
there are certain
anomalies in holding that while a rule
nisi
against,
for example, a Minister of State cannot, in terms of sec 35, be obtained without
notice, an order which has final effect,
even though it may later be set aside,
can. Furthermore, while there may be some cogency in the argument that sec 35
applies only
to orders granting "substantive", as opposed to "procedural",
relief, there is nothing in the express wording of the section to indicate
this.
32
I do not propose to say anything about the other statutory provisions and the
Rule of Court referred to by counsel other than that
certain of them do also
raise problems. Moreover, owing to the ex
parte
nature of these
proceedings it is difficult for us to be sure that there are no other statutory
bars to the relief being granted
without notice.
I mention these problems without providing any positive answers to underscore
how unwise it would be for this Court to decide these
and the various other
issues which may arise in this case without hearing argument from
all
the
parties concerned. This is, after all, the final court of decision and it is of
paramount importance that, as far as is humanly
possible, its judgments should
be correct. Experience has shown that under our adversarial system the risk of
judicial error is best
reduced by listening to argument from both sides. I fully
appreciate that in the
33
instant case, and in cases like it, insistence upon hearing the other side
may tend to defeat the object of the legal proceedings
initiated by the
applicant and I and the other members of this Court have considered possible
ways of giving effect to the principle
of
audi alteram partem
without
forfeiting the confidentiality of the application.
We have come to the
conclusion that there is no satisfactory method whereby this can be achieved.
Were the legal principles applicable
in cases such as this well-settled and were
there no complications arising from the possible applicability of statutory bars
to the
relief claimed being granted without notice, the position might well have
been different. And I do not rule out the possibility of
this Court granting on
appeal an
Anton Piller
type of order in an
appropriate case. But, in my view, for the reasons stated
this is not such a case.
For these reasons we refrain at this stage from giving
34
any decision on the merits of the appeal. It is for the applicant to decide
whether to prosecute the appeal in accordance with the
normal rules of
procedure.
Accordingly, save for the relief already granted, the application is
dismissed.
M M CORBETT
HOEXTER, JA)
BOTHA, JA) rONCUR
VAN HEERDEN, JA) CONCUR.
E M
GROSSKOPF, JA)