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[2002] ZASCA 61
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Lombo v African National Congress (17/2001) [2002] ZASCA 61; [2002] 3 All SA 517 (A); 2002 (5) SA 668 (SCA) (30 May 2002)
REPORTABLE
CASE
NO: 17/2001
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In
the matter between:
S
B LOMBO APPELLANT
and
AFRICAN
NATIONAL CONGRESS RESPONDENT
CORAM: SMALBERGER
ADP, OLIVIER, STREICHER, FARLAM and NAVSA JJA
DATE
OF HEARING: 2 AND 3 MAY 2002
DELIVERY
DATE: 30 MAY 2002
Summary: Claim
for damages for assault and unlawful detention - related issues -
prescription
_____________________________________________________________________
JUDGMENT
___________________________________________________________________
SMALBERGER
ADP
SMALBERGER ADP:
[1]
In
November 1993 the appellant instituted an action for damages in the
Durban and Coast Local Division against the respondent ("the
ANC") and the South African Communist Party ("the SACP")
as the first and second defendants respectively. In his
particulars
of claim he alleged that:
(a) he had been
unlawfully detained in various countries in Africa over the period
January 1986 to August 1991 by persons who were
at all material times
members of the ANC and the SACP acting in pursuance of the aims and
objects of the two organizations;
(b) during the
course of his detention he had been unlawfully assaulted, tortured
and subjected to various forms of maltreatment;
(c) he had been
unlawfully deprived of certain property belonging to him including
his motor vehicle.
As a result of the
aforegoing, and the consequences thereof, the appellant claimed
damages from the ANC and the SACP in a total sum
of R6 135 812,00.
[2]
Apart
from a main plea on the merits the ANC and SACP raised a number of
special pleas to the appellant's particulars of claim.
When the
matter first came to trial two of them were disposed of separately in
terms of Uniform Rule of Court 33(4) - see
African National
Congress and Another v Lombo
[1997] ZASCA 1
;
1997 (3) SA 187
(A). Some of the
special pleas were later abandoned. All the remaining issues,
including a special plea of prescription, eventually
came before Hurt
J. At the conclusion of a lengthy trial the learned judge absolved
both the ANC and the SACP from the instance
with costs. He
subsequently granted the appellant leave to appeal, but only against
the dismissal of his claim against the ANC,
hence the fact that the
ANC is the sole respondent.
[3]
It is
common cause that for a number of years prior to 1986, and over the
period immediately thereafter when the events giving rise
to the
appellant's claim are alleged to have taken place, the ANC was
engaged in an armed struggle against the then Government of
the
Republic of South Africa ("the Government"). The relevant
facts have to be viewed against this background.
[4]
The
evidence of the appellant, succinctly stated, is as follows. In
January or early February 1986 the appellant was persuaded
by two
friends to accompany them to Botswana to undergo training with a view
to assisting the ANC in its armed struggle. They travelled
together
to Gaberone in the appellant's vehicle. There they met up with
representatives of the ANC. After a few days the appellant
was taken
to be interviewed by Botswanan security officials. He was told that
he would have to remain in their custody while he
wrote his
autobiography. It was standard ANC practice for recruits to be asked
to write detailed autobiographies ("biographies")
presumably for security reasons. According to the appellant this was
where his detention, which was ultimately to endure until August
1991, commenced.
[5]
After
spending some three months in solitary confinement in Gaberone,
except for odd occasions when he was taken out to be interrogated,
the appellant was flown by military helicopter to Charleston in
Zambia where he was imprisoned in a place known as RC which he
described
as "an ANC gaol". He was detained there for a
period of three to four weeks during which time he was subjected to
continual
assaults and torture. (It was apparently there that he was
given the code name "Poland Difa".) He was then
transferred,
again by air, to Dakawa in Tanzania, where he spent
three weeks before being returned to RC. He was not assaulted while
in Dakawa.
After a day or two at RC he was taken to a transit camp
in Angola called Vianna where he spent about ten days before being
transferred
to an Angolan prison, Nova Stallicao, where provision had
been made for ANC detainees. He was not ill-treated in Vianna, but
he
claimed to have been assaulted by certain high ranking ANC
officials at Nova Stallicao.
[6]
Two or
three months later, in November 1986, the appellant was taken to
Quatro, an ANC detention camp in northern Angola, where
he was
detained until November 1988. There he was subjected to assaults and
gross maltreatment in the form of threats, degrading
and dehumanising
conduct, lack of decent facilities and deprivation,
inter alia
,
of proper food, medical treatment and clothing. (Any future
reference to maltreatment includes one or more of these forms of
conduct.)
[7]
In
November 1988 the appellant was transferred to Nokala camp outside
Luanda. He was not assaulted or maltreated there. In his
own words,
it was "the first place we existed normally". In March
1989 he was taken to Bokoloda in Uganda where he was
detained until
his release and subsequent return to South Africa in August 1991. At
Bokoloda he was "well treated".
[8]
The
appellant further testified that when he was detained certain
property belonging to him, including his motor vehicle, was taken
from him and never returned- hence his claim for the value of the
property misappropriated.
