Early State Security FSAL

Question 1

Loza v Police Station Commander, Durbanville 1964 (2) SA 545 (AD) FACTS

Answer 1

Elijah Loza was detained under s17 of the General laws Amendment Act 37 of 1963 for 90 days without trial. He was detained for the offense of sabotage under the Suppression of Communism Act and being a member of Unkonto we Sizwe. At the end of the 90 day detention he was released but re-detained immediately afterwards under the provisions of the same section for the same supposed crimes.

Question 2

Loza Legal Issue

Answer 2

Did s17 of the General Laws Amendment Act legitimise multiple arrests for the same offence?

Question 3

Loza appellants

Answer 3

Appellant (Loza): The words in s17 provide that “no person shall be so detained for more than 90 days on any particular occasion when he is so arrested.” This clearly implies that the provision of detention without trial is limited to 90 days and if the Act wished this to be otherwise, it would have said so in explicit terms. An immediate arrest for reasons other than the original purpose for detention would be justified, but in this case, no new information has come to light and hence, Loza is held illegally.

Question 4

Loza respondents

Answer 4

The word “occasion” in s17 indicates that any subsequent decision to re-arrest an individual is a new occasion which carries with it its own 90-day limit. Thus s17 confers upon the State the right to make as many re-arrests as it deems expedient in any given case, provided that the arrests made are bona fide. Furthermore, s17 implies that an arrest cannot be for any specific ‘purpose’, but generally for interrogation in connection with a specified offence. Thus multiple arrests can be made for the same offence.

Question 5

Loza Judgment

Answer 5

Rumpff JA:
[Steyn CJ, Botha JA, Holmes JA, Hoexter AJA concurring]
1. The purpose of the legislation is to protect the safety of the State, not to protect the rights and freedoms of the individual. Therefore, the court needs to apply the language of the statute as it would be the intention of the Legislature, regardless of how harsh its operation may be.
2. New information had arisen related to the same offences which resulted in his arrest
3. The appeal was dismissed and s17 confirmed as allowing re-arrests to be made after original 90-day detention.

Question 6

Loza Interesting points

Answer 6

1. The wording of s17 means the police officer has a lot of subjective weight. He may make an arrest if in his opinion somebody has information relating to an offence. Furthermore the person may be released if in his opinion the detainee has satisfactorily answered all the relevant questions.
2. Section 17 of the General Laws Amendment Act allowed an officer to detain an individual without trial for 90 days. This was increased to indefinite detention without trial in s28 of the Internal Security Act of 1982.

Question 7

Roussouw v Sachs Facts

Answer 7

Albie Sachs was detained under s17 of the General Laws Amendment Act for interrogation, yet he refused to give any information. He claimed that he was entitled to the same rights and privileges that the awaiting-trial prisoners enjoyed. Yet the detaining officer refused him reading and writing materials as well as more exercise. He won the case at the court a quo, the officer (Roussouw) now appeals.

Question 8

Roussouw v Sachs legal Issue

Answer 8

Is a detainee under s17 of the General Laws Amendment Act entitled to certain comforts, indulgences or privileges such as reading and writing materials or more exercise?

Question 9

Roussouw v Sachs appellants

Answer 9

While detainees under s17 are entitled to necessities while in custody, they are not entitled to luxuries, comforts or conveniences. If reading and writing materials were necessary for the mental and or physical wellbeing of the detainee, then it would be given on the opinion of a medical practitioner.

Question 10

Roussow v Sachs respondents

Answer 10

Respondent (Sachs): The detainee is entitled to any liberties that are not expressly forbidden by the Act. Punishment is not implied by s17 detention. Sachs should not be treated any differently to an awaiting-trial prisoner, as there is nothing to justify the placing of detainees under s17 in a less favourable position than other prisoners who are entitled to the rights that are claims at this court.

Question 11

Roussouw v Sachs interesting points

Answer 11

1. Ogilvie Thompson gives consideration to the fact that where statues are vague or unclear the court should interpret them as narrowly as possible so as to protect the rights of the individual.
2. However, he favours the approach that, when state security is on the line, the court needs to yield the rights of the individual to the public interest.

Question 12

Schermbrucker v Klindt NO 1965 (4) SA 606 (AD) FACTS

Answer 12

Schermbrucker was detained under s17 of the General Laws Amendment Act. He was being physically abused in prison but the respondents refused to bring Schermbrucker to court.

Question 13

Schermbrucker legal issue

Answer 13

Rule 9(a) of the Courts states that the court may “order any person to appear personally to be examined and cross-examined”. However, s17 of the General Laws Amendment Act provided that a person must remain in detention. Did s17 overrule Rule 9(a) and was Schermbrucker entitled to appear in court?

Question 14

Schermbrucker appellant

Answer 14

Appellant [Schermbrucker]: The court can ensure that the detainee comes into contact with no one when in the witness stand. If Parliament wanted to deny the detainee from giving evidence in court, it would have done so in express terms.

Question 15

Schermbrucker respondents

Answer 15

Respondent [Klindt NO]: Section 17 precludes Rule 9(a) as the GLAA has placed obvious and explicit obstacles in the way of a detainee to litigate and be seen in court during his detention.

Question 16

Schermbrucker majority judgment

Answer 16

Botha JA: [majority]
[Steyn CJ concurring]
1. If a detainee does not speak, the act is designed in such a way as to induce him to speak through solitary confinement (Roussouw v Sachs). Rule 9(a) defeats the purpose of this operation.
2. Ordering someone to appear in court would defeat the purpose of Act by interrupting the period.
3. It is not the place of the court to undermine the current legislation.

Trollip AJA: [majority]
[Steyn CJ concurring]
1. Section 17(3) provides that a court “cannot order the release from custody of any person detained.” Thus even if a person has been unlawfully detained, the court may not intervene.
2. There are other ways of getting information such as writing an affidavit or sending a magistra

Question 17

Schermbrucker Minority Judgment

Answer 17

Williamson JA and Rumpff JA [minority]:

1. Disagrees with the obiter in Roussouw v Sachs that the 90-day detention designed to induce detainees to speak. Section 17 enables Parliament to get the information in other ways.
2. The legislation does not say that no court may enquire into the legality of the detention.
3. The court should look into the detention and thus Schermbrucker must appear in court to testify.

Question 18

schermbrucker interesting facts

Answer 18

The judgment of Ogilvie went a long way in setting the severity of s17 of the GLAA. The detainee was detained to induce them to speak under interrogation and could not have any luxuries. This was extended to not appearing in public or having the 90-day sentence interrupted by a court visit to give evidence.