Nel v Clur

• Jurisdiction: South Africa
• Judge: Y Ebrahim J
• Judgment Date: 04 May 2011
• Docket Number: EL744/2011; ECD1177/2011
• Court: East London Local Division
• Hearing Date: 03 May 2011
• Citation: 2011 JDR 0500 (ECB)

Y Ebrahim J:

This is the return day of a rule nisi which the applicant obtained on an urgent basis on 30 March 2011. The Rule reads as follows:

"IT IS ORDERED:

1.

THAT a Rule Nisi do hereby issue calling upon the respondents and/or any other interested party to

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show cause on 3rd May 2011 at 09h30 why an order in the following terms should not be made final:

1.1

That Warrant Officer MICHAEL POTGIETER and/or any other member of the South African Police Service be and is hereby authorized and directed to arrest and detain the First Respondent and thereafter to take all reasonable and necessary steps to deliver the First Respondent to the Niewefontein Treatment Centre, De Aar (hereinafter referred to as "The Treatment Centre") for treatment forthwith;

1.2

That the First Respondent remain at the Treatment Centre and undergo treatment for a minimum period of 8 months;

1.3

That the Second Respondent be and is hereby interdicted and restrained from contacting the First Respondent whilst she is receiving treatment at the Treatment Centre.

2.

THAT this matter is referred to the Public Prosecutor for an enquiry in terms of the Prevention

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and Treatment of Drug Dependency Act 20 of 1992, which enquiry is to be conducted as soon as practicable.

3.

THAT pending the finalisation of this application or the proceedings in terms of the Prevention and Treatment of Drug Dependency Act 20 of 1992, whichever occurs first, paragraphs 1.1, 1.2 and 1.3 hereof shall operate as an interim interdict/mandamus.

4.

THAT warrant officer Michael Potgieter be and is hereby authorized and directed to serve a copy of this Order on the respondents forthwith."

Preceding the rule nisi the applicant had the previous day, 29 March 2011, obtained an interdict against the 1st and the 2nd respondents in the following terms:

"IT IS ORDERED:

1.

THAT the First Respondent be and is hereby interdicted and restrained from departing the Republic of South Africa pending the finalization of the application in the East London Circuit Local Division under case no. EL744/11, ECD1177/11.

2.

THAT a member of the South African Police Service

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be and is hereby authorized to serve a copy of this Order and the application referred to in paragraph 1 above on the First and Second Respondent.

3.

THAT upon service referred to in paragraph 2 above the First Respondent is to surrender her passport to the member of the South African Police Service."

The applicant now seeks to have the rule confirmed. The 1st and 2nd respondents oppose confirmation of the rule and contend it should be discharged.

In view of the need for this Court to render its decision urgently I do not have the luxury of time within which to prepare a written judgment which hopefully may have been far more comprehensive than this ex tempore judgment.

The rule nisi raises crucial issues concerning a person's right to freedom and security, freedom of association, freedom of movement, the right to dignity and the right to privacy. Each of these rights is entrenched in the Bill of Rights in the Constitution, Act 108 of 1996. It appears, in view of what has transpired in this matter, necessary to emphasise in which terms these rights have been entrenched in the Bill of Rights.

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"Section 12: Freedom and Security of the Person:

1.

Everyone has the right to freedom and security of the person which includes the right –

(a)

not to be deprived of freedom arbitrarily or without just cause;

(b)

not to be detained without trial;

(c)

to be free from all forms of violence from either public or private sources;

(d)

not to be tortured in any way; and

(e)

not to be treated or punished in a cruel, inhumane or degrading way."

(I will not at this stage worry about subparagraph (2)).

Section 18:

"Freedom of Association:

Everyone has the right to freedom of association."

Section 21:

"Freedom of movement and residence:

1.

Everyone has the right to freedom of movement.

2.

Everyone has the right to leave the Republic.

3.

Every citizen has the right to enter, to remain in and to reside anywhere in the Republic.

4.

Every citizen has the right to a passport."

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Section 10:

"Human Dignity:

Everyone has inherent dignity and the right to have their dignity respected and protected."

Section 14:

"Privacy:

Everyone has the right to privacy which includes the right not to have –

(a)

their person or home searched;

(b)

their property searched;

(c)

their possessions seized; or

(d)

the privacy of their communications infringed."

It may be appropriate, since it has been raised during argument, that section 36 of the Constitution governs circumstances in which rights in the Bill of Rights may be subject to limitation. In this regard section 36 reads as follows:

"S 36. Limitation of Rights:

1.

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic

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society based on human dignity, equality and freedom taking into account all relevant factors including -

(a)

the nature of the right;

(b)

the importance of the purpose of the limitation;

(c)

the nature and extent of the limitation;

(d)

the relations between the limitation and its purpose; and

(e)

less restrictive means to achieve the purpose.

2.

Accept as provided in subsection (1) or in any other provision of the Constitution no law may limit any right entrenched in the Bill of Rights."

It needs to be emphasised at the outset that the 1st respondent is an adult woman, 21 years old, and is married to the 2nd respondent. As an adult the 1st respondent is vested in law with full capacity to make decisions on her own behalf, which include the right to determine her own future and more specifically whether or not a particular course of action affecting her well-being is acceptable or not to her. Her rights in this regard cannot be curtailed by another person, nor may anyone else determine how she may exercise her rights. I exclude, for present purposes, those instances where a Court

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