[9]
The
appellant's evidence with regard to how he travelled to Botswana and
when he arrived there is not in issue. What is disputed
is the
reason given by him for going there and when, where and in what
circumstances he was first detained. In effect the ANC contends
that
the appellant was recruited by the South African National
Intelligence Services ("the NIS") and sent to Botswana with
a view to gathering information about the ANC's activities. The ANC
denies that the appellant was detained in Botswana. It claims
that
he was first detained in Dakawa in April 1988 on suspicion of being a
spy. There are disputes concerning the appellant's precise
movements
after his arrival in Botswana, and the alleged treatment meted out to
him, prior to his being taken to Quatro. It is common
cause that he
was detained in Quatro until November 1988, and thereafter at Nokala
and Bokoloda prior to his release and return to
South Africa.
[10]
The ANC
called a number of witnesses to refute the appellant's evidence
relating to his alleged assaults and maltreatment in Quatro
and the
adverse conditions that existed there. While these witnesses sought
to deny or explain away the appellant's evidence, they
were unable
seriously to contend that there had been no incidents of assault or
abuse involving detainees at Quatro. The ANC did
not seek to defend
or justify such incidents. Rather it contended that any
ill-treatment of detainees was contrary to ANC policy
and it denied
legal responsibility for any such conduct on the part of rogue or
disgruntled elements in its ranks. Furthermore,
the ANC disputed any
misappropriation of the appellant's property, particularly his
vehicle, which it claimed had been donated to
it by the appellant.
[11]
What
has been set out above represents, in very broad outline, the
essential factual issues that emerged at the trial. A great
deal of
evidence and cross-examination was devoted to these issues. For
reasons that will became apparent in due course there is
no need to
traverse the evidence relating to all these issues in detail. Where
necessary certain aspects of the evidence will be
considered in
greater depth.
[12]
Before
proceeding to outline and consider the essential issues on appeal
there are two further matters that require mention. It
is common
cause that after his arrival in Botswana, and during the course of
his detention up to and including his time in Quatro,
the appellant
was frequently interrogated and was required to write numerous
biographies. At the trial the ANC produced the personal
file of the
appellant kept by it. It contains various biographies handwritten by
the appellant, as well as notes of interviews conducted
with him, and
statements made by him, during his detention. It became Exhibit C at
the trial, and I shall refer to it as such.
The appellant was not
prepared to accept that Exhibit C was complete. He claimed to have
drawn up many more biographies than appear
in it. Furthermore, when
confronted with the contents of various documents in Exhibit C he
contended that they were the result of
threats, assaults and torture
to which he had been subjected until he succumbed by writing
biographical statements which were in
fact false in order to satisfy
his tormentors. In this regard Hurt J came to the conclusion that
"even if
certain documents created by the plaintiff [the appellant] have been
omitted from the file, there is no reason to suspect
that the
documents which are in it have been craftily contrived to concoct a
false picture of what occurred between the plaintiff
and the
defendant [the ANC] during 1986. On the contrary, the documents in
Exhibit C have all the appearance of being authentic
and, as such,
they constitute that most useful item of evidence, a contemporary
documentary record of events which occurred so long
ago that the mere
recollection by witnesses cannot be regarded as sufficiently reliable
for the purpose of drawing confident conclusions".
[13]
The
second matter is this. It appears from the evidence of certain of
the ANC's witnesses that the conditions in the detention
camps in
Angola, of which Quatro was one, had become a cause of concern to the
ANC for a number of years before 1986. Despite the
appointment of
the Stuart Commission by the ANC in 1984 to investigate and report
upon the conditions in these camps, and a special
conference held at
Kabwe to consider what could be done to improve the existing
conditions which had been reported upon adversely
by the Stuart
Commission, little if anything had been done in this regard.
Subsequently the ANC mandated first the Skweyiya Commission
in 1992,
and then the Motsuenyane Commission in 1993, to investigate
allegations of inhumane treatment meted out to detainees by
ANC
members at these camps, including the period that the appellant was
detained in Quatro. The reports of these Commissions generally
condemned the conditions and practices at camps like Quatro and the
way detainees were treated. The appellant sought to have these
reports admitted in evidence on the basis,
inter alia
, that
they provided similar fact evidence supportive of his case. Although
he made no specific finding as to their admissibility
Hurt J appears
to have disregarded these reports when adjudicating the matter.
[14]
In
paragraph 12 of the appellant's particulars of claim, possibly in
anticipation of a plea of prescription, it was pleaded that
upon his
release, on or about 19 and 20 August 1991, and at Johannesburg, an
ANC delegation, duly authorised, "acknowledged
liability for the
abduction, unlawful imprisonment, assaults and torture perpetrated on
[the appellant]". Such acknowledgment,
if proved, would have
interrupted prescription in terms of sec 14(1) of the Prescription
Act 68 of 1969 ("the Act").
