About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 178
|
|
Nibigira v Minister of Home Affairs and Others (41265/2011) [2011] ZAGPJHC 178 (28 November 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 41265/2011
DATE:28/11/2011
In the matter between:
AHMED ABDUL
NIBIGIRA
.................................................................
Applicant
and
THE MINISTER OF HOME AFFAIRS
....................................
First Respondent
THE DIRECTOR-GENERAL, DEPARTMENT
OF HOME
AFFAIRS
.........................................................
Second Respondent
BOSASA (PTY) LTD t/a
LEADING PROSPECTS TRADING
......................................
Third Respondent
J U D G M E N T
KGOMO, J:
INTRODUCTION
[1] This is an application for the release of the applicant who has
been and is still being detained at the Lindela Holding Facility
near
Krugersdorp, pending his deportation from the Republic of South
Africa. I will refer to the facility hereinafter as “Lindela”.
[2] The applicant is alleged to have been born in Burundi. However,
according to the founding affidavit he deposed to in support
of this
application, he is not and has not been recognised as a national by
the Burundian Embassy in South Africa. Neither is he
allegedly been
recognised as a Tanzanian national, the latter country being the
place from whence he came when he ultimately found
himself in South
Africa.
THE APPLICATION
[3] The applicant launched this application in the Urgent Court of
this Court on 28 October 2011, which application served in
that
Urgent Court on 1 November 2011 for an order:
“2.1 Dispensing, so far as needs be, with the forms and
service provided for in the Uniform Rules of Court and disposing
of
this application at such time and place and in such manner and
according to such procedure as this Court deems meet in terms
of Rule
6(12) of the Rules of Court;
2.2 To the extent necessary, permitting the Applicant to bring the
present application without exhausting any applicable internal
remedies provided for in Section 8 of the Immigration Act 13 of 2002
(Immigration Act);
2.3 Declaring the detention of the Applicant to be unlawful;
Directing the Respondents to release the Applicant forthwith;
To the extent necessary, reviewing and setting aside any decision of
a Magistrate’s Court to extend a warrant of detention,
if any,
issued and/or extended in terms of
s. 34(1)(d)
of the
Immigration Act
13 of 2002
as read with
Regulation 28(4)
of the regulations issued
pursuant and/or in terms of the said
Immigration Act;
To
the extent necessary, reviewing and setting aside any decision
of a Magistrate’s Court to issue a warrant of detention
confirming the detention is for purposes of deportation in terms of
s. 34(1)(b)
of the
Immigration Act as
read with
Regulation 28
of
the regulations thereto;
Directing the First and Second Respondents to issue the Applicant
with written confirmation that they have received his application
for permanent residence under
section 31(2)(b)
of the
Immigration
Act;
Directing
the First and Second Respondents to pay the Applicant’s
costs;
Directing that the Third Respondent pay the Applicant’s costs
in the event that it opposes this application;
Granting such further or alternative relief as this Court deems
fit. ”
[4] The application was opposed by the first and second respondents.
[5] On 1 November 2011 Wepener J in charge of the Urgent Court
postponed the matter to the opposed roll of the week starting 7
November 2011 and ending 11 November 2011 due to the fact that he did
not find the issues therein contained urgent in addition
to the fact
that a substantial opposition was mounted. Hence this matter is
before me.
[6] In addition to the normal opposition that was raised through
the answering affidavit, the first and second respondents, who
I will
hereinafter refer to as the respondents, raised a point in limine of
the non-joinder of the magistrate who is alleged in
the papers to
have extended the applicant’s warrant of detention and against
whom an order was sought that his conduct and
action be reviewed and
set aside. The respondents’ prayer in respect of this point in
limine was that the proceedings be
held over pending that
magistrate’s joinder as a party to these proceedings.
BACKGROUND AND SHORT FACTUAL MATRIX
[7] Due to the fact that there is a difference of opinion regarding
how it came about that the applicant find himself in South
Africa and
ultimately at Lindela, I find it necessary to set out both sides
allegations as regards this aspect.
APPLICANT’S VERSION
[8] According to the applicant he was allegedly born in Bujimbura,
Burundi, on 10 October 1985. No documentation was tendered
to
substantiate this legally hearsay and thus prima facie inadmissible
allegation.
[9] For purposes of finality in this matter in the peculiar
circumstances prevailing herein, I have decided to deal with the
substantial issues, half-closing my eyes to issues like the above
which might be hearsay. As such, for purposes of judgment in
this
matter, I will accept that the applicant is presently 26 years old.
[10] According to him further, during 1995; when he was allegedly
10 years old, he fled Burundi with his parents and brother
to the
Democratic Republic of the Congo (“DRC”) because of the
civil war that was raging in Burundi at the time.
