Ebrahim v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Citation: 1993 (2) SA 559 (T)

Ebrahim v Minister of Law and Order and Others
1993 (2) SA 559 (T)

1993 (2) SA p559

Citation	1993 (2) SA 559 (T)
Court	Transvaal Provincial Division
Judge	Els J
Heard	October 27, 1992
Judgment	November 20, 1992

Flynote : Sleutelwoorde G

Delict — Unlawful abduction, arrest and detention — Liability for — Plaintiff abducted in Swaziland on 15 December 1986 by part-time paid H informers of South African National Intelligence Service (NIS), taken to South African border and thence transported by NIS to Pretoria — NIS informing security branch of SA Police of abduction and, at latter's request, handing plaintiff over to them — Plaintiff thereupon arrested by security branch on 16 December 1986 and detained in terms of s 29 of Internal Security Act 74 of 1982 until 14 May 1987 — On that date I plaintiff released from detention but immediately arrested on charge of high treason and remaining in custody until his conviction on 16 January 1989 — Plaintiff then serving imprisonment until 26 February 1991 when appeal upheld — Security police knowing of unlawful abduction and J transportation and associating themselves and thereby forming common

1993 (2) SA p560

A purpose with abductors — Furthermore security police must have foreseen, when associating themselves with acts of abductors, that charge would be laid against plaintiff and that he could be convicted and sentenced to imprisonment — Minister accordingly liable in damages for unlawful B abduction and transportation of plaintiff and for full period of plaintiff's incarceration, ie from 16 December 1986 to 26 February 1991.

Headnote : Kopnota

The plaintiff, a South African citizen by birth who had been restricted to the magisterial district of Pinetown, had in December 1980 fled to Swaziland where he had resided until the night of 15 December 1986. On that night he had been abducted by two part-time informers of the South C African National Intelligence Service (NIS) who had then telephoned the NIS in Johannesburg, informing them of the abduction and requesting them to collect the plaintiff. Members of the NIS duly received the plaintiff into their custody on the South African side of the border on 16 December 1986 and then transported him first to Johannesburg and then to Pretoria without informing the South African Police. In Pretoria two members of the NIS approached Brigadier B, then acting head of the security branch of the D South African Police, informing him that they were in possession of plaintiff and that he had been abducted from Swaziland. Brigadier B then requested the NIS to transport the plaintiff to the security branch headquarters in Pretoria and that the then head of the security branch interrogate and detain him in terms of s 29 of the Internal Security Act 74 of 1982. The plaintiff was thereupon detained in terms of s 29 until 14 May 1987 when he was released and immediately arrested on a charge of high treason. On the same day he appeared before a magistrate and his case was E postponed, he being in custody, until his trial on 7 August 1987 on a charge of high treason and other charges. He remained in custody until 16 January 1989 when he was found guilty of high treason and sentenced to 20 years' imprisonment. From 16 January 1989 the plaintiff served his sentence until his release on 26 February 1991, upon which date his appeal against the dismissal of his plea to the jurisdiction of the South African Courts was upheld by the Appellate Division. The plaintiff thereupon sued the first defendant, as well as the Ministers of Defence and of Justice, F jointly and severally, for damages in the sum of R652 500 for unlawful abduction, arrest and detention. At the trial the plaintiff conceded that the second and third defendants could not be held liable.

Held, that, on the evidence, when Brigadier B had been approached by the NIS he had known that the plaintiff had been unlawfully abducted from Swaziland and unlawfully transported to Pretoria; at that stage the G plaintiff had not yet been arrested; he had then clearly associated himself with the abduction and the unlawful transportation when he had instructed that the plaintiff be taken to security branch headquarters where he was to be detained in terms of s 29 of the Internal Security Act.

Held, further, that the South African Police had associated themselves and thereby formed a common purpose with the abductors and members of the NIS with respect to the unlawful abduction and transportation of the plaintiff.

Held, accordingly, that first defendant was in law liable for the arrest H and abduction of the plaintiff from Swaziland.

Held, further, as to whether first defendant was in law liable in damages to the plaintiff in respect of any or all of the periods of detention until 26 February 1991, that the plaintiff's loss of liberty had been occasioned by the abductors' wrongful acts but for which plaintiff would have remained in Swaziland, a free man and not lawfully subject to any restrictions upon his liberty, and that Brigadier B had associated himself I with these acts and formed a common purpose with the abductors.

Held, further, that a supervening act which is foreseen as the likely consequence of the wrong does not break the chain of causation and can be taken into account in assessing damages.

Held, further, that Brigadier B, a member of the South African Police, must have foreseen, when he had associated himself with the actions of the abductors and the NIS, what the consequences would be to the plaintiff when he was taken to security branch headquarters and there detained in J terms of s 29 of the Internal Security Act: he

1993 (2) SA p561

A must have foreseen that a charge would be laid against the plaintiff, that he could be convicted and that he could be sentenced to imprisonment.

Held, therefore, that the argument advanced by counsel for the first defendant to the effect that no liability attached to the first defendant for the period of plaintiff's detention from his first appearance before the magistrate on 14 May 1987 up to his release on 26 February 1991, in that there had been a nova causa interveniens, had to be rejected.

B Held, accordingly, that first defendant was liable for damages resulting from the unlawful abduction and transportation of the plaintiff and for the full period of plaintiff's incarceration, that is, from 16 December 1986 up to his release on 26 February 1991.

Case Information

Action for damages for unlawful abduction, arrest and detention. The C facts appear from the reasons for judgment.

R L Selvan SC (with him M Basslian) for the plaintiff.

S J Maritz SC (with him M D du Preez) for the defendants.

Cur adv vult.

D Postea (November 20).

Judgment

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...