African National Congress and Another v Lombo

• Jurisdiction: South Africa
• Judge: Corbett CJ, E M Grosskopf JA, Nienaber JA, Marais JA and Scott JA
• Judgment Date: 18 February 1997
• Citation: 1997 (3) SA 187 (A)
• Docket Number: 149/95
• Hearing Date: 12 November 1996
• Counsel: Penzhorn (for the first appellant) in reply Moerane (for the second appellant) in reply
• Court: Appellate Division

Corbett CJ:

In the Court below (the Durban and Coast Local Division) the respondent instituted an action for damages against the two appellants, the African National Congress ('ANC') - first appellant - and the South African Communist Party ('SACP') - the second appellant. It is common cause that each appellant is a political organisation capable of suing and being sued in its own name. J

Corbett CJ

The following allegations, inter alia, are made in respondent's particulars of claim: A

(1)

In about January 1986 respondent became a member of the ANC and, at the instance of the ANC and the SACP, left for Botswana in order there to undergo military training so as to be able to assist the appellants in their B struggle against the then Government of the Republic of South Africa.

(2)

During January 1986 the respondent was abducted by the appellants and handed over to the Botswana security forces who interrogated him for three days. He was also then deprived of certain personal property. C

(3)

Thereafter appellants transported the respondent to Lusaka, Zambia, where he was imprisoned in a prison described as 'RC' until about May 1986. This was followed by similar incarcerations in the 'Nova Stallicao' prison, in Angola until about November 1986; in the 'Quatro' prison, also in Angola, D until about December 1988; and in the 'Bokoloda' prison in Uganda until his release by the appellants in August 1991.

(4)

During his incarcerations the respondent was subjected to various forms of maltreatment, including detention in isolation and in darkness, prolonged interrogation, torture, assaults and threats of death. E

(5)

During his imprisonment the respondent was deprived of adequate quarters, proper food, medical treatment, proper clothing, study and recreational opportunities, communication with fellow detainees, and so on.

(6)

As a result of these assaults and torture the respondent suffered pain, physical injury and mental anguish. F

In his particulars of claim the respondent names various persons at whose instance this maltreatment at the hands of his guards occurred and avers that these persons were at all material times members of the appellants and acted in pursuance of the aims and G objects of the appellants. He accordingly claims from the appellants damages in large sums of money for unlawful imprisonment, assault and torture, deprivation of the amenities of life, pain and suffering, shock, contumelia, loss of income and loss of his personal property.

To these particulars of claim the appellants raised a number of special pleas and a main plea on the merits. When the matter came to trial before Broome DJP, he, at the H request of the parties, heard argument on the fifth and sixth special pleas only and reserved judgment. This was done presumably in terms of Uniform Rule of Court 33(4). The learned Judge later delivered judgment in terms of which both special pleas were dismissed with costs. With the leave of the trial Judge the appellants have appealed to this Court against his dismissal of the fifth special plea only. I

This appeal was not prosecuted in accordance with the Rules of the Appellate Division. Notice of appeal was filed timeously, but the period of 20 days for the lodging of the power of attorney as prescribed by AD Rule 5(3)(b) elapsed on 5 May 1995 without the required powers having been lodged. These powers of attorney, supported by resolutions by the appellants, were lodged only on 11 September 1995. The appellants J

Corbett CJ

were also seven days late in entering into security as required by AD Rule 6(2). A Appellants applied for condonation of their failure in these respects to comply with the Rules. It is not necessary to detail the reasons advanced for such failure. In short they indicate that the failure is to be attributed largely to the neglect of the appellants' then attorney. There was also an undue delay in lodging the application for condonation. B

Shortly after the lodging of the application for condonation respondent filed a notice of opposition thereto, but indicated that his opposition would be limited to the questions whether the grantor of the power of attorney was properly authorised to act on behalf of the appellants (petitioners) and whether the appellants had succeeded in discharging 'the onus of establishing such as is necessary to succeed in the application'. C Subsequent to this a fresh application for condonation was filed to which were attached a new power of attorney and fresh resolutions.

When the appeal was called before us respondent's counsel indicated that in the light of the new documentation he withdrew the objection to the power of attorney and D opposed the condonation solely on the ground that there were not reasonable prospects that the appeal would succeed. He also pointed out that there was no tender of wasted costs, but this was immediately made by appellants' counsel. In the circumstances the Court proceeded to hear argument on the merits of the appeal, in order to determine both the application for condonation and, in the event of its success, the appeal itself. I proceed now to consider those merits. E

The fifth special plea reads as follows:

'1.

At all times material and more especially prior to 3 February 1990, the first and second defendants were banned, alternatively unlawful, organisations in terms of the laws of the Republic of South Africa. F

2.

In the premises the first and second defendants did not exist in law and accordingly could not commit any of the delicts alleged.

3.

In the further premises no action in law lies against the first and or second defendants for any or all acts committed by the first and second defendants during the aforesaid period of May 1986 to 1 February 1990. G

Wherefore the first and second defendants pray that the plaintiff's claim for any or all acts committed between the period May 1986 to February 1990 be dismissed and for judgment in their favour with costs, such costs to include the cost of two counsel.' H

(I have quoted from the pleadings in the appeal record. The judgment of the Court a quo quotes the fifth special plea, but para 3 is in terms different from what I have quoted. It is not clear to me which of these versions is the correct one. In my view, however, nothing turns on this difference.)

It is conceded by counsel for the appellants (correctly, in my view) that prior to the I enactment of certain legislation which resulted in each of the appellants being declared an 'unlawful organisation' (or, as it is sometimes put, being 'banned' - see S v Arenstein 1967 (3) SA 366 (A) at 373B), each of them constituted a universitas personarum, ie an artificial or juristic person constituting a legal entity apart from the natural persons (members) composing it, having the capacity to acquire rights J

Corbett CJ

and incur obligations and to own property apart from its members and to sue and be A sued, and having perpetual succession. (See Webb & Co Ltd v Northern Rifles; Hobson & Sons v Northern Rifles 1908 TS 462 at 464-5; Magnum Financial Holdings (Pty) Ltd (in Liquidation) v Summerly and Another NNO 1984 (1) SA 160 (W) at 163E-G.) The general contention of the appellants is, however, that as a B result of their being declared unlawful organisations each of them was stripped of its legal personality and was rendered a 'phantom' organisation, having no legal existence and, therefore, being incapable during the relevant period (1986 to February 1990) of committing any of the delicts alleged by the respondent. Accordingly, so it was argued, C no action in law could lie in respect of these delicts and the fifth special plea ought to have been upheld with costs.

The earliest relevant piece of legislation was the Suppression of Communism Act 44 of 1950, which came into operation on 17 July 1950 (see Kahn v Louw NO and Another 1951 (2) SA 194 (C) at 199E). This Act contained a long and extensive D definition of 'communism' (s 1) and it declared the Communist Party of South Africa, including all its component bodies, to be an 'unlawful organisation' (s 2(1)). It further empowered the Governor-General to declare, by proclamation in the Gazette, any other organisation to be an unlawful organisation if he was satisfied that it professed to E be an organisation for propagating the principles of communism, or that this was one of its purposes, or that it engaged in activities calculated to further the objects of communism, or that it was controlled by such an organisation (s 2(2)). The Act also defined (in s 3) the consequences where an organisation had been declared unlawful. I shall return to this aspect later. F

The next legislation of relevance was the Unlawful Organisations Act 34 of 1960. Section 1(1) of...