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1991
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[1991] ZASCA 123
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Minister of Law and Order v Thandani (660/89) [1991] ZASCA 123; 1991 (4) SA 862 (AD); [1991] 4 All SA 905 (A) (26 September 1991)
1
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
THE MINISTER OF LAW AND ORDER
Appellant
and
DAVID MTHUZIMELE THANDANI
Respondent
Coram
: JOUBERT, HEFER, VIVIER, MILNE J J A
et
KRIEGLER A J
A.
Heard
: 12 September 1991
Delivered
: 26 September 1991
JUDGMENT JOUBÉRT
, J A :
/This
/2...
2
This is an appeal against a judgment of VAN RENSBURG J in the
East London Circuit Local Division awarding R22 000 damages to the Respondent
against the Appellant. With leave of the Court
a quo
the Appellant now
appeals to this Court.
The Respondent, a trade unionist employed as a full
time organiser by the Transport and General Workers' Union, formerly resided at
Mdantsane in the Ciskei. Because he had transport problems he changed his
residence during July 1983 to Duncan Village in the Republic.
While he was a
lawful resident of the Republic he was at 3.20 p m on 17 August 1983 unlawfully
arrested without a warrant of arrest
by Captain (then Lieutenant) Schooling and
other members of the Security Branch of the South African Police at the offices
of the
African Food and Canning Workers' Union in East London. He was unlawfully
detained by them at Cambridge Police Station,
/3...
3
East London, until 6.05 p m when they unlawfully handed him
over to the Ciskei Police who detained him at Mdantsane for a period of
59 days
until his release on 14 October 1983. During his detention in the Ciskei he was
neither interrogated nor charged with any
offence. He was never brought before a
Court of law in the Ciskei.
On 16 February 1984 the Respondent instituted in
the East London Circuit Local Division an action against the Appellant claiming
payment
of R10 000 (subsequently amended to R25 000) damages for his unlawful
arrest, unlawful detention and unlawful handing over to the
Ciskei Police by
members of the Security Branch of the South African Police who acted within the
course and scope of their employment
as servants of the Appellant. In paragraph
5 of his Particulars of Claim the Respondent relied on a
single delict
,
perpetrated by members of the Security Branch of the South African Police,
/4...
4
as constituting the cause of his action, viz. :
"The aforesaid detention of Plaintiff by members of the South African Police
as also the subsequent handing over of Plaintiff by the
said members of the
South African Police to the Ciskei was wrongful and unlawful and
but for the
said handing over
,
Plaintiff would not have been detained for a period of
59 days by the Ciskeian Police
. The said members of the South African Police
accordingly bear responsibility for the Plaintiff's detention by the Ciskeian
Police."
(My underlining). Paragraph 5 should be read in conjuction with
paragraph 3
of his Particulars of Claim which contains the necessary
averments regarding the Respondent's unlawful arrest and
detention by members of the Security Branch of the South African
Police. In paragraph 4(b) of the Respondent's Further
Particulars to his Particulars of Claim reasons were furnished
why the members of the Security Branch of the South African
/5...
5
Police were in law responsible for his detention by the
Police
of the Ciskei, viz. :
"(i) The said members of the South African
Police
were responsible for Plaintiff's detention at the Mdantsane Police Station for
the following reasons :
(i) Defendant's aforementioned servants wrongfully and unlawfully arrested
Plaintiff whilst he was lawfully upon the territory of
the Republic of South
Africa. (ii) Whilst Plaintiff was under the said arrest and detained by the said
servants of the Defendant,
Defendant's servants handed Plaintiff over to members
of the
Ciskeian Police Force who
,
but for such action on the part of
Defendant's servants
,
would not have been able in law to arrest or take
Plaintiff into their custody
.
/6...
6
In so acting,
Defendant's servants well knew and/or
reasonably foresaw
that the said members of the Ciskeian Police Force,
having taken Plaintiff into their custody
would detain Plaintiff for an
indefinite period
in terms of the provisions of Section 26 of the Ciskeian
National Security laws." (My underlining)
The Appellant's defence, as pleaded, was a denial that the detention and
handing over of the Respondent was wrongful and unlawful.
It was also claimed
that the Respondent was lawfully detained by the Government of the Ciskei.
The evidence of Captain Schooling who testified at the trial on behalf of the
Appellant was virtually
/7...
7
destructive of the Appellant's entire defence save for the
alleged validity of the Respondent's detention in the Ciskei. He correctly
conceded the invalidity and unlawfulness of the Respondent's arrest and
detention by him without a warrant of arrest. The arrest
and detention of the
Respondent by him was executed on the instructions of Colonel Van der Merwe, his
commanding officer, since a
request had been received from the Ciskei
Government, as conveyed by the Ciskei Police, áccording to which
President Sebe
requested the arrest of the Respondent. The request had been
approved of by the Head Office of the Security Police in Pretoria. He
knew at
the time that the handing over of the Respondent to the Police of the Ciskei was
unlawful and in breach of the existing Extradition
Agreement between the
Government of the Republic of South Africa and the Government of the Ciskei.
