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1992
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[1992] ZASCA 221
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Minister of Law and Order v Singh (429/91) [1992] ZASCA 221 (27 November 1992)
CASE NO 429/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
THE MINISTER OF
LAW AND ORDER Appellant
and
DEOMANI SINGH Respondent
CORAM
: BOTHA, NESTADT, EKSTEEN, NIENABER JJA
et KRIEGLER AJA
DATE HEARD
: NOVEMBER 17, 1992
DATE DELIVERED
: NOVEMBER 27, 1992
2
JUDGMENT
NIENABER JA
:
Section 1 of the Indemnity Act No. 3'5 of 1990
("the Act")
provides as follows:
"1. (1) The State President may, if he is of the opinion that it is necessary
for the. promotion of peaceful constitutional solutions
in South Africa or the
unimpeded and efficient administration of justice, by notice in the Gazette
grant to any person the immunity
referred to in subsection (2), either
unconditionally or on the conditions he may deem fit.
(2) No proceedings, either civil or criminal, shall be instituted or
continued in any court of law against any person to whom has
been granted such
immunity, during the period stipulated in such notice in respect of him, in
respect of anything done or omitted
by him on any date prior to the commencement
of that period, and such person shall not be detained during such period in
terms of
any law in respect of an act or omission at any time prior to the
commencement of that period."
On 15 January 1990 a notice by the State President, Government Notice no. 77,
was published in Government Gazette no. 12964. It reads:
"Whereas I am of the opinion that it is necessary
3
for the promotion of peaceful constitutional solutions in South Africa, I hereby
under the power vested in me by section 1(1) of
the Indemnity Act, 1990 (Act No.
35 of 1990), unconditionally grant to the persons specified in the Schedule,
immunity referred to
in section 1(2) of the aforementioned Act for the period
from the date of this notice up to and including 15 February
1991."
One of the names specified in the schedule was Kumar
Sanjay. Kumar Sanjay was the nom de guerre of a man whose real name was Girja
Singh. Girja Singh was born in Durban on 30 November 1939. I shall refer to him
henceforth as "Singh".
Singh was arrested and detained by the security police on 16 January 1991,
one day after the publication of the State President's
aforesaid notice of
temporary immunity. He was purportedly detained in terms of section 29 of the
Internal Security Act no. 74 of
1982. His sister (the respondent in this appeal)
brought an urgent application in the Durban and Coast Local Division against the
appellant (the respondent in the application) for his immediate release. It
succeeded. The court
4
(Bristowe J) in effect held that the State President's
temporary immunity
related, in each instance, to a
particular person and not to his name. The
court said:
"Mr
Booyens
who, with Mr
Mann
, has appeared for the Minister of
Law and Order, has argued that the indemnity [read "immunity"] was granted to
Sanjay Kumar but
the person who is arrested is not him at all, it is Girja
Singh. Regrettably these two names occupy the same corporeal body and by
arresting one you arrest the other. In my view, while there is much substance in
the argument that the State was misled as to the
identity of the person, it does
not touch the main issue, that is that the indemnity [read "immunity"] exists,
and whilst it exists
the person, by whatever name he goes, cannot be held in
custody."
Leave was subsequently granted to the appellant by
the court a quo to appeal to this court. The appeal,
regrettably, was not regularly prosecuted: the requisite
notice of appeal was not lodged within the then 21 day
period prescribed by rule 5(1) of the rules relating to
this court and the copies of the record of the
proceedings were not lodged within the period of 3 months
prescribed by rule 5(4). In fact the notice and the
5
copies were not lodged until some five months after leave
had been granted
by the court a quo. This non-compliance
with the rules necessitated a
petition to this court for
condonation. It is that application for
condonation
which is now before us.
