REPORTABLE
CASE NO:  17/2001

IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

In the matter between:

S B LOMBO

APPELLANT

and

AFRICAN NATIONAL CONGRESS

RESPONDENT

CORAM: SMALBERGER ADP, OLIVIER, STREICHER, FARLAM and
NAVSA JJA

DATE OF HEARING: 2 AND 3 MAY 2002

DELIVERY DATE:
30 MAY 2002

Summary: Claim for damages for assault and unlawful detention - related issues
- prescription

_____________________________________________________________________

JUDGMENT
___________________________________________________________________
SMALBERGER ADP

SMALBERGER ADP:
[1] In November 1993 the appellant instituted an action for damages in the Durban
and Coast Local Division against the respondent ("the ANC") and the South African
Communist Party ("the SACP") as the first and second defendants respectively.  In his
particulars of claim he alleged that:
(a) he had been unlawfully detained in various countries in Africa over the
period January 1986 to August 1991 by persons who were at all material times
members of the ANC and the SACP acting in pursuance of the aims and objects
of the two organizations;
(b) during the course of his detention he had been unlawfully assaulted, tortured
and subjected to various forms of maltreatment;
(c) he had been unlawfully deprived of certain property belonging to him
including his motor vehicle.
As a result of the aforegoing, and the consequences thereof, the appellant claimed

damages from the ANC and the SACP in a total sum of R6 135 812,00.
[2] Apart from a main plea on the merits the ANC and SACP raised a number of
special pleas to the appellant's particulars of claim.  When the matter first came to trial
two of them were disposed of separately in terms of Uniform Rule of Court 33(4) - see
African National Congress and Another v Lombo 1997 (3) SA 187 (A).  Some of the
special pleas were later abandoned.  All the remaining issues, including a special plea
of prescription, eventually came before Hurt J.  At the conclusion of a lengthy trial the
learned judge absolved both the ANC and the SACP from the instance with costs.  He
subsequently granted the appellant leave to appeal, but only against the dismissal of his
claim against the ANC, hence the fact that the ANC is the sole respondent.
[3] It is common cause that for a number of years prior to 1986, and over the period
immediately thereafter when the events giving rise to the appellant's claim are alleged
to have taken place, the ANC was engaged in an armed struggle against the then
Government of the Republic of South Africa ("the Government").  The relevant facts

have to be viewed against this background.
[4] The evidence of the appellant, succinctly stated, is as follows.  In January or
early February 1986 the appellant was persuaded by two friends to accompany them to
Botswana to undergo training with a view to assisting the ANC in its armed struggle.
They travelled together to Gaberone in the appellant's vehicle.  There they met up with
representatives of the ANC.  After a few days the appellant was taken to be
interviewed by Botswanan security officials.  He was told that he would have to remain
in their custody while he wrote his autobiography.  It was standard ANC practice for
recruits to be asked to write detailed autobiographies ("biographies") presumably for
security reasons.  According to the appellant this was where his detention, which was
ultimately to endure until August 1991, commenced.
[5] After spending some three months in solitary confinement in Gaberone, except
for odd occasions when he was taken out to be interrogated, the appellant was flown by
military helicopter to Charleston in Zambia where he was imprisoned in a place known

as RC which he described as "an ANC gaol".  He was detained there for a period of
three to four weeks during which time he was subjected to continual assaults and
torture.  (It was apparently there that he was given the code name "Poland Difa".)  He
was then transferred, again by air, to Dakawa in Tanzania, where he spent three weeks
before being returned to RC.  He was not assaulted while in Dakawa.  After a day or
two at RC he was taken to a transit camp in Angola called Vianna where he spent
about ten days before being transferred to an Angolan prison, Nova Stallicao, where
provision had been made for ANC detainees.  He was not ill-treated in Vianna, but he
claimed to have been assaulted by certain high ranking ANC officials at Nova
Stallicao.
[6] Two or three months later, in November 1986, the appellant was taken to
Quatro, an ANC detention camp in northern Angola, where he was detained until
November 1988.  There he was subjected to assaults and gross maltreatment in the
form of threats, degrading and dehumanising conduct, lack of decent facilities and

deprivation, inter alia, of proper food, medical treatment and clothing.  (Any future
reference to maltreatment includes one or more of these forms of conduct.)
[7] In November 1988 the appellant was transferred to Nokala camp outside
Luanda.  He was not assaulted or maltreated there.  In his own words, it was "the first
place we existed normally".  In March 1989 he was taken to Bokoloda in Uganda
where he was detained until his release and subsequent return to South Africa in
August 1991.  At Bokoloda he was "well treated".
[8] The appellant further testified that when he was detained certain property
belonging to him, including his motor vehicle, was taken from him and never returned-
hence his claim for the value of the property misappropriated.
[9] The appellant's evidence with regard to how he travelled to Botswana and when
he arrived there is not in issue.  What is disputed is the reason given by him for going
there and when, where and in what circumstances he was first detained.  In effect the
ANC contends that the appellant was recruited by the South African National