Moreover, he was also aware at
the time that but for the
/8...
8
arrest and handing over of the Respondent to the Police
of
the Ciskei the latter would not have been able to have detained
him as
long as he did not enter the Ciskei.
As regards the alleged validity of the
Respondent's detention in the
Ciskei it is necessary to refer
to the relevant provisions of sec 26(1) of
the National Security
Act 13 of 1982 of the Ciskei which provide as
follows:
"Notwithstanding anything to the contrary in any law or the common law contained
but subject to the provisions of sub-section (3)
any commissioned police officer
of or above the rank of lieutenant-colonel may, if he has reason to believe that
any person who happens
to be at any place in the
Republic
(a)
has committed or intends to commit an offence referred to in section
2, 3 or 5 - - - - ; or
(b)
is withholding from
the police any information relating to the commission of an offence referred to
in paragraph (a) - - - -
/9...
9
without warrant arrest such person or cause him to be arrested and detain such
person or cause him to be detained for interrogation
in accordance with such
directors as the Commander-General may from time to time issue, until the
Commander-General orders his release
when satisfied that the said person has
satisfactorily replied to all questions at the interrogation or that no useful
purpose will
be served by his further detention in terms of the provisions of
this section."
Sub-sec (3) merely provides that the
detained person may at any time make written representations to the
Commander-General in regard
to his detention or release. No evidence was
presented at the trial to establish that there had been compliance with the
provisions
of sec 26(1). Moreover, until 4 December 1981 the Ciskei was part of
the territory of the Republic and as such subject to the common
law of the
Republic. The presumption that the common law of the
/10...
io
Ciskei is still Roman-Dutch law was not related. The abduction
of the Respondent from the Republic by the Ciskei Police as well as
his
detention in the Ciskei was wrongful and unlawful.See
S v Ebrahim
,
1991(2) SA 553 (A) at p 576 C. The Appellant failed to prove that the
Respondent's detention in the Ciskei was lawful. It was not
the Respondent's
case that his detention in the Ciskei was unlawful. For purposes of the
Respondent's case it was irrelevant whether
or not he was lawfully detained in
the Ciskei. On the probabilities it would appear that he was in fact unlawfully
detained in the
Ciskei.
The issue in this Court is whether or not the Appellant was liable to
compensate the Respondent for the period of his detention in
the Ciskei. The
Court
a guo
held that the Appellant was liable. In my judgment the
Respondent has established the liability of the Appellant
/11...
11
for his detention in the Ciskei for two reasons, viz.
1. By having regard to the nature and scope of the Respondent's action as set
out
supra
,
and
2.
in the light of the accepted evidence of
Captain
Schooling who testified on this aspect under cross-
examination as follows:
"En u was bewus dat sou jy eiser oorhandig dat hy
aangehou gaan word ? - - Ek het so veronderstel
U Edele.
Maar dit het glad nie u besluit beinvloed nie,
u het nogtans voortgegaan ? - - Geensins,
dis korrek.
Met jou enigste doel, die
doel met jou arrestasie,
was so ver ek u verstaan, was glad nie om eiser
voor 'n hof te bring nie, die doel was om hom oor
te handig omrede hy dan aangehou kon word deur die
Ciskei se polisie ? - - Dis korrek U Edele."
There
is a grave matter that calls for
/12...
12
condemnatory comment. It appears from the undisputed and
accepted evidence of Captain Schooling that he and other members of the Security
Branch of the South African Police have by their actions deliberately
disregarded and flouted provisions of the
Criminal Procedure Act 51 of 1977
, the
Extradition Act 67 of 1962 and the Extradition Agreement between the government
of the Republic and the government of the Ciskei.
It was not their function to
accommodate the mere request of a foreign ruler. In terms of sec 5 of the Police
Act 7 of 1958 one of
the basic functions of the South African Police is the
maintenance of law and order in the Republic. In the performance of their
functions they are not above the law. No one in the Republic is above the law.
Everyone in the Republic is obliged to observe and
obey the law irrespective of
how high or humble his station in the community may be. Even the State President
as Head of State is
/13...
13
subject to the law. The Roman legal principle
Princeps
legibus solutus est
(D 1.3.31) was never received in the Roman-Dutch law and
therefore does not form part of our legal system. See Groenewegen ad D 1.3.32
nrs 2 & 3.
In the result the appeal is dismissed with costs, including costs of two
counsel.
C. P. JOUBERT J A.
Hefer J A
Vivier J A Concur.
Milne J A Kriegler A J A