Nevhutalu and Others v Minister of Police and Another

• Jurisdiction: South Africa
• Judge: Klopper ACJ
• Judgment Date: 11 April 1986
• Citation: 1986 (4) SA 822 (V)
• Hearing Date: 03 April 1986
• Court: Venda Supreme Court

Klopper ACJ:

This is an application in which eight applicants, being relatives of certain detainees, claim as a matter of urgency that this Court should declare the detention orders E issued by second respondent in terms of s 6 (1) of the Terrorism Act 83 of 1967 ("the Act") to have been unlawfully issued, and furthermore, that the eight detainees, so detained, be released forthwith.

I am satisfied that this is a matter of urgency and therefore in terms of Rule 6 (1) I dispense with the procedures and the F time limits prescribed by the Rules for ordinary motions.

At the outset I wish to place on record that it appears that none of the detainees have made any affidavits, which is not surprising since, in terms of annexures TGR 1 - TGR 8 inclusive, the various detainees were held under conditions whereunder they were not allowed to receive visitors, any reading matter or any other matter, except with the preceding G leave of second respondent, and in the circumstances it would have been virtually impossible for them to have made depositions in the matter.

Depositions were made on their behalf by various relatives, and to the extent to which the relatives deposed to facts which could be within the knowledge of the detainees, there is of H course at the outset an inherent lack of cogency in all the affidavits in the sense that the deponents are not able to swear positively to what knowledge the various detainees themselves bore of the facts in issue in the matter.

The first affidavit is that of Grace Tshilidzi Nevhutalu, the first applicant, who says that she is married to Lusani I Jonathan Nevhutalu, a detainee, and that there are two minor children of the marriage. She cites first respondent as the Minister of Police but it appears from the papers that ex officio the State President of Venda is in fact the Minister of Police.

In regard to second respondent, she cites the Commander of the Venda Police as second respondent, but it is quite apparent from the terms of the Act, to which I shall return later, that the Commissioner of Police should have been cited in this case, J ie Tshikhakhifa Robert Mulaudzi, who is a

Klopper ACJ

A Major-General in the Venda Police and the Commissioner of Police of Venda. Insofar as it may be necessary, I therefore mero motu join the Commissioner of Police of the Republic of Venda as second respondent.

The deponent states that in a raid that took place on the morning of 31 January 1986, her husband was arrested by members of the Security Branch of the Venda Police. This took place B after a thorough search of their house. The allegation is made that at all material times the members of the police who did the search and effected the arrest and the detention, were acting within the course and scope of their authority and employment as servants of the first respondent. This fact is not in dispute between the parties. In other words, first C respondent, the Minister of Police, is not denying that the actions of the police were within the course and scope of their duty, neither does second respondent disavow any responsibility for the actions of the police. The deponent then sets out that she was informed that her husband was held in custody in terms of s 6 (1) of the Act, and that at the time of D detention the detainee was employed by the Thusasani Christian Organization for the Handicapped. That organization, so she states, is a project aimed at helping the handicapped and is financed by local and overseas Christian organizations. She states in para 11:

"11.1

I respectfully submit that it is highly unlikely that the detainee is a terrorist as defined in the E Terrorism Act 1967, or that he may be having any information relating to terrorists or to offences under the Terrorism Act which he may be withholding from the police.

11.2

I accordingly respectfully submit that the police in detaining the detainee did not have reasonable cause to believe that the detainee is either a terrorist as defined in the said Act or that he may be having any information relating to terrorists or to offences F under the said Act which he may be withholding from the police."

It is clear that her submissions are purely based on conjecture, ie that it is highly unlikely that the detainee had any information relating to terrorism or to offences under the Act. In para 15 she states:

"15.1

I believe that the detainee was detained as a result of his involvement in efforts to form a voluntary G association that was to be known as the Northern Transvaal Action Committee. There is nothing illegal envisaged by this organization. A copy of the constitution of this organization is attached hereto, marked 'A', to which this honourable Court is respectfully referred. The detainee's participation in this organization is a further indication of his commitment to the upliftment of the welfare of his people through lawful means.