[15]
In its
second special plea the ANC duly pleaded that "to the extent
that the plaintiff's [appellant's] claim arises from events
which
occurred more than three years prior to 22 November 1993, the
plaintiff's claim arising therefrom is prescribed by reason of
the
provisions of sec 11(d) of [the Act]". Section 11(d) of the Act
provides for a prescriptive period of three years in respect
of the
causes of action relied upon by the appellant. It is common cause
that 22 November 1993 is the date on which summons was
served on the
ANC. The appellant did not file a replication to the ANC's special
plea. On the pleadings, therefore, the appellant's
only defence to
the plea of prescription lay in the alleged acknowledgment of
liability referred to in paragraph 12 of the particulars
of claim.
[16]
At the
commencement of the trial before Hurt J the ANC sought to have the
prescription issue determined separately from the remaining
issues,
but its application in this regard was refused. One of the reasons
for refusing the application was that evidence would
have be led to
determine whether prescription had been interrupted in consequence of
an acknowledgment of liability, and a piecemeal
disposal of the
matter was undesirable.
[17]
The
question of whether there had been acknowledgment of liability was
fully canvassed in evidence and comprehensively dealt with
by Hurt J
in his judgment. He held that no such acknowledgment had been
established by the appellant. His finding in that regard
was not
challenged on appeal. Accordingly no interruption of prescription
was established.
[18]
The
appellant contends that his unlawful detention, the assaults
perpetrated upon him and the maltreatment to which he was subjected
constituted one continuous and continuing wrong which extended from
the time he was first detained in February 1986 (as alleged by
him)
until his release in August 1991. His cause of action, so it is
argued, only arose upon his release in August 1991 and had
accordingly not yet prescribed when summons was served on 22 November
1993 i.e. within the three year prescriptive period.
[19]
This
contention runs contrary to well-established authority. Every
assault and every actionable form of maltreatment on which the
appellant relies constitutes a separate cause of action arising from
the time of its commission or infliction and each is independently
subject to extinctive prescription from that time (
Slomowitz v
Vereeniging Town Council
1966 (3) SA 317
(A) at 331 C - E;
Montsisi v Minister of Police
1984 (1) SA 619
(A) at 633 A -
D). Accordingly, any cause of action relied upon by the appellant
relating to assaults or maltreatment which arose
more than three
years before the service of summons (i e prior to 22 November 1990)
would have prescribed by the time his action
was instituted, allowing
for the application of the normal prescriptive period of three years.
[20]
It is
common cause that the appellant was not assaulted or maltreated from
the time he was transferred to Nokala in November 1988
until his
release in August 1991. Any claims arising from earlier assaults or
maltreatment (i e before November 1988), as well as
any claim based
on the earlier misappropriation of his property, would therefore,
subject to the provisions of sec 13(1) of the Act,
have prescribed by
the time summons was served.
[21]
Because
the appellant was effectively precluded from pursuing any claims he
might have had against the ANC while he was detained
his counsel, Mr
Jefferys
, sought to invoke the common law maxim
lex non
cogit ad impossibilia
("the law does not compel the
performance of impossibilities"). The maxim was applied in the
Montsisi
case (
supra
). In that case it was impossible
for the plaintiff to comply with the requirements regarding written
notice of a contemplated action
as prescribed by sec 32(1) of the
Police Act 7 of 1958 by virtue of his being a detainee in terms of
the Terrorism Act 83 of 1967
at the relevant time. It was held, in
the circumstances, applying the maxim, that the period in sec 32(1)
did not run against him
for so long as he was being detained. In the
course of his judgment Rabie CJ remarked (at 634 E - 635 A):
"Dit behoef
geen betoog dat dit onbillik sou wees indien iemand, vir wie dit
vanweë sy aanhouding ingevolge art 6 van die
Wet of Terrorisme
onmoontlik was om aan die vereistes van art 32(1) te voldoen, sy reg
om vergoeding te eis weens onregmatige dade
wat tydens sy aanhouding
teenoor hom gepleeg is, ontsê sou word omdat hy nie aan die
vereistes van art 32(1) voldoen het nie.
. . .
Die vraag ontstaan
nou of daar bevind kan word dat, . . . die appellant in die
onderhawige geval wel kan sê dat sy eis [nie]
deur die artikel
belet word nie.
Ek het tot die
gevolgtrekking gekom dat wel so bevind kan word, en wel in die lig
van die algemene oorwegings wat die spreuk
lex non cogit ad
impossibilia
ten grondslag lê (D 50.17.185:
impossibilium
nulla obligatio est
) en wat inhou dat iemand se versuim om 'n
verpligting na te kom wanneer dit vir hom onmoontlik was om dit na te
kom, hom nie tot
sy nadeel toegereken word nie."
[22]
The
maxim has no application in the present instance as the appellant was
not by virtue of his detention legally precluded after
his release
from pursuing a claim for damages for the alleged assaults and
maltreatment to which he was subjected. His remedy lay
in the
provisions of sec 13(1) of the Act. The Act constitutes a partial
codification of our law of prescription. Common law rules
only apply
where the Act is silent about matters to which they relate and they
are not inconsistent with the Act's provisions. The
previous
Prescription Act (Act
18 of 1943) specifically provided that "[a]ny
rule of the common law which is inconsistent with the provisions of
this Act,
is hereby repealed" (sec 15(1)). Although the same
words are not to be found in the (current) Act the effect thereof is
clearly
the same.
