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[2010] ZAGPJHC 59
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Aruforse v Minister of Home Affairs and Others (2010/1189) [2010] ZAGPJHC 59; 2010 (6) SA 579 (GSJ) ; 2011 (1) SACR 69 (GSJ) (25 January 2010)
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
Case No. 2010/1189
In the matter between:
KANYO
ARUFORSE
Applicant
and
MINISTER
OF HOME AFFAIRS
First
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF HOME AFFAIRS
Second
Respondent
BOSASA
(PTY) LTD
Third
Respondent
JUDGMENT
MEYER, J
[1] This is one of
sixty-six urgent applications that were brought before me in the
urgent motion court last week. This matter
concerns the liberty
of the applicant and is accordingly inherently urgent.
[2] The applicant, who is
a Burundian national, seeks his immediate release from the Lindela
Holding Facility in Krugersdorp (‘Lindela’),
which is a
facility operated by the third respondent for the Department of Home
Affairs where
inter alia
illegal foreigners are detained
pending their deportation from the Republic of South Africa.
[3] The matter was argued
on Wednesday, 20 January 2010. I permitted the respondents to
file a supplementary answering affidavit
and the applicant to file a
replying affidavit. Once that was done the matter was further
argued on Friday, 22 January 2010.
A number of other urgent
matters awaited hearing and I accordingly reserved judgment until
this morning, which is Monday, 25 January
2010.
[4] In
terms of his Notice of Motion, the applicant
inter
alia
seeks
that the first and second respondents (‘the respondents’)
be ordered to immediately ‘re-issue’ him
with a temporary
asylum seeker permit in accordance with the provisions of s 22 of the
Refugees Act
[1]
, and, as a
temporary asylum seeker permit holder, his immediate release from
Lindela and for the respondents to be interdicted
from deporting him
unless and until his status under the Refugees Act has been lawfully
and finally determined. The respondents
maintain that the
provisions of the Refugees Act are not available to the applicant
since the applicant is being detained under
the provisions of s 34 of
the Immigration Act
[2]
as an
‘illegal foreigner’ pending his deportation.
[5]
The
applicant alleges that he was forced to flee persecution in Burundi
and come to South Africa to apply for asylum. He arrived
in
South Africa during October 2006, and, pursuant to his application
for asylum at the Marabastad Refugee Reception Centre, was
issued a
temporary asylum seeker permit in accordance with s 22(1) of the
Refugees Act. He thereafter applied for its renewal
from time
to time in accordance with its conditions. The permit was
renewed until it expired during September 2008 while
he was staying
at Acasia in Pretoria, which was a temporary protection site
established during the time of the xenophobic attacks
that occurred
in South Africa from May 2008, where he sought shelter. The
applicant states that he ‘did not understand
that [he] was
required to renew [his] asylum permit because of the camp
registration process at Acasia.’ He also states
that he
cannot recall his permit number. On 25 December 2008, the
applicant was arrested at Acasia on charges of rape and
detained at
the Pretoria Central Prison. On 15 July 2009, he was acquitted
of the rape charges. He was then transported
to Lindela where
he has been detained since 15 July 2009 until the present. The
applicant alleges that his asylum application
is still pending and
that the respondents have failed to allow him the opportunity of
renewing his asylum seeker permit in terms
of s 22(3) of the Refugees
Act.
[6]
The applicant contends that because he is an asylum seeker in the
Republic of South Africa his status is governed by the provisions
of
the Refugees Act
[3]
and
he may therefore not be lawfully detained under the provisions of the
Immigration Act. He contends that s 21(4) of the
Refugees Act
prohibits his arrest and continued detention at Lindela and he
accordingly claims his immediate release and the renewal
of his
temporary asylum seeker permit without delay.
[7] S
21(1) of the Refugees Act provides for the making of an application
for asylum. Pending the outcome of such application
for asylum,
an asylum seeker permit must, in terms of s 22(1), be issued to the
applicant ‘allowing the applicant to sojourn
in the Republic
temporarily’
[4]
and
the asylum seeker permit may be issued subject to conditions.
The period for which this asylum seeker permit was issued
may, in
terms of s 22(3), be extended from time to time.
[8] A precondition for
the issue and subsequent extension of an asylum seeker permit is
therefore the existence of an application
for asylum. The
applicant’s allegations that he made application for asylum, of
the issue to him of an asylum seeker
permit, of the extensions
thereof, and of the failure by the respondents to afford him the
opportunity to further extend the permit
in terms of s 22(3) of the
Refugees Act are disputed by the respondents.
