An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
In 1963, the apartheid Parliament rushed through the General Laws Amendment Act, Number 37 of 1963. The Act applied retroactively to June 27th 1962 and was mainly aimed at ensuring that the ANC leaders arrested at Lilliesleaf Farm in Rivonia could be held in detention indefinitely or until they could be charged.
Under this General Law Amendment Act, the security police, also known as the Special Branch, were given the authority to arrest anyone they suspected of being engaged or involved in any act against the State and to hold them incommunicado for 90 days at a time. The Act was often used to detain people for longer periods. Detainees would be “released” for a few seconds before they were “re-arrested” and detained for another 90 days.
When this process of being released and then re-arrested proved to be too cumbersome, the government introduced and passed the 180-Day Detention Act (the Criminal Procedure Amendment Act, Number 96 of 1965). Eventually, this 180-day law would be replaced yet again by the Terrorism Act, Number 83 of 1967, which allowed the government to detain individuals indefinitely until all questions had been answered satisfactorily or no further purpose could be achieved by holding the detainees.
Thankfully, section 12(1)(b) of the South African Constitution now prohibits anyone from being detained without trial. We do not live in apartheid South Africa anymore and we all have rights now. The police are not allowed to detain or torture us. This means, as a general rule, a detained person must be charged or released at his or her first appearance in court. In terms of section 35 of the Bill of Rights (read with section 50 of the Criminal Procedure Act) if no charge is brought, the person must be released or may “be informed of the reason for his or her further detention”.
This implies that the Bill of Rights does allows for an unspecified period of detention of uncharged detainees – but only in the most exceptional circumstances. Where a terror suspect who might have planned blowing up the Union Building or assassinating the President, is arrested and charges are still being investigated against that suspect, he might be detained. However, the detained person retains the right to bail and the right to challenge the lawfulness of the detention. This will entitle a person to approach a court at any time to apply for trial or contest the lawfulness of the detention. Where prosecutors determine that there is no case against a detained person, it is illegal to continue detaining that person.
In the light of the above, the arrest and (at the time of writing) continued detention of Sunday Times journalist Mzilikazi wa Afrika seem quite shocking. The arrest and detention (somewhere in Mpumalanga) of wa Africa raise many serious questions about the commitment of the current government to uphold the rights of citizens and the possible abuse of the police to cover up corruption and intimidate the media.
At this point, one does not have sufficient information to know for certain that wa Africa is being held illegally in detention without trial – as alleged by the Sunday Times in a statement posted on heir website – and whether the Hawks have unlawfully arrested him for an ulterior purpose. Whether he is a thoroughly bad man who will one day be convicted of the most despicable crimes, or whether he is an innocent victim of the most flagrant abuse of state power, is not yet known.
Nevertheless, the fact that wa Africa co-wrote an article alleging that Police Commissioner Bheki Cele (what is it with South African Police Commissioners and the law?) signed a R500 million lease for the Police to rent a new building without following tender procedures, must make every reasonable South African very suspicious indeed. This ongoing saga raises several serious and disturbing questions.
Is it true – as reported by the media – that wa Africa was arrested for fraud because he was in possession of a fabricated letter – faxed to the Sunday Times – purporting to show that the Premier of Mpumalanga intended to resign? If this is the case, then wa Africa should never have been arrested as it is not a crime in South Africa to be in possession of a fraudulent letter.
Is it true – once again as reported in the media – that this morning prosecutors met with wa Africa’s lawyers and the prosecutors decided that he had no case to answer, but that the police then refused to release him? Is it further true that the police “held further discussions” with the prosecutors, who then decided to charge him after all? If this is so, why would prosecutors who had decided there was no case to answer change their minds? Was there unlawful interference in the work of the NPA and was unlawful pressure placed on prosecutors to have wa Africa prosecuted despite the fact that they do not believe that he has a case to answer.
Why was wa Africa arrested at all and why, at the time of writing, is he still being detained? It is extremely unusual for a suspect in an ordinary fraud case who has arranged with police to meet with them and who poses no flight risk and no immediate risk to the community, to be arrested and detained for two days without appearing in court. On the available evidence, at the very least, this arrest appears unnecessarily high-handed.
Is it pure co-incidence that wa Africa was arrested in this high-handed and seemingly unnecessary manner a day after the Police Commissioner Bheki Cele referred to him as a “very shady journalist” for co-writing the article in which it was hinted that Cele is corrupt? Even more bizarrely, this happened in the same week in which the previous police commissioner was sentenced to 15 years imprisonment for corruption. Someone a bit more suspicious than myself might wonder whether Cele had learnt his lesson from Selebi and was taking pre-emptive measures to avoid Selebi’s fate.
Hopefully, all these questions will be answered in a satisfactorily manner and it will turn out that the justifiable fears raised by the arrest and the subsequent detention of wa Africa were entirely misplaced. For the sake of our country and our future, I sincerely hope that this is the case. It would be rather scary once again to live in a country where the police does not act in terms of the law and where individuals who are critical of the state can be detained without trial.
To be honest, for the first time since we became free in 1994, I am running a bit scared.BACK TO TOP