Of the various considerations relevant to an application of this sort (cf
Federated Employers Fire & General Insurance Co Ltd
and Another v McKenzie
1969 (3) SA 360
(A) at 362F-H) , two are particularly in point: one, the
explanation tendered by the appellant for his non-compliance with the rules
of
court and two, its prospects of success on appeal. As to the first the
appellant's attorney, in the founding affidavit for condonation,
averred that he
had made numerous enquiries from the registrar of the court a quo about the
availability of the typed reasons and
the order of the court a quo relating to
the application for leave to appeal. These documents were required to enable him
to
6
complete the record of the proceedings. The attorney's explanation was that,
while waiting for them, he "overlooked the necessity
to file a notice of
appeal". Once the judgment was obtained, so he stated,, the notice of appeal and
the requisite copies of the
completed record were promptly lodged, albeit out of
time. The information in the founding affidavit as to his efforts to expedite
the completion of the record was decidedly skimpy. Nor was any explanation or
apology tendered by him as to why he laboured under
the misapprehension that the
filing of the notice of appeal was dependent upon the completion of the record.
Be that as it may, I
do not believe that his misconception and consequent
failure timeously to comply with the rules were so gross and reprehensible as
to
render the application for condonation unworthy of consideration (cf Rennie v
Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 131H-J). Indeed, counsel for the
respondent did not contend that the
7
application for condonation should be refused on this ground. What was
contended was that there were no prospects of success for the
appellant on
appeal. It was within the context of the application for condonation that the
merits of the case were fully canvassed
by both sides (of Rennie v Kamby Farms
(Pty) Ltd supra at 132A-B). These I now proceed to consider.
Kumar Sanjay was not Singh's only alias. According to his sister he was also
known as Sonny Singh. And according to major Naude of
the security branch of the
South African police, the principal deponent on behalf of the appellant, he was
known to the security
branch by his real name and by the pseudonym "Bobby" or
"Bob Pillay" but not by the name of Kumar Sanjay. Naude described him as
" 'n
opgeleide terroris" who was sentenced in 1964 to 10 years imprisonment for acts
of sabotage and who left the country illegally
in 1976. Thereafter he travelled
extensively and received training at various training
8
camps of the African National Congress. At the time of his arrest Singh, to
the knowledge of the South African police, was the Bureau
chief of the African
National Congress in Amsterdam where he normally resided.
During October 1990 one Maduna, a legal:adviser to the African National
Congress, made application locally on behalf of Singh, but
under his assumed
name of Kumar Sanjay, for a visa to enable him to enter the Republic of South
Africa. This application was still
pending when a similar application was made
on 30 November 1990, again under the name of Kumar Sanjay, the declared purpose
being
to attend a "consultative conference of the African National Congress in
South Africa". The latter application was likewise overtaken
by events.
Meanwhile, on 12 November 1990, a visa, valid until 11 February 1991, had been
issued to "Kumar Sanjay" by the South African
embassy at The Hague. It was under
that name, his occupation being given as the African National
9
Congress' representative in the Netherlands, his country of birth as Guyana
and the purpose of his entry to visit his family, that
Singh entered South
Africa on 3 December 1990. On his arrest Singh was found to be in, possession of
a passport issued by the Republic
of India at Lusaka, which was supplemented by
a further booklet issued at Maputo. In these documents he is described as an
Indian
national who was born in Georgetown, Guyana, which details were, of
course, false.
While in South Africa he applied, on 14 January 1991 and at Durban, for a
South African passport under his real name, Girja Singh.
In the application he
gave his place of birth as Durban and his occupation as ANC representative,
Netherlands. It was that application,
when referred to the security branch of
the South African police for its recommendations, which precipitated his arrest
on 16 January
1991. Notwithstanding representations by a firm of attorneys
instructed by both
10
the present respondent and Mr Walter Sisulu of the
African National
Congress, and a reliance on the
temporary immunity granted by the State President the day
before, Singh
was detained until he was, eventually
released by order of the court below. The attitude of
the authorities, in disregarding the temporary immunity,
is articulated as follows in the answering affidavit
deposed to by major Naude:
"As gevolg van die feit dat die Applikant onder 'n vals naam die land
binnegekom het, met 'n vals paspoort soos hieronder sal blyk,
wat selfs 'n
foutiewe geboorteplek vir horn aangedui het, voer ek met respek aan dat die
Applikant se nalate om aan te dui dat hy
ook onder andere name in Suid-Afrika
bekend is, daartoe gelei het dat daar op geen stadium toestemming aan horn
verleen is nie en
dat sodanige toestemming as wat wel aan die persoon met die
naam KUMAR SANJAY verleen is op 'n bedrieglike wyse bekom is."
