Ebrahim v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Els J
• Judgment Date: 20 November 1992
• Court: Transvaal Provincial Division
• Hearing Date: 27 October 1992
• Citation: 1993 (2) SA 559 (T)

Els, J.:

The plaintiff sues the first defendant, second defendant and third defendant, jointly and severally, for damages in the sum of R652 500 for unlawful abduction, arrest and detention. At the beginning of the trial a E statement of agreement as to facts and of questions of fact and law for determination by myself was drawn up and handed in. The statement reads as follows:

'1.

On 15 December 1986 the plaintiff was abducted from Swaziland to the Republic of South Africa.

2.

F On 16 December 1986 members of the South African Police arrested the plaintiff and subsequently caused him to be detained until 14 May 1987. Such detention purported to be in terms of s 29 of the Internal Security Act 74 of 1982.

3.

On 14 May 1987 the plaintiff was charged in the Pretoria magistrate's court with the offence of high treason and other charges.

4. (a)

G On 3 August 1987, in the Transvaal Eastern and South-East Circuit Court at Piet Retief, the plaintiff appeared before his lordship Mr Justice Daniels on a charge of high treason and other charges.

(b)

On 16 January 1989 the plaintiff was found guilty of high treason and sentenced to a term of imprisonment of 20 years.

(c)

From 15 May 1987 until 3 August 1987 the plaintiff was detained H at prisons or other State places of detention in pursuance of warrants issued by judicial officers.

(d)

From 3 August 1987 until his conviction and sentence by his lordship Mr Justice Daniels the plaintiff was detained at various prisons and other State places of detention while his trial proceeded.

(e)

From the date upon which the plaintiff was sentenced to I imprisonment as aforesaid until 26 February 1991, upon which latter date the appeal of the plaintiff against the dismissal of his plea to the jurisdiction of the South African Courts was upheld by the Appellate Division, the plaintiff was a prisoner serving the sentence imposed upon him as aforesaid.

(f)

The plaintiff was precluded from applying for bail inasmuch as a certificate was issued by the Attorney-General in terms of s 30 of the Internal Security Act 74 of 1982, precluding him from J so doing.

Els J

5.

A This Court is asked to determine separately from any other question of fact in the case whether one or more of the defendants is in law liable for the arrest and abduction of the plaintiff in Swaziland.

6.

The question of law for the determination by this honourable Court is whether, if the answer to 1 (this should read 5) is in the affirmative, any of the defendants are liable in damages to the plaintiff in respect of the periods of detention set out in para 4 B hereof or any of such periods.'

Only the plaintiff gave evidence to substantiate his claim. Thereafter Brigadier Broodryk (now retired), the acting head of the security branch of the South African Police at that time, was the only witness for the defendants. At the close of the case for the defendants Mr Selvan, for the C plaintiff, applied to reopen his case for the calling of a further witness, Mr N J M Louw, the Director-General of the National Intelligence Services (hereinafter referred to as NIS). After this application was granted he then gave evidence.

After his evidence it became apparent that the following facts were D either common cause or not disputed.

The plaintiff was a South African citizen by birth. In 1962 he became a member of Umkhonto we Sizwe. On 28 February 1964 he was sentenced to 15 years' imprisonment in the Natal Provincial Division of the Supreme Court of South Africa on various counts of sabotage.

He served his sentence and was released on 27 February 1979, but was E restricted to the magisterial district of Pinetown.

In December 1980 he fled to Swaziland (at that stage the restriction was still in force) where he has resided until his abduction on the night of 15 December 1986.

On the night of 15 December 1986 he was abducted by two black gentlemen F who, although they professed to be members of the South African Police, were part-time, paid informers of the NIS. It must be emphasised that they were not members either of the South African Police or the defence force or the NIS.

These black gentlemen telephoned the NIS in Johannesburg and informed them of the abduction and requested them to collect the plaintiff. They G threatened to kill the plaintiff if the NIS were not prepared to receive him - this they would do to protect themselves.

Members of the NIS received the plaintiff into their custody on the South African side of the border to Swaziland on 16 December 1986 and then transported him first to Johannesburg and then to Pretoria, without H informing the South African Police thereof.

In Pretoria a certain Paul Gogh and another person, both members of the NIS, approached Brigadier Broodryk at his home in one of the suburbs. They informed him that they were in possession of the plaintiff and that he had been abducted from Swaziland.

I Brigadier Broodryk acknowledged in evidence that he knew this abduction and transportation to Pretoria was...