[23]
Section
13(1) of the Act provides for various circumstances or impediments
which, if applicable, will delay the completion of prescription.
The
relevant portion of sec 13(1), for the purposes of the present
appeal, provides as follows:
"If -
(a) the creditor . .
. . is prevented by superior force . . . . from interrupting the
running of prescription as contemplated in section
15(1); or
(b) . . . .
(c) . . . .
(d) . . . .
(e) . . . .
(f) . . . .
(g) . . . .
(h) . . . .; and
(i) the relevant
period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one
year after, the
day on which the relevant impediment referred to in paragraph (a) . .
. . has ceased to exist,
the period of
prescription shall not be completed before a year has elapsed after
the day referred to in paragraph (i)."
[24]
The
effect of sec 13(1) is that a creditor has one year after the date on
which the relevant impediment has ceased to exist within
which to
bring his or her action. The fundamental import, meaning and
application of,
inter alia
, sec 13(1) was considered by this
Court in
ABP 4X4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd
1999 (3) SA 924
(SCA) at 930 B - 932 F (paras [8] to [16]).
[25]
The
physical detention of the appellant outside the Republic of South
Africa in circumstances in which he was prevented from personally
pursuing any action arising from the alleged assaults and
maltreatment inflicted upon him, and totally denied access to anyone
who
could do so on his behalf, amounted to his being prevented by a
superior force from interrupting the running of prescription as
contemplated
by sec 13(1)(a). Consequently, he had one year from the
time this impediment ceased to exist (his release from detention and
return
to this country) within which to institute action in respect
of all causes of action arising from the alleged assaults and
maltreatment
to which he was subjected during his detention, and his
property that was allegedly misappropriated. The Act therefore made
provision
for his situation to the exclusion of the common law and
the maxim invoked accordingly finds no application. Unfortunately
for the
appellant he failed to institute action within the one year
period prescribed by s 13(1) and any claims he might have had in
respect
of the causes of action referred to have consequently been
extinguished by prescription.
[26]
The
appellant's position is somewhat different in regard to his claim for
unlawful detention. His cause of action in this respect
did not
arise once and for all on the day he was first detained, nor did it
first arise on the day of his release from detention.
His continuing
unlawful detention (if such it was) would notionally have given rise
to a separate cause of action for each day he
was so detained (
Ngcobo
v Minister of Police
1978 (4) SA 930
(D & CLD) following
Slomowitz
's case (
supra
)). The decision in
Ramphele
v Minister of Police
1979 (4) SA 902
(W), if not distinguishable
on the facts, must be taken to have been wrongly decided.
[27]
On his
release in August 1991 the provisions of s 13(1) would have entitled
the appellant to claim damages for wrongful detention
for the full
period of his detention provided he instituted action within the
prescribed one year period, something he failed to
do. However, the
three year prescriptive period provided in sec 11(d) of the Act
preserved any claim for unlawful detention arising
within the period
of three years preceding the service of summons on 22 November 1993.
His claim for unlawful detention for the
period 23 November 1990
until his release in August 1991 would therefore still be extant.
Any claim for wrongful detention arising
before 23 November 1990 will
have been extinguished by prescription in accordance with the
principles enunciated above.
[28]
To sum
up on the question of prescription. The ANC's special plea of
prescription:
(a) succeeds in
relation to the appellant's claims for unlawful assault, maltreatment
and deprivation of property, all of which have
prescribed;
(b) succeeds in
relation to the appellant's claim based on his alleged unlawful
detention for the period preceding 23 November 1990,
but not for the
period from that date to the time of his release in August 1991.
[29]
Hurt J,
despite his adverse credibility findings in respect of the appellant,
was of the view "that the probabilities of the
case are that,
during the period while the [appellant] was in Quatro camp, he was
assaulted on occasions". The evidence and
probabilities support
such a finding and, I would add, that he was probably also maltreated
while in detention there. However, the
conclusion reached on the
prescription issue renders it unnecessary to resolve the myriad
factual disputes with regard to whether
the appellant was unlawfully
assaulted and maltreated to the extent (i e the frequency and
severity) alleged by him and in circumstances
which would have
rendered the ANC liable to him for damages. Nor is it necessary to
decide whether the reports of the Skweyiya and
Motsuenyane
Commissions are admissible for the reasons advanced on behalf of the
appellant. All that remains to be determined, for
the reasons given
above, is whether the appellant was unlawfully detained over the
period 23 November 1990 to August 1991.