And again:
"In die omstandighede voer ek met respek aan dat die Applikant inderwaarheid
geen tydelike vrystelling ontvang het nie aangesien sodanige
tydelike
vrystelling bedrieglik bekom is en dat om daardie rede die Applikant horn nie
kan beroep op die sogenaamde tydelike vrystelling
wat onder hierdie vals naam
aan horn gegee is nie aangesien dit
11
onmoontlik is om te bepaal of sodanige tydelike vrystelling wel aan horn gegee
sou word deur die Staatspresident indien die voile
besonderhede wel aan die
Staatspresident verskaf is."
And that, broadly speaking, was also
the argument advanced in this court: that the immunity was granted to a natural
person whose
name was specified as Kumar Sanjay; there was and is no natural
person whose name was Kumar Sanjay; the immunity did not, in terms,
apply to a
natural person whose name was Girja Singh; and since the immunity purported to
apply to a non-person it was accordingly
a nullity.
The argument is fallacious: as a matter of fact there was and is a natural
person with the name Kumar Sanjay. True, that may not have
been his real name,
but it is still a name by which, on the evidence, he was generally known and
identifiable. Nothing in the Act
provides, either expressly or by implication,
that the schedule is to contain only the exact name of a person as a
precondition to
the grant of a valid immunity; ergo,
12
that an assumed name vitiates an immunity which
would
otherwise be valid. Section 1 of the Act refers to "any
person" and
"such person". No mention is made of his
name. The emphasis is therefore on
the identity of the
person, not on the correctness of his name in
the
schedule. The immunity in the Government Notice under
consideration
was clearly intended to apply to each of
the individuals listed in the
schedule, regardless of
their correct names. The immunity, in short, arose
by
any other name - true or false. This is not a case where
a listed name cannot be linked to a particular
person,
either because no one is known by that name or because a
variety
of persons are. Here the incorrect name
identifies the correct person. And
that, for present
purposes, is all that matters.
That is not to say that the misinformation furnished to the authorities and
relayed to the South African police by Singh and the ANC
on his behalf, may not
have
13
other implications. The appellant's complaint, in
essence,
is that the false information given to it meant
that its recommendations to
the State President on the
granting of immunity to a person described as
Kumar
Sanjay was ill-informed, incomplete and misleading.
Major Naude
stops short of saying that a full disclosure
of the true facts would have
resulted in the refusal of
immunity to Singh by the State President. But it
is not
necessary to pursue this line of enquiry or to discuss
whether the
State President or a court of law would have
the right to revoke the immunity
on the ground of the
admitted misrepresentations. These questions do
not
arise in these proceedings and I purposely refrain from
expressing any
views on any of them. All that needs to
be said, on the papers before the
court a quo, is that
Singh's pseudonym did not invalidate the immunity
granted
to him under it. That immunity, until it expired or was
rescinded,
protected him from arrest and detention. The
14
court a quo was right. The contemplated appeal against its judgment and order
would inevitably fail. And in the absence of any realistic
prospects of success
the application for condonation must be refused.
The court a quo was minded, at first, to deprive the applicant of all or some
of her costs because of the misinformation contained
in the various'
applications completed by or on behalf of Singh. In the end costs were ordered
to follow the result since the pro
forma applicant was not shown to have been a
party to any deception. Counsel for the appellant sought, at first, to have that
order
amended. But because the notice of appeal omitted to specify it as a
ground of appeal, he did not pursue the point and accordingly
no more need be
said about it.
In the result the application for condonation is refused with costs. Since
the merits of the appeal were fully argued such costs are
to include the costs
of the
15
appeal. In both instances the costs are to include
those occasioned by the employment of two counsel.
P M Nienaber Judge of Appeal
Botha JA ] Nestadt JA ]
Eksteen JA ] Concur Nienaber JA ] Kriegler AJA]