[11] Apparently, according to him, his parents were killed in the
DRC during or around 1998, as a consequence whereof his and
his
brother then fled to Tanzania. We would have been 13 years at that
time.
[12] He and his brother, so went his story, were recognised as
refugees by the Tanzanian Government and the United Nations High
Commissioner for Refugees (“UNHCR”) and they were
accommodated at the Kigoma refugee camp. His brother was resettled
by
the UNHCR to Canada in 2002. He remained in Tanzania until May 2011
when he left for South Africa.
[13] He does not explain how he travelled to South Africa, which is
separated from Tanzania by other Southern African countries
or under
what circumstances he did so.
[14] He arrived in South Africa on or around 9 June 2011 and
travelled to Durban where he was arrested on or approximately 10
June
2011 because he could not produce any documentation allowing him to
be in South Africa.
[15] He was detained at the Westville Prison for approximately 27
days. Thereafter he was transferred to Lindela where he was
admitted
and detained since 7 July 2011.
[16] It is his story further, that while so detained at Lindela the
officials there arranged that he meet with people from both
the
Burundian and Tanzanian Embassies in order to facilitate his
deportation from South Africa. According to him the Tanzanian
Embassy refused to issue him with the requisite one-way travel
document which is also referred to as the emergency travel
certificate
(“ETC”) because he was allegedly a Burundian.
The Burundian Embassy refused to recognise him as a Burundian
national
because he failed to speak or rather could not speak their
native Kirundi language and they also did not want to listen to or
accept
his explanation that he could not do so because he left
Burundi when he was only 10 years old.
[17] His legal representatives, lawyers for Human Rights, wrote to
the Burundian Embassy on 17 October 2011 and also sent a reminder
to
them on 21 October 2011 when a response was not forthcoming, asking
them to confirm to them in writing whether or not the applicant,
who
was registered at Lindela under the names Ahmed Abdul, was a
Burundian national. No response thereto was received.
[18] Also on 17 October 2011 they (his legal representatives) also
communicated with the officials at Lindela asking the latter
to
confirm in writing whether or not the applicant had indeed been
disowned by the Burundian Embassy on behalf of Burundi. No
response
was also received from Lindela.
[19] His legal representatives have also written to UNHCR asking the
latter to confirm from their records if his Burundian nationality
could be confirmed. To date no response has been received from them
too.
[20] He found himself in a position where he was stateless for all
practical purposes. As South Africa can only deport him
to a
specific country the fact that no country “knew” him
meant that South Africa could not deport him. That was when
his
legal representatives wrote to the immigration officer responsible
for his detention, Mr Alison Hlomane; the head of Lindela,
Mr George
Masanabo and two other directors of Lindela, Mr Joseph Swartland and
Ms Ann Mohube; all of them on 24 October 2011;
calling upon them to
confirm his detention for purposes of detention by means of a warrant
in terms of
section 34(1)(b)
of the Immigration within 48 hours of
their receipt of the letter, followed by a copy of such warrant
within the same 48 hours.
They also asked that they be notified of
the time, date and place where such warrant would be sought so that
they could also attend
to make representations on his behalf. The
letter contained the following threat or reminder:
“17. Should you fail to obtain a warrant within 48 hours of
this request we are instructed to demand, as we hereby do, the
immediate release of our client from detention in terms of
s.
34(1)(b)
of the
Immigration Act. [sic
] Failing which we are
instructed to approach the High Court on an urgent basis for
appropriate relief.
We have copied this notice to the Chief, Magistrate of the
Krugersdorp Magistrates’ Court and Magistrate du Plessis of
the Krugersdorp Magistrates’ Court in order to facilitate the
arrangement for a date and time for the hearing regarding
the
warrant of detention within the next 48 hours.
All of our client’s rights are reserved. ”
[21] From his legal representatives he learned that the only
response they have received was from Mr Masanabo who informed them
that he was at the time working at Home Affairs Head Office and that
one Mr Makgabo Kekana was in charge of Lindela as a seconded
head for
an indefinite period. This response was by e-mail dated 25 October
2011 at 08:50. The same date at 11:39 the legal representatives
forwarded the
section 34(1)(b)
request to Mr Kekana.
[22] Unfortunately he has to date received no warrant as requested.
When the date of his affidavit is taken into account, which
is 28
October 2011, my understanding of this allegation is that as at this
date no warrant in terms of
section 34(1)(b)
had been received by the
applicant.
[23] On 27 October 2011 his legal representatives sent a further
letter to Lindela calling for his immediate release. Despite
all the
above, he is still detained at Lindela and he states that he has been
advised that once a warrant of detention in terms
of
section 34(1)(b)
was called for and was not forthcoming within the requisite 48 hours,
then he was to be released forthwith.
