Fose v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Ackermann J, Chaskalson P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 05 June 1997
• Docket Number: CCT 14/96
• Hearing Date: 10 September 1996
• Counsel: D I Berger, B E Leech and D B Spitz for the applicant J R Gautschi (with him P F Rossouw and J Kentridge) for the respondent J H A Munnik as amicus curiae (the Witwatersrand Police Reporting Officer). D C Mpofu for the amicus curiae (the Human Rights Commission).
• Court: Constitutional Court

Ackermann J: I

Introduction and procedural issues

[1] This is an application for leave to appeal against a judgment of Van Schalkwyk J upholding an exception in the Witwatersrand Local Division

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of the Supreme Court. [1] The exception was taken by the respondent ('the defendant') A to claim 'C' in the particulars of claim of the applicant ('plaintiff'). It raises the issue whether so-called 'constitutional damages' (a concept which will be explained later) can and ought to be awarded as 'appropriate relief' under the provisions of s 7(4)(a) of B the Constitution of the Republic of South Africa Act 200 of 1993 ('interim Constitution') for a breach of plaintiff's right, guaranteed by s 11(2) of the interim Constitution, not to be tortured and not to be subject to cruel, inhuman or degrading treatment.

[2] Having upheld the exception, and upon application being made to him under the C provisions of Constitutional Court Rule 18(a), [2] Van Schalkwyk J granted an unqualified positive certificate in terms of Rule 18(e)(iii) to the effect, inter alia, that there was a reasonable prospect that the Constitutional Court would reverse or materially alter the decision given by him if permission to bring the appeal was given. The learned Judge did so without the application having been formally set down and D without hearing the parties. It was his understanding that this was the procedure required by Rule 18(e), his reasoning being that it was not his function but that of the President of the Constitutional Court, in terms of Rule 18(i)(i), to grant the leave to appeal. In this respect the learned Judge erred.

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[3] It is true that it is the President who is empowered to grant leave to appeal in terms A of Rule 18. Although Rule 18(i)(ii) provides that applications for leave to appeal may be dealt with summarily without hearing oral or written argument other than that contained in the application itself, it is clear from the context that this latter provision relates to the decision by the President and not to the grant of the certificate by the B Judge or Court a quo. The purpose of Rule 18(e) certification is to assist in ensuring that appeals are not heard by the Constitutional Court which are not of substance, or which cannot be dealt with and disposed of by the Constitutional Court because of the insufficiency of the evidence, or which have no reasonable prospect of success. Apart C from the fact that the person in whose favour the decision has been given in the Court a quo has an interest in the granting of the certificate and is entitled to be heard on that ground alone, proper argument is important to ensure that the objects of certification are achieved. [3] Rule 18 does not in terms require that reasons be furnished D for the grant of a Rule 18(e) certificate. Where, however, a matter comes directly to this Court from a Provincial or Local Division of the Supreme Court it would greatly assist this Court in dealing with a new and complex point of constitutional law if it had the benefit of the views of the Supreme Court issuing the certificate, in addition to any judgment previously given in the case. E

[4] Pursuant to directions given by the President, argument on the application for leave to appeal and on the merits of the appeal itself was, as a matter of convenience, heard together. Condonation for the late lodging by the plaintiff of his application for leave to appeal was granted, the delay being occasioned by the plaintiff's ignorance of the fact F that Van Schalkwyk J had granted a Rule 18(e) certificate under the circumstances mentioned above.

The amici curiae G

[5] Mr J H A Munnik, an advocate of the Supreme Court and the duly appointed police reporting officer of the Witwatersrand charged with monitoring the investigation of complaints concerning alleged police misconduct which might detrimentally affect police/community relations, was admitted as an amicus curiae and filed full written argument, although he did not present viva voce argument. We have given due H consideration to his written argument. In addition, however, Mr Munnik tendered a bundle of documents on which he sought to rely testimonially in his argument. Rule 34(1) permits an amicus curiae to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record, provided that such facts I

'(a)

are common cause or otherwise incontrovertible; or

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(b)

are of an official, scientific, technical or statistical nature, capable of easy verification'. A

[6] The defendant admitted the correctness of the content of certain factual material [4] so tendered but placed the correctness of the rest in issue. Save to the extent that any of the disputed factual averments might be so notorious as to justify the Court taking B judicial notice thereof, none of the material falls within the provisions of Rule 34(1) and is accordingly not admitted.

