Minister of Law and Order and Others v Nordien and Another

JurisdictionSouth Africa
JudgeRabie ACJ, Jansen JA, Hefer JA and Boshoff AJA
Judgment Date26 March 1987
Citation1987 (2) SA 894 (A)
Hearing Date12 March 1987
CourtAppellate Division

Hefer JA:

I shall refer to the parties to this appeal by their titles in the Court a quo.

On 17 September 1985 the police took the applicants into E custody and detained them until the next day. After their release the applicants brought an urgent application in the Court a quo for a rule nisi calling upon the respondents to show cause why an order should not be made -

'2.1

interdicting and restraining the police under the direction and control of first to fifth respondents F from -

2.1.1

unlawfully detaining or arresting the applicants;

2.1.2

assaulting, threatening, harassing or intimidating the applicants in any manner whatsoever;

2.2

directing first to fifth respondents to take all necessary steps within their powers to prevent any G member of the police from perpetrating any of the acts mentioned in paras 2.1.1 and 2.1.2 (supra);

2.3

interdicting and restraining sixth respondent from perpetrating any of the acts as referred to in paras 2.1.1 and 2.1.2 (supra)....'

The papers were served in advance on the respondents. Opposing affidavits were filed and a dispute of fact developed which H could not be resolved on the papers. The Court accordingly directed that oral evidence be heard in terms of Rule 6(5)(g) of the Consolidated Rules. It also granted the applicants interim relief, pending the final determination of the matter, in the form of a temporary interdict in terms of paras 2.1 and 2.3 and a mandamus in terms of para 2.2 of the notice of I motion. With leave of the Court a quo the respondents have now appealed against the order for interim relief.

The material allegations in the parties' affidavits need not be stated; they emerge fully from the judgment in the Court a quo which was reported at 1986 (2) SA 511 (C). Nordien and Another v Minister of Law and Order and Others 1986 (2) SA 511 (C). J Basically the applicants' case was

Hefer JA

A that they had been (1) unlawfully and violently arrested, (2) assaulted and abused by the police during their detention, and (3) harassed and threatened with further detention after being released. Apprehending that they might be persecuted even further they sought protection from the Court.

B In this Court respondents' counsel challenged the judgment of the Court a quo on two main grounds. For the first he relied on Goldsmid v The South African Amalgamated Jewish Press Ltd 1929 AD 441 and Mobil Oil Southern Africa (Pty) Ltd v Afrox Ltd 1983 (1) SA 649 (C), and submitted that the first five respondents could not competently be ordered to take the steps mentioned in para 2.2 of the notice of motion, where C there is uncontroverted evidence that they had already taken all reasonable steps to prevent members of the force from perpetrating the acts of which the applicants complained. If this contention is correct, it will admittedly afford a short answer to the case against the first five respondents and thus dispose of a major part of the appeal. I prefer, however, not D to follow that course. We have not had the benefit of full argument (because the applicants' legal representatives withdrew from the appeal) and a legal principle of considerable importance is at stake. Accordingly, since I am of the view that the appeal must in any event succeed on the facts I shall leave that principle open for pronouncement on another occasion.

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31 practice notes
  • Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal
    • South Africa
    • Invalid date
    ...Municipality v African Realty Trust Ltd 1927 AD 163 at 172-3, 193; Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) at 866F-I; National Transport Commission v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735E-H; Nestor and Others v Minister of Poli......
  • Reddy v Siemens Telecommunications (Pty) Ltd
    • South Africa
    • Invalid date
    ...Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120) at paras [26] - [27] E Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) at 896F - I Pillay v Krishna and Another 1946 AD 946 at 952 S v Thebus and Another 2003 (6) SA 505 (CC) at paras [17] and [28] Sunshine Rec......
  • Janit and Another v Motor Industry Fund Administrators (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ...All ER 417 (CA) Mergenthaler Linotype Co v Intertype Ltd [1926] 43 RPC 318 Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) Motor Industry Fund Administrators (Pty) Ltd and Another v Janit and Another 1994 (3) SA 56 (W) D Nestor and Others v Minister of Police ......
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Invalid date
    ...Affairs and Others G 1995 (1) SA 51 (Nm) (1994 (3) BCLR 1): referred to Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): dictum at 896F – H R v Cohen 1933 TPD 128: referred to R v Ndhlovu 1945 AD 369: considered S H v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (C......
  • Request a trial to view additional results
31 cases
  • Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal
    • South Africa
    • Invalid date
    ...Municipality v African Realty Trust Ltd 1927 AD 163 at 172-3, 193; Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) at 866F-I; National Transport Commission v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735E-H; Nestor and Others v Minister of Poli......
  • Reddy v Siemens Telecommunications (Pty) Ltd
    • South Africa
    • Invalid date
    ...Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120) at paras [26] - [27] E Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) at 896F - I Pillay v Krishna and Another 1946 AD 946 at 952 S v Thebus and Another 2003 (6) SA 505 (CC) at paras [17] and [28] Sunshine Rec......
  • Janit and Another v Motor Industry Fund Administrators (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ...All ER 417 (CA) Mergenthaler Linotype Co v Intertype Ltd [1926] 43 RPC 318 Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) Motor Industry Fund Administrators (Pty) Ltd and Another v Janit and Another 1994 (3) SA 56 (W) D Nestor and Others v Minister of Police ......
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Invalid date
    ...Affairs and Others G 1995 (1) SA 51 (Nm) (1994 (3) BCLR 1): referred to Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): dictum at 896F – H R v Cohen 1933 TPD 128: referred to R v Ndhlovu 1945 AD 369: considered S H v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (C......
  • Request a trial to view additional results

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