Intelligence Services ("the NIS") and sent to Botswana with a view to gathering
information about the ANC's activities.  The ANC denies that the appellant was
detained in Botswana.  It claims that he was first detained in Dakawa in April 1988 on
suspicion of being a spy.  There are disputes concerning the appellant's precise
movements after his arrival in Botswana, and the alleged treatment meted out to him,
prior to his being taken to Quatro.  It is common cause that he was detained in Quatro
until November 1988, and thereafter at Nokala and Bokoloda prior to his release and
return to South Africa.
[10]  The ANC called a number of witnesses to refute the appellant's evidence relating
to his alleged assaults and maltreatment in Quatro and the adverse conditions that
existed there.  While these witnesses sought to deny or explain away the appellant's
evidence, they were unable seriously to contend that there had been no incidents of
assault or abuse involving detainees at Quatro.  The ANC did not seek to defend or
justify such incidents.  Rather it contended that any ill-treatment of detainees was

contrary to ANC policy and it denied legal responsibility for any such conduct on the
part of rogue or disgruntled elements in its ranks.  Furthermore, the ANC disputed any
misappropriation of the appellant's property, particularly his vehicle, which it claimed
had been donated to it by the appellant.
[11]  What has been set out above represents, in very broad outline, the essential
factual issues that emerged at the trial.  A great deal of evidence and cross-examination
was devoted to these issues.  For reasons that will became apparent in due course there
is no need to traverse the evidence relating to all these issues in detail.  Where
necessary certain aspects of the evidence will be considered in greater depth.
[12]  Before proceeding to outline and consider the essential issues on appeal there are
two further matters that require mention.  It is common cause that after his arrival in
Botswana, and during the course of his detention up to and including his time in
Quatro, the appellant was frequently interrogated and was required to write numerous
biographies.  At the trial the ANC produced the personal file of the appellant kept by it.

It contains various biographies handwritten by the appellant, as well as notes of
interviews conducted with him, and statements made by him, during his detention.  It
became Exhibit C at the trial, and I shall refer to it as such.  The appellant was not
prepared to accept that Exhibit C was complete.  He claimed to have drawn up many
more biographies than appear in it.  Furthermore, when confronted with the contents of
various documents in Exhibit C he contended that they were the result of threats,
assaults and torture to which he had been subjected until he succumbed by writing
biographical statements which were in fact false in order to satisfy his tormentors.  In
this regard Hurt J came to the conclusion that
"even if certain documents created by the plaintiff [the appellant] have been
omitted from the file, there is no reason to suspect that the documents which are
in it have been craftily contrived to concoct a false picture of what occurred
between the plaintiff and the defendant [the ANC] during 1986.  On the
contrary, the documents in Exhibit C have all the appearance of being authentic
and, as such, they constitute that most useful item of evidence, a contemporary
documentary record of events which occurred so long ago that the mere
recollection by witnesses cannot be regarded as sufficiently reliable for the
purpose of drawing confident conclusions".

[13]  The second matter is this.  It appears from the evidence of certain of the ANC's
witnesses that the conditions in the detention camps in Angola, of which Quatro was
one, had become a cause of concern to the ANC for a number of years before 1986.
Despite the appointment of the Stuart Commission by the ANC in 1984 to investigate
and report upon the conditions in these camps, and a special conference held at Kabwe
to consider what could be done to improve the existing conditions which had been
reported upon adversely by the Stuart Commission, little if anything had been done in
this regard.  Subsequently the ANC mandated first the Skweyiya Commission in 1992,
and then the Motsuenyane Commission in 1993, to investigate allegations of inhumane
treatment meted out to detainees by ANC members at these camps, including the
period that the appellant was detained in Quatro.  The reports of these Commissions
generally condemned the conditions and practices at camps like Quatro and the way
detainees were treated.  The appellant sought to have these reports admitted in

evidence on the basis, inter alia, that they provided similar fact evidence supportive of
his case.  Although he made no specific finding as to their admissibility Hurt J appears
to have disregarded these reports when adjudicating the matter.
[14]  In paragraph 12 of the appellant's particulars of claim, possibly in anticipation of
a plea of prescription, it was pleaded that upon his release, on or about 19 and 20
August 1991, and at Johannesburg, an ANC delegation, duly authorised,
"acknowledged liability for the abduction, unlawful imprisonment, assaults and torture
perpetrated on [the appellant]".  Such acknowledgment, if proved, would have
interrupted prescription in terms of sec 14(1) of the Prescription Act 68 of 1969 ("the
Act").
[15]  In its second special plea the ANC duly pleaded that "to the extent that the
plaintiff's [appellant's] claim arises from events which occurred more than three years
prior to 22 November 1993, the plaintiff's claim arising therefrom is prescribed by
reason of the provisions of sec 11(d) of [the Act]".  Section 11(d) of the Act provides

