S v Mzo and Others

• Jurisdiction: South Africa
• Judge: Howie J
• Judgment Date: 03 April 1984
• Citation: 1984 (3) SA 945 (E)
• Hearing Date: 03 April 1984
• Court: Eastern Cape Division

Howie J:

As part of its case against the accused, the State seeks to lead evidence of written statements made by them H subsequent to their arrest. These statements were made either to magistrates or commissioned police officers.

Counsel for the defence have indicated that the admissibility of the statements in question will be contested inter alia in respect of the element of voluntariness. Subject to what I follows, a trial within the trial would therefore otherwise be necessary on this issue. Prior to embarking on such hearing, how ever, I have been called upon to determine a point of law raised on behalf of the accused which touches all the statements and which, if upheld, would obviate the need for the hearing to which I have referred.

Howie J

A As the prosecution has indicated from the outset, the statements in question were made by the accused while under detention in terms of s 29 of Act 74 of 1982.

The contention advanced on behalf of the accused is that the statements constitute official information within the meaning B of ss (7) (b) of s 29 and that the Court is not entitled to know the contents of the statements. It follows, so runs the argument, that the State may not divulge them.

To assess the merits of this contention, it is necessary to have regard to all the relevant terms of s 29, the context in which it has been set and the object of the Legislature in enacting this statute.

C According to the preamble, the Act is aimed at providing for the security of the State, for the maintenance of law and order and for matters connected therewith.

Section 29 empowers the detention of certain persons for interrogation and obviously this measure is intended to further D State security and the maintenance of law and order. Those subsections which are relevant for present purposes, read as follows:

"(1)

Notwithstanding anything to the contrary in any law or the common law contained but subject to the provisions of ss (3), any commissioned officer as defined in s 1 of the Police Act 7 of 1958, of or above the rank of lieutenant-colonel, may, if he has reason to believe E that any person who happens to be at any place in the Republic -

(a)

Has committed or intends or intended to commit an offence referred to in s 54 (1), (2) or (4), excluding in the case of an offence referred to in s 54 (4), such an offence which the suspect committed or intends or intended to commit in connection with a person suspected of having intended to commit or having F committed the offence of sabotage, or

(b)

Is withholding from the South African Police any information relating to the commission of an offence referred to in para (a) or relating to an intended commission of such offence, or relating to any person who has committed or who intends to commit such offence, without warrant, arrest such person or cause him to be arrested and detain such person, or cause him to be detained, for G interrogation in accordance with such directions as the Commissioner may, subject to the directions of the Minister, from time to time issue, until

(i)

the Commissioner orders his release when satisfied that the said person has satisfactorily replied to all questions at the interrogation, or that no useful purpose will be served by his further detention in terms of the provisions of this section, H provided that in the case where at the conclusion of the interrogation the matter is submitted to the Attorney-General for his decision as to whether or not a...