RESPONDENTS’ VERSION
[24] The respondents’ version is mostly based on the records
at Lindela. According to those records, the applicant was brought
to
Lindela on 6 July 2011 after having allegedly been previously
arrested in a joint operation involving the SA Police Services
or
Force and the Durban Metro Police after he was found to be an illegal
foreigner as he did not possess or have with him documentation
entitling him to be in South Arica. He was the brought to Lindela
between the 6 and 7 July 2011.
[25] It is their further evidence that according to information
imparted to them by Lindela officials the applicant entered South
Africa from Tanzania on 30 May 2011 with the purpose or intention of
obtaining or to seek employment. A warrant for his detention
was
issued in Durban on 6 July 2011 under appointment number 16896564.
The consecutive number of the warrant as appearing on Annexure
“A”
to the respondents’ answering affidavit is DHA-1725 No. 389052.
According to the respondent’s further,
this warrant authorised
the detention of the applicant as an illegal foreigner for 30 days in
terms of
section 34(1)
of the
Immigration Act. This
warrant has at
its bottom the following inscription:
“NB: No release may be effected without the written authority
of an immigration officer by means of a warrant of release
referred
to in section 34(7) of the Act. ”
[26] Being mindful of the requirements under section 34(1)(d) read
with or together with Regulations 28(4)(c) and 28(6) of the
Regulations passed under
section 7
of the
Immigration Act, an
application was made to the Krugersdorp Magistrate’s Court on
29 July 2011 for the further extension of the applicant’s
initial 30 days detention, the period requested being a further 90
days. According to the respondents the magistrate so approached
granted the application for extension to a further 90 days on 2
August 2011. They further stated that the Lindela people requested
and were granted this additional 90 days due to:
“ …
the intransigence of both the
Burundian and Tanzanian Diplomatic office in coming to the assistance
of the Applicant (and, in directly,
the South African Government) in
establishing the nationality of the Applicant.
”
[27] The respondents explained this diplomatic confirmation issue as
follows through the deponent of their affidavit:
“8.2 This is particularly necessary as a consequence of the
fact that many persons facing deportation, deliberately mislead
diplomatic staff (interviewing them at the Lindela Holding Facility)
of countries which the detainees allege they are nationals
of. This
is done in order to sow confusion amongst the diplomats of a number
of countries, as a consequence of which, more often
than not, all the
countries involved in the identification process of an illegal
foreigner refuse to acknowledge the nationality
of the person
concerned, thereby achieving the aim of the (sic) detainee namely,
to frustrate any attempts to have him deported.
I respectively submit
that the Applicant is one of those cases.”
[28] According to the deponent of the respondents’ answering
affidavit the applicant displayed a more than satisfactory
command of
or over the English language when he spoke to him, refuting or
answering to the allegation by the applicant that he
was unable to
speak the English language. It is my view that the respondents’
answer hereto is at cross purposes with the
applicant’s
averments because my understanding of the latter’s utterance
was that the Burundian diplomat did not want
to acknowledge him as a
Burundian because he could not speak the Burundian language, Kirundi.
[29] The long and short of the respondents’ case is that when
the applicant’s legal representative wrote the letters
dated 24
October 2011 and 25 October 2011, demanding that they apply for a
warrant for his further detention, the extension of
the period of
detention had already been made, on 29 July 2011 for a period of 90
days. That warrant is attached to the papers
as Annexure “B”
at folio/page 86 of the paginated record herein. They did not know
under what circumstances he (applicant)
was detained in Durban by the
South African Police prior to him being brought to Lindela on 6 July
2011. They accused the applicant
with dishonesty and/or
untruthfulness by not informing his legal representative that he was
indeed taken before a magistrate at
Krugersdorp on 29 July 2011 for
the extension of his warrant of detention.
LEGISLATIVE FRAMEWORK AND PRESCRIPTS
[30]
Section 34(1)
of the
Immigration Act provides
as follows:
“34.1 … The foreigner concerned –
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
the Act;
May at any time request any officer attending to him or her that his
or her detention for purposes of deportation be confirmed
by a
warrant of a court, which, if not issued within 48 hours of such
request, shall cause the immediate release of such foreigner;
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;
May not be held in detention for longer than 30 calendar days
without a warrant of a court which on good and reasonable grounds
may extent such detention for an adequate period not exceeding 90
calendar days; and
Shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human rights.
