Sebe and Others v Government of Ciskei and Others

• Jurisdiction: South Africa
• Judge: Pickard J
• Judgment Date: 27 July 1983
• Citation: 1983 (4) SA 523 (CkS)
• Hearing Date: 25 July 1983
• Court: Ciskei Supreme Court

Pickard J:

The eight applications came before this Court simultaneously on a basis of urgency. Since in seven of the eight matters the parties were all represented by the same counsel and in the eighth matter the respondents were represented by the counsel who represented them in the other seven matters, and since the issues to be decided in all the matters were substantially identical, it was agreed and decided to hear all the matters as one, giving each of the three sets of counsel the normal opportunities to address the Court and to reply

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as if these were one application with eight applicants brought against all the various respondents.

It was of course understood that separate orders, both in regard to the merits and in regard to costs, would be considered and made at the end of the proceedings.

A All eight applications arise from the fact that during the period 18 to 20 July 1983 some nine people (all being at the time members of either the police or militia of Ciskei) were arrested and are being detained at various places in Ciskei. They have to date hereof not yet been charged with the commission of any offence; nor have they been brought before any court of law.

B The eight applicants are without exception ladies who have a real and undisputable interest in the physical well-being of the detainees, their freedom and their release from detention, as they are all either wives, fiancées or mothers of the detainees. Accordingly the locus standi of the applicants was never challenged or disputed.

C The various affidavits filed by the applicants are almost identical, as are the various affidavits filed by the respondents. In the application by Nomatakathi Sebe full and comprehensive affidavits were filed by both parties and these have been incorporated by reference in all the other applications. Accordingly it was agreed that the facts deposed to in all the affidavits filed in all of the eight applications D could be referred to in considering each application. It is therefore necessary for me to give only one judgment which will serve as the judgment of this Court in each of the applications.

According to the applicants' affidavits, the detainees had, prior to their arrests and detention, been faithful and loyal E servants of the first respondent and had not been guilty in the past of criminal or dishonest or dishonourable conduct. They aver, "accordingly", that there are no grounds whatsoever upon which the detainees can be arrested and detained. They further allege that the detainees have "apparently" been arrested under the provisions of s 26 (1) (a) of the National Security Act 13 of 1982. They deny that the detainees have F committed or intended to commit any offence referred to in ss 2,3 or 5 of that Act or that they are withholding information relating to the commission of such offences and that the attempt by respondents to rely on the provisions of the said Act is a subterfuge, is mala fide and an abuse of the provisions of the Act. According to them a family feud has G developed between the family of the President of Ciskei and the family of the former Commander General of Ciskei (one of the detainees) as a result of clashes between their respective sons which allegedly has

"wrongfully brought the President under the impression that the General and other detainees are hostile and opposed to him in his capacity as President of the Ciskei".

H As a result, they say, the Commander General was dismissed from his position, the office of Commander General abolished and the detainees arrested and detained.

They also make bald allegations, without any further factual basis, that they are of the view that the health and lives of the detainees are in danger.

The relief the applicants seek, as a matter of urgency, appears fully

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from the notices of motion but amounts to orders for the immediate release of the detainees; alternatively for rules nisi calling upon the respondents to show cause why they should not be released forthwith. The other relief sought in the A notices of motion was not proceeded with.

Respondents, in their answering affidavits (deposed to by Brigadier Madolo and by the Minister of Justice), aver that the Brigadier was, after the dismissal of General Sebe, appointed acting Commander General of State Security on 15 July 1983 when B he assumed the duties of that post. The Department of State Security referred to in Schedule 1 of the Public Service Act 2 of 1981 was headed by its Director General, later renamed Commander General of State Security. This Department

"was on 15 July 1983 abolished and the powers and duties relating thereto were imposed on the Department of Justice and C all the powers and duties of the head of the Department of State Security were conferred on the Minister of Justice".

Brigadier Madolo avers that he is the Commissioner of Police in Ciskei and that on the various relevant dates he gave instructions for the arrest and detention of each of the detainees because he had reason to believe that each of them D had committed or intended to commit offences referred to in ss 2 and 3 of the National Security Act of 1982 (hereinafter referred to as "the Act") and that it was in the interests of State security that they should be arrested and detained for interrogation as envisaged by s 26 of the Act. The interrogation is still in progress and he intends submitting E the matters to the Attorney-General for his decision regarding prosecution when this is completed.

He further says that

"before ordering the arrests of abovementioned persons I carefully considered the case of each of them. I say that the decisions in question were made by me properly and in accordance with the important responsibilities of my office. I state that it is not in the interests of the F State and/or the public in general to disclose any more information at this stage relating to the actions of the persons concerned and their subsequent arrest.

7.

I state that I have honestly directed my mind to the question of these arrests and have at all times acted bona fide in this matter.

8.

I am aware, as is the general public, that there is a family dispute between the families of the President and Lt General Sebe. The dispute has been going on for some months G already and has nothing to do with the arrests in question.

9.

I deny the allegations of any mala fides on my side and repeat what has been set out above. In ordering the arrests I have acted solely on my own responsibility and have not received any instructions in this regard from the President or the cabinet.

10.

I say that the allegations that the persons concerned acted as faithful and loyal servants of the State are of no value H and I repeat that their detention in every case is in the interests of the State."

Both he and the...