for a prescriptive period of three years in respect of the causes of action relied upon by
the appellant.  It is common cause that 22 November 1993 is the date on which
summons was served on the ANC.  The appellant did not file a replication to the
ANC's special plea.  On the pleadings, therefore, the appellant's only defence to the
plea of prescription lay in the alleged acknowledgment of liability referred to in
paragraph 12 of the particulars of claim.
[16]  At the commencement of the trial before Hurt J the ANC sought to have the
prescription issue determined separately from the remaining issues, but its application
in this regard was refused.  One of the reasons for refusing the application was that
evidence would have be led to determine whether prescription had been interrupted in
consequence of an acknowledgment of liability, and a piecemeal disposal of the matter
was undesirable.
[17]  The question of whether there had been acknowledgment of liability was fully
canvassed in evidence and comprehensively dealt with by Hurt J in his judgment.  He

held that no such acknowledgment had been established by the appellant.  His finding
in that regard was not challenged on appeal.  Accordingly no interruption of
prescription was established.
[18]  The appellant contends that his unlawful detention, the assaults perpetrated upon
him and the maltreatment to which he was subjected constituted one continuous and
continuing wrong which extended from the time he was first detained in February 1986
(as alleged by him) until his release in August 1991.  His cause of action, so it is
argued, only arose upon his release in August 1991 and had accordingly not yet
prescribed when summons was served on 22 November 1993 i.e. within the three year
prescriptive period.
[19]  This contention runs contrary to well-established authority.  Every assault and
every actionable form of maltreatment on which the appellant relies constitutes a
separate cause of action arising from the time of its commission or infliction and each
is independently subject to extinctive prescription from that time (Slomowitz v

Vereeniging Town Council 1966 (3) SA 317 (A) at 331 C - E; Montsisi v Minister of
Police 1984 (1) SA 619 (A) at 633 A - D).  Accordingly, any cause of action relied
upon by the appellant relating to assaults or maltreatment which arose more than three
years before the service of summons (i e prior to 22 November 1990) would have
prescribed by the time his action was instituted, allowing for the application of the
normal prescriptive period of three years.
[20]  It is common cause that the appellant was not assaulted or maltreated from the
time he was transferred to Nokala in November 1988 until his release in August 1991.
Any claims arising from earlier assaults or maltreatment (i e before November 1988),
as well as any claim based on the earlier misappropriation of his property, would
therefore, subject to the provisions of sec 13(1) of the Act, have prescribed by the time
summons was served.
[21]  Because the appellant was effectively precluded from pursuing any claims he
might have had against the ANC while he was detained his counsel, Mr Jefferys,

sought to invoke the common law maxim lex non cogit ad impossibilia ("the law does
not compel the performance of impossibilities").  The maxim was applied in the
Montsisi case (supra).  In that case it was impossible for the plaintiff to comply with
the requirements regarding written notice of a contemplated action as prescribed by sec
32(1) of the Police Act 7 of 1958 by virtue of his being a detainee in terms of the
Terrorism Act 83 of 1967 at the relevant time.  It was held, in the circumstances,
applying the maxim, that the period in sec 32(1) did not run against him for so long as
he was being detained.  In the course of his judgment Rabie CJ remarked (at 634 E -
635 A):
"Dit behoef geen betoog dat dit onbillik sou wees indien iemand, vir wie dit
vanweë sy aanhouding ingevolge art 6 van die Wet of Terrorisme onmoontlik
was om aan die vereistes van art 32(1) te voldoen, sy reg om vergoeding te eis
weens onregmatige dade wat tydens sy aanhouding teenoor hom gepleeg is,
ontsê sou word omdat hy nie aan die vereistes van art 32(1) voldoen het nie. . . .
Die vraag ontstaan nou of daar bevind kan word dat, . . . die appellant in
die onderhawige geval wel kan sê dat sy eis [nie] deur die artikel belet word nie.
Ek het tot die gevolgtrekking gekom dat wel so bevind kan word, en wel
in die lig van die algemene oorwegings wat die spreuk lex non cogit ad

impossibilia ten grondslag lê (D 50.17.185:  impossibilium nulla obligatio est)
en wat inhou dat iemand se versuim om 'n verpligting na te kom wanneer dit vir
hom onmoontlik was om dit na te kom, hom nie tot sy nadeel toegereken word
nie."

