Abrahams v Minister of Justice and Others

• Jurisdiction: South Africa
• Judge: Diemont J, Banks J and Corbett AJ
• Judgment Date: 30 August 1963
• Citation: 1963 (4) SA 542 (C)
• Court: Cape Provincial Division

Abrahams v Minister of Justice and Others
1963 (4) SA 542 (C)

1963 (4) SA p542

Citation	1963 (4) SA 542 (C)
Court	Cape Provincial Division
Judge	Diemont J, Banks J and Corbett AJ
Heard	August 19, 1963; August 20, 1963
Judgment	August 30, 1963

Flynote : Sleutelwoorde

Criminal procedure — Arrest — Application by accused for habeas E corpus — Onus on accused to prove detention unlawful — If detention lawful, circumstances of arrest and capture irrelevant — Court can hold him until trial and conviction.

Headnote : Kopnota

Before an applicant for habeas corpus can succeed he must establish that he is being unlawfully detained. Once there is a lawful detention, the F circumstances of the accused's arrest and capture are irrelevant. Once he is before the Court it can hold him until his trial and conviction.

Anticipated return day of a rule nisi. The facts appear from the reasons for judgment.

G B. M. Kies, for the applicant: As to the scope of habeas corpus, see R v Barnardo, 1891 A.C. 388; Harnett v Fisher, 1927 A.C. 574. As to the procedure relating to habeas corpus, see Re Corke, 1954 (2) A.E.R. 440; Voet 43.29; S.A.L.J. (Aug. 1962) p. 285; Verloren van Themaat Staatsreg p. 129; In re Hastings (No. 2), 1959 Q.B. 358 at p. 367. See also In re Willem Kok and Another, 1879 Buch. 45 at pp. 60 - 1; Cebekula v. H Peppler, N.O., 1947 (4) SA 580; Ganyile v Minister of Justice and Others, 1962 (1) SA 647; Hooper v Superintendent, Johannesburg Gaol (1), 1958 (2) SA 152; In re Marechane, (1882) 1 S.A.R. 27; Tonge v Governor of Johannesburg Gaol, 1903 T.H. 393; Li Kui Yu v Superintendent of Labour, 1906 T.S. 181; Principal Immigration Officer v Narayansamy, 1916 T.P.D. 274; Kazee v Principal Immigration Officer, 1954 (3) SA 759; Ex parte Hathorn, 1960 (2) SA 767; Mawo v Pepler, 1960 (4) SA 291.

J. H. Steyn, S.C. (with him J. A. F. Nel), for the respondents: The

1963 (4) SA p543

writ habeas corpus is an interdict historically and in effect. See Voet 43.29; Nathan Law and Practice relating to Interdicts, p. 124; Ganyile v Minister of Justice and Others, supra. The rules of procedure of this Court are devised for the purpose of administering justice, not A hampering it. See Ncoweni v Bezuidenhout, 1927 CPD 130; Grosvenor Motors Cape Ltd v Samson, 1956 (3) SA 169 at pp. 174 - 5; see also Brown Bros v Deise, 1955 (1) SA 75 at p. 77. Applicant must establish that he has been unlawfully detained. See Re Corke, 1954 (2) A.E.R. 440; Voet, loc. cit. The Court will not allow applicant's case to be supplemented in a replying affidavit. See Mauerberger v Mauerberger, B 1948 (3) SA 731; de Villiers v de Villiers, 1943 T.P.D. 60; Alli v Premier Timber Co. and Another, 1952 (1) SA 689 at p. 693; Short v Naisby, 1955 (3) SA 572 at p. 574; Bayat and Others v Hansa and Another, 1955 (3) SA 547 at p. 553; Kruger v Symington, N.O. and Another, 1958 (2) SA 128 at pp. 133; Herbstein & van Winsen, Civil C Practice pp. 38 - 9. Once a person is in lawful custody within the jurisdiction of a Court, the Court will not enquire, and in fact has no power to enquire, into the circumstances in which he came to find himself there. See R v Robinson, 1912 T.P.D. 10 at pp. 12, 13 and 16; R v O./C. Depot Batt. R.A.S.C. Colchester; Ex parte Elliot, 1949 (1) A.E.R. 373; Sinclair v H.M. Advocate (2), Sessions Cases R.17, (1888 D - 1889) 38 at pp. 42, 43; Ex parte Susannah Scott, (1829) Banewall & Cresswell's Reports Vol. IX 446 at p. 448; Ganyile's case, supra at p. 652.

Judgment

Diemont, J.:

An urgent application in connection with this matter was E brought before me in Chambers on the late afternoon of Monday, 19th August, 1963. As there had been no service on the respondents I caused the matter to be postponed until the following morning so that the process could be served on the Attorney-General and the Government Attorney.

On Tuesday morning, the 20th August, 1963, the matter was called in F Court and the...