”
[31] An illegal foreigner is defined in the
Immigration Act as
:
“a foreigner who is in the Republic of South Africa in
contravention of the Act. ”
[32]
Section 9(1)
of the
Immigration Act decrees
that:
“Subject to this Act, no person shall enter or depart from the
Republic (of South Africa) at a place other than a port of
entry. ”
[33] Section 9(3) which is also material and relevant to the
decision of issues in this case provides as follows:
“(3) No person shall enter or depart from the Republic –
unless in possession of a valid passport;
…
except at a port of entry, unless –
in possession of a certificate issued by the Director-General
granting permission upon application to enter or depart from
the
Republic at a place other than a port of entry within a certain
period not exceeding six months at a time, provided that
for good
cause the Director-General may withdraw such permission; or
exempted as an individual or falling within a category of persons
exempted by the Minister, on the recommendation of the
Director-General, which exemption may be withdrawn by the Minister;
unless the entry or departure is recorded by an immigration officer;
and
(e) unless examined by an immigration officer as prescribed. ”
[34] Equally, section 9(4) of the Act decrees as follows:
“(4) A foreigner who is not the holder of a permanent
residence permit may only enter the Republic as contemplated in this
section if –
his or her passport is valid for not less than 30 days after the
expiry of the intended stay; and
(b) issued with a valid temporary residence permit, as set out in
this Act. ”
[35] Section 33(2) of the Act decrees that:
“Any illegal foreigner shall be deported.”
[36] Sections 34(5), (6) and (7) are in my view, also relevant and
should be included in this legislative framework. They decree
as
follows:
“(5) Any person other than a citizen or a permanent residence
who having been –
removed from the Republic or while being subject to an order issued
under a law to leave the Republic, returns thereto without
lawful
authority or fails to comply with such order; or
refuses admission, whether before or after the commencement of this
Act, has entered the Republic,
shall be guilty of an offence and liable on conviction to a fine or
to imprisonment for a period not exceeding 12 months and may,
if not
already in detention, be arrested without warrant and deported under
a warrant issued by a court and, pending his or her
removal, be
detained in the manner and at a place determined by the
Director-General.
(6) Any illegal foreigner convicted and sentenced under this Act may
be deported before the expiration of his or her sentence
and his or
her imprisonment shall terminate at that time.
(7) On the basis of a warrant for the removal or release of a
detained illegal foreigner, the person in charge of the prison
concerned shall deliver such foreigner to that immigration officer or
police officer bearing such warrant, and if such foreigner
is not
released, he or she shall be deemed to be in lawful custody while in
the custody of the immigration officer or police officer
bearing such
warrant. ”
[37] Section 35(2) of the Constitution of the Republic of South
Africa, 1996 provides that:
“Everyone who is detained, including every sentenced prisoner,
has the right –
…
(d) to challenge the lawfulness of the detention in person before a
court and, if the detention is unlawful, to be released. ”
APPLICABLE VISAS AND PERMITS IN TERMS OF THE ACT
[38] The
Immigration Act list
a number of documentation under which
a foreigner may be allowed to remain in the Republic of South Africa.
[39] I have given the definition of an illegal foreigner earlier on.
It is important to set out how a foreigner is defined in
the Act. He
is defined as:
“… an individual who is not a citizen.”
[40] The various categories of permits available in terms of the Act
are given therein as:
Transit visa by virtue of section 10B;
Visitor’s permit – section 11;
Study permit – section 13;
Treaty permit – section 14;
Business permit – section 15;
Crew permit – section 16;
Medical treatment permit – section 17;
Relatives permit – section 18;
Work permit – section 19;
Retired person’s permit – section 20;
Corporate permit – section 21;
Exchange permit – section 22;
Asylum transit permit – section 23; and
Cross-border and transit permit – section 24.
[41] The permits that were mentioned in the papers filed herein are
the work permit and possibly by necessary implication, the
asylum
transit permit and cross-border transit permit.
[42] There are two types of work permits, namely, the quota work
permit and the general work permit. A quota work permit is or
may be
issued by the Director-General, as prescribed, to a foreigner if that
foreigner falls within a specific professional category
or within a
specific occupational class determined by the Minister at least
annually by notice in the Gazette after consultation
with the
Ministers of Labour and of Trade and Industry, which allocation of
quota permits should not exceed the quota determined
and/or set out
in the notice. Obviously this permit would be issued strictly to
professionals or specified vocational or occupational
class of
foreigner whose skills are scarce in the Republic. A general work
permit may be issued by the Director-General to a foreigner
not
falling within a category or class contemplated under the classes set
out under quota work permit where a prospective employer
satisfies
the Director-General in the prescribed manner, that despite diligent
search he or she has been unable to employ a local
citizen with
qualifications or skills and experience equivalent to those of the
foreigner applicant and/or such employer satisfies
the
Director-General that the terms and conditions under which he or she
intends to employ that foreigner, including salary and
benefits, are
not inferior to those prevailing in the relevant market segment for
citizens, taking into account applicable collective
bargaining
agreements and other applicable standards; and that such employer has
agreed in writing to notify the Director-General
when such foreigner
is no longer employed by him/her or is employed in a different
capacity or role.
