Bozzoli and Another v Station Commander, John Vorster Square, Johannesburg

• Jurisdiction: South Africa
• Judge: Snyman J
• Judgment Date: 10 June 1972
• Citation: 1972 (3) SA 934 (W)
• Hearing Date: 10 June 1972
• Court: Witwatersrand Local Division

Snyman, J.:

This is an application by one Dr. Bozzoli, the principal of the Witwatersrand University. The first prayer, takes the form of what is known commonly as a request for a writ of habeas corpus more correctly in our law as an interdictum de homine libero exhibendo. The second prayer is an alternative asking that this Court direct that

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the respondent, who is the Station Commander of the South African Police, John Vorster Square, Johannesburg, bring the persons before a magistrate upon a charge or charges in respect of their arrests.

A At the outset of these proceedings I raised mero motu the question as to whether the applicant had locus standi in judicio to bring this application. Both counsel have addressed me on the matter. I was referred particularly by Mr. Unterhalter to a case In re Cakijana and Others, (1908) 29 N.L.R. 193, where that Court consisting of three Judges expressed the view that an action can be brought by any member B of the public on the basis of an actio popularis provided the circumstances were there for such an application.

In his founding affidavit in support of his notice of motion, Dr. Bozzoli says that he is the principal of the University of the Witwatersrand, and on that basis he applies on behalf of the students. C Now I was not impressed by the way that the matter was set out in his affidavit, but one realises that this is an urgent application and legal advisers who have to draw up such a document have not much time to do so. I am prepared, therefore, in the circumstances to accept what Mr. Unterhalter has said from the Bar, that is that, as principal of the D Witwatersrand University, he has an interest, has a special interest, as I understood it, in regard to the students of that University.

The other case to which I have been referred is Patz v Greene & Co., 1907 T.S. 427, I have had the case read to me and, as I remember it, it E is no support for this contention that the actio popularis exists in South African law, indeed it is my view that that actio has long since ceased to be law in South Africa; and, with great respect to the Natal Court who expressed the other view, I am not persuaded by that judgment that it exists. It seems to me that, however urgent applications of this F nature are for they concern the liberty of a citizen, it must be by some interested person such as a relative or friend, or some person who has a special interest, and I want to make the point, an interest above that of the ordinary member of the general public; in other words, not just a member of the popularis but some person who has a special G interest in regard to that person who has been deprived of his freedom.

In the circumstances of this case and from what has been said from the Bar, I am satisfied that the applicant has a special interest as the principal of the University of the Witwatersrand. He has a special H interest for the welfare of his students. On that basis I am prepared to accept that he has locus standi in judicio to bring this application.

SNYMAN, J.: This is an application by Dr. Guerino Renzo Bozzoli. He is the principal of the University of the Witwatersrand, Johannesburg. He asks for two forms of relief in the alternative. The first claim is for what is commonly known as a writ of habeas corpus, but what is more correctly known as an interdictum de homine libero exhibendo - that

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is that a person is being unlawfully held by the police or by anybody else for that matter. In the aliernative he asks for an order directing A the respondent - that is the Station Commander of the South African Police at John Vorster Square, Johannesburg - forthwith to bring the persons whose names are set out before a magistrate upon a charge or charges in respect of which they were arrested at the University of the Witwatersrand on 9th June, 1972; and of course the costs of this application.

B The evidence before me is, in the case of the applicant, by way of affidavits. In one by himself he sets out that a report has been made to him that certain students of the University had been arrested and taken in custody to John Vorster Square. It is clear from his affidavit that C he personally did not see the arrest and that he is speaking from reports made to him.

The next affidavit is by Mr. Raymond Tucker, an attorney of this Court, who also did not see the arrests and cannot therefore speak as to the circumstances in which the arrests were made or whether or not the arrests were lawful or unlawful.

D A third affidavit is by one Adam Klein, the acting president of the Students Representative Council of the University of the Witwatersrand. He gives evidence of a conversation which he had with one Brigadier Schröder in Jan Smuts Avenue. He sets out what is alleged to have been said to him.

E It is clear that Brigadier Schröder, whatever his position may be, is not the Station Commander of John Vorster Square, Johannesburg. He is apparently some other police officer. The conversation which took place between this deponent and Brigadier Schröder, as far as the two parties F before this Court are concerned, is therefore purely hearsay and really inadmissible. No effort has been made to show that Brigadier Schröder has any connection with the respondent. In any event, he too merely speaks on a subject which could, if it were admissible, have some effect on the alternative prayer.

G Then there is an affidavit by one Susan Michalow. All we know of her is that she is a student of the University of the Witwatersrand. She says that she was standing on a fire hydrant on the property of the University close to the boundary of the University with Jan Smuts Avenue. She says that along the boundary there were University students H gathered, many of whom were holding placards in a demonstration. To the best of her belief they were all on the University property and none of them were on the pavement. Then she tells of people on the opposite side of the pavement whom she believes to be policemen. She says that at about three o'clock Brigadier Schröder warned the crowd to disperse and said that they were illegally gathering...