Ngxale v Minister of Justice of the Ciskei and Others

JurisdictionSouth Africa
JudgeCloete JP
Judgment Date03 October 1980
Citation1981 (2) SA 554 (E)
CourtEastern Cape Division

Cloete, JP.:

The applicant Sylvia Nomvuyo Ngxale, an adult Black woman, is the natural mother of Pumeza Ngxale, who is now 17 years old and who was detained by the Ciskeian Police on 11 August 1980.

It is common cause that such detention has been effected in terms of the D provisions of reg 8 of Proc R252 of the Regulations for the Administration of the Ciskei. On 5 September 1980 the applicant applied urgently for an order in the following terms:

1.

That a rule nisi do issue calling upon the respondents to show cause, if any, on a date to be defined, 1980.

(a)

E Why they should not be interdicted and restrained for the duration of the detention under reg 8 (2) of Proc R252 published in Government Gazette 5757 dated 30 September 1977 from either directly or indirectly through their own actions or those of anyone under the command or control of one or other of them from:

(i)

F assaulting,

(ii)

interrogating in any manner other than that prescribed or permitted by law,

(iii)

employing any undue or unlawful pressure on, and

(iv)

subjecting any form of unlawful duress on

(b)

G Pumeza Ngxale, the daughter of the applicant.

2.

That the evidence of Pumeza, the detainee on whose behalf and for whose benefit this application is brought, be taken on an affidavit or commission or by interrogatories by a person or persons who in terms of the provisions of reg 8 (4) of the aforesaid Proc R252 is entitled to access to her appointed by the Court.

3. (a)

A medical officer or specialist of applicant's choice or a district surgeon of the area where Pumeza Ngxale is kept in custody is hereby authorised to visit the said Pumeza Ngxale forthwith to conduct a thorough and detailed medical examination of her, and immediately thereafter compile a report which he or she should file with the Registrar of the honourable Court on or before 4 pm on a date to be fixed.

(b)

In the compilation of the medical report referred to in 3 (a) above, such medical officer or specialist doctor shall have

Cloete JP

access and have reference to any other reports on Pumeza's medical treatment by any doctor or medical institution during the whole of the period of her detention.

4.

A The Registrar of this honourable Court is directed to transmit to the said Pumeza Ngxale a copy of this order and of the application papers herein before the terms contained in paras 2 and 3 of this order are put into effect.

5.

B That pending the filing of such affidavit or other evidence obtained in the manner set out in 2 and 3 above, a rule nisi be issued operating as an interim interdict and/or - and order pending the final determination of this application.

6.

Other or alternative relief.

7.

Ordering the respondent to pay the costs of this application and other incidental and/or ancillary costs.

C Notice of the application was not served on all the respondents but notice was given to a Ciskeian police captain at Mdantsane. It is not clear whether this was the third respondent. In my view it does not matter D because there was no appearance for the respondent when the matter came before me on 5 September 1980 as an urgent application and I treated the application as an ex parte one in which either no notice or no adequate notice had been given to the respondent.

It seemed to me on reading of the papers filed by the applicant that, E although much of the information on which she relied was based on hearsay evidence and even double hearsay evidence, the allegations were of a serious nature - and indeed so serious as to aver that Pumeza's life was in danger. I was persuaded, having regard to the fact that a minor was involved and as upper guardian of such minor, to grant interim relief and to ensure that the respondents should come to Court and be heard in the F matter. The following order was, therefore, granted:

"1.

It is ordered that a rule nisi be issued calling upon the respondents to show cause, if any, on 11 September 1980

(a)

why they should not be interdicted and restrained for the duration G of the detention under reg 8 (2) of Proc R252 published in Government Gazette 5757 dated 30 September 1977 from either directly or indirectly through their own actions or those of anyone under the command or control of one or other of them from -

(i)

assaulting,

(ii)

interrogating in any manner other than that prescribed or permitted by law,

(iii)

H employing any undue or unlawful pressure on and for subjecting any form of unlawful duress on

(b)

Pumeza Ngxale, the daughter of the applicant.

2.

That the order in paras 1 (a) and (b) above serves as an interim interdict pending finalisation of this matter on 11 instant.

3.

That this order and a notice of motion, together with the annexures, be served on the four respondents personally.

4.

That the costs be costs in the cause."

