Mda v Minister of Justice, Police and Prisons and Another

• Jurisdiction: South Africa
• Judge: Pickard J
• Judgment Date: 21 October 1985
• Court: Ciskei Supreme Court

Pickard J:

This matter comes before me after it had been B postponed some few days ago in order to enable the respondents to prepare and file answering affidavits and the applicant to reply thereto.

The relief the applicant seeks as a matter of urgency is in the nature of that which has become fairly well known of late, namely for a rule nisi calling upon respondents to show cause:

(a)

C why the detention of one Mabuti Mda in terms of s 26 of the National Security Act 13 of 1982, as amended, should not be declared unlawful and of no force and effect;

(b)

why the said Mabuti Mda should not be immediately released from detention;

(c)

for such further and/or alternative relief as this D honourable Court deems meet.

Alternatively:

(a)

Why they should not be interdicted and restrained, for so long as the said Mabuti Mda is detained in terms of any law, from either directly or indirectly, through E their own actions or those of anyone under the command or control of one or other of them, or permitting or allowing any other person not under their command or control from:

(i)

unlawfully assaulting the said Mabuti Mda;

(ii)

interrogating the said Mabuti Mda in any F other manner than that prescribed by law;

(iii)

exerting any other unlawful pressures on the said Mabuti Mda in an attempt to influence him to answer questions or to make a statement incriminating himself;

(b)

why the district surgeon appointed for the district in which the said Mabuti Mda is at present detained G should not conduct a thorough and detailed medical examination of the said Mabuti Mda and immediately thereafter compile a report of such examination and submit the same to the Registrar of this honourable Court;

(c)

why a magistrate of the district in which the said Mabuti Mda is presently detained should not:

(i)

H inform the said Mabuti Mda that he (the magistrate) has been directed by this honourable Court as a result of an application brought by the applicant to make certain enquiries of the said Mabuti Mda; and thereafter

(ii)

ask the said Mabuti Mda if he has been I assaulted by any members of the Ciskeian Police Force or any other person whilst he had been in detention in terms of the said National Security Act and ask him for details of such assault or assaults, such details to include:

(aa)

the nature of the assault or assaults;

(bb)

the names and/or descriptions of the persons who participated in each such assault;

(cc)

J when such assault took place;

Pickard J

(dd)

A where each assault took place;

(ee)

any injuries sustained by the said Mabuti Mda or any consequence which may have resulted from such assault or assaults;

and record the result of such enquiries in writing and to require the said Mabuti Mda B to confirm the truth of the answers on oath.

(iii)

thereafter return forthwith the record of the evidence taken from the detainee to the Registrar of this Court from whom the applicant's attorneys shall be entitled to C obtain a copy of the same.

(d)

Why the respondents should not be ordered to pay the costs of this application, such costs to include the costs occasioned by the employment of two counsel.

Furthermore, applicant seeks interim relief prohibiting unlawful assaults, interrogation, pressures or influence D pending the final determination of this application.

When on the 14th instant the application was first enrolled and postponed to the 18th as stated hereinbefore, no interim order was made. I am informed that on that occasion applicant was content to accept (as an interim measure) an undertaking by E counsel for respondents made on behalf of his clients that no unlawful actions in terms of the interim order envisaged would be committed.

Several affidavits were filed by various deponents in support of respondents' case denying that the said Mda had been assaulted or that any unlawful actions had been committed against him as alleged.

Amongst these may be counted an affidavit by one Colonel Zibi F of the Ciskei Security Police who was the senior officer who gave the order for Mda's detention as envisaged by s 26 of the National Security Act and who may be regarded as the officer in charge of the investigation of the case which gave rise to the G detention of Mda and several others on 26 September 1985.

On 9 October 1985 several of the detainees were released from detention. Six of these persons now have made affidavits annexed to applicant's replying affidavits, stating that prior to their release (on 28 September 1985) and during their detention they were seriously assaulted by various members of H the Security Police among whom Colonel Zibi himself numbered. On 11 September, after their release, they were examined by a medical practioner who found certain injuries on their persons which she noted and confirms on affidavit. Photographs of the injuries were also taken and are annexed to the papers. According to the papers Mda was allegedly assaulted on 26 I September 1985 by policemen who have not been named and he was allegedly seen apparently injured and bleeding on that day.

In view of the fact that the allegations concerning the alleged assault of these six erstwhile detainees were only made for the first time in applicant's replying affidavits, counsel for all parties have agreed to the application being postponed to 25 October for the filing of affidavits to deal with these J allegations.

Pickard J

A Mr Selvan, for the applicant, has, however, indicated that he requires the Court at this stage to grant an interim interdict in the terms of the original prayer contained in the notice of motion prohibiting unlawful assaults...