[30]
Before
proceeding to the unlawful detention issue it is necessary to deal
with the argument Mr
Jefferys
initially sought to raise that
the provisions of sec 13(1) of the Act are unconstitutional, despite
the fact that the point (apart
from a cursory reference in the
appellant's counsel's opening address) was never pleaded, never put
in issue or adjudicated upon
in the court below nor raised in the
notice of appeal. Ultimately Mr
Jefferys
fairly conceded that
it was not open to him, in the circumstances, to pursue the point,
particularly as the ANC had never been given
the opportunity to raise
matters relative to whether, the Act being one of general
application, the time limitation imposed by sec
13(1) was reasonable
and justifiable. In any event, the short answer to the
constitutional point would appear to be (I express no
definite
opinion) that having regard to the case of
Du Plessis and Others v
De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC), and subsequent
decisions, on the non-retrospectivity of the interim Constitution,
and the provisions of Item 17 of Schedule
6 of the (final)
Constitution, it was not open to the appellant to rely upon any
constitutional provisions in relation to proceedings
commenced on 22
November 1993 before either of the interim or final Constitutions
came into effect.
[31]
With
regard to the appellant's claim for unlawful detention three issues
arise. They are:
(a) When and where
was the appellant first detained;
(b) Was his initial
detention lawful or unlawful;
(c) If it was
lawful, did it remain so, more particularly was it so over the period
in respect of which the appellant's claim has
not prescribed.
I shall deal with
each of these
seriatim
.
[32]
It will
be recalled that the appellant claims that he was first detained in
Gaberone in Botswana in January or early February 1986;
the ANC in
turn contends that he was first detained in Dakawa in Tanzania in
April 1986. It is common cause that the appellant was
detained by
the ANC at least from the latter date to August 1991. The appellant's
admitted detention over that period constituted
a deprivation of his
liberty and the onus rested on the ANC to prove that his detention
was justified in law (
Minister of Law and Order and Others v
Hurley and Another
1986 (3) SA 568
(A) at 589 D - G;
Kabinet
van die Tussentydse Regering vir Suidwes-Afrika en 'n Ander v Katofa
1987 (1) SA 695
(A) at 739 G - I). However, to the extent that there
is a dispute as to when and where the appellant was first detained
the onus,
applying well recognised principles, would have been on the
appellant to establish when and where that occurred.
[33]
By way
of elaboration on the earlier outline of the appellant's evidence in
this regard, the appellant testified that he had travelled
to
Gaberone in the company of a Mr Shandu (also known as Mbatha)
("Shandu") and a Mr Mandla. There they were met by two
ANC
representatives, Mr Lieta (also known as Mtswale) ("Lieta")
and Mr Zulu. After a few days he was detained in solitary
confinement, and in essence remained so confined until May 1986.
From there he was taken first to Zambia and then to Dakawa in
Tanzania.
On the appellant's evidence it is fair to say (as Hurt J
found) that he could not have been in Dakawa before June 1986.
[34]
Shandu's evidence was to the effect that he and the appellant were
together for most of the time after their arrival in Botswana
until
the appellant disappeared abruptly from Dakawa in April 1986. He
denied that the appellant had been detained before then.
His
evidence that the appellant was not detained while in Gaberone is
supported by the evidence of Lieta and the witness Mr Mathebula
who
claimed to have been in Gaberone at the same time as the appellant
and Shandu and to have had regular contact with them. A further
witness Mr Watson (also known as Stuart or Stewart) ("Watson"),
to whose evidence I shall refer in more detail later, confirmed
that
the appellant (contrary to the latter's evidence) was in Dakawa in
April 1986 and was detained for the first time there shortly
after,
and in consequence of, interviews conducted by him with the
appellant. Exhibit C contains documents, some dated and signed
by
the appellant, which point to their having originated in Dakawa in
April 1986.
[35]
It is
apparent from Hurt J's judgment that he entertained considerable
doubts about the appellant's veracity on this and other issues.
He
stated, in general, that he "would have been inclined to reject
the [appellant's] evidence wherever it is not corroborated
by
reliable evidence from other witnesses or by relevant documentary
evidence". In relation to the events up to and including
his
stay in Dakawa the appellant's evidence stands alone and
uncorroborated against that of the other witnesses to whom I have
referred,
whose evidence appears to have found favour with Hurt J. I
am unpersuaded that Hurt J erred in finding that the probabilities
(and
the evidence) were overwhelmingly in favour of the ANC's version
that the appellant had not been detained in Botswana and was first
detained in Dakawa. No plausible reason exists why the appellant
should have been detained in Botswana as it was too early for any
suspicion to have formed as to the real reason for his being there.
The appellant therefore failed to prove that he had first been
detained in Botswana.
[36]
I
proceed to consider whether the ANC established that the initial
detention of the appellant was lawful. As correctly pointed
out by
Hurt J, the fact that the appellant may have been assaulted and
maltreated while in detention is not relevant to this issue.
Unlawful, intentional assaults and maltreatment of a person lawfully
detained give rise to a separate delictual action (
Whittaker v
Roos and Bateman
1912 AD 92).
They do not impinge on the
question of whether the detention as such is lawful or not, a matter
to which different principles apply.
[37]
It
appears from Watson's evidence that the appellant's detention
probably commenced when, on instructions from Lusaka, he was sent
there from Dakawa. This followed on the dispatch of a report by
Watson to his superiors, after an interview with the appellant,
in
which it was recommended "that the subject [the appellant] be
placed under the group of potential suspects for further observation
. . .".
