Rossouw v Sachs

• Jurisdiction: South Africa
• Judge: Steyn CJ, Beyers JA, Ogilvie Thompson JA, Botha JA and Wessels JA
• Judgment Date: 24 March 1964
• Citation: 1964 (2) SA 551 (A)
• Hearing Date: 28 February 1964
• Court: Appellate Division

Ogilvie Thompson J.A.:

Respondent, a practising advocate presently F detained pursuant to the provisions of sec. 17 of Act 37 of 1963, applied on notice of motion dated 25th October, 1963, to the Cape Provincial Division for an order in the following terms, viz.:

'1.

Declaring that the respondent is not entitled to deprive the applicant of any of his rights and liberties save to detain him for interrogation and save to deprive him of access to other persons.

2.

Declaring that applicant, even though detained under sec. 17 of Act G 37 of 1963, is entitled at least to the same rights and liberties while in custody as are enjoyed by awaiting-trial prisoners or other non-convicted persons who are being detained under the provisions of some other law, and more particularly to the following rights:

(a)

To be allowed out of his cell daily for adequate and reasonable periods for the purposes of exercise and/or recreation;

(b)

to be permitted to receive an adequate supply of reading material subject to the right of scrutiny thereof by the persons detaining him;

(c)

H to be permitted to receive and use a reasonable supply of writing materials.

The motion proceedings, launched on respondent's behalf by one Brown, an attorney, in whose favour respondent had executed a general power of attorney shortly after his arrest, cited as respondent the present appellant, who is the second in command of the security branch of the South African Police in Cape Town and who admittedly caused the appellant's arrest and continued detention pursuant to the provisions

Ogilvie Thompson JA

of sec. 17 of Act 37 of 1963. Respondent was arrested in his chambers in Cape Town on 1st October, 1963, and was, at the date of the hearing of this appeal, still detained. Initially respondent was detained at the A Maitland Police Station; but, by the time that the motion proceedings were heard in the Court below (viz. 30th October, 1963), he had been removed to some other place of detention which, although referred to in the papers as a cell, appellant has refrained from identifying. Neither the validity of respondent's arrest nor the duration of his detention are in issue in the present proceedings.

B In his opposing affidavit, appellant deposed that he is from a reliable source informed that respondent himself participated in an offence, being one of those mentioned in sec. 17 of Act 37 of 1963 and directed against the safety of the State, and also has knowledge of an intended offence of a similar kind, and that he (appellant) considers it necessary to obtain all this information from respondent in order to C trace those responsible for the offences in question and to prevent the commission of further such offences. Appellant avers that it is not in the public interest that he should disclose the source or nature of his information, but adds that respondent has at no time denied possessing the knowledge thus attributed to him, but has simply refused to divulge any information whatsoever.

D Appellant further deposed that there is in existence a general instruction from the Commissioner of Police laying down how persons detained under sec. 17 of Act 37 of 1963 are to be treated, and that in terms of those instructions detainees are not permitted reading matter E or writing materials, but that it is within his (appellant's) discretion to relax the instructions in question in so far as he may consider fit. According to the affidavit of the Deputy Commanding Officer of the Cape Town prison, filed on behalf of appellant, the Commissioner of Prisons has, under sec. 147 of Government Notice 6275 of 1959, issued Prison F Orders dealing with persons who, pursuant to sec. 17 of Act 37 of 1963, are detained in a gaol; and, in terms of those instructions, such detainees are not permitted reading matter or writing materials. Save as above. neither the instructions of the Commissioner of Police nor those of the Commissioner of Prisons were disclosed in the Court below. The order made by the Court a quo reads:

'The Court:

1.

G Declares the appellant entitled, while detained under the provisions of sec. 17 of Act 37 of 1963, to be accorded reasonable periods of daily exercise, to be supplied with, or to be permitted to receive and use a reasonable supply of reading matter and writing material.

2.

Orders the respondent to pay the applicant's costs; and.

3.

Directs the Registrar of this Court to transmit to the applicant a copy of this order.'

H No doubt in elucidation of why the order took this particular form, the reasons for judgment in the Court below concluded as follows:

'This Court is unable to define a priori what in all circumstances would constitute reasonably adequate exercise or a reasonable supply of reading matter or writing materials. What is reasonable must in the first instance be decided by the appropriate official in charge of the applicant during his detention, and in coming to such a decision he must have regard, inter alia, to the purpose of the applicant's detention, the due administration of such detention, the order in, and discipline of the institution or place where the applicant is detained, the maintenance of applicant's health, both mental and physical, and the suitability in all the circumstances, of any literature to be supplied to him. The decision of such

Ogilvie Thompson JA

official is not come to in the exercise of any discretion conferred on him in law. His decision is at all times subject to correction in a court of law.'

As regards exercise, appellant deposed in his opposing affidavit that persons detained under sec. 17 of Act 37 of 1963, including respondent, A are accorded opportunity for exercise for half an hour every morning and evening, i.e. in all one hour per day. Appellant's contention that this constitutes sufficient exercise was supported by the affidavit of the Wynberg District Surgeon who expressed the opinion that the amount of exercise deposed to by appellant was adequate. The District Surgeon said that he had examined respondent on 20th October, 1963, and found B him 'physically and mentally fit', and went on to testify that he had seen the cell where respondent was being detained and that, in his opinion, there was no reason why respondent's 'physical and mental health should deteriorate in the future'. These statements by appellant and the District Surgeon remain uncontradicted on the record. The C Provincial Division appears to have laboured under the misapprehension that appellant contended that opportunity for exercise lay in his discretion. The position on the papers before the Court a quo was, however, that the necessity for reasonable periods of daily exercise was freely conceded by appellant who, while asserting that respondent had throughout his detention been accorded such exercise, at the same time D maintained that the two half-hourly periods morning and evening in fact enjoyed by respondent were reasonable and adequate. There was no evidence whatever before the Court to the contrary. There was, therefore, no evidence upon which the Court a quo was entitled to make any order against appellant on the issue of exercise. Before this Court, E counsel for respondent sought to place some reliance upon the case of Whittaker v Roos and Another, 1911 T.P.D. 1092, where it would seem to have been the practice to accord prisoners two hours exercise per day, and in the particular circumstances of that case as set out at p. 1125 of the report, a doctor had, on grounds of health, ordered an awaiting-trial prisoner's exercise to be increased from one to two hours F per day. On the record before us, no such practice or health considerations obtain in the present case. The Court a quo, accordingly, erred in making any order in relation to exercise.

So far as concerns reading matter and writing materials, appellant in G his affidavit said, in amplification of the statements in his affidavit summarised above, that he had applied his mind to the question of whether respondent should be provided with reading matter and writing materials but was of opinion that these should not be permitted. The crisp issue for decision in this appeal, accordingly, is whether the Provincial Division was correct in upholding respondent's contention that, although detained under sec. 17 of Act 37 of 1963, he is H nevertheless as of right entitled to be supplied with, or to be permitted to receive and use, a reasonable supply of reading matter and writing materials. The problem thus posed is easier stated than solved: it essentially derives from the failure of the Legislature to make either directly in sec. 17 itself, or indirectly by way of incorporating therein an enabling power to make regulations - any express provision (save such as is disclosed in the words of the section itself) prescribing conditions

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