[22]  The maxim has no application in the present instance as the appellant was not by
virtue of his detention legally precluded after his release from pursuing a claim for
damages for the alleged assaults and maltreatment to which he was subjected.  His
remedy lay in the provisions of sec 13(1) of the Act.  The Act constitutes a partial
codification of our law of prescription.  Common law rules only apply where the Act is
silent about matters to which they relate and they are not inconsistent with the Act's
provisions.  The previous Prescription Act (Act 18 of 1943) specifically provided that
"[a]ny rule of the common law which is inconsistent with the provisions of this Act, is
hereby repealed" (sec 15(1)).  Although the same words are not to be found in the
(current) Act the effect thereof is clearly the same.
[23]  Section 13(1) of the Act provides for various circumstances or impediments

which, if applicable, will delay the completion of prescription.  The relevant portion of
sec 13(1), for the purposes of the present appeal, provides as follows:
"If -
(a) the creditor . . . . is prevented by superior force . . . . from interrupting the
running of prescription as contemplated in section 15(1); or
(b) . . . .
(c) . . . .
(d) . . . .
(e) . . . .
(f) . . . .
(g) . . . .
(h) . . . .; and
(i) the relevant period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one year after, the day on
which the relevant impediment referred to in paragraph (a) . . . . has ceased to
exist,
the period of prescription shall not be completed before a year has elapsed after the day
referred to in paragraph (i)."

[24]  The effect of sec 13(1) is that a creditor has one year after the date on which the
relevant impediment has ceased to exist within which to bring his or her action.  The
fundamental import, meaning and application of, inter alia, sec 13(1) was considered

by this Court in ABP 4X4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3)
SA 924 (SCA) at 930 B - 932 F (paras [8] to [16]).
[25]  The physical detention of the appellant outside the Republic of South Africa in
circumstances in which he was prevented from personally pursuing any action arising
from the alleged assaults and maltreatment inflicted upon him, and totally denied
access to anyone who could do so on his behalf, amounted to his being prevented by a
superior force from interrupting the running of prescription as contemplated by sec
13(1)(a).  Consequently, he had one year from the time this impediment ceased to exist
(his release from detention and return to this country) within which to institute action
in respect of all causes of action arising from the alleged assaults and maltreatment to
which he was subjected during his detention, and his property that was allegedly
misappropriated.  The Act therefore made provision for his situation to the exclusion of
the common law and the maxim invoked accordingly finds no application.
Unfortunately for the appellant he failed to institute action within the one year period

prescribed by s 13(1) and any claims he might have had in respect of the causes of
action referred to have consequently been extinguished by prescription.
[26]  The appellant's position is somewhat different in regard to his claim for unlawful
detention.  His cause of action in this respect did not arise once and for all on the day
he was first detained, nor did it first arise on the day of his release from detention.  His
continuing unlawful detention (if such it was) would notionally have given rise to a
separate cause of action for each day he was so detained (Ngcobo v Minister of Police
1978 (4) SA 930 (D & CLD) following Slomowitz's case (supra)).  The decision in
Ramphele v Minister of Police 1979 (4) SA 902 (W), if not distinguishable on the
facts, must be taken to have been wrongly decided.
[27]  On his release in August 1991 the provisions of s 13(1) would have entitled the
appellant to claim damages for wrongful detention for the full period of his detention
provided he instituted action within the prescribed one year period, something he failed
to do.  However, the three year prescriptive period provided in sec 11(d) of the Act

preserved any claim for unlawful detention arising within the period of three years
preceding the service of summons on 22 November 1993.  His claim for unlawful
detention for the period 23 November 1990 until his release in August 1991 would
therefore still be extant.  Any claim for wrongful detention arising before 23 November
1990 will have been extinguished by prescription in accordance with the principles
enunciated above.
[28]  To sum up on the question of prescription.  The ANC's special plea of
prescription:
(a) succeeds in relation to the appellant's claims for unlawful assault,
maltreatment and deprivation of property, all of which have prescribed;
(b) succeeds in relation to the appellant's claim based on his alleged unlawful
detention for the period preceding 23 November 1990, but not for the period
from that date to the time of his release in August 1991.
[29]  Hurt J, despite his adverse credibility findings in respect of the appellant, was of

the view "that the probabilities of the case are that, during the period while the
[appellant] was in Quatro camp, he was assaulted on occasions".  The evidence and
probabilities support such a finding and, I would add, that he was probably also
maltreated while in detention there.  However, the conclusion reached on the
prescription issue renders it unnecessary to resolve the myriad factual disputes with
regard to whether the appellant was unlawfully assaulted and maltreated to the extent
(i e the frequency and severity) alleged by him and in circumstances which would have
rendered the ANC liable to him for damages.  Nor is it necessary to decide whether the
reports of the Skweyiya and Motsuenyane Commissions are admissible for the reasons
advanced on behalf of the appellant.  All that remains to be determined, for the reasons
given above, is whether the appellant was unlawfully detained over the period 23
November 1990 to August 1991.
[30]  Before proceeding to the unlawful detention issue it is necessary to deal with the
argument Mr Jefferys initially sought to raise that the provisions of sec 13(1) of the Act

are unconstitutional, despite the fact that the point (apart from a cursory reference in
the appellant's counsel's opening address) was never pleaded, never put in issue or
adjudicated upon in the court below nor  raised in the notice of appeal.  Ultimately Mr
Jefferys fairly conceded that it was not open to him, in the circumstances, to pursue the
point, particularly as the ANC had never been given the opportunity to raise matters
relative to whether, the Act being one of general application, the time limitation
imposed by sec 13(1) was reasonable and justifiable.  In any event, the short answer to
the constitutional point would appear to be (I express no definite opinion) that having
regard to the case of Du Plessis and Others v De Klerk and Another 1996 (3) SA 850
(CC), and subsequent decisions, on the non-retrospectivity of the interim Constitution,
and the provisions of Item 17 of Schedule 6 of the (final) Constitution, it was not open
to the appellant to rely upon any constitutional provisions in relation to proceedings
commenced on 22 November 1993 before either of the interim or final Constitutions
came into effect.