[43] There are allegations in the papers herein that the applicant
allegedly told immigration officials that he was in South Africa
in
search for work. From the exposition of work permits set out above,
he does not and will not qualify for a work permit. He is
neither a
professional or in a sought after or scarce vocational class.
Similarly, his credentials have not and are not being
vouched for by
a resident citizen employer for him to qualify even for a general
work permit.
[44] I have not seen anywhere in the papers where the applicant
indicated that he would need or apply for asylum or for an asylum
transit permit. It is also the case with the cross-border asylum
permit. He is categoric that he wants to be granted a permanent
residence permit, not even or let alone a temporary residence permit.
He has really set the bar high in his application,unilaterally.
[45] In terms of section 24 of the Act a cross-border and transit
permit is issued by the Director-General to an applicant, including
a
foreigner who is a resident or citizen of a prescribed foreign
country with which the Republic shares a border while such Foreigner
is in transit to elsewhere.
[46] The applicant does not qualify for this permit. He is not a
citizen or resident of a prescribed neighbouring country to the
Republic.
[47] In terms of section 23 of the Act, an asylum transit permit may
be issued by the Director-General to a person who, at a port
of
entry, claims to be an asylum seeker. Such a permit is valid for 14
days.
[48] The applicant did not state if he entered South Africa at a
recognised port of entry. Prima facie, he cannot qualify for
this
permit, more so that he himself does not lay claim to it.
APPLICATION OF LAWS AND PRESCRIPTS TO FACTS IN CASU
[49] The applicant’s case revolves around section 34(1)(b) of
the Act as has been stated above.
[50] It is common cause that the applicant is an illegal foreigner
who entered the Republic at a place other than at a port of
entry
specifically provided for that purpose. He does not take this Court
into his confidence by disclosing where and/or how he
did so.
Nevertheless it is also common cause that he entered the Republic
without being in possession of a valid passport. He
also did not
obtain the certificates or authorisations set out in provisos (i) and
(ii) of subsection (3) of section 34 as well
as being in violation of
section 9(3)(d) and (e) of the Act.
[51] Section 32(2) of the Act is peremptory : Any illegal foreigner
shall be deported. Equally, sections 34(5), (6) and (7) makes
it a
criminal offence to enter the Republic and be found in circumstances
this applicant was found and arrested. What should happen
to such a
person is set out in subsection (6) and his detention and its mode is
set out in subsection (7).
[52] It is also common cause that the applicant was arrested in
Durban, KwaZulu-Natal, be it 6 of 7 June 2011 depending which
of the
two versions to follow. It is common cause that the immigration
officers working under the respondents went to fetch him
from
Westville Prison on 6 July 2011. The circumstances under which he
was detained at Westville Prison are not relevant to this
case as it
relates to SA Police or Metro Police or both, both being divisions of
law enforcement. What is material is what happened
after the
respondents’ employees signed for him because from thence
onwards certain prescribed processes and procedures kick
in and the
Immigration Act must
be complied with.
[53] In the respondents’ answering affidavit it is mentioned
that the applicant gave a date of entering South Africa illegally
as
30 May 2011. The latter denies this. It is my considered view that
nothing should turn on this latter date as its existence
does not
impact on what should have happened to the applicant or what the
respondents’ employees should have done. No action
has been
instituted against the Minister of police and/or the Durban Metro
Police.
[54] What is very important is the fact that the applicant’s
case is that after he was signed for and fetched from Durban
his
further detention for purposes of deportation was never confirmed or
extended until he launched these proceedings on 28 October
2011.
[55] The respondents’ version demonstrates the opposite
picture to the one the applicant sketched out or wants this Court
to
have : A document corresponding with Form 28 prescribed in
Regulation
28(1)
is attached to the answering affidavit. This form proves that
the applicant was properly detained for purposes of deportation on
6
July 2011. That being the case, what was required was that his
further detention be validated by a proper order of extension
granted
by a magistrate within 30 days of 6 July 2011. At folio 86 of the
paginated papers filed herein a document is found purporting
to be an
application to court for extension of detention and authorisation by
court for that extension. It relates to Ahmed Abdul
or rather Abdul
Ahmed, which is, from the applicant’s own version, the names
which he gave to the authorities when he was
arrested. At the bottom
of this document a magistrate from Magistrate’s Court
Krugersdorp purports to have authorised the
further detention of the
applicant for a further 90 days.
