Nordien and Another v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Van den Heever J
• Judgment Date: 15 October 1985
• Citation: 1986 (2) SA 511 (C)
• Court: Cape Provincial Division

Van den Heever J:

Applicants, students at the Peninsula Technikon at Bellville, both minors and herein assisted by their parents who are married by Moslem rites, ask as a matter of urgency for an interdict against the police.

The six respondents cited are: the Minister of Law and Order; B the Commissioner of Police; the Divisional Commissioner of the Police, Cape Town; the District Commandant, Athlone; the District Commandant, Bellville; and Detective Sergeant Van Wyk.

The relief asked in the notice of motion is for a rule nisi aimed at an order:

"2.1

interdicting and restraining the police under the C direction and control of first to fifth respondents 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 D necessary steps within their powers to prevent any 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);

2.4

why further or alternative relief should not be granted;

2.5

E why respondents should not be ordered to pay the costs of this application jointly and severally, the one paying, the others to be absolved;

3.0

directing that the rule nisi shall operate as a temporary interdict until such time as this application has been finally decided."

F The basis on which the first five respondents are cited is set out in first applicant's para 2.3:

"Respondents, the one, the other or all of them in their official capacities, have jurisdiction and control over policemen and police actions in the Athlone, Manenberg and Brackenfell areas of the Cape, and/or have jurisdiction and control of the police stations and members of the police force of Manenberg, Athlone and Brackenfell and/or the members of the police force using the said police stations and/or they are the responsible officials in whose area of jurisdiction the applicants were arrested, detained, assaulted and threatened..."

By reason of the provisions of s 35 of Act 62 of 1955 H applicants were obliged to serve on respondents, who decided not to await the return day of a rule nisi but to oppose forthwith; which resulted in affidavits being filed by both sides in haste as they became available. Applicants' attorney, Mr Petersen, originally would not consent to the matter being heard only on 8 October should an undertaking be furnished by I the Divisional Commissioner that applicants would not be approached by the police until then. Such an undertaking was given on the 3rd and the matter argued on the 8th, the undertaking being extended without prejudice at my request until today to give me an opportunity to consider. The undertaking sets out that the Divisional Inspector of the SAP for the Western Cape was authorised on 3 October 1985 by the J Senior Chief Deputy Commissioner to undertake that:

Van den Heever J

"Tot en met 8 Oktober 1985 sal geen lid van die SA Polisie met A Esmat Nordien, Eshaam Nordien, in aanraking kom nie, tensy hulle 'n misdaad of 'n oortreding van die veiligheidswetgewing begaan."

At the hearing Mr Seligson for applicants conceded that, because of disputes of fact, he could not ask for a final interdict. He asked that the matter be referred for trial, a B temporary interdict pending the outcome of that, the costs of the day or that they stand over to the hearing. Mr Hodes opposed any relief being granted.

Applicants, to whom I shall refer by their names, did not attend classes on 17 September. Instead, they, along with other students, went to a troubled area in the vicinity of the Alexander Sinton School which, having been officially closed, C the pupils decided along with parents and teachers and in defiance of the authorities, to re-open. Major Odendaal said, and it is not denied, that crowds gathered, threw stones at the police, and refused to disperse when ordered to do so. He had enforced his order in relation to one group with a sjambok charge.

D Applicants (Esmat in his Datsun, Eshaam in a Golf belonging to someone else) were arrested along with all the other occupants of those two cars, because they had allegedly incited the scholars to throw stones and erect barricades. The arrest was effected after noon.

Applicants' story of what happened to them (I omit references to assaults they say they saw on other members of the group) E from the time of their arrest after noon on the 17th until they were released at 8h30 the next day, may be summarised as follows:

1.

They were arrested by Major Odendaal and about 10 White policemen dressed in riot uniform and armed with sjamboks. Major Odendaal threatened them in vulgar language. One of the policemen hit Eshaam on the F shoulder and back, breaking his skin and tearing his shirt.

2.