[31]  With regard to the appellant's claim for unlawful detention three issues arise.
They are:
(a) When and where was the appellant first detained;
(b) Was his initial detention lawful or unlawful;
(c) If it was lawful, did it remain so, more particularly was it so over the period
in respect of which the appellant's claim has not prescribed.
I shall deal with each of these seriatim.
[32]  It will be recalled that the appellant claims that he was first detained in Gaberone
in Botswana in January or early February 1986; the ANC in turn contends that he was
first detained in Dakawa in Tanzania in April 1986.  It is common cause that the
appellant was detained by the ANC at least from the latter date to August 1991. The
appellant's admitted detention over that period constituted a deprivation of his liberty
and the onus rested on the ANC to prove that his detention was justified in law
(Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at

589 D - G; Kabinet van die Tussentydse Regering vir Suidwes-Afrika en 'n Ander v
Katofa 1987 (1) SA 695 (A) at 739 G - I).  However, to the extent that there is a
dispute as to when and where the appellant was first detained the onus, applying well
recognised principles, would have been on the appellant to establish when and where
that occurred.
[33]  By way of elaboration on the earlier outline of the appellant's evidence in this
regard, the appellant testified that he had travelled to Gaberone in the company of a Mr
Shandu (also known as Mbatha) ("Shandu") and a Mr Mandla.  There they were met
by two ANC representatives, Mr Lieta (also known as Mtswale) ("Lieta") and Mr Zulu.
After a few days he was detained in solitary confinement, and in essence remained so
confined until May 1986.  From there he was taken first to Zambia and then to Dakawa
in Tanzania.  On the appellant's evidence it is fair to say (as Hurt J found) that he could
not have been in Dakawa before June 1986.
[34]  Shandu's evidence was to the effect that he and the appellant were together for

most of the time after their arrival in Botswana until the appellant disappeared abruptly
from Dakawa in April 1986.  He denied that the appellant had been detained before
then.  His evidence that the appellant was not detained while in Gaberone is supported
by the evidence of Lieta and the witness Mr Mathebula who claimed to have been in
Gaberone at the same time as the appellant and Shandu and to have had regular contact
with them.  A further witness Mr Watson (also known as Stuart or Stewart)
("Watson"), to whose evidence I shall refer in more detail later, confirmed that the
appellant (contrary to the latter's evidence) was in Dakawa in April 1986 and was
detained for the first time there shortly after, and in consequence of, interviews
conducted by him with the appellant.  Exhibit C contains documents, some dated and
signed by the appellant, which point to their having originated in Dakawa in April
1986.
[35]  It is apparent from Hurt J's judgment that he entertained considerable doubts
about the appellant's veracity on this and other issues.  He stated, in general, that he

"would have been inclined to reject the [appellant's] evidence wherever it is not
corroborated by reliable evidence from other witnesses or by relevant documentary
evidence".  In relation to the events up to and including his stay in Dakawa the
appellant's evidence stands alone and uncorroborated against that of the other witnesses
to whom I have referred, whose evidence appears to have found favour with Hurt J.  I
am unpersuaded that Hurt J erred in finding that the probabilities (and the evidence)
were overwhelmingly in favour of the ANC's version that the appellant had not been
detained in Botswana and was first detained in Dakawa.  No plausible reason exists
why the appellant should have been detained in Botswana as it was too early for any
suspicion to have formed as to the real reason for his being there.  The appellant
therefore failed to prove that he had first been detained in Botswana.
[36]  I proceed to consider whether the ANC established that the initial detention of
the appellant was lawful.  As correctly pointed out by Hurt J, the fact that the appellant
may have been assaulted and maltreated while in detention is not relevant to this issue.