[56] The applicant does not deny the validity or authenticity of the
abovementioned two documents. That being so, then it logically
means
the applicant either told blatant untruths to this Court or lied to
his own legal representatives or committed both misdemeanour.
That
should count when the credibility of the parties herein is evaluated.
What the applicant through his counsel is questioning
is the fact
that the form used by the authorities and on which the magistrate
authorised the extension of detention as being not
as prescribed in
Regulation 28
of the Regulations issued under the Act.
[57] It is my considered view that what is important here is the
substance and not the form. The heading of the form clearly reads:
“Application to court for extension of detention and a
authorisation by court for that extension. ”
[58] The purpose and intention of the officers and officials
involved with the issuing and signing of this document cannot be
more
clearer. It is, in my view, in keeping with the spirit of the
applicable legislation. It clearly extends the applicant’s
detention for purposes of deportation for 90 days further on 2 August
2011. The date is well within the prescribed time frames.
[59] I therefore find that the applicant’s objection as to the
validity of the form used is without merit.
[60] In a recent judgment of the Supreme Court of Appeal which was
delivered on 21 November 2011, Maya JA ruled among others at
para
[15], page 11 thereof as follows:
“A defect in a detention warrant, even one which renders it
invalid, cannot supersede the authority of the relevant court
order.
Therefore, the fugitives in this matter were held in lawful custody
not by virtue of a detention warrant (which in the present
context
amounts to no more than an administrative means of proving …
that the person they are requested to receive is lawfully
in custody
and may therefore be detained in their facility) but by authority of
the court … ”
[61] It is my considered view that the magistrate’s act in
authorising the further detention of the applicant as evidenced
by
the form used, albeit it being one different to the one required or
prescribed in the Regulations, cannot be gainsaid. The
applicant was
thus lawfully detained for a further 90 days as at the time the order
to so extend his detention was authorised.
It was equally still
within the 90 days when these proceedings were instituted on 28
October 2011.
[62] The applicant’s contention is that the 90 days have
expired on 2 November 2011, hence he abandoned prayers 5 and 6
of his
notice of motion that has to do with the setting aside and reviewing
of the magistrate’s decision to extend the applicant’s
detention.
[63] What is also interesting is why the applicant included the
above prayers to review and set aside any decision of a magistrate’s
court to extend a warrant of detention if he at the time the papers
were drawn up and issued he was according to him adamant no
warrant
of extension was ever authorised or issued. It is so that he
qualifies these prayers with the words, “if any”.
Yet,
it sets the mind racing! Why? I have no possible answer and I do
not want to speculate. It is also interesting that he
specifically
mentions 5.3(1) (d) in his founding Affidavit despite his assertion
that no warrant existed at the time.
[64] The other aspect is why did the applicant give his names to the
police as Ahmed Abdul whereas his full names are Ahmed Abdul
Nibigira. How did he expect the embassy staff from Burundi and
Tanzania to identify him if he gave incomplete personal particulars.
The respondents submitted and argued that illegal foreigners usually
gave wrong particulars to diplomats coming to identify them
to avoid
being deprived. The question is, is the submission by the respondents
unfounded or too speculative when regard is had
to this conduct by
the applicant? They submitted that the Applicant deliberately misled
the authorities and the diplomatic staff.
[65] It was submitted on behalf of the applicant during the
arguments that his detention has been unlawful from the day of his
arrest in Durban and that the extension granted by the magistrate
were out of time. There is nothing in the founding and replying
affidavits where the applicant’s arrest is being questioned. It
is so that that was done by the police and have nothing to
do with
the
Immigration Act, which
is the subject Act in this application.
As such it is my considered view that the allegation of unlawful
detention before 6 or
7 July 2011 is unfounded and is not even borne
by the evidence in the applicant’s papers.
[66] With regards to the aspect of the magistrate’s extension
of the detention warrant being out of time, I have already
alluded to
it above. For clarity’s sake I will repeat it here. The
cut-off date in this case is 28 October 2011, which is
the date on
which this application was launched. The inception date for the
chronology herein starts on 6 or 7 July 2011 when the
immigration
officials collect and sign for the applicant from the prison
authorities in Durban. There is a valid document, paginated
folio 85
in the papers herein, titled “Warrant of detention of illegal
foreigner (Section 7(1)(a) read with Section 34(1)
Regulation 28(1)”.
It is dated 6 July 2011. Thirty (30) days from this date would have
expired on 5 August 2011. An extension
of the detention by Magistrate
Krugersdorp is evidenced by document on paginated folio 86 of the
papers herein. It is dated 2 August
2011. This document confirming a
court order by the magistrate was issued three (3) days before the
mandatory 30 days allowed
for the initial detention period could
elapse. It is valid for 90 days. The 90 days expires on1 or 2
November 2011. This date
is 4 or 5 days counted from 28 October 2011
cut-off date before the 90 days expired as laid down by the law.
