Jaffer and Another v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Berman J
• Judgment Date: 29 July 1986
• Citation: 1986 (4) SA 1027 (C)
• Court: Cape Provincial Division

Berman J:

This was an application brought on notice of motion by a wife whose husband was being held in the Victor Verster Prison pursuant to a detention order made under the provisions H of reg 3 (1), promulgated in terms of the Public Safety Act 3 of 1953, in which she was joined by him and in which they sought an order citing as first to fourth respondents in this order: The Minister of Law and Order, the Minister of Justice, the Commissioner of Police and the Officer Commanding, Victor Verster Prison, in the following terms:

"(a)

I dispensing with forms and service provided for in the Rules of Court and granting leave that this application be heard as a matter of urgency in terms of Rule 6 (12) (b);

(b)

declaring the arrest and detention of Adam Jaffer (second applicant) to be unlawful;

(c)

ordering that the respondents release the said Adam J Jaffer from custody at Victor Verster Prison forthwith;

Berman J

(d)

such further or alternative relief as this honourable A Court may deem meet; and

(e)

awarding costs against the first and third respondents, but against second and fourth respondents only in the event of their opposing the application."

That the matter, involving as it did the alleged detention of a B citizen, was one of urgency admitted of no doubt. The other prayers, (b), (c) and (e), were opposed by all four respondents. Following argument last Thursday, I undertook to issue an order on the following day, that is Friday 25 July, which I did in these terms:

"An order is issued:

(1)

declaring the detention of Adam Jaffer (second C applicant) to be unlawful; and

(2)

directing that the said Adam Jaffer be released forthwith from the Victor Verster Prison."

And I added the following note:

"The reasons for making this order will be orally delivered at 2.30 pm on Tuesday next, 29 July 1986, when an order as to costs will be issued. My decision on the issue as to whether the arrest and/or the detention of second applicant on 14 June 1986 was or was not lawful will - if I deem it necessary to consider that issue - be handed down at the same time."

It is now the afternoon of Tuesday 29 July, and my reasons for E issuing the order I have just read out now follow.

Applicants' case was made out in a founding affidavit and three supporting affidavits annexed thereto and it proceeded as follows: Adam Jaffer is a businessman, being the proprietor of a butchery and a service station, both situated in Wynberg but F not adjacent to each other. He is a non-political person concerned with the conduct of his business and his business affairs, most of his attention being devoted to the butchery. The service station is managed or controlled by a manager and Mr Jaffer only calls there for about an hour a day some four days week. He had visited the service station on Thursday 12 June, and he did not go there again until summoned to come on G Saturday 14 June. The summons to go to the service station came from the manager following the arrival of four members of the police force, one of whom was Warrant Officer Stipp. They found on their arrival at the service station a number of what were referred to then as "UDF posters" displayed on the premises and a number of what where called "Eid pamphlets" and H they wanted to see Mr Jaffer, the proprietor. Hence the summons and his arrival there.

In response to questioning he explained that he knew nothing about either the posters or the pamphlets. They had not been on his premises when he was last there two days before. More members of the police force arrived and, despite his I protestations, he was obliged to accompany them to the police station. There, with the permission of Warrant Officer Stipp, he spoke to his wife who was told that he would be taken to Victor Verster Prison but would be released on Monday 16 June. On that day, as a result of enquiries made at the police station, she was informed that her husband, and I quote:"... was being detained in terms of the emergency regulations." She saw him again on Sunday 29 June, when she learnt that his J detention had been extended.

Berman J

A Mrs Jaffer saw her husband at Victor Verster Prison once more on 17 July 1986, and she was then authorised by him to bring this application. She says that her husband's businesses are suffering, quite apart from the personal trauma he is undergoing, as a result of his detention.

I interpolate at this stage to say that the procedure which had B been followed was that Mr Jaffer had been taken from the service station to the police station, where Warrant Officer Stipp arrested him. He (Warrant Officer Stipp) then completed and signed a detention order in respect of Mr Jaffer, which order was addressed to the Officer Commanding, Victor Verster Prison. Eleven days thereafter, on 25 June 1986, Mr Jaffer's detention was purportedly extended for an indefinite and C indeterminate time in terms of a notice signed by the Minister of Law and Order.

Mrs Jaffer's submissions in the light of her allegations and those in the supporting affidavits of the manager of the service station and her mother-in-law, which I have summarised above, are set out in paras 19 and 20 of her founding affidavit and they read as follows:

"I respectfully submit that at no time did members of the South D African Police Force, who decided to arrest and detain my husband, form an opinion that it was necessary to arrest and detain my husband for any of the purposes referred to in s 3 (1) of the emergency regulations contained in Proc 109 in Government Gazette 10280 dated 12 June 1986. I respectfully submit further that no person would reasonably have formed such an opinion, taking into consideration the circumstances of my husband's arrest and detention. I aver that the police acted E mala fide and did not apply their mind (sic) to the matter. It is my further submission that by virtue of the fact that the original detention of my husband being unlawful, the subsequent re-detention of my husband in terms of s 3 (3) of the said emergency regulations is also unlawful."

On respondent's behalf two opposing affidavits were filed, one by Warrant Officer Stipp and one by Constable Edson. Warrant F Officer Stipp's account of what transpired at the service station is not too different to that deposed to in applicants' supporting affidavits, although there are certain areas of dispute between the protagonists' versions. Constable Edson's affidavit, however, contained allegations which were completely novel.

He was, he said, engaged on patrol, his purpose being, inter G alia, to look out for posters and literature calling on people to stay away from work on Monday, 16 June. When passing the OK Moslem Butchery, which is Mr Jaffer's business, he observed posters there. He brought his vehicle to a stop and he entered the butchery. He found three posters inside, one on the wall behind the counter and two more inside the shop. One was attached to the shop front. He and his colleague removed all H these posters. Mr Jaffer was present in the shop all the time that Constable Edson was there, standing behind the counter. While there he (Edson) received a radio call from Warrant Officer Stipp, as a result of which he proceeded to the service station. A few minutes later Mr Jaffer arrived at that same place. Constable Edson reported to Warrant Officer Stipp that I he had found posters at the butchery and that he had removed them.

It is perhaps convenient at this stage to describe the poster in question which was displayed at both the butchery and the service station. It is of a fair size, the upper and larger part of it bearing an illustration of a Black man and a woman, presumably his wife. He is carrying a body (presumably their child because the poster refers to the South African Youth Day) in his arms. Across the illustration appears the legend J "Stay-Away" in large letters, hence the generally accepted designation of the poster as the

Berman J

"Stay-Away" poster. At the foot of the poster, also in large letters, appear the word and number "June 16" and the initials and names of what I assume were the sponsoring organisations, that is "UDF", "NECC", "COSATU" and the words "SA Youth Day". No replying affidavits having been filed, it must be accepted that what...