Unlawful, intentional assaults and maltreatment of a person lawfully detained give rise
to a separate delictual action (Whittaker v Roos and Bateman 1912 AD 92).  They do
not impinge on the question of whether the detention as such is lawful or not, a matter
to which different principles apply.
[37]  It appears from Watson's evidence that the appellant's detention probably
commenced when, on instructions from Lusaka, he was sent there from Dakawa.  This
followed on the dispatch of a report by Watson to his superiors, after an interview with
the appellant, in which it was recommended "that the subject [the appellant] be placed
under the group of potential suspects for further observation . . .".
[38]  Dakawa was a transit centre where new recruits were received and processed to
determine whether they should go for military training or further education.  Watson
was involved in their screening.  According to him he recalled the appellant because he
stood out in dress and manner above the other recruits.  Each recruit was interviewed
individually.  The recruits were required to write biographies.  These were scrutinised

to see if they revealed any discrepancies when compared with previously written
biographies.  The appellant was interviewed on a number of occasions.  A serial
number used only by the ANC's office in Tanzania was applied to the first page of
various biographies, interviews and reports by and relating to the appellant, thereby
identifying them as emanating from Tanzania.  A number of these appear in Exhibit C.
[39]  Watson testified that a material discrepancy was discovered in the appellant's
biographies.  This led to an interview being conducted with him on 14 April 1996 by
Watson and one Sam.  Details of the interview are recorded in a contemporaneous
document forming part of Exhibit C.  The appellant signed a statement in which he
confirmed the correctness of the information disclosed in the document.  In the
interview the appellant, according to Watson, revealed that he had been recruited in
1979 to work for the Security Branch in South Africa ("the Security Branch").  He also
revealed how in 1983 he had been approached to work for the "South African
Intelligence Services", presumably the NIS, but claimed he had no special interest in

working for them.  This resulted in the report by Watson, to which reference has been
made, which was probably written on 16 April 1986.  Watson's evidence was accepted
by Hurt J; no grounds exist to hold that he erred in doing so.
[40]  Subsequently further biographical information was provided by the appellant.
Exhibit C contains certain documents that were compiled in Vianna during the first two
weeks of June 1986.  One relates to an interview with the appellant; two were written
by the appellant, one of them in part being a response to what was noted at the
interview.  In these documents earlier references to the appellant's contact with, and
activities on behalf of, the Security Branch are elaborated upon.  Significantly, various
discrepancies and false statements began to emerge from the biographical details.
Amongst these were a number of different, irreconcilable versions of why and in what
circumstances the appellant left South Africa, the details of which need not be gone
into.  In a report purporting to be by one of the appellant's interrogators (compiled at
Vianna on 22 July 1986) it was stated:

"We are convinced that the person was sent here and also agreed to work for the
NIS when Themba recruited him . . . .

Our recommendation is that he should be taken for interrogation at a correct
place.  We are fully convinced that this man is an enemy agent."

The report reflects the subjective view of its author, who was not called as a witness.  It
is accordingly strictly hearsay, but its relevance and significance lies in the fact that
shortly thereafter the appellant was moved to Quatro which was, inter alia, a place
where spies or suspected spies were detained and interrogated - presumably what the
author of the report had in mind when he referred to "a correct place".
[41]  Throughout his evidence the appellant denied that he had had any previous
connections with either the Security Branch or the NIS, or that he had voluntarily
admitted to or disclosed anything to that effect.  He contended that he had been
subjected to various forms of assault and torture which had caused him to incorporate
false material into his biographies in order to satisfy his interrogators.  Hurt J found his
evidence in this regard to be "rather vague and inconclusive".  Whatever the position

might have been in regard to later written biographies or statements made, this could
not have been the case while he was in Dakawa or Vianna.  The appellant specifically
disavowed in his evidence that he had been maltreated in either of those places.  There
would therefore have been no reason or incentive for him to have provided false
information.  And there would appear to be no plausible reason why the ANC, at that
stage, would have required him to record false information which could have served no
purpose as far as it was concerned.  In the result, and having regard to his credibility
findings, I see no reason to differ from Hurt J's conclusion that the appellant's evidence
suggesting that the documents referred to contain false information provided by the
ANC interrogators was "highly improbable".
[42]  Mr Jeffereys accepted, in my view correctly, that if there existed on the part of
the ANC a reasonable suspicion or a reasonable belief founded upon a factual basis (cf
Hurley and Another v Minister of Law and Order and Another 1985 (4) SA 709 (D &
CLD) at 716 J - 717 A) that the appellant had presented himself as a recruit with an

ulterior motive, in other words, that he was spying for the Government, the ANC was
lawfully entitled to detain him, having regard to the fact that the lawfulness of the
appellant's detention had to be judged by the lex loci and the undisputed evidence
concerning the recognition and powers afforded the ANC in the countries concerned,
the circumstances that pertained in them and the ANC's involvement in the armed
struggle against the Government.  The ANC's power to detain having been conceded,
all that remains to be decided is whether the requisite reasonable suspicion existed.
[43]  In my view, having regard to the evidence of Watson, the contents of the
relevant documents in Exhibit C and the probabilities, a reasonable suspicion as to the
appellant's genuineness, i e that he was a spy and not a normal recruit, arose while he
was being interviewed in Dakawa, a suspicion which was reinforced, or at the very
least confirmed, by the events in Vianna.  Consequently I agree with the conclusion of
Hurt J that the initial detention of the appellant was lawful.
[44]  The ANC led evidence of subsequent events which it claimed not only