15.2

The meeting at which this organization was to be H launched was scheduled for Saturday 1 February 1986, that is, the day after the detainee's detention. This meeting and the attendance thereat were subsequently prohibited by the Minister of Justice in terms of s 2 (3) of the Riotous Assemblies Act 17 of 1956 as amended."

It is obvious from the deposition of first deponent that the full background to the arrest and detention do not emanate I clearly from that affidavit. There may be facts of which the deponent is not aware. The only suggested reason is involvement in the Northern Transvaal Action Committee's activities.

In the supporting affidavit of Asnath Nevhutalu, the deponent supports the general statements in the first applicant's affidavit but she adds that the detainee was born on 22 October J 1957 and that she personally brought him up and he attended school up to standard 10 and was brought

Klopper ACJ

up as a dedicated Christian in the Evangelical Lutheran Church. A She states that "He is a dedicated Christian, against violence although determined to uplift the welfare of his people."

Then there follows the founding affidavit of Matodzi Nancy Lambani, which is in similar vein to the first affidavit and it sets out that the detainee, Edward Nkhangwelini Lambani, was B her husband and that there was one child born of the marriage and that the detainee holds a B Proc degree and was studying for his LLB degree in the University of Venda. He was also arrested on the same morning by the Security Branch, ie 31 January 1986, after an intensive search had been conducted and books had been taken away from the house at which the parties C lived. She was later informed that he was held under s 6 (1) of the Act. He was employed by the Venda Development Corporation in Thohoyandou and was before that an employee at the Mutale magistrate's court. She makes similar allegations in paras 11.1 and 11.2 as those set out above, and in para 13 she D makes similar allegations regarding membership of the Northern Transvaal Action Committee and involvement in its activities as a suggested reason for the detention as those set out by the first deponent in para 15.1 quoted above.

The supporting affidavit of Richard Kharidzuli Makhuvha follows the same lines as the supporting affidavit in respect of the E first applicant.

There is also an affidavit by Azwiforwi Phannel Mphaphuli who supports the affidavit of the second applicant.

With regard to the rest of the applicants, their affidavits follow much the same trend and it is unnecessary for me to traverse them in detail. It is clear that in all the affidavits it is submitted that

"it is highly unlikely that the detainee is a terrorist as F defined in the said Act or that he may be having any information relating to terrorists or offences under the said Act which he may be withholding against (sic) the police".

This amounts to pure speculation but I shall assume, without deciding, that this would nevertheless be a sufficient indication that the liberty of the various detainees was G infringed by their detentions. It must, however, be stressed that those allegations are based on submissions and conjecture, unsupported by facts as to why the detainees were detained.

In each case it is stated

"I accordingly respectfully submit that the police, in detaining the detainee, did not have reasonable cause to believe that the detainee is either a terrorist as defined by the said Act, or that he may be having any information relating H to terrorists or to offences under the said Act which he may be withholding against (sic) the police. I consequently submit that his detention is unlawful."

To sum up the founding papers, therefore, I come to the conclusion that all that the applicants are really saying to the Court is that there was a deprivation of liberty in I circumstances in which it is thought that there was no reasonable cause for their detention, without giving any substantial or detailed facts upon which the submissions are based. There is a mere suggested collateral version relating to the Northern Transvaal Action Committee. There is certainly no proof of irregularity, mala fides or arbitrary or unlawful J action or a disregard of the express provisions of the Act.

Klopper ACJ

A In answer to the application, Tfhamaano Gerson Ramabulana states that he is a Brigadier in the Venda Police Force and the Officer Commanding the Security Division of the Venda Police. He confirms that the detainees were arrested by members of the police, but then states:

"4.

In issuing the said provisional warrants of arrest, I had reason to believe that the said detainees were possessed of B information relating to terrorists, to terrorist activities in terms of the Terrrorism Act and to offences under the Terrorism Act and that they were withholding such information from the Venda Police. I therefore ordered the detention of the said detainees for...