S B Lombo v African National Congress

In November 1993, Lombo instituted action against the ANC and SACP claiming damages of R6,135,812 for unlawful detention, assault, torture, maltreatment, and deprivation of property. Lombo alleged he was detained from January 1986 to August 1991 in various African countries (Botswana, Zambia, Tanzania, Angola, Uganda) by ANC members. He claimed he was persuaded to join the ANC's armed struggle, traveled to Botswana in his vehicle, and was then detained and subjected to assaults and torture, particularly at Quatro detention camp in Angola from November 1986 to November 1988. He was then transferred to Nokala camp and later to Bokoloda in Uganda where he was "well treated" until his release in August 1991. The ANC contended that Lombo was a spy recruited by South African National Intelligence Services (NIS) and was first detained in Dakawa, Tanzania in April 1986 (not Botswana in early 1986 as Lombo claimed). The ANC denied unlawful detention and denied liability for any assaults by rogue elements, claiming such conduct was contrary to ANC policy. The trial court (Hurt J) absolved both defendants from the instance. The appellant was granted leave to appeal only against dismissal of his claim against the ANC.

• Whether the appellant's claims were extinguished by prescription under section 11(d) of the Prescription Act 68 of 1969
• Whether there was an acknowledgment of liability by the ANC that would have interrupted prescription under section 14(1) of the Prescription Act
• Whether the doctrine of continuing delict applied to the assaults, maltreatment and detention
• Whether section 13(1) of the Prescription Act applied to delay completion of prescription during the period of detention
• Whether the common law maxim lex non cogit ad impossibilia applied to excuse non-compliance with prescription periods
• When and where the appellant was first detained
• Whether the appellant's initial detention was lawful
• Whether the appellant's continued detention remained lawful, particularly between November 1990 and August 1991
• Whether the Geneva Conventions of 1949 and Additional Protocol I of 1977 applied and required the ANC to provide a trial within a reasonable time

Appeal dismissed with costs, including costs of two counsel up to and including preparation of respondent's heads of argument. All claims for assault, maltreatment and deprivation of property were extinguished by prescription. Claims for unlawful detention before 23 November 1990 were extinguished by prescription. The claim for unlawful detention from 23 November 1990 to August 1991 failed on the merits as the detention was found to be lawful.

1. Each assault, act of maltreatment, and each day of detention constitutes a separate cause of action that arises at the time of its occurrence and is independently subject to the three-year prescription period under section 11(d) of the Prescription Act 68 of 1969. The doctrine of continuing delict does not apply to convert multiple assaults or days of detention into a single cause of action. 2. Section 13(1) of the Prescription Act applies where a creditor is prevented by superior force from interrupting prescription. Physical detention in foreign countries preventing personal pursuit of legal action and denying access to legal representatives constitutes prevention by superior force. However, the effect is only to extend the prescriptive period to one year after the impediment ceases. 3. The common law maxim lex non cogit ad impossibilia does not apply where the Prescription Act makes specific provision for the situation through section 13(1), as the Act constitutes a partial codification that excludes inconsistent common law rules. 4. Where detention is admitted, the onus rests on the detaining party to prove lawfulness (following Minister of Law and Order v Hurley). A reasonable suspicion founded on a factual basis that a person is an enemy agent/spy during armed conflict justifies detention under the lex loci where the detaining organization has recognition and powers in the host country. 5. Under the Geneva Conventions and Additional Protocol I (accepted as applicable), a detaining party must provide a trial within a reasonable time. What constitutes "reasonable time" depends on the circumstances, including practical and logistical constraints. However, where a detainee is offered a fair trial and refuses without reasonable grounds, the continued detention becomes lawful due to the detainee's own refusal, applying the general criterion of reasonableness for determining lawfulness. 6. Unlawful assaults and maltreatment of a lawfully detained person give rise to separate delictual claims and do not render the detention itself unlawful (following Whittaker v Roos and Bateman 1912 AD 92).

1. Smalberger ADP expressed sympathy for the appellant, noting "one cannot help but feel sympathy for him" and that "on the probabilities he was assaulted and maltreated while in captivity although perhaps not to the extent he claimed." The Court acknowledged the outcome was "unfortunate" for the appellant. 2. The Court noted that the Stuart Commission (1984) and later the Skweyiya Commission (1992) and Motsuenyane Commission (1993) had all condemned conditions and practices at ANC detention camps including Quatro, and that despite the Stuart Commission report and a special conference at Kabwe, "little if anything had been done" to improve conditions. 3. The Court expressly declined to decide whether the reports of the Skweyiya and Motsuenyane Commissions were admissible as similar fact evidence, as it was unnecessary given the findings on prescription. 4. The Court noted that the constitutional challenge to section 13(1) of the Prescription Act was not properly pleaded or raised, and was ultimately abandoned. The Court indicated obiter that even if pursued, the challenge would likely have failed due to non-retroactivity of constitutional provisions to proceedings commenced before the interim or final Constitutions came into effect (referring to Du Plessis v De Klerk and Item 17 of Schedule 6 of the Constitution), though no definitive opinion was expressed. 5. The Court noted that while accepting the ANC's obligation to provide a trial, it did "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" as argument was limited and not supported by authority. 6. Regarding application of the Geneva Conventions, the Court noted that parties accepted they applied despite doubts expressed in AZAPO v President 1996 (4) SA 671 (CC), but the Court expressly stated "I express no view on the matter." 7. The Court accepted in favor of the appellant that the delay in bringing him to trial before leaving Quatro "would seem to go beyond what might reasonably have been expected" even considering the ANC's difficult circumstances, though found it unnecessary to make a firm finding as the detention became lawful again upon his refusal of trial.

This case is significant for several reasons: (1) It clarifies the application of prescription principles to claims for assault, maltreatment and detention, confirming that each assault/maltreatment is a separate delict subject to independent prescription, and that detention gives rise to notionally separate causes of action for each day; (2) It authoritatively interprets section 13(1) of the Prescription Act 68 of 1969 regarding impediments caused by superior force, confirming that physical detention preventing access to legal remedies constitutes such an impediment, but limiting the extension to one year from cessation of the impediment; (3) It confirms that the common law maxim lex non cogit ad impossibilia does not apply where the Prescription Act provides a statutory remedy; (4) It addresses the ANC's liability for actions during the armed struggle, applying principles of international humanitarian law (Geneva Conventions and Additional Protocol I) to the South African liberation struggle context; (5) It establishes principles for lawful detention by liberation movements, including the requirement of reasonable suspicion and the obligations to provide hearings/trials within reasonable time, while recognizing the practical constraints faced by such organizations operating in exile; (6) It illustrates the separation between lawfulness of detention and liability for assaults/maltreatment during detention (following Whittaker v Roos and Bateman).