heightened its suspicions that the appellant was a spy, but positively established that he
was.  Included was evidence of a recorded confession by the appellant detailing his
activities as a NIS agent, allegedly made by him at Quatro on 2 September 1986 to,
inter alia, the then commander of Quatro, Mr Masango.  The amount of personal and
other detail contained in the document points to its authenticity, but having regard to
the conditions at Quatro and the probability that the appellant was assaulted there the
reliability of the confession is open to sufficient doubt to justify, and indeed compel, its
exclusion from consideration.  There was also evidence by Mr Mhlanga that the
appellant had admitted to him (at Quatro) his involvement with the NIS.  The
witnesses, Ms Mtintso and Mr Rosho testified that the appellant had also admitted this
to them at Bokoloda and had claimed prisoner of war status.  Hurt J was inclined to
accept their evidence.  However, in the face of the appellant's denial thereof (even
allowing for the fact that he was not a credible witness in material respects) and the
lapse of time since the events took place, it would probably be safer to disregard their

testimony in that regard.  What can confidently be asserted is that there is nothing
arising from the later events that would have allayed or negated the reasonable
suspicion that existed when the appellant was first detained.  At the very least that
suspicion existed throughout.
[45]  The next question that arises is whether the appellant's detention continued to be
lawful, more particularly whether it was still so between November 1990 and August
1991, the period in respect of which any claim the appellant may have for unlawful
detention is still extant.  The parties accepted that the provisions of the Geneva
Conventions of 1949 and Additional Protocol I of 1977 ("the Protocol") were
applicable to the conflict between the ANC and the South African Government and
regulated the appellant's detention, despite the doubts expressed in this regard in
Azanian Peoples Organisation (AZAPO) & Others v President of the Republic of South
Africa & Others 1996 (4) SA 671 (CC) at 689 C - D.  (I express no view on the
matter.)  It is common cause that the ANC in 1980 publicly subscribed to their

provisions.  The only existing issue in this respect is whether they entitled the ANC,
without anything further being done, to detain the appellant as a suspected spy until the
cessation of hostilities (as the ANC claimed) or whether it was obliged to afford him
the benefit of a trial within a reasonable period.  In this respect the appellant sought to
rely upon art 75 of the Protocol while the ANC invoked articles 43 to 46 of the Geneva
Conventions.
[46]  I do not consider it necessary or advisable to attempt an interpretation of the
relevant provisions of the Geneva Conventions and the Protocol, which are complex
and, in some respects, obscure.  The argument before us on the point was limited and
not supported by authority.  I shall accept in the appellant's favour that, having lawfully
detained him on suspicion of being a spy, the ANC was obliged to afford him the
benefit of a trial within a reasonable time.  The purpose of a trial would have been to
establish whether he was a spy, in which case he could, at best for him, have been
detained until hostilities had ceased or, failing proof that he was a spy, to oblige his

release.
[47]  Was the appellant afforded or offered a trial within a reasonable time? What is
reasonable depends upon the facts and circumstances of each particular case.  Hurt J
held that it appeared, having regard to the evidence and the probabilities, that the ANC
always intended to comply with the obligations it had undertaken,  in terms of the
Geneva Conventions and the Protocol, to give persons detained by it a hearing.  A
tribunal for this purpose was set up in Luanda in March 1988.  This was done,
according to Mhlanga, in accordance with resolutions taken at the Kabwe conference
and the moral dilemma with which the ANC was confronted because of the prolonged
incarceration of detainees.  The tribunal, comprising five members under the
chairmanship of Mr Stuart (who had previously headed the Stuart Commission),
proceeded to try detainees.  Mhlanga testified that the priority by which detainees were
selected for trial was the length of time they had spent in detention.  There is no
evidence that the appellant ever insisted on being tried while at Quatro.  The detainees

who appeared before the tribunal were defended by Mr Maduna (the current Minister
of Justice), a number of them successfully, as a result of which they were released.
The tribunal was unable to complete its work in 1988 because of various complications
that arose.  These were, according to Mhlanga, the problems relating to the
transportation of detainees from northern Angola to Luanda for trial in the face of an
escalation of UNITA attacks on the ANC; conditions in northern Angola were not
conducive to moving the tribunal there; and  pressure by the Government on Angola to
close down all foreign military camps in Angola.  It was because of the latter
development that the detainees were eventually moved to Bokoloda in Uganda in
November 1988, at which time the appellant had not yet been afforded a hearing.
Mhlanga's evidence in the above regard was not seriously challenged.
[48]  It is common cause that the appellant was offered a hearing at Bokoloda, but that
he turned it down.  It does not appear from the appellant's evidence when this occurred.
According to Mhlanga the appellant voiced various complaints about his personal

