Farisani v Minister of Justice and Others

• Jurisdiction: South Africa
• Judge: Van der Spuy AJ
• Judgment Date: 08 January 1987
• Citation: 1987 (2) SA 321 (V)
• Court: Venda Supreme Court

Van der Spuy AJ:

In this matter applicant, the wife of a detainee, Simon Farisani, held under the provisions of the Maintenance of Law and Order Act of the Republic of Venda 13 of 1985 (herein referred to as 'the Act'), seeks the following orders, namely that:

(1)

she be allowed to bring the application on behalf of B the detainee who is her husband;

(2)

the matter be dealt with as a matter of urgency under Venda Supreme Court Rule 6(11);

(3)

declaring that the arrest of the detainee on 22 November 1986 and his subsequent detention for interrogation in terms of s 29(1) of the Act are unlawful;

(4)

C ordering respondents immediately to release the detainee;

(5)

directing respondents to ensure that the detainee not be assaulted or ill-treated in any manner whatsoever during the period of his detention; and

(6)

ordering respondents to pay the costs of the D application, if they should oppose the application.

The notice of motion praying that the aforesaid order be granted is dated 5 December 1986, but the application was set down for hearing on 11 December 1986 so that the papers could be served on respondents as they were and so that respondents E could answer the allegations in applicant's founding affidavit as they did on 10 December 1986.

Applicant had had no opportunity to file any replying affidavit when the matter was called before me on 11 December 1986 during the Court's recess as a matter of urgency.

Mr Unterhalter for applicant requested that, in lieu of any F replying affidavit, the detainee should. be called to give viva voce evidence before me regarding allegations in respondent's answering affidavit to the effect that the detainee had associated himself actively with subversive organisations, including the African National Congress (herein referred to as 'the ANC'), with a view to overthrowing the State authority of the Republic of Venda, thus committing G possible offences under s 54(1), (2) or (4) of the Act. In support of his request Mr Unterhalter relied on the judgment of Rumper JA in the matter of Schermbrucker v Klindt NO 1965 (4) SA 606 (A), especially at 614D - G and 616C - D. But that judgment was a dissenting and minority judgment, Williamson JA also writing a dissenting judgment, whilst the majority of the H Appellate Division Judges, namely Botha JA (with whom Steyn CJ and Trollip AJA concurred), decided that the Court had no power in terms of Transvaal Rule 9(a) to order a person detained under the provisions of s 17 of Act 37 of 1963 for interrogation to appear personally before it for the purposes of giving viva voce evidence. The relevant Court Rule of the Transvaal referred to in the case of Schermbrucker, namely Rule I 9(a), empowered the Court to permit viva voce evidence in motion proceedings and Mr Unterhalter invoked Rule 6(11) of the Venda Supreme Court which, he argued, allowed me to cause viva voce evidence to be called in urgent applications. Although the two Rules, ic old Transvaal Rule 9(a) and Venda Rule 6(11), afford the same type of relief and although there is a J similarity between s 17 of Act 37 of 1963 and s 29(1) of the Act now under consideration in regard to detention

Van der Spuy AJ

of persons for purposes of interrogation, I am of opinion that A the majority judgments in the Schermbrucker case do not support Mr Unterhalter's submissions. In any event I declined Mr Unterhalter's request for an opportunity of calling the detainee or to rule that the detainee be interviewed by the chief magistrate of Venda, who could then report back to the Court the detainees replies to the allegations of respondents, B since Mr Pelser, for respondents, conceded that the detainee would probably, if called, deny the allegations. In fact, Mr Pelser requested that it be placed on record that the detainee denies the allegations of respondents concerning his unlawful participation in acts of subversion of the authority of the State. The matter, therefore, proceeded before me without a replying affidavit but on the basis that respondent's C allegations must be taken as having been denied. Before leaving the subject of a detainees being called as a witness, I should observe that, although some dicta of Rumpff JA in the Schermbrucker case were quoted with approval in the recent matter of Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 585E - H, Rabie CJ, who wrote D the judgment of the Appellate Division, did not criticise nor differ from the findings of the majority in the Schermbrucker case when he dealt with the effect of s 29 of the Internal Security Act 74 of 1982 (RSA) the provisions of which are almost identical to those of s 29 of the Act now under consideration.

Before dealing with the merits of the application I should note that counsel for the respective parties agreed on three issues, E namely:

(1)

that the matter was one of urgency;

(2)

that applicant had locus standi to apply on behalf of the detainee who is her husband without his assistance;

(3)

that s 29(6) of the Act, which provides that no Court of law shall have power to pronounce upon the validity F of any arrest and/or detention or to release a detainee, does not oust the Court's jurisdiction to declare the arrest and detention unlawful and to order the release of a detainee if the arrest and detention were unlawful.

Notwithstanding the agreement between counsel, I wish to deal G with the three issues on which consent was reached:

1.

As regards urgency, it appears to me that the matter is urgent, since the application is concerned with the release of a person who has been arrested and who is held in custody in respect of which he is entitled to approach the Court for relief, unless there is some H lawful cause for the detention. (See Nevhutalu and Others v Minister of Police and Another 1986 (4) SA 822 (V) at 830I - J where Klopper ACJ cites all the recent cases in support of that principle the matter is obviously one of urgency.)

2.

In regard to the locus standi of a wife to bring an I application on behalf of her detained husband, it is clear that she has such locus standi, as to which see Wood and Others v Odangwa Tribal Authority and Another 1975 (2) SA 294 (A) at 306G. In this connection Mr Pelser observed that the detainee had not made any written representations to the Minister of justice in terms of s 29(4) concerning his detention (see the J affidavit of the Director-General

Van der Spuy AJ

A for justice, Mr S R Muthinge). I do not consider that such written representations were prerequisites to the bringing of the application by the detainee's wife, nor that their absence can be taken as acquiescence by the detainee in his continued detention. There is no suggestion in the present matter that the detainee requires any protective custody from or by respondents.

3.

B In so far as s 29(6) of the Act is concerned, its terms are identical to those of s 29(6) of the corresponding Act in the Republic of South Africa and the question of the Court's jurisdiction in matters of this kind has been finally settled in the judgment of Rabie CJ in the Hurley case supra where the learned Chief justice states at 586G - H:

C 'The Court will, as I have indicated, be entitled to inquire whether the officer concerned had reasonable grounds for his belief that the person whom he arrested was a person as described in s 29(1) - reasonable grounds being grounds on which he could reasonably have held the belief he did. The Court will, however, be precluded by s 29(6) from going further and considering whether, if there were such D grounds, he should nevertheless not have held the belief, or not have arrested the person concerned. In other words, given the existence of grounds on which the officer could reasonably have held the belief that he did, the Court cannot hold that it would have come to a different conclusion on those grounds, or that the officer did not exercise his discretion properly, and that his action should, therefore, be found to be illegal'.

It has of course been laid down in numerous previous E cases that any curtailment of the Court's...