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