in the supreme court of south africa (witwatersrand …€¦ · ref: mr r. sooor and to: the state...

IN THE SUPREME COURT OF SOUTH AFRICA(WITWATERSRAND LOCAL DIVISION)

CASE 1NO.86/3464

In the matter between:

THE KRUGERSDORP RESIDENTS ORGANISATION First ApplicantDIKErtE JOSHUA MAKGOTLHO Second ApplicantTHE REVEREND MR BETHUEL MONGWAKETSI Third ApplicantTHE REVEREND MR JACOB SEFATSE Fourth ApplicantTHE REVEREND MR SAMSON KATAKA Fifth Applicant

and

THE MINISTER OF LAW AND ORDER First RespondentTHE DIVISIONAL COMMISSIONER OF POLICE, Second Respondent

THEWEST RANDMINISTER OF DEFENCE Third Respondent

FILING SHEET

PRESENTED FOR FILING BY THE ATTORNEYS BELOW ON THE 5th day of

MARCH 1986.

op PRISCILLA JANA v r Applicants' Attorneys

1st Floor, Abbey House 51 Commissioner Street JOHANNESBURG.

TO:THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG.

2

AND TO:THE STATE ATTORNEYSupreme Court BuildingCnr. Von Brandis & Kruis StreetJOHANNESBURG.

Received copy hereof this day of MARCH 1986.

for: FIRST RESPONDENT

Received copy hereof this day of MARCH 1986.

for: SECOND RESPONDENT.

CASE NO. 86/3164


THE KRUGERSDORP RESIDENTS 1 ORGANISATION First Applicant

Second Applicant

Third Applicant

Fourth Applicant

Fifth Applicant


First Respondent

Second Respondent

Third Respondent

NOTICE OF MOTION

BE PLEASED TO TAKE NOTICE that application will be made

to the above Honourable Court on FRIDAY the 7th day

of MARCH 1986 at lOhOO, or so soon thereafter as

Counsel may be heard, fox an Order in the following terms

A. 1. Directing that this matter be dealt with as

one of urgency in terms of Rule 6(12) of the

Rules of this Honourable Court and, insofar

as may be necessary, that the Applicants'

failure to comply with those Rules be condoned2 . /...

DIKEME JOSHUA MAGOTLA

BETHUEL MONGWAKETSI

JACOB SAFATSA

SAMSON MAHATANE KATAKA

- and -

THE MINISTER OF LAW AND ORDER

THE DIVISIONAL COMMISSIONER OF POLICE, WEST RAND______________

THE MINISTER OF DEFENCE

- 2 - 4

2. Granting leave to the Applicants to anticipate

the postponed date of the Main Application,

namely the 18th March 1986.

B. Pending the final end and determination of the Main

Application (brought under the above case number in

terms of Notice of Motion dated the 12th February

1986), granting an Order in terms of Prayer B.l(a) and

(b)(i) - (vii) of the said Notice of Motion against

the First and Second Respondents, insofar as units

and/or individual members of the South African Police

Force operating in the residential townships of

Kagiso 1 and 2 and Munsieville are alleged to have

committed, or may in the future commit, wrongful and

unlawful acts.

C. Granting costs against the First and Second Respondents

should they deem fit to oppose this interim application;

Alternatively, in the event that the First and Second

Respondents do not oppose this interim application,

directing that the costs hereof be costs in the cause

of the Main Application.

*TAKE NOTICE THAT no relief is being sought in this interim

action against the Third Respondent.

TAKE /.

- 3 - 5

TAKE FURTHER NOTICE that the Affidavits of the Applicants and others, annexed hereto, will be used in support of

this application.

DATED at JOHANNESBURG this day of MARCH 1986.

To:THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

p.p. PRISCILLA JANAApplicants 1 Attorneys 1st Floor, Abbey House 51 Commissioner Street JOHANNESBURGTel: 838-7613 Ref: Mr R. Sooor

And to:THE STATE ATTORNEY Respondents 1 Attorney Supreme Court Building Von Brandis Square Pritchard Street JOHANNESBURG

IN THE SUPREME COURT OF SOUTH AFRICAe

(WITWATERSRAND LOCAL DIVISION)CASE NO.86/3464


THE KRUGERSDORP RESIDENTS ORGANISATION First ApplicantDIKEME JOSHUA MAKGOTLHO Second ApplicantTHE REVEREND MR BETHUEL MONGWAKETSI Third ApplicantTHE REVEREND MR JACOB SEFATSE Fourth ApplicantTHE REVEREND MR SAMSON KATAKA Fifth Applicant

and

THE MINISTER OF LAW AND ORDER First RespondentTHE DIVISIONAL COMMISSIONER OF POLICE, Second Respondent

WEST RANDTHE MINISTER OF DEFENCE Third Respondent

NOTICE OF SET DOWN

BE PLEASED TO SET the above matter down for hearing by the

above Honourable Court on THURSDAY, the 7th day of MARCH 1986

at lOhOO or so soon thereafter as Counsel may be heard as a

matter of urgency.

DATED at JOHANNESBURG this 5tn day of RARCH 19B5.

PRISCILLA JANA Applicants' Attorneys 1st Floor, Abbey House 51 Commissioner Street JOHANNESBURG.

Case Number; 86/3464


KRUGERSDORP RESIDENTS' ORGANISATION DIKEME JOSHUA MAGOTLA BETHUEL MONGWAKETSI JACOB SAFATSA SAMSON MAHATANE KATAKA

and

THE MINISTER OF L'AW AND ORDER THE DIVISIONAL COMMISSIONER OFPOLICE/ WEST RAND Second RespondentTHE MINISTER OF DEFENCE Third Respondent

09


A F F I D A V I T

I, the undersigned,

DIKEME JOSHUA MAKGOTLHO

First Applicant Second Applicant Third Applicant

Fourth Applicant Fifth Applicant

First Respondent

do hereby make oath and say:

10

Page 2

1.11

1.2

1.3

I am the Second Applicant in the above matter and was the deponent to the Founding Affidavit which I signed on the 13th February 1986 and which is to be found on pages 6 to 44 of the papers.

I signed that affidavit in my personal capacity as the Second Applicant as well as in my capacity as the Chairman of the First Applicant having been duly authorised thereto. In that regard I also attested to a further affidavit in which I made reference to the resolution of the First Applicant and annexed that resolution to my further affidavit. That affidavit and the resolution annexed thereto is Annexure "A.118" and may be found at page 620 and following pages of the papers filed in this

matter.

Pursuant to the authority contained in that resolution as well as in my personal capacity I am duly authorised and

h

2. 1

am in a position to make this further affidavit the facts wherein are, save as otherwise stated# within my personal

knowledge.

When this matter came before the above Honourable Court on Monday, the 17th February 1986, His Lordship Mr Justice Goldstone gave a Judgment, a copy of

• ;which is annexed hereto marked

2,2 That Judgment made reference to andquoted verbatim from the undertakings furnished by Counsel in open Court on behalf of the First and Third Respondents to the effect that both the MINISTER OF LAW AND ORDER and the MINISTER OF DEFENCE furnished undertakings that their members would not commit unlawful acts in Kagiso 1 and Kagiso 2 and Munsieville. These undertakings were given in conjunction with denials by both MINISTERS that their members had acted in any way unlawfully

Page

but were given pending the hearing of the Application (on the 18th March 1986) and pending the investigations which the Respondents would inevitably have to carry out into the allegations contained

in the founding papers.

The Applicants were prepared to agree to the matter being postponed until the 18th March without seeking an Order from the Court in terms of the relief sought in* the Notice of Motion, because the Applicants believed that the residents of Kagiso 1 and Kagiso 2 and Munsieville would be able to rely upon the specific and unequivocal undertakings and assurances given by the First and Third Respondents in Court which would provide the residents with interim protection pending the hearing of the matter.

Pursuant to the undertaking furnished by the First Respondent, members of the SOUTH AFRICAN POLICE FORCE, under one

. Z '

Page

COL. KING (who i3 apparently stationed in Pretoria) was appointed to conduct an independent investigation of the allegations contained in the Founding Affidavit and its annexures and that investigation is still in progress.

Notwithstanding the reassurances and undertakings and the appointment of the said COL. KING, numerous further incidents of wrongful and unlawful conduct by -members of the SOUTH AFRICAN POLICE have occurred and continue to occur/ particularly in the areas of Kagiso 1 and Kagiso 2. There has also been one reported incident relating to Munsie- ville in which a part of a park was destroyed by members of the SOUTH AFRICAN POLICE FORCE assisted by certain members of the DEFENCE FORCE (see An-

nexure "Bll").

I beg leave to annex hereto marked "B3" to "b 50" certain further affidavits which have been attested to by residents

particularly of Kagiso 1 and Kagiso 2, and other persons dealing with such conduct since the 17th February.

Although there has, generally speaking, been some abatement in the wrongful and unlawful behaviour of members of the POLICE FORCE and the DEFENCE FORCE by comparison with the conduct prior to the bringing of the application and prior to the 17th February 1986, more particularly in Munsieville, the incidents referred to in the annexed further affidavits are of such a serious and disquieting nature and the lives and safety of members of the communities particularly in Kagiso 1 and Kagiso 2 continue to be so threatened that I verily believe that this matter cannot wait until the 18th March to be heard. Although the Answering Affidavits of the Respondents have not yet been Xaled and are due to be filed within the next day or two, we, the Applicants in this matter, deem it necessary to approach

15

the above Honourable Court as a matter of urgency in anticipation of the postponed date of hearing of this matter and to place the further information, contained in the annexed affidavits, before the Court in order to attempt to secure interim protection for the member of our communities who are living in such a

state of jeopardy.

3 _ 5 we respectfully submit that it is appa —rertt, from these affidavits, that the undertakings and assurances given by the First and Third Respondents on the 17th February are not being honoured and adhered to. We are naturally unable to say whether the Respondents have given instructions to their members to desist from the performance of unlawful acts or whether despite such instructions given to them, certain members nevertheless continue to act unlawfully and in the violent, contemptuous, arrogant, dis- respectful and abusive manner in which they have been behaving. In either

Page 7

16

event the First and Third Respondents are responsible in law and in fact for the conduct of any of their members and/ in the light of the apparent disregard by certain of their members for the undertakings and assurances given, the Applicants consider that there is no other alternative available to them but again to approach the above Honourable

Court as a matter of urgency.

Page 8

44 . 1 we submit that the matter is one of

urgency because, although the events and incidents of the night of the 24th February as set out in a number of the affidavits annexed hereto (see Affidavits numbered "B12" to "B39") have not recurred on the scale they occurred on that evening, there is the constant fear and apprehension that they might occur at any moment in time. The fact that members of the POLICE FORCE were di*- posed to act as they did on the night of the 24th February (apparently with impunity) and with a total disregard for the /

i

I ft

2

4.3

lawful rights of members of the community and in total disregard for the First Respondent's undertakings and assurances# has created the justifiable

fear that they may again do so at any

time.

Our fears are accentuated by the fact that both prior to and since the 24th February various manifestations of violent and unlawful conduct have occurred and continue to occur. In this regard I refer the Honourable Court to the affidavits marked "B6 " to "Bll" and

"B41" to "B47".

As can be seen from the annexed affidavits, not only have people been assaulted but, as appears from the affidavits of GRACE MASOKO, ANDRIES MATHIBE and MICHAEL SEGWAGWE (Annexures "£22" to "B24" annexed hereto) one STEVEN MATSHOGO was killed by members of the POLICE FORCE on Monday 24th February in the circumstances set out in the said

Page

affidavit of the said MASOKO/ marked "B22". Furthermore one ROBERT MOGALE was shot in the jaw with a service revolver by a member of the POLICE FORCE on the 21st February 1986 and has been in hospital undergoing treatment for severe facial injuries. I refer in this regard to the affidavits of LOUIS CALEKHUTLE, PELE NJOMANE, ROBERT MOGALE, DAVID SHOLE and JOHANNA MOGALE marked "B6 " to "BlO" respectively.

The police have also, on occasions indiscriminately and without justification used birdshot and as a result several people have sustained injuries therefrom. I refer in this regard to the affidavits of PATRICK ZOZO, MOMAKHE KHUZWAYO, HILDA DLOVA, WITNESS DLOVA, MZAYIFANI KUNENE and ZITHA NXUSA, marked "B41" to B46" respectively.

I also appears that the police have continued to enter private homes at all hours of the day and night, terrorising

and harassing the occupants, assaulting them in various ways and using teargas indiscriminately and for no apparent

reason.

The Applicants verily fear that unless

this type of conduct is checked immediately, the pattern of violence with its resultant injuries, deaths and damage to property, will escalate and that the undertaking given by the First Respondent appear to have little or no inhibiting effect upon various members

of the POLICE FORCE.

We have not yet had the advantage of reading the Respondents' Answering Affidavits in regard to the allegations contained in our founding papers but I am able to say, from my own knowledge and experience well as from discussions which I have had with numerous

20

members of the communities and from my reading of the annexed affidavits that in spite of the conduct of the POLICE (and to a lesser extent the SADF) the members of the above communities have largely remained calm and committed to non-violence/ although there have been a few isolated incidents of violence by persons unknown to me and it has not been necessary for the police to act in the manner in which they have to quell any disturbance. I would once again stress that these areas have never been declared "Emergency Areas" and indeed there have never been the necessity for

the Government to do so.

that if the POLICE continue to act in the manner set out herein and in the Founding Affidavits# the anger and frustration of the communities could reach such a pitch that people may begin to react violently in answer to the violence which is being displayed

Page 12

5.2 The Applicants have grave fears however

Page

against them by the POLICE (and to a lesser extent by members of the DEFENCE FORCE). The communities have, until now, managed to contain their anger and we, as leaders in the communities, have done everything in our power to maintain the peace and to persuade members of the communities to act rationally, reason-

a

ably and with restraint. Matters have however reached such a pitch and the simmering anger has built up to such a leVel that we fear that unless the provocative conduct on the part of the POLICE can be stopped immediately, unrestrained violence may occur and many lives will be lost and many people will be injured in the process.

5 #3 The undertaking given by first respondent to the communities has not, in the

light of the events since the 17th February? provided the residents with the protection which they sought in the first instance from the Court, to which they are entitled and which they now

seek.

22

Page 14

5 . 4 in the circumstances, leave is soughtfrom the above Honourable Court to place the annexed further affidavits (marked " B3" to "B50" before the Court and for the matter to be heard and dealt with as one of urgency pending the hearing of the main application on the 18th March

or so soon thereafter as the Court will be in a position to deal with it. The Applicants at this stage seek only an interim Order in the form of an interim interdict in the terms and on the basis of the relief set out in paragraphB.l(a) and (b)(i) to (vii) and paragraph C of the Notice of Motion in the main application. Insofar as the costs of this interim application are concerned the Applicants ask that they be reserved to be dealt with in the main application once the Respondents have had an opportunity to answer and deal with the alle

gations contained herein.

In view of the fact that the unlawful acts committed subsequent to the above Judgment of

23

Page 15

Mr Justice Goldstone and the said undertakings by First and Third Respondents, as deposed to in the affidavits in support hereof have almost exclusively been committed by members of the SOUTH AFRICAN POLICE FORCE, we

are only asking for an interim order against First and Second Respondents.

Fourth and Fifth Applicants whose affidavits

are annexed hereto.

I HEREBY CERTIFY THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT WHICH WAS SIGNED AND SWORN TO BEFORE ME AT

fi/ltAbtllSOotP 0N THIS crH DAY 0F MARCH 1986 THE REGU“ LATIONS CONTAINED IN GOVERNMENT NOTICE NO. R1258 OF21ST JULY 1972 AND R1648 OF 19 AUGUST 1977 HAVING BEEN COMPLIED WITH, Si

7 This application is supported by the Third,

OQiWfllSSIONER OF OATHS/yolfir. /3of/c//r



KRUGERSDORP RESIDENTS' ORGANISATIONDIKEME JOSHUA MAGOTLABETHUEL MONGWAKETSIJACOB SAFATSASAMSON MAHATANE KATAKA

and



THE MINISTER OF CAW AND ORDER First Respondent

THE DIVISIONAL COMMISSIONER OFPOLICE, WEST RAND Second RespondentTHE MINISTER OF DEFENCE Third Respondent

A F F I D A V I T

I, the undersigned,

BETHUEL MONGWAKETSI


1 I am the third applicant in this matter and

The facts contained herein are within my personal knowledge, and are true and cor

rect.

I have been advised of the judgment given by Mr Justice Goldstone on the 17th February 1986 in this matter and the undertakings

given by first and third respondents.%

Since that date I have been informed of numerous alleged unlawful acts of violence committed by members of the S A Police Force on members of the communities of Kagiso 1 and Kagiso 2, as a result of one such assault, one such member, STEVEN MATSHOGO died.

I have been advised that in view of the said further unlawful acts committed by the police first and second applicants intend to apply to the above Honourable Court for the interim order originally asked for in the original

Notice of Motion.

have already deposed to an affidavit markedMB" on page 44D of the founding affidavits.

26

Page 3

I have not had the opportunity of reading all the affidavits which are to be used in support of this further application, but have been advised of the contents thereof in

general terms.

In view thereof, and the apparent ineffec

tiveness of the undertaking given by the first respondent, I support this further application and regard myself as an applicant

in such further proceedings.

I HEREBY CERTIFY THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT WHICH WAS SIGNED AND SWORN TO BEFORE ME ATA . u c , < ; & THIS 0F "ARCH 1986 T0E REGU~LATIONS CONTAINED IN GOVERNMENT NOTICE NO. R1258 OF 21ST JULY 1972 AND R1648 OF 19 AUGUST 1977 HAVING BEEN COMPLIED WITH.

