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[2010] ZAGPJHC 1
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Mustafa v Minister of Home Affairs and Others (52898/09) [2010] ZAGPJHC 1 (7 January 2010)
IN GAUTENG SOUTH HIGH
COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
:
52898/09
In the matter between
MUSTAFA
AMAN ARSE
Applicant
and
MINISTER
OF HOME AFFAIRS & 2 OTHERS
Respondents
JUDGMENT
WILLIS J
:
The applicant has
approached the court by way of urgency, seeking an interdict
preventing the respondents from deporting him until
his status under
the
Refugees Act, No. 130 of 1998
has been finally determined;
declaring his detention from 2 June 2009 to be unlawful; and
directing that he be released forthwith
and certain ancillary relief.
Unfortunately, because
the application has been brought by way of urgency it is not possible
for me to do justice fully in my reasons
which I consider it
appropriate that I should give now precisely by reason of the urgency
of the matter.
The applicant entered the
Republic of South Africa during the first week of December 2008 via
Beit Bridge, this being the port of
entry. Five months later,
on 26 May 2009, he was arrested as an illegal foreigner in terms of
Section 34(1)
of the
Immigration Act, No. 13 of 2002
. He was
arrested at Queenstown.
He was transferred to
Lindela and detained there from 2 June 2009 pending his deportation.
On 3 September 2009, eight months
after he had entered the Republic
of South Africa, and some three months after his arrest and
detention, he claimed asylum in terms
of the
Refugees Act 130 of
1998
.
He made an application,
as I have indicated, in terms of this Act and a permit in terms of
Section 22
of the
Refugees Act was
issued to him. His
application for asylum was dismissed. On 17 September 2009 he
signed a power of attorney authorising
Lawyers for Human Rights to
assist him in the lodging and prosecuting of an appeal.
On 4 December 2009 the
Refugee Appeal Board heard the appeal by the applicant. The
applicant was not, however, represented
at that appeal hearing.
The decision of the Refugee Appeal Board is still pending.
The respondents have
given an undertaking that the applicant will not be deported pending
the outcome of the appeal hearing of the
Refugee Appeal Board.
Accordingly, that aspect of the relief sought need not be considered
precisely because of the clear
undertaking that has been given by the
respondents.
What remains to be
considered is whether the detention of the applicant is unlawful and
whether he should immediately be released
upon the order of the
court. The applicant has been in detention for a period in
excess of 120 days. Clearly it is
most undesirable that a
person should be detained for such a lengthy period of time.
When the matter came
before me on Tuesday, 5 January 2010, I indicated my unhappiness at
the applicant remaining in detention and
inquired whether the parties
could not explore the possibility of his being released upon certain
conditions. I indicated
prima facie
from the view the
kind of conditions that I could consider appropriate.
The parties went away to
consider their respective positions. Today, in court, the
respondents have suggested that there should
be an undertaking by a
lawful resident in South Africa to provide the applicant with
shelter, that he should pay R2 000.00 as security
to the office of
the nearest inspection or reception office, whichever is convenient.
It has also been suggested that the
money could be paid into court.
This is clearly a so-called “with prejudice” offer.
Furthermore, the
respondent suggested that should report to the nearest refugee
reception office every Tuesday and Friday between
08:00 am and 16:00
pm until the outcome of the appeal hearing. These conditions
were rejected by the applicant as being unacceptable.
Inter
alia
,
counsel for the applicant said that
the applicant did not have the money to pay the sum of R2 000.00
security.
Freedom of a person is
undoubtedly a right of great importance enshrined the constitution
and respected in numerous judgments by
the courts. On the other
hand, the obvious question arises: if this person who entered the
country illegally is unable to
come up with any person who would
provide him with shelter and he is unable pay the reasonable sum of
R2 000.00 as security, how
is that person to survive in South Africa
without any means of support?
The problems for that
particular person and for the broader society are, in my view,
obvious. The courts can take judicial
notice of the fact that
we have high levels of crime in this country and we have high levels
of unemployment and we have high levels
of illegal immigration into
the country. This is a toxic mix of unfortunate circumstances.
While the court obviously
has to have regard to the importance of a person having freedom, thea
court must also have regard to the
practicalities that would arise in
ordering the release of a person such as this, who cannot even
comply with eminently reasonable
conditions put forward by the
respondents.
The question that then
needs to be considered is whether there is any absolute statutory
unlawfulness in the continuing detention
of the applicant.
Counsel for the applicants has referred me to
Section 29
of the
Immigration Act which
provides that a person may not be detained for
a period more than 30 days without a review by the High Court.
The matter
has now been reviewed. But
Section 29
does not
provide an absolute right to be released from detention?
Counsel for the applicant
also relied on
Section 22
of the
Refugees Act, the
section that
relates to permits being issued to an asylum seeker.
Section
22(1)
of the
Refugees Act provides
as follows:-
“
The refugee
reception officer must, pending the outcome of an application in
terms of
Section 21(1)
, issue the applicant an asylum seeker permit
in the prescribed form allowing the applicant to sojourn in the
Republic temporarily,
subject to any conditions, determined by the
standing committee which are not in conflict with the constitution or
international
law and are endorsed by the refugee reception officer
on the permit.”
Counsel for the applicant
submitted that the words “allowing the applicant to sojourn in
the Republic temporarily” necessarily
entail that the person
should be allowed to remain in South Africa, free from detention at
the Lindela refugee camp. I disagree.
The right to sojourn does
not necessarily entail a right to move about freely in South Africa
with any restrictions. The applicant
is sojourning in South
Africa, he is not going to be deported or sent out of South Africa
pending the outcome of his appeal relating
to asylum status. He
is indeed sojourning in South Africa, albeit under restriction.
I accept that this case
raises important issues of principle. Counsel for the
respondents was most concerned about the precedent
that would be
created in persons entering the country illegally, waiting until they
are apprehended, then applying for asylum status
and then seeking
court orders that they be released “into the wilderness”
so to speak.
There are indeed very
real difficulties for the state authorities if this is to be an
accepted position in South Africa. There
are several cases
where the Constitutional Court has emphasised that no right is
absolute, none of the rights in terms of the Constitution
is absolute
and that a balancing act has to be undertaken between the differing
rights that prevail in the country, more especially,
in terms of the
Constitution.
Clearly the applicant has
a right to freedom. On the other hand the state has a
legitimate interest in trying to curb illegal
immigration, in trying
to keep track of persons who have entered the country illegally and
ensuring that persons who do not have
places of shelter and who do
not have any visible means of support, are not free to roam the
streets.
I wish to record that I
am indeed unhappy that the applicant has been detained for so long.
On the other hand, as I have already
indicated, the respondents have
suggested eminently reasonable conditions that could have attached to
the applicant’s release.
These conditions were unacceptable to
the applicant and accordingly, in my view, the application must fail.
Counsel for the
respondents very fairly conceded that, if the application was
dismissed, it would be inappropriate to make an order
for costs
against the applicant. In any event, quite obviously, if he
cannot afford even to put up R2 000.00 as security
for his sojourn in
South Africa, any order as to costs would be hollow.
The following is the
order of the court:
The application is
dismissed.
COUNSEL
FOR THE APPLICANT
Advocate
I de Vos
INSTRUCTED
BY
Lawyers
For Human Rights
COUNSEL
FOR THE RESPONDENT
Advocate
N Manaka
INSTRUCTED
BY
State
Attorney
DATE
OF HEARING
05/01/2010
and 07/01/2010
DATE
OF JUDGMENT
07/01/2010