Minister of Justice and Others v Tsose

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Maritz JP, Malan J, and Grindley-Ferris AJ
• Judgment Date: 02 May 1950
• Citation: 1950 (3) SA 88 (T)
• Hearing Date: 28 March 1950

G Malan, J.:

This is an appeal from a decision of DOWLING, J., confirming a rule issued by MURRAY, J. The respondent, a native woman, was the petitioner in the Court below and sought an order (a) directing the Minister of Justice, the Attorney-General and two members of the South African Police to release the respondent's husband, one Abel H Tsose, who had been arrested without warrant and was being detained by the Krugersdorp Police on a charge of trespass on the farm Rietvallei 113, District Randfontein, and (b) interdicting the Minister and the police officers from again arresting Abel Tsose while the charge of trespass against him was pending. The release of Abel Tsose on his own recognisances until the trial on the 10th of August was obtained upon an application made to CLAYDEN, J., in circumstances not material to the present decision and there thus remains the question of the interdict, which

Malan J

involves the determination of the question whether the arrest complained of was or was not unlawful.

The learned Judge a quo made an order in the following terms against the Minister and the two police officers:

'That the first, second and third respondents be and they are hereby interdicted and restrained, pro forma, from making any further arrests A for the purpose of deterring applicant's husband or other natives on the said farm from continuing to squat on that farm.'

I am unable to appreciate the precise significance of the insertion of the words 'pro forma' and it was, moreover, clearly not competent for the learned Judge to make an order in such wide terms but as I have come B to the conclusion that the whole order must be set aside on other grounds the question of the correctness of the form of the order will not be further pursued.

The facts set out in the affidavits show that the illegal occupation of C the farm had been a burning question since 1944, and that on the 17th of June, 1949, Mr. Hugo (the executor in the estate of the late Aletta du Preez and duly authorised by the heirs entitled to the portion of the farm Rietvallei alleged to be in unlawful occupation of native squatters) in a final effort to secure its evacuation notified the latter that they should vacate the property not later than the 15th of D July, 1949. On the 9th of July these natives were summoned to a meeting where they were warned in no uncertain terms by the Native Commissioner that action would be taken against them unless they vacated the farm. Abel Tsose amongst others refused to remove from the property and on the 21st of July, 1949, he was arrested. He was released on bail and his E case set down for hearing on the 10th of August, 1949. He returned to the farm immediately upon his release and as by so doing he committed a fresh trespass he was again arrested on the 23rd of July, 1949. Bail was not found and it is his detention as a result of this arrest which is the subject of the present dispute.

F According to the affidavits filed on behalf of the respondents in the Court below a serious state of affairs had developed in that a steady influx of natives (among them undesirable characters) had resulted in a daily increase in the number of natives unlawfully squatting on the farm G and that the police were powerless to prevent it notwithstanding regular raids, arrests and prosecutions.

It was alleged by the applicant that the second respondent, the District Commandant of Police, and the third respondent, Sergeant Gentle, repeatedly warned the natives that they would be arrested and re-arrested until life became intolerable to them. No specific denial of H the allegations is contained in the answering affidavits and the learned Judge a quo accepted...