[9] I
consider the disputes of fact raised by the respondents to be
bona
fide
and
on reasonable grounds
.
The disputes of fact are not capable of resolution on the papers.
The
paucity of the applicant’s allegations in this regard and the
failure to provide the first respondent with the information
requested to further investigate the applicant’s claims, in my
view, also adversely reflects on the credibility of his version
on
the disputed issues. This being an application for final relief
such disputes of fact must accordingly be
decided
on the version of the respondents. It is trite that a final order can
only be granted in motion proceedings if the facts
stated by the
respondents together with the admitted facts in the applicant’s
affidavits justify the order.
[5]
The relief which the
applicant seeks under the provisions of the Refugees Act must
accordingly fail.
[10] The matter does not
end here, since the applicant contends that his continued detention,
which the respondents allege is under
the
provisions
of s 34 (1) of the Immigration Act,
[6]
is
unlawful and his immediate release is accordingly sought.
[11] It is common cause
that the applicant was arrested and detained at Lindela since 15 July
2009. He was, on the respondents’
version, arrested as an
illegal foreigner and he is being detained pending his deportation.
From 15 July 2009 until 12 August
2009, the applicant was detained
without in terms of s 34(1). On 12 August 2009, the
Magistrate’s Court, in terms of
s 34(1)(d), extended the
applicant’s detention for a period of ninety calendar days.
This period expired during November
2009 and was not extended again.
It is to be noted that ‘court’, in terms of s 1, means a
Magistrate’s
Court.
[12] The respondents, in
their supplementary answering affidavit, have put forward reasons for
the lengthy detention of the applicant,
such as attempts made to have
the Burundian Consulate identify its nationals who are detained at
Lindela and issuing them with
Emergency Travel Certificates and a
vague suggestion of a failure by the applicant to co-operate in the
process is made.
It is stated that the Republic of South Africa
has an understanding with countries having consular representation in
South Africa
that their Consulates are obliged to assist the
respondents in facilitating the deportation process by
inter alia
identifying or confirming the relevant country’s nationals
who are being detained pending their deportation and by issuing
them
with ‘one way passports’. I do not consider the
reasons proffered in the respondents’ supplementary
answering
affidavit as constituting a proper justification for his lengthy
detention of now over six months.
[13] S. 34(1) of the
Immigration Act authorises the detention of an illegal foreigner
pending his or her deportation for an initial
period without a
warrant and for the extension of such initial period by a
Magistrate’s Court. The foreigner may, in
terms of s
34(1)(d), not be held in detention for longer than 30 calender days
without a warrant of a Magistrate’s Court,
but the foreigner
may, in terms of s 34(1)(b), at any time request that his or her
detention for the purpose of deportation be
confirmed by warrant of a
Magistrate’s Court, which, if not issued within 48 hours of
such request, ‘’
shall cause the immediate release of
such foreigner’
. A foreigner may accordingly be
initially detained without a warrant of a Magistrate’s Court
for no longer than 30
days, but this period may be reduced at the
request of the foreigner that his detention be confirmed by warrant
of a Magistrate’s
Court. The ‘detention’
referred to in s 34(1)(d) which a Magistrate’s Court on good
and reasonable grounds
may extend for an adequate period not
exceeding 90 calendar days, is, in my view, clearly a reference to
the initial period during
which the foreigner was held in detention
without a warrant.
[14] S
34(1) accordingly only permits an initial period of detention without
a warrant that may not exceed 30 calendar days and
which may at the
instance of the foreigner concerned be reduced and s 34(1) only
permits the extension of ‘such’ initial
period by a
Magistrate’s Court for a period not exceeding 90 calendar
days. The section does not permit the further
extension of the
detention once a Magistrate had extended the initial period of
detention.
[7]
[15]
In
Consortium
for Refugees and Migrants in South Africa and Others v Minister of
Home Affairs and Others
,
[8]
Motloung
J interpreted s 34(1) of the Immigration Act to mean ‘that the
maximum period for which any person can be detained
in terms of the
Immigration Act is a period of 120 days.’ The reference
to ‘the Immigration Act’ is clearly
a reference to s
34(1) of that Act since other provisions of that Act also authorise
detention. In interpreting s 34(1),
Motloung J
inter
alia
relied
on the principle that a strict construction should be placed upon
statutory provisions which interfere with an individual’s
rights, and particularly his or her right to liberty. I
respectfully agree with this interpretation of s 34(1).
[16]
Adv. Mji also referred me to the contrary conclusion which Preller J
arrived at on the interpretation of s 34(1) in the unreported
judgment of
Adela
Mbalinga Akwen v The Minister of Home Affairs and Another
.