situation and wanted to be released.  At that time there were plans afoot to set up
another tribunal in Uganda.  The appellant intimated that he would not be prepared to
participate in a hearing before the proposed tribunal.  This must have occurred, at the
latest, before October 1989, because that is when Mhlangu left Bokoloda.  It appears
that the tribunal was set up in Uganda in late 1989 or early 1990 under the
chairmanship of Mr P Jordan.  In the light of the appellant's complaints, and the length
of his detention, it seems likely that he would have been offered a hearing fairly early
on. The appellant never suggested that he was only offered a hearing long after his
arrival at Bokoloda.  On the evidence the probabilities are that the appellant was
offered, and refused, a trial before November 1990.
[49]  More than two and a half years elapsed between the time the appellant was first
detained and the evacuation of detainees (including the appellant) from Quatro and
their eventual transferal to Bokoloda.  Prima facie a delay of that magnitude in
bringing the appellant, a suspected spy, to trial would be excessive and accordingly

unreasonable, thus rendering his continued detention unlawful.  But, as Hurt J correctly
pointed out, in judging the reasonableness of the delay it would be wrong to adopt an
"armchair approach".  Due allowance must be made for the precarious situation in
which the ANC found itself in Angola both from a funding and logistic point of view.
It was not operating or functioning in normal circumstances.  In 1988 it eventually
succeeded in setting up a tribunal which commenced to try detaineees, the longest
detained being tried first.  Had it not been for the disruption caused by the need to
leave Angola and move to Uganda the tribunal would probably have completed its
work.  In the nature of things the move would have resulted in an inevitable and
excusable delay in the resumption of trials.  Hurt J held, in the circumstances, that the
failure to try the appellant did not give rise to a claim for damages for wrongful
detention.  His underlying reasoning was that
"the delict of wrongful detention is founded on animus injuriandi and I consider
that the [ANC] has established that the failure to try the [appellant], formally,
before camp 32 [Quatro] was evacuated, was neither malicious nor reckless".

[50]  There is much to be said for Hurt J's point of view.  On the other hand, even
given the considerations mentioned by him, the period involved would seem to go
beyond what might reasonably have been expected, particularly in view of the fact that
the ANC had taken upon itself the obligations imposed by the Geneva Conventions and
the Protocol.  It is, however, unnecessary to come to a firm conclusion in this regard.  I
shall accept, in favour of the appellant, that at some stage before he left Quatro his
detention had became unlawful by reason of the unreasonable delay in bringing him to
trial.
[51]  The situation in my view reverted to what it had been before when the appellant
was offered a trial in Bokoloda, which he refused.  At that time there still existed a
reasonable suspicion that the appellant was a spy.  If he had submitted to a trial and
been found to be a spy, the ANC would once again lawfully have been entitled to
detain him; had a trial been proceeded with in his absence upon his refusal to
participate the probabilities are that he would have been found guilty of spying, thus

justifying his detention.  By the same token, if he refused a trial without reasonable
grounds for doing so, his further detention, because of the suspicion that still existed,
would have been justified, making his detention once again reasonable in the
circumstances, and accordingly lawful.  It is trite law that whether conduct is lawful or
wrongful is determined according to the general criterion of reasonableness.
[52]  In response to a question by Hurt J as to why he had refused to participate in a
hearing (the purpose of which he claimed he was unaware) the appellant replied:
"The main reason, M'Lord, was that I had been detained for many years without
being afforded the opportunity of a trial.  Secondly, I would not have access to
my own legal representation.  So I thought it wouldn't be fair."

One can readily understand the appellant's chagrin because of his long detention
without a hearing.  But that in itself does not provide an acceptable reason for refusing
to be tried.  Nor could he reasonably have expected, given the circumstances which
prevailed at the time, a legal representative of his own choice.  Detainees had
previously been provided with adequate legal representation and some had been freed.

There was no evidence concerning the composition of the new tribunal, but it is
reasonable to assume that it would have been constituted along the same lines as the
previous one.  It was never suggested that the earlier tribunal had not permitted a fair
defence or provided a fair hearing; and there appears to have been no reason to believe
that the newly constituted tribunal would be any different in that respect.  The reasons
advanced by the appellant for refusing a hearing were subjective, speculative and not
compelling.  In my view he did not advance, nor on the evidence did he have, any
reasonable and well-founded grounds for refusing a hearing.  In the circumstances, by
refusing to be tried he became the author of his own predicament.
[53]  Consequently, the appellant's detention over the period November 1990 to
August 1991 was lawful.  To the extent that any detention before that was unlawful,
any claim he might have had in respect thereof has prescribed, for the reasons already
given.  In the result Hurt J correctly dismissed his claims in the court below, and his
appeal must fail.

[54]  The result is an unfortunate one for the appellant.  One cannot help but feel
sympathy for him.  On the probabilities he was assaulted and maltreated while in
captivity although perhaps not to the extent he claimed.  Regrettably any claims he
might have had were extinguished by prescription.
[55]  The appeal is dismissed with costs, including the costs of two counsel up to and
including the stage of preparation of the respondent's heads of argument.

_____________________________

J W SMALBERGER

ACTING DEPUTY PRESIDENT

OLIVIER JA
)Concur
STREICHER JA )
FARLAM JA
)
NAVSA JA
)