Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Viljoen JA, Hefer JA, Grosskopf JA, Vivier JA
• Judgment Date: 26 November 1987
• Citation: 1989 (1) SA 195 (A)
• Hearing Date: 03 November 1987
• Court: Appellate Division

Vivier JA:

In separate applications, arising from similar circumstances, the two appellants applied before Mullins J in the South Eastern B Cape Local Division for substantially similar relief. Both had been detained pursuant to the provisions of reg 3 of the emergency regulations promulgated by Proc R109 in Government Gazette 10280 of 12 June 1986 in terms of s 3(1)(a) of the Public Safety Act 3 of 1953. Both alleged that they had been assaulted and subjected to unlawful C interrogation, pressure and duress during their detention by members of the South African Police, resulting in their admission to Livingstone Hospital where they were still receiving treatment at the time the applications were lodged 45 days later on 1 September 1986. Both appellants expressed a fear of similar unlawful conduct after their discharge from hospital. A rule nisi was sought in each case, operating D as a temporary interdict, restraining members of the South African Police from assaulting or subjecting the appellants to unlawful interrogation, pressure or duress during their detention. Certain additional relief was sought in order to provide the appellants with evidence to support their allegations, relating to the production of hospital records and medical examinations by the district surgeon. Both applications were opposed by the respondents who filed opposing E affidavits in which all the allegations of assaults and other unlawful conduct were specifically denied. The appellants in turn filed replying affidavits.

At the hearing of the applications, in view of the disputes of fact which had arisen, each appellant applied for an order that the matter be F referred for oral evidence and that, pending the hearing and adjudication thereon, an interim interdict be granted restraining the police from assaulting or otherwise unlawfully treating him. In the alternative each appellant sought an order postponing the matter for the hearing of oral evidence to a date after his release from detention and granting him an interim interdict.

Both applications were dismissed with costs by Mullins J, who G granted leave to the appellants to appeal to this Court. The learned Judge in effect found that, despite the disputes of fact on the affidavits, each appellant had satisfied all the requisites for an interim interdict and that, were it not for the provisions of reg 3(10) of the said regulations, he would have made an order in each application referring the matter for oral evidence in terms of Rule of Court 6(5)(g) H and granting an interim interdict pending the final determination of the matter.

Regulation 3(10) provides as follows:

'3(10) No person, other than the Minister or a person acting by virtue of his office in 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 I subject to such conditions as may be determined by the Minister or a person authorised 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.'

The learned Judge held, following the decisions in Schermbrucker J v Klindt NO 1965 (4) SA 606 (A) at 619D - H, 625H - 626C and Ngxale v

Vivier JA

Minister of Justice of the Ciskei and Others 1981 (2) SA 554 (E) at 559E, that reg 3(10) precluded the appellants from giving viva voce evidence in Court while they were in detention. This meant, the learned Judge held, that the applications could not referred for oral evidence for as long as the appellants remained in detention. The learned Judge further held that...