[7] The Human Rights Commission, established under the provisions of s 115 of the interim Constitution, also sought admission as an amicus curiae in terms of C Constitutional Court Rule 9(1) on the basis that all the parties in the matter had consented in writing thereto. [5] For an amicus curiae to be admitted on this basis in an application for leave to appeal the written consent of all the parties must be given within 10 days after such application has been lodged with the Registrar of the D Constitutional Court. [6] In the present case the application for leave to appeal was lodged with the Registrar on 26 March 1996, whereas the consent of the parties was not obtained until 4 September 1996, nearly five months out of time and only six days before the hearing of the matter. The Human Rights Commission brought no application for condonation in this regard.

[8] The Human Rights Commission is unquestionably an important constitutional body E charged with the task of advancing and protecting human rights in South Africa. The interim Constitution imposes on it extensive duties, to be executed in a variety of ways, to further respect for and the observance and protection of fundamental rights. [7] It is a body which has and will continue to acquire expertise regarding the constitutional F protection of fundamental rights and it undoubtedly has a real and substantial interest in a wide range of cases with which this Court is and will be concerned. As an amicus curiae it can be expected to play an

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important role, in appropriate circumstances, in the work of this Court but it does not, A by virtue of the Constitution or other statutory provision, enjoy any privileged position and its admission as amicus in any particular case must therefore be governed by Rule 9.

[9] It is clear from the provisions of Rule 9 that the underlying principles governing the admission of an amicus in any given case, apart from the fact that it must have an B interest in the proceedings, are whether the submissions to be advanced by the amicus are relevant to the proceedings and raise new contentions which may be useful to the Court. [8] The fact that a person or body has, pursuant to Rule 9(1), obtained the written consent of all parties does not detract from these principles; nor does it C diminish the Court's control over the participation of the amicus in the proceedings, because in terms of subrule (3) the terms, conditions, rights and privileges agreed upon between the parties and the person seeking amicus status are subject to amendment by the President. D

[10] In the present case the parties agreed that the Human Rights Commission could file written argument and the defendant further agreed that it could address oral argument for a period of approximately 30 minutes at the hearing. The Human Rights Commission's purported admission by consent as an amicus curiae was, as mentioned, well out of time and no proper application for condonation of its late E admission was brought. Moreover the written argument which it lodged did not raise any substantially new contentions which might have been useful for the Court. Under these circumstances the Court declined to permit the Human Rights Commission to address argument to it.

The issues F

[11] The plaintiff, in its particulars of claim, sued the defendant (the Minister of Safety and Security) for damages arising out of a series of assaults alleged to have been perpetrated on 2 and 3 May 1994 by members of the South African Police Force acting within the course and scope of their employment with the defendant. Claim 'A' is G not relevant to the present proceedings. Claims 'B1' and 'B2' relate to assaults which are alleged to have taken place at the premises of the Vanderbijlpark Riot and Related Crimes Investigation Unit.

[12] The details of the serious assaults alleged and which form the basis of claims 'B1' H and 'B2' are pleaded in paras 9 and 11 respectively of plaintiff's particulars of claim. Claim 'C' is based on these same assaults, the relevant allegations being the following:

'15. The conduct referred to in paras 9 and 11 above constitutes an infringement of the plaintiff's fundamental rights as enshrined and entrenched in chap 3 of the Constitution of I the Republic of South Africa Act 200 of 1993, as amended, more particularly the plaintiff's right to:

15.1

human dignity (s 10);

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15.2

freedom and security of the person (s 11(1) and 11(2)); A

15.3

privacy (s 13); and

15.4

be arrested and detained in accordance with the provisions of ss 25(1) and 25(2) of the Constitution. [What the pleader of course really intended, and this is what the B pleading will be taken to mean (for so it was apparently...