[9]
Preller J said this:
‘
In
my view there is nothing in the wording of this subsection that
suggests that after the detention has been extended for 90 days
initially, it may not then be extended for a further 90 days.
That seems to be in
accordance with the thinking which appears from the judgment of the
full bench of this division to which I have
been referred, namely
Jeebhl v The Minister of Home Affairs
which was reported in
July 2007. It fits in with the obvious intention of the
statute, namely to deport illegal foreigners
from this country in
appropriate circumstances.
It is a known fact that
there are a vast number of known criminals in this country who are
simply not prosecuted because the police
cannot locate them. It
must follow that a person who is here illegally and who is detained
while facing the possibility of
a deportation will likewise disappear
and not be found by the immigration authorities. I think,
therefore, that the purpose
of the Act will be defeated if this
Section is interpreted more strictly than is necessary.’
[17] I
respectfully disagree with the construction placed on s 34(1) in the
Adela
Mbalinga Akwen
judgment
for the reasons stated in the preceding paragraphs. The
intention of the statute undoubtedly includes an intention
to deport
illegal foreigners from this country. But the maximum period
for which any person may be so detained in terms of
the s 34(1) is a
period of 120 days. I also respectfully fail to appreciate how
this interpretation will defeat the said
purpose of the Immigration
Act. In terms of its preamble the Act aims at putting in place
a new system of immigration control
which
inter
alia
ensures
that: ‘immigration laws are efficiently and effectively
enforced, deploying to this end the significant administrative
capacity of the Department of Home Affairs, thereby reducing the pull
factors of illegal immigration;
[10]
immigration control is performed within the highest applicable
standards of human rights protection;
[11]
a human rights based culture of enforcement is promoted;
[12]
and civil society is educated on the rights of foreigners and
refugees.
[13]
[18]
The applicant’s present purported detention in terms of s 34(1)
of the Immigration Act is, in my view, accordingly unlawful.
The respondents do not suggest that the applicant is being detained
or that the first respondent or other immigration officials
are
entitled to detain him in terms of any other provision of the
Immigration Act.
[14]
A
‘detained person has an absolute right not to be deprived of
his freedom for one second longer than necessary by
an official who
cannot justify his detention.
[15]
The applicant is accordingly entitled to his immediate release.
[19] In the result the
following order is made:
1.
The second respondent is ordered to cause
the immediate release of the applicant from the Lindela Holding
Facility in Krugersdorp.
The first and second
respondents are ordered to pay the applicant’s costs of this
application.
P.A. MEYER
JUDGE OF THE HIGH COURT
25 January 2010.
Date
of Hearing:
22nd January 2010
Date
of Judgment:
25th January 2010
Counsel
for Applicant:
Adv Nomzamo Mji
Instructed
by:
Lawyers for Human
Rights
Johannesburg Law
Clinic
2nd Floor
Braamfontein Centre
23 Jorissen Street
Johannesburg
Counsel
for Respondent:
Adv
Manaka
[1]
Act
No. 130 of 1998.
[2]
Act
No. 13 of 2002.
[3]
The
provisions of the Refugees Act on which the applicant relies are
essentially ss 21(1), 21(4), 22(1) and 22(3) of the Refugees
Act.
They read as follows:
‘
21(1)
An application for asylum must be made in person in
accordance with the prescribed procedures to a Refugee Reception
Officer at any Refugee Reception Office.
21(4)
Notwithstanding any law to the contrary, no proceedings may
be instituted or continued against any person in respect
of his or
her unlawful entry into or presence within the Republic if-
(a) such person has
applied for asylum in terms of subsection (1), until a
decision has been made on the application and,
where applicable,
such person has had an opportunity to exhaust his or her rights of
review or appeal in terms of Chapter 4;
or
(b) such person has been
granted asylum.
22(1)
The Refugee Reception Officer must, pending the outcome of
anapplication in terms of section 21(1), issue to 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.
22(3)
A Refugee Reception Officer may from time to time extend the
period for which a permit has been issued in terms of
subsection
(1), or amend the conditions subject to which a permit has been so
issued.’
[4]
Counsel
for the applicant, Adv N Mji, and for the respondents, Adv N Manaka,
brought two unreported judgments that were delivered
in this
division to my attention, in which meaning of s 22(1) of the
Refugees Act was considered, and particularly the meaning
of the
entitlement of an applicant ‘to sojourn in the Republic
temporarily’ in terms of an asylum seeker permit issued
to
such applicant.