[38]
Dakawa
was a transit centre where new recruits were received and processed
to determine whether they should go for military training
or further
education. Watson was involved in their screening. According to him
he recalled the appellant because he stood out in
dress and manner
above the other recruits. Each recruit was interviewed individually.
The recruits were required to write biographies.
These were
scrutinised to see if they revealed any discrepancies when compared
with previously written biographies. The appellant
was interviewed
on a number of occasions. A serial number used only by the ANC's
office in Tanzania was applied to the first page
of various
biographies, interviews and reports by and relating to the appellant,
thereby identifying them as emanating from Tanzania.
A number of
these appear in Exhibit C.
[39]
Watson
testified that a material discrepancy was discovered in the
appellant's biographies. This led to an interview being conducted
with him on 14 April 1996 by Watson and one Sam. Details of the
interview are recorded in a contemporaneous document forming part
of
Exhibit C. The appellant signed a statement in which he confirmed
the correctness of the information disclosed in the document.
In the
interview the appellant, according to Watson, revealed that he had
been recruited in 1979 to work for the Security Branch
in South
Africa ("the Security Branch"). He also revealed how in
1983 he had been approached to work for the "South
African
Intelligence Services", presumably the NIS, but claimed he had
no special interest in working for them. This resulted
in the report
by Watson, to which reference has been made, which was probably
written on 16 April 1986. Watson's evidence was accepted
by Hurt J;
no grounds exist to hold that he erred in doing so.
[40]
Subsequently further biographical information was provided by the
appellant. Exhibit C contains certain documents that were compiled
in Vianna during the first two weeks of June 1986. One relates to an
interview with the appellant; two were written by the appellant,
one
of them in part being a response to what was noted at the interview.
In these documents earlier references to the appellant's
contact
with, and activities on behalf of, the Security Branch are elaborated
upon. Significantly, various discrepancies and false
statements
began to emerge from the biographical details. Amongst these were a
number of different, irreconcilable versions of why
and in what
circumstances the appellant left South Africa, the details of which
need not be gone into. In a report purporting to
be by one of the
appellant's interrogators (compiled at Vianna on 22 July 1986) it was
stated:
"We are
convinced that the person was sent here and also agreed to work for
the NIS when Themba recruited him . . . .
Our recommendation
is that he should be taken for interrogation at a correct place. We
are fully convinced that this man is an enemy
agent."
The report reflects
the subjective view of its author, who was not called as a witness.
It is accordingly strictly hearsay, but its
relevance and
significance lies in the fact that shortly thereafter the appellant
was moved to Quatro which was,
inter alia
, a place where spies
or suspected spies were detained and interrogated - presumably what
the author of the report had in mind when
he referred to "a
correct place".
[41]
Throughout his evidence the appellant denied that he had had any
previous connections with either the Security Branch or the NIS,
or
that he had voluntarily admitted to or disclosed anything to that
effect. He contended that he had been subjected to various
forms of
assault and torture which had caused him to incorporate false
material into his biographies in order to satisfy his interrogators.
Hurt J found his evidence in this regard to be "rather vague and
inconclusive". Whatever the position might have been
in regard
to later written biographies or statements made, this could not have
been the case while he was in Dakawa or Vianna. The
appellant
specifically disavowed in his evidence that he had been maltreated in
either of those places. There would therefore have
been no reason or
incentive for him to have provided false information. And there
would appear to be no plausible reason why the
ANC, at that stage,
would have required him to record false information which could have
served no purpose as far as it was concerned.
In the result, and
having regard to his credibility findings, I see no reason to differ
from Hurt J's conclusion that the appellant's
evidence suggesting
that the documents referred to contain false information provided by
the ANC interrogators was "highly improbable".
[42]
Mr
Jeffereys
accepted, in my view correctly, that if there
existed on the part of the ANC a reasonable suspicion or a reasonable
belief founded
upon a factual basis (cf
Hurley and Another v
Minister of Law and Order and Another
1985 (4) SA 709
(D &
CLD) at 716 J - 717 A) that the appellant had presented himself as a
recruit with an ulterior motive, in other words, that
he was spying
for the Government, the ANC was lawfully entitled to detain him,
having regard to the fact that the lawfulness of the
appellant's
detention had to be judged by the
lex loci
and the undisputed
evidence concerning the recognition and powers afforded the ANC in
the countries concerned, the circumstances
that pertained in them and
the ANC's involvement in the armed struggle against the Government.
The ANC's power to detain having
been conceded, all that remains to
be decided is whether the requisite reasonable suspicion existed.
[43]
In my
view, having regard to the evidence of Watson, the contents of the
relevant documents in Exhibit C and the probabilities,
a reasonable
suspicion as to the appellant's genuineness, i e that he was a spy
and not a normal recruit, arose while he was being
interviewed in
Dakawa, a suspicion which was reinforced, or at the very least
confirmed, by the events in Vianna. Consequently I
agree with the
conclusion of Hurt J that the initial detention of the appellant was
lawful.