The rule was extended on 11 September 1980 to 18 September 1980.

Cloete JP

On the latter date the respondent applied successfully to have certain portions of the applicant's affidavit and some of the supporting documents struck out as containing hearsay matter.

A The applicant then sought confirmation of the rule and an order in terms of paras 2, 3, 4 and 7 of the notice of motion.

It is clear that the applicant seeks principally an interdict, final in form and in substance in the terms set out in para 1 (a) of the notice of motion. It is clear too that the relief sought in paras 2, 3 and 4 is intended to provide the applicant with evidence in support of the B interdict relief which she seeks in respect of her daughter, Pumeza.

It seems to me, therefore, that the applicant must show on the admitted or undisputed facts that the three requisites for the granting of an C interdict are present, namely a clear right on the part of the applicant, an injury actually committed or reasonably apprehended and the absence of any other satisfactory remedy available to...

To continue reading

Request your trial
7 practice notes
  • Nkwentsha v Minister of Law and Order and Another
    • South Africa
    • Invalid date
    ...by appropriate relief. Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618C and 623F - G; Ngxale v Minister of Justice of the Ciskei 1981 (2) SA 554 (E) at 557F. The Court's duty includes protecting detainees against D any unlawful detention where the detainee challenges the lawfulness of ......
  • Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others
    • South Africa
    • Invalid date
    ...that the alternative orders should at least have been granted. The dicta in Ngxale v Minister of Justice of the Ciskei and Others B 1981 (2) SA 554 (E) at 561F - H The decisions in the South Eastern Cape Local Division in Apleni v Minister of Law and Order and Others; Lamani v Minister of L......
  • Minister of Law and Order, Kwandebele, and Others v Mathebe and Another
    • South Africa
    • Invalid date
    ...(unreported: South Eastern Cape D Local Division, Case No 2315/86) per Mullins J at pp 4 and 7; Ngxale v Minister of Justice, Ciskei 1981 (2) SA 554 (E) at 559E and following; Mkele v Minister of Law and Order and Others (unreported: South Eastern Cape Local Division Case No 228/86) per Jen......
  • Minister of Law and Order, Kwandebele, and Others v Mathebe and Another
    • South Africa
    • Appellate Division
    • September 29, 1989
    ...(unreported: South Eastern Cape D Local Division, Case No 2315/86) per Mullins J at pp 4 and 7; Ngxale v Minister of Justice, Ciskei 1981 (2) SA 554 (E) at 559E and following; Mkele v Minister of Law and Order and Others (unreported: South Eastern Cape Local Division Case No 228/86) per Jen......
  • Request a trial to view additional results
7 cases
  • Nkwentsha v Minister of Law and Order and Another
    • South Africa
    • Invalid date
    ...by appropriate relief. Schermbrucker v Klindt NO 1965 (4) SA 606 (A) at 618C and 623F - G; Ngxale v Minister of Justice of the Ciskei 1981 (2) SA 554 (E) at 557F. The Court's duty includes protecting detainees against D any unlawful detention where the detainee challenges the lawfulness of ......
  • Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others
    • South Africa
    • Invalid date
    ...that the alternative orders should at least have been granted. The dicta in Ngxale v Minister of Justice of the Ciskei and Others B 1981 (2) SA 554 (E) at 561F - H The decisions in the South Eastern Cape Local Division in Apleni v Minister of Law and Order and Others; Lamani v Minister of L......
  • Minister of Law and Order, Kwandebele, and Others v Mathebe and Another
    • South Africa
    • Invalid date
    ...(unreported: South Eastern Cape D Local Division, Case No 2315/86) per Mullins J at pp 4 and 7; Ngxale v Minister of Justice, Ciskei 1981 (2) SA 554 (E) at 559E and following; Mkele v Minister of Law and Order and Others (unreported: South Eastern Cape Local Division Case No 228/86) per Jen......
  • Minister of Law and Order, Kwandebele, and Others v Mathebe and Another
    • South Africa
    • Appellate Division
    • September 29, 1989
    ...(unreported: South Eastern Cape D Local Division, Case No 2315/86) per Mullins J at pp 4 and 7; Ngxale v Minister of Justice, Ciskei 1981 (2) SA 554 (E) at 559E and following; Mkele v Minister of Law and Order and Others (unreported: South Eastern Cape Local Division Case No 228/86) per Jen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT