Nkayi and Another v Head of the Security Branch of the SA Police, Pretoria (230/91) [1993] ZASCA 2; 1993 (3) SA 244 (AD); [1993] 2 All SA 97 (A) (16 February 1993)

Nkayi and Another v Head of the Security Branch of the SA Police, Pretoria (230/91) [1993] ZASCA 2; 1993 (3) SA 244 (AD); [1993] 2 All SA 97 (A) (16 February 1993)

The court held that s 29(7)(b) of the Internal Security Act does not impose a blanket prohibition on the disclosure of all information obtained from or relating to detainees. The term 'official information' must be interpreted in context and refers primarily to security information, not personal information about the health and well-being of detainees. Reports by magistrates and district surgeons arising from visits under s 29(9) may contain both types of information. Personal information relevant to the protection of detainees' rights and the administration of justice may be disclosed for use in court proceedings. If privilege or prohibition is claimed, a judge may inspect the reports...

Citation
[1993] ZASCA 2
Parties
Appellant: Nomsa Sister Nkayi; Appellant: Jim Msizi; Respondent: Head of the Security Branch of the SA Police, Pretoria; Respondent: Divisional Commander of the Security Branch of the SA Police (Eastern Cape Division); Respondent: Minister of Law and Order
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 February 1993
Case Number
230/91
Procedural Posture
Civil Appeal / Appeal From the South Eastern Cape Local Division on an Urgent Application for Access to Detainee Medical and Magistrate Reports Under S 29 of the Internal Security Act.
Outcome
Appeal allowed. The court clarified that s 29(7) of the Internal Security Act does not preclude disclosure of magistrate and district surgeon reports containing personal information for use in court proceedings. Costs awarded to the appellants in both courts.
Judges
Corbett, Botha, Nestadt, Kumleben, Goldstone
Legal Topics
Internal Security Act, Discovery of Documents, Privilege and Disclosure, Judicial Review of Administrative Action
Administrative Law Civil Procedure Internal Security Act Discovery of Documents Privilege and Disclosure Judicial Review of Administrative Action

Case Brief

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Parties

Nomsa Sister Nkayi

Appellant

Jim Msizi

Appellant

Head of the Security Branch of the SA Police, Pretoria

Respondent

Divisional Commander of the Security Branch of the SA Police (Eastern Cape Division)

Respondent

Minister of Law and Order

Respondent

Procedural Posture

Civil Appeal / Appeal From the South Eastern Cape Local Division on an Urgent Application for Access to Detainee Medical and Magistrate Reports Under S 29 of the Internal Security Act.

Legal Issues

  1. 1 Whether s 29(7)(b) of the Internal Security Act prohibits disclosure of magistrate and district surgeon reports relating to detainees for use in court proceedings.
  2. 2 Whether 'official information' under s 29(7)(b) includes personal information about detainees' health and well-being.
  3. 3 Whether a judge may privately inspect such reports to determine privilege or disclosure.

Ratio Decidendi

The court held that s 29(7)(b) of the Internal Security Act does not impose a blanket prohibition on the disclosure of all information obtained from or relating to detainees. The term 'official information' must be interpreted in context and refers primarily to security information, not personal information about the health and well-being of detainees. Reports by magistrates and district surgeons arising from visits under s 29(9) may contain both types of information. Personal information relevant to the protection of detainees' rights and the administration of justice may be disclosed for use in court proceedings. If privilege or prohibition is claimed, a judge may inspect the reports...

Court Disposition

Appeal allowed. The court clarified that s 29(7) of the Internal Security Act does not preclude disclosure of magistrate and district surgeon reports containing personal information for use in court proceedings. Costs awarded to the appellants in both courts.

Orders

  • The appeal is allowed with costs.
  • It is declared that s 29(7) of Act No 74 of 1982 does not necessarily preclude the procurement of magistrate and district surgeon reports arising from visits under s 29(9) for the purposes of instituted court proceedings.