They were taken by van to Manenberg Police Station. A policeman drove their Datsun. There they were questioned by a Mr Small and a Mr Roman, dressed in civilian clothes, who obtained inter alia their names, G addresses and parents' telephone number. They were told that a person of higher authority wanted to speak to them. This person was a White dressed in riot uniform who had them put into vans. A Black dressed in a green tracksuit threw Esmat in and his thumb was cut on an iron grille lying on the floor of the van. Esmat got up, the Black punched him in the face. He said he H came from South West Africa. He mentioned the word "Koevoet". He and/or another Black in a Blue tracksuit uttered threats "ons gaan julle moer, boeta". One of the policemen who had arrested them continuously pulled Eshaam's hair and said "they were going to work on us".

3.

I They were taken to Brackenfell Police Station. There:

(a)

They were taken to cells at the back of the premises and, as they walked past some policemen in civilian clothes, they were smacked and kicked at random.

(b)

They were taken into an inner cell one at a time. There were five or six policemen in civilian clothing there, one of whom was sitting behind a table, and another standing J behind the person

Van den Heever J

A being interrogated. The latter choked Esmat by pulling his shirt collar tight and hit him on both ears simultaneously four or five times. He was hit out of the room by one of the policemen, almost losing a contact lens in the process. Eshaam was treated in a similar fashion.

(c)

B They were taken to and placed in other cells - the boys in one, the two girls in another. The Blacks in tracksuits compelled them to do exercises for hours, hitting, kicking, smacking them to compel them to continue. Esmat was kicked in the stomach and elsewhere. They were refused C water. Every now and then someone would come into the cell and ask whether they were ready to talk.

(d)

At about 6 pm they were taken to another cell and locked up for the night.

4.

The following morning two White policemen drove them some distance from the station, threatened them that, D if they tried to lay a charge of assault, that would be the last charge they would ever lay. There were other threats that one of them could get applicants kicked out of the Technikon. One said that he would be around for another three months, the other that he is here permanently and knows where applicants live and E that they would be found even if they tried to hide. The policemen appeared to be serious. Applicants were dropped off on the R300 road. Esmat and Eshaam had seen these two for the first time at Brackenfell when they were taken into the cell for questioning.

They walked for about 2 km to the Stellenbosch Arterial Road, F hitchhiked to Elsies River station, from where Esmat telephoned their father who instructed them to go to one of his shops in Elsies River. He collected them there. He says (and his wife who saw them soon after confirms) that they were in a terrible state, and Eshaam had difficulty in moving. He took them to Manenberg to go and fetch the Datsun. Mr Nordien took G the boys his attorney, Mr Petersen. After hearing what they told him, he advised that they be medically examined. They were examined by Dr Adams that afternoon. He, a district surgeon, noted the details alleged by applicants of the assaults on them. He found that Eshaam had a 2 cm laceration of the left thumb, a perforation of the right eardrum, and there was H tenderness of both thighs. Eshaam was tense and anxious, had multiple weals on his back and shoulders, the pinna of his left ear was bruised, there was tenderness and swelling of both thighs, arms, chest and abdominal muscles and bruising of both knees. He arranged for blood samples to be taken from both applicants and tested to establish whether there was any I significant elevation of the creatine kinase level which would be indicative of muscle damage, and referred Esmat to an ear, nose and throat surgeon, Dr Ramages.

The pathologist's reports were that the creatine levels were elevated in both cases. As regards Esmat's sample, "these elevated enzyme levels are compatible with exercise, muscle trauma (eg, intra-muscular injections) or muscular dystrophy". J The report on Eshaam's sample received by Dr Adams, reads:

Van den Heever J

"These elevated enzyme levels are compatible with severe A exercise, muscle trauma or muscular dystrophy. These levels are considerably higher than those seen in response to intramuscular injections."

Dr Ramages saw Esmat on 20 September. He found that the right ear "shows an anterior fresh traumatic perforation, with a hearing loss in that ear compatible with the pathology noted". B He says

"it is my considered opinion that the injuries... can safely be described as having resulted from...