Consequently, when
these proceedings were launched on 28 October
2011, the requisite period allowed during which the warrant of
detention would still
be valid, had not yet expired. The magistrate’s
intervention was thus in my considered view and finding still in
time.
[67] As already stated hereinbefore the applicant’s
submissions above regarding the intervention of the magistrate
collides
directly with the heart and soul of this application,
namely, that a magistrate had not extended the validity of the
detention
warrant in issue herein and that despite his repeated
requests and demands that same be done, the respondents have
neglected or
failed or refused to do so. This is also fatal to the
applicant’s case.
[68] The applicant’s heads of argument are mostly premised or
based on the 30 days plus extra 90 days, thus a total of the
requisite 120 days having expired without the respondents acting in
keeping or in accordance with section 34(1) of the Act. Several
decided cases were quoted to substantiate this point. Unfortunately,
in the light of my above findings those authorities cannot
avail the
applicant.
[69] Several judgments of our Constitutional Court and other high
courts including the Supreme Court of Appeal were quoted in
support
of the culture and spirit of human rights and libertarian guarantees
as enshrined in our Constitution. As examples hereof
we see S v
Coetzee
[1997] ZACC 2
;
1997 (3) SA 527
(CC) at para 159; Hamisi v Minister of Home
Affairs and Others, an unreported judgment of Weiner J in this Court
under Case No.
32275/2011, handed down on 12 September 2011 and
Jackson Mtegekurara v Minister of Home Affairs and Others, a yet
unreported judgment
of Rautenbach AJ also in this Court under Case
No. 21599/2011, to name a few.
[70] It is the applicant’s argument that he was not afforded
the opportunity to make representations in keeping with the
provisions set out in Regulation 28(4). The above was the underlying
causa in the abovementioned unreported South Gauteng High
Court
judgments referred to above which led to the applicants therein
succeeding in their applications. In both judgments, it
was also
alleged that the applicants could not understand the English language
and as such the courts were not satisfied that they
understood what
had happened.
[71] Incidentally, the applicant is repeating the same defences
herein verbatim. The problem with this case is that the applicant’s
credibility is dented as a result of the faux pas that I have alluded
to above, which, in my view impacts negatively on the believability
of his story.
[72] It is my view and finding further, that the applicant’s
case is distinguishable from the facts in those cases.
[73] It is true that South Africa has one of the best Constitutions
in the world which has a Bill of Rights that recognises and
protects
the rights and interests of its citizens as well as foreigners who
find themselves in this country. It is my observation
that most
judgments concentrate on the rights the citizens and illegal
foreigners should enjoy, including when arrested for being
in the
country without the necessary permission or documentation.
[74] It is about time that we look at the flip side : there is what
can be termed the national interest. It is in the national
interests
of every country that its borders and frontiers are not breached by
people scaling or crawling under fences and when
arrested for being
unlawfully in the country, they lay claim to inviolable rights to be
released. Laws of every country are there
to be obeyed.
[75] South Africa’s Immigration Act categorically decree that
all illegal foreigners shall de deported.
[76] Where would the applicant go if there was a need that he be
released from detention? Would that court sanctioned release
have
meant that he should be allowed to roam South Africa despite the fact
that he came in illegally and he has no right or papers
to allow him
to be here? Must the police or immigration officials not arrest and
detain him for deportation again?
[77] Surely the above scenario is not what the legislature intended
when this Immigration Law was passed.
[78] The applicant has asked this Court to allow him to bring this
application without first exhausting the applicable internal
remedies
provided in
section 8
of the
Immigration Act 13 of 2002
. It is my
view and finding that this prayer should not be allowed.
[79] In prayer 7 of the notice of motion the applicant is asking an
order that the respondents be directed to issue him with a
written
confirmation that they have received his application for permanent
residence under section 31(2)(b) of the Act.
[80] A look at the applicant’s heads of argument reveals his
whole basis on which this application is premised. It reads
as
follows:
“1. This is an application for the release of the Applicant
who has been detained for over 120 days at the Lindela Holding
Facility ‘Lindela’) in Krugersdorp, pending his
deportation from the Republic. ”
[81] I have already indicated above how mistaken or incorrect this
basis is.