The
first is a judgment of Motloung J in
Consortium
for Refugees and Migrants in South Africa and Others v Minister of
Home Affairs and Others
(WLD, 7 July
2008, Case No 6709/08). Mr. Budlender, who acted on behalf of
the applicants in thie matter, contended ‘that
the way the two
Acts must be applied, the Immigration Act as against the Refugees
Act, is such that immediately an illegal immigrant
applies for a
refugee status irrespective of whether the illegal immigrant is
already in detention or not, that the application
of the relevant
Section 22 of the Refugees Act is such that the applicants must then
be released immediately from detention after
the Section 22 permits
have been issued to them.’ Motloung J, disagreed with
the submission and found that ‘the
Refugees Act does not
anywhere provide that once a person has applied for refugees status
and has been furnished with a Section
permit, it means that person
must be released from detention.’ Motloung J
inter
alia
said this: ‘In other
words I am saying the following, if a person is already in detention
in terms of Section 34 of
the Immigration Act, and that person
subsequently then applies for the immigration status, for as long as
the department complies
with the requirements of the relevant
Section regarding the initial 30 days detention and the maximum
extension of 90 days, if
a refugee applies for refugee status within
the period, and with the department having complied with all other
requirements it
does not follow that that person must be released.
The department can legitimately, and in fact should, refuse to
release
such a person from detention. The contention by Mr
Budlender would lead to absurdity. It would mean that
theoretically
all illegal immigrants presently in custody at
Londela, once they become aware of the order that was being sought
by Mr Budlender
could conceivably, all of them, tomorrow apply for
refugee status and within the next few days, having been issued with
the Section
22 permits which the department is enjoined or forced to
issue to them if they apply for it, would be entitled to immediate
release.
That would be absurd especially if one looks at the
objectives of the Act.’
The
second is a judgment of Willis J in
Mustafa
Aman Arse v Minister of Home Affairs and 2 Others
(WLD,
7 January 2009, Case No 52898/09), which matter is presently the
subject of an urgent appeal to the Supreme Court of Appeal.
Willis J interpreted the words ‘allowing the applicant to
sojourn in the Republic temporarily’ appearing in s 22(1)
of
the Refugees Act as follows: ‘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 send
out of South Africa
pending the outcome of his appeal relating to asylum status. He is
sojourning in South Africa, albeit under
restriction.’
The ‘restriction
referred to is the
applicant’s detention at Lindela’.
I
need not consider the correctness or otherwise of the interpretation
afforded to the wording of s 22(1) of the Refugees Act
in the
Consortium for Refugees and Migrants in
South Africa
and the
Mustafa
judgments in the light of my conclusion on the
facts of the present matter.
[5]
See:
Rawlins
and Another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A), at pp 541J – 542A and
Reddy
v Siemens Telecommunications (Pty) Ltd
2007
(2) SA 486
(SCA), at p 491 para [4].
[6]
S
34(1) of the Immigration Act reads:
‘
Without
the need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested, and
shall,
irrespective of whether such foreigner is arrested, deport him or
her or cause him or her to be deported and may, pending
his or her
deportation, detain him or her or cause him or her to be detained in
a manner and at a place determined by the Director-General,
provided
that the foreigner concerned –
(a) shall be notified in
writing of the decision to deport him or her and of his or her right
to appeal such decision in terms
of this Act;
(b) may at any time
request any officer attending to him or her that his or her
detention for the purpose of deportation be confirmed
by warrant of
a Court, which, if not issued within 48 hours of such request, shall
cause the immediate release of such foreigner;
(c) shall be informed
upon arrest or immediately thereafter of the rights set out in the
preceding two paragraphs, when possible,
practicable and available
in a language that he or she understands;
(d) may not be held in
detention for longer than 30 calendar days without a warrant of a
Court which on god and reasonable grounds
may extend such detention
for an adequate period not exceeding 90 calendar days; and
(e) shall be held in
detention in compliance with minimum prescribed standards protecting
his or her dignity and relevant human
rights.’
[7]
See
the different wording of s 29(1) of the Refugees Act.
[8]
The
reference to this judgment is given in footnote 4
supra
.
[9]
TPD,
8 February 2008 (Case No. 46875/07).
[10]
Para
(g) of the Preamble.
[11]
Para
(l) of the Preamble.
[12]
Para
(n) of the Preamble.
[13]
Para
(p) of the Preamble.
[14]
See
for example s 34(5).
[15]
Silva
v Minister of Safety and Security
1997
(4) SA 657
(W), at p 661 – H.