[44]
The ANC
led evidence of subsequent events which it claimed not only
heightened its suspicions that the appellant was a spy, but
positively established that he was. Included was evidence of a
recorded confession by the appellant detailing his activities as
a
NIS agent, allegedly made by him at Quatro on 2 September 1986 to,
inter alia
, the then commander of Quatro, Mr Masango. The
amount of personal and other detail contained in the document points
to its authenticity,
but having regard to the conditions at Quatro
and the probability that the appellant was assaulted there the
reliability of the confession
is open to sufficient doubt to justify,
and indeed compel, its exclusion from consideration. There was also
evidence by Mr Mhlanga
that the appellant had admitted to him (at
Quatro) his involvement with the NIS. The witnesses, Ms Mtintso and
Mr Rosho testified
that the appellant had also admitted this to them
at Bokoloda and had claimed prisoner of war status. Hurt J was
inclined to accept
their evidence. However, in the face of the
appellant's denial thereof (even allowing for the fact that he was
not a credible witness
in material respects) and the lapse of time
since the events took place, it would probably be safer to disregard
their testimony
in that regard. What can confidently be asserted is
that there is nothing arising from the later events that would have
allayed
or negated the reasonable suspicion that existed when the
appellant was first detained. At the very least that suspicion
existed
throughout.
[45]
The
next question that arises is whether the appellant's detention
continued to be lawful, more particularly whether it was still
so
between November 1990 and August 1991, the period in respect of which
any claim the appellant may have for unlawful detention
is still
extant. The parties accepted that the provisions of the Geneva
Conventions of 1949 and Additional Protocol I of 1977 ("the
Protocol") were applicable to the conflict between the ANC and
the South African Government and regulated the appellant's detention,
despite the doubts expressed in this regard in
Azanian Peoples
Organisation (AZAPO) & Others v President of the Republic of
South Africa & Others
[1996] ZACC 16
;
1996 (4) SA 671
(CC) at 689 C - D. (I
express no view on the matter.) It is common cause that the ANC in
1980 publicly subscribed to their provisions.
The only existing
issue in this respect is whether they entitled the ANC, without
anything further being done, to detain the appellant
as a suspected
spy until the cessation of hostilities (as the ANC claimed) or
whether it was obliged to afford him the benefit of
a trial within a
reasonable period. In this respect the appellant sought to rely upon
art 75 of the Protocol while the ANC invoked
articles 43 to 46 of the
Geneva Conventions.
[46]
I do
not consider it necessary or advisable to attempt an interpretation
of the relevant provisions of the Geneva Conventions and
the
Protocol, which are complex and, in some respects, obscure. The
argument before us on the point was limited and not supported
by
authority. I shall accept in the appellant's favour that, having
lawfully detained him on suspicion of being a spy, the ANC was
obliged to afford him the benefit of a trial within a reasonable
time. The purpose of a trial would have been to establish whether
he
was a spy, in which case he could, at best for him, have been
detained until hostilities had ceased or, failing proof that he
was a
spy, to oblige his release.
[47]
Was the
appellant afforded or offered a trial within a reasonable time? What
is reasonable depends upon the facts and circumstances
of each
particular case. Hurt J held that it appeared, having regard to the
evidence and the probabilities, that the ANC always
intended to
comply with the obligations it had undertaken, in terms of the
Geneva Conventions and the Protocol, to give persons
detained by it a
hearing. A tribunal for this purpose was set up in Luanda in March
1988. This was done, according to Mhlanga,
in accordance with
resolutions taken at the Kabwe conference and the moral dilemma with
which the ANC was confronted because of the
prolonged incarceration
of detainees. The tribunal, comprising five members under the
chairmanship of Mr Stuart (who had previously
headed the Stuart
Commission), proceeded to try detainees. Mhlanga testified that the
priority by which detainees were selected
for trial was the length of
time they had spent in detention. There is no evidence that the
appellant ever insisted on being tried
while at Quatro. The
detainees who appeared before the tribunal were defended by Mr Maduna
(the current Minister of Justice), a
number of them successfully, as
a result of which they were released. The tribunal was unable to
complete its work in 1988 because
of various complications that
arose. These were, according to Mhlanga, the problems relating to
the transportation of detainees
from northern Angola to Luanda for
trial in the face of an escalation of UNITA attacks on the ANC;
conditions in northern Angola
were not conducive to moving the
tribunal there; and pressure by the Government on Angola to close
down all foreign military camps
in Angola. It was because of the
latter development that the detainees were eventually moved to
Bokoloda in Uganda in November 1988,
at which time the appellant had
not yet been afforded a hearing. Mhlanga's evidence in the above
regard was not seriously challenged.
[48]
It is
common cause that the appellant was offered a hearing at Bokoloda,
but that he turned it down. It does not appear from the
appellant's
evidence when this occurred. According to Mhlanga the appellant
voiced various complaints about his personal situation
and wanted to
be released. At that time there were plans afoot to set up another
tribunal in Uganda. The appellant intimated that
he would not be
prepared to participate in a hearing before the proposed tribunal.
