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

• Jurisdiction: South Africa

Apleni v Minister of Law and Order and Others;
Lamani v Minister of Law and Order and Others
1989 (1) SA 195 (A)

1989 (1) SA p195

Citation	1989 (1) SA 195 (A)
Court	Appellate Division
Judge	Rabie ACJ, Viljoen JA, Hefer JA, Grosskopf JA, Vivier JA
Heard	November 3, 1987
Judgment	November 26, 1987

Flynote : Sleutelwoorde I

Internal security — Detention in terms of reg 3 of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Application for interdicts restraining police from assaulting, unlawfully interrogating detainees etc — Rule nisi issued — Disputes of fact arising — Application made for matter J to be referred for oral evidence — Application

1989 (1) SA p196

A dismissed in Local Division on the ground that reg 3(10) precluded detainees from giving viva voce evidence in Court whilst still in detention — No evidence that consent required by reg 3(10) had been or would be refused — Refusal of application to refer matter for hearing of oral evidence in terms of Rule of Court 6(5)(g) accordingly set aside B on appeal.

Internal security — Detention in terms of reg 3 of emergency regulations made in terms of s 3 of Public Safety Act 3 of 1953 as promulgated in Proc R109 of 12 June 1986 — Application for interdicts restraining police from assaulting, unlawfully interrogating detainees etc — C Rule nisi issued — Dispute of fact arising — Application dismissed in Local Division — Court holding that it could not refer applications for oral evidence to be heard after detainees' release with interim interdict as such would amount to granting of final interdicts on motion where facts in dispute — Court holding on appeal that such order would D not amount to a final determination of the rights of the parties nor would it amount to any finding on the facts — Appeal allowed.

Headnote : Kopnota

The appellants had been detained pursuant to the provisions of reg 3 of the emergency regulations promulgated by Proc R109 in Government E Gazette 10280 of 12 June 1986 in terms of s 3 of the Public Safety Act 3 of 1953. Alleging that they had been assaulted and subjected to unlawful interrogation, pressure and duress during their detention by members of the South African Police, they applied in a Local Division for interdicts restraining the police from assaulting them or subjecting them to unlawful interrogation, pressure or duress during their detention. A rule nisi was issued, operating as a temporary interdict, restraining the police from such conduct. On the return day, the F respondents opposed the granting of the interdict. As certain disputes of fact had arisen, the applicants applied for an order referring the matter for oral evidence in terms of Rule 6(5)(g) of the Uniform Rules of Court and, pending the adjudication of the matter, an interim interdict against the police. The applicants sought, in the alternative, an order postponing the matter for the hearing of oral evidence to a date after their release from detention and granting them interim interdicts. The Local Division refused the order referring the G matters for oral evidence on the ground that reg 3(10) precluded the appellants from giving viva voce evidence in Court while they were in detention. The alternative orders were also refused on the ground that granting them would amount to the granting of final interdicts in motion proceedings where the facts were in dispute. In an appeal,

Held, as to the application for orders referring the matters for the hearing of oral evidence, that it was nowhere stated in the H affidavits, nor in the judgment of the Court a quo, nor was it contended by counsel on appeal, that the consent required by reg 3(10) had been, or would be, refused: the mere fact that the respondents resisted that application did not mean that the Minister had refused to grant his consent, or would refuse to do so if the order was made.

Held, accordingly, that the Court a quo had prematurely held that reg 3(10) precluded a detainee from giving viva voce evidence in Court, I and that the order sought should have been granted.

Held, further, as to the alternative orders sought, that on the facts the grant of interim interdicts did not involve a final determination of the rights of the parties and did not affect such determination; furthermore the grant of the interim interdicts did not amount to any finding on the facts, which would only have been made, together with appropriate orders as to costs, upon the final determination of J the issues between the parties.

1989 (1) SA p197

A Held, further, that the interdicts sought, although final in effect, were therefore certainly not final in substance: the fact that the determination of the issues would only have taken place after the risk of injury had passed was obviously no bar to the grant of the orders.

Held, accordingly, that the alternative orders should at least have been granted.

The dicta in Ngxale v Minister of Justice of the Ciskei and Others B 1981 (2) SA 554 (E) at 561F - H overruled.

The decisions in the South Eastern Cape Local Division in Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others reversed.

Case Information

Appeal from a decision in the South Eastern Cape Local Division (Mullins J). The facts appear from the judgment of Vivier JA.

C D A Gordon SC (with him J Pickering ) for the appellants referred to the following authorities: Joubert (ed) Law of South Africa vol II at para 323 et seq ; Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban, and Others 1986 (2) SA 663 (A) at 671 - 2, 667B - D; Mkhize v Minister of Law and Order 1985 (4) SA 147 (N); Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A) at 405B - D G; Botes v Van Deventer 1966 (3) SA 182 (A) at 188D - G; Minister of Justice v Seametso 1963 (3) SA 530 (A) at 535C - H; Nordien v Minister of Law and Order 1986 (2) SA 511 (C) at 520F - 524A; Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 613H - 614B, 615A - B, 617G - H, 619E - H, 621E - G, 622B - F; Rossouw v Sachs 1964 (2) SA 551 (A) at 561A - B; Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) E at 584A - B; Mathews Law, Order and Liberty at 140 n 45; Mathews and Albino in (1966) 83 SALJ 16 at 39; Ngxale v Minister of Justice of Ciskei and Others 1981 (2) SA 554 (E) at 557D, 557F, 559H - 560B, 561F; Gosschalk v Rossouw 1966 (2) SA 476 (C) at 488A - C, 493H - 494A.

F P A Hattingh SC (with him P J de Bruyn ) for the respondents referred to the following authorities: Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 at 543; Clinch v Lieb 1939 TPD 118 at 125; Webster v Mitchell 1948 (1) SA 1186 (W); Gool v Minister of Justice 1955 (2) SA 682 (C); Rossouw...