‘'DEPONENT

^ / O t r / O N G f;/3- Af rf-tcisw L (1-tz O y 7'

)C £U Cri'/?-S <0 P '

" ad


KRUGERSDORP RESIDENTS' ORGANISATION DIKEME JOSHUA MAGOTLA BETHUEL MONGWAKETSI JACOB SAFATSA SAMSON MAHATANE KATAKA

and

THE MINISTER OF DAW AND ORDER First Respondent

THE DIVISIONAL COMMISSIONER OFPOLICE, WEST RAND ' Second RespondentTHE MINISTER OF DEFENCE Third Respondent


A F F I D A V I T

I, the undersigned,

JACOB SAFATSA


1 I am the fourth applicant in this matter and



28

Page 2

O '


rect.

I have been advised of the judgment given by Mr Justice Goldstone on the 17th February 1986 in this matter and the undertakings

given by first and third respondents.

Since that date I have been informed of numerous alleged unlawful acts of violence committed by members of the S A Police Force on--members of the communities of Kagiso 1 and Kagiso 2, as a result of one such assault, one such member, STEVEN MATSHOGO died.


Notice of Motion.

have already deposed to an affidavit marked

"C" on page 47 of the founding affidavits.

29

6 I have not had the opportunity of reading all the affidavits which are to be used in support of this further application/ but have been advised of the contents thereof in

general terms.

7 In view thereof/ and the apparent ineffectiveness of the undertaking given by the first respondent/ I support this further application and regard myself as an applicant in such further proceedings.

Page 3


£ £ 4 6 , THIS LfJH DAY OF MARCH 1986 THE REGULATIONS CONTAINED IN GOVERNMENT NOTICE NO. R1258 OF 213T JULY 1972 ATTD 111648 OF 19 AUGUST 1977 HAVING BEEN COMPLIED WITH..

COMMISSIONER OF OATHSectkZHC oW-AU(~t£ V S

PG-q V g QTT&rtrt/sy

M o h u m &M7 S r t i c t s r

Cs\E(lS O O t Z P

30





and

KRUGERSDORP RESIDENTS' ORGANISATIONDIKEME JOSHUA MAGOTLABETHUEL MONGWAKETSIJACOB SAFATSASAMSON MAHATANE KATAKA

THE MINISTER OF HAW AND ORDER First Respondent

THE DIVISIONAL COMMISSIONER OF POLICE, WEST RA~NDTHE MINISTER OF DEFENCE

Second Respondent Third Respondent

A F F I D A V I T

I, the undersigned,

SAMSON MAHATANE KATAKA


I am the faugfch applicant in this matter and

31


rect.

I have been advised of the judgment given by Mr Justice Goldstone on the 17th February 1986 in this matter and the undertakings given by first and third respondents.

Since that date I have been informed of numerous alleged unlawful acts of violence committed by members of the S A Police Force on members of the communities of Kagiso 1 and Kagiso 2, as a result of one such assault, one such member, STEVEN MATSHOGO died.


Notice of Motion. I

I

Page 2

have already deposed to an affidavit marked"D" on page 53 of the founding affidavits.

*>

32

6 I have not had the opportunity of reading all the affidavits which are to be used in support of this further application/ but have been advised of the contents thereof in

general terms.

7 In view thereof/ and the apparent ineffectiveness of the undertaking given by the first respondent/ I support this further application and regard myself as an applicant

in such further proceedings.

DEPONENT


ON THIS DAY OF MARCH 1986 THE REGULATIONS CONTAINED IN GOVERNMENT NOTICE NO. R1258 OF 21ST JULY 1972 AND R1648 OF 19 AUGUST 1977 HAVTNG BEENCOMPLIED WITH.

Page 3

»MC>SpT &CH K. (/* /V <2*/CA S)t

P a a c - T C* rMQ. /cvrr rf/s*/£ \ A r - t (*[(-£ CfY

/ C ^ M G£/Z-S P O & P -

Collection Number: AK2145 KRUGERSDORP RESIDENTS’ ORGANISATION AND 4 OTHERS v. THE MINISTER OF LAW AND ORDER AND 2 OTHERS 1986 PUBLISHER: Publisher:- Historical Papers, University of the Witwatersrand Location:- Johannesburg ©2012

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in the supreme court of south africa (witwatersrand …€¦ · ref: mr r. sooor and to: the state...

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