This must have occurred, at the latest, before
October 1989, because
that is when Mhlangu left Bokoloda. It appears that the tribunal was
set up in Uganda in late 1989 or early
1990 under the chairmanship of
Mr P Jordan. In the light of the appellant's complaints, and the
length of his detention, it seems
likely that he would have been
offered a hearing fairly early on. The appellant never suggested that
he was only offered a hearing
long after his arrival at Bokoloda. On
the evidence the probabilities are that the appellant was offered,
and refused, a trial before
November 1990.
[49]
More
than two and a half years elapsed between the time the appellant was
first detained and the evacuation of detainees (including
the
appellant) from Quatro and their eventual transferal to Bokoloda.
Prima facie
a delay of that magnitude in bringing the
appellant, a suspected spy, to trial would be excessive and
accordingly unreasonable, thus
rendering his continued detention
unlawful. But, as Hurt J correctly pointed out, in judging the
reasonableness of the delay it
would be wrong to adopt an "armchair
approach". Due allowance must be made for the precarious
situation in which the ANC
found itself in Angola both from a funding
and logistic point of view. It was not operating or functioning in
normal circumstances.
In 1988 it eventually succeeded in setting up
a tribunal which commenced to try detaineees, the longest detained
being tried first.
Had it not been for the disruption caused by the
need to leave Angola and move to Uganda the tribunal would probably
have completed
its work. In the nature of things the move would have
resulted in an inevitable and excusable delay in the resumption of
trials.
Hurt J held, in the circumstances, that the failure to try
the appellant did not give rise to a claim for damages for wrongful
detention.
His underlying reasoning was that
"the delict of
wrongful detention is founded on
animus injuriandi
and I
consider that the [ANC] has established that the failure to try the
[appellant], formally, before camp 32 [Quatro] was evacuated,
was
neither malicious nor reckless".
[50]
There
is much to be said for Hurt J's point of view. On the other hand,
even given the considerations mentioned by him, the period
involved
would seem to go beyond what might reasonably have been expected,
particularly in view of the fact that the ANC had taken
upon itself
the obligations imposed by the Geneva Conventions and the Protocol.
It is, however, unnecessary to come to a firm conclusion
in this
regard. I shall accept, in favour of the appellant, that at some
stage before he left Quatro his detention had became unlawful
by
reason of the unreasonable delay in bringing him to trial.
[51]
The
situation in my view reverted to what it had been before when the
appellant was offered a trial in Bokoloda, which he refused.
At that
time there still existed a reasonable suspicion that the appellant
was a spy. If he had submitted to a trial and been found
to be a
spy, the ANC would once again lawfully have been entitled to detain
him; had a trial been proceeded with in his absence upon
his refusal
to participate the probabilities are that he would have been found
guilty of spying, thus justifying his detention.
By the same token,
if he refused a trial without reasonable grounds for doing so, his
further detention, because of the suspicion
that still existed, would
have been justified, making his detention once again reasonable in
the circumstances, and accordingly lawful.
It is trite law that
whether conduct is lawful or wrongful is determined according to the
general criterion of reasonableness.
[52]
In
response to a question by Hurt J as to why he had refused to
participate in a hearing (the purpose of which he claimed he was
unaware) the appellant replied:
"The main
reason, M'Lord, was that I had been detained for many years without
being afforded the opportunity of a trial. Secondly,
I would not
have access to my own legal representation. So I thought it wouldn't
be fair."
One can readily
understand the appellant's chagrin because of his long detention
without a hearing. But that in itself does not provide
an acceptable
reason for refusing to be tried. Nor could he reasonably have
expected, given the circumstances which prevailed at
the time, a
legal representative of his own choice. Detainees had previously
been provided with adequate legal representation and
some had been
freed. There was no evidence concerning the composition of the new
tribunal, but it is reasonable to assume that it
would have been
constituted along the same lines as the previous one. It was never
suggested that the earlier tribunal had not permitted
a fair defence
or provided a fair hearing; and there appears to have been no reason
to believe that the newly constituted tribunal
would be any different
in that respect. The reasons advanced by the appellant for refusing
a hearing were subjective, speculative
and not compelling. In my
view he did not advance, nor on the evidence did he have, any
reasonable and well-founded grounds for
refusing a hearing. In the
circumstances, by refusing to be tried he became the author of his
own predicament.
[53]
Consequently, the appellant's detention over the period November
1990 to August 1991 was lawful. To the extent that any detention
before that was unlawful, any claim he might have had in respect
thereof has prescribed, for the reasons already given. In the result
Hurt J correctly dismissed his claims in the court below, and his
appeal must fail.
[54]
The
result is an unfortunate one for the appellant. One cannot help but
feel sympathy for him. On the probabilities he was assaulted
and
maltreated while in captivity although perhaps not to the extent he
claimed. Regrettably any claims he might have had were extinguished
by prescription.
[55]
The
appeal is dismissed with costs, including the costs of two counsel up
to and including the stage of preparation of the respondent's
heads
of argument.
_____________________________
J W
SMALBERGER
ACTING
DEPUTY PRESIDENT
OLIVIER JA )Concur
STREICHER JA )
FARLAM
JA )
NAVSA
JA )