[82] How consideration of fairness and respect for freedoms of
people in the Republic and in any event, anywhere where rights
of
citizens and non-citizens are respected and enforced should be
handled set out by O’Regan J in S v Coetzee
[1997] ZACC 2
;
1997 (3) SA 527
(CC) where the honourable judge put it as follows at para [159]:
“[there are] two different aspects of freedom: the first is
concerned particularly with the reasons for which the State may
deprive someone of freedom; and the second is concerned with the
manner whereby a person is deprived of freedom … our
Constitution
recognises that both aspects are important in a
democracy: the State may not deprive its citizens of liberty for
reasons that are
not acceptable, nor, when it deprives citizens of
freedom for acceptable reasons, may it do so in a manner which is
procedurally
unfair.”
[83] The applicant herein is not a citizen of the Republic. Whether
he has acquired inherent rights except his right to life
and
integrity when he entered the Republic in the manner he did is a moot
point for analysis at another time. Suffice to say that
he was
entitled to be treated in a manner that is in line with the
principles enshrined in our progressive Constitution until he
is
deported or allowed to stay in the Republic, whichever may be the
ultimate result, depending on the circumstances as they unfold
with
time.
[84] In De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) the Constitutional
Court held among others at para [143] that the degree of procedural
safeguards required by section 12(1)
will normally depend on the
nature of the deprivation and its purpose. To determine if those
safeguards were given effect to,
the place, duration and purpose of
the detention are some of the determining factors.
[85] It cannot be disputed that the applicant was correctly arrested
in Durban for being an illegal foreigner. He was then handed
over to
the relevant and appropriate arm of government, being the Department
of Home Affairs. Lindela is a facility contracted
with the Department
of Home Affairs where people in transit for deportation are held. As
such the applicant cannot complain of
being detained at Lindela as it
is the right place to be. The next question is whether or not the
immigration officials dealt
with him as prescribed in the
Immigration
Act and
its Regulations.
[86] Although the applicant himself does not say much about having
been treated in a manner not prescribed in the Act and Rules
or in
many words and his counsel’s heads of argument refer thereto in
a cursory manner, during argument in this Court the
latter harped on
the accusation that the applicant was not treated as prescribed in
the Act and Regulations.
[87] An answer as to which version between the applicant’s
version and the respondents’ version to go along with depends
on the credibility of the role players herein, because the
respondents refute the applicant’s allegations.
[88] If the applicant’s version is to be believed, he was
never taken before a magistrate for the extension of his warrant
until he launched this application. This averment was refuted by the
respondents as set out above and the facts and balance of
convenience
are on the latter’s side. The applicant further avers that he
does not have sufficient proficiency in the English
language to have
intelligibly communicated with the authorities. The respondent’s
employees deposed to the effect that the
applicant commanded above
average proficiency in that language. The applicant did not give the
authorities his full names. In
the circumstances of this case, where
no foreign embassy could properly identify the applicant or confirm
him as a citizen of their
country, one understands why there was such
a difficulty : Even the United Nation’s body dealing with
similar circumstances
as shown above will be unable to determine if
the applicant was indeed a registered refugee as the applicant
asserts. The names
he furnished here will not correspond with the
names of the UNHCR records.
[89] The applicant also averred that the UNHCR sent his own brother
to Canada, separating them in the process. As orphaned brothers
it is
difficult to imagine how a human rights body would act in such a
manner that separates young orphaned refugees. It calls
for
probabilities to be examined. I do not think that exercise in depth,
is appropriate at this stage. It is simply improbable.
[90] The applicant makes heavy weather of the fact that even though
the warrant authorised by the magistrate at Krugersdorp has
the
correct heading, however he contests its validity solely because it
is not having the serial number or numerical title similar
to the one
prescribed in the Regulations. I have perused these two documents
and found out that the message set out in the document
used in this
case is similar to the one that is contained in the form B1-1726 that
is prescribed. The form used here is B1-1727.
As explained elsewhere
in this judgment, what is paramount is not the form used but the fact
whether or not a judicial officer
did or did not authorise the
applicant’s further detention for another 90 days. I find that
the magistrate had done so.
[91] The applicant wants this Court to find to the contrary. I
cannot do that with a clean conscience. Should I accede to this
request by the applicant, I would be saying the magistrate acted
fraudulently by writing or affirming what never happened. There
are
no cogent facts to find that the official documents attached to the
respondents’ answering affidavit are fakes. Applicant
and his
counsel also never said that. Consequently, when an assessment is
made of the credibility of the applicant, taking into
account his
unsubstantiable allegations as set out above as well as the fact that
he is a person prepared to state something that
actually happened did
not happen, I would not readily accept the applicant’s word
above what the version tendered by the
respondents entail.
[93] It is my finding therefore that the applicant’s
accusations of improper conduct towards him by the immigration
officials
or actions contrary to prescripts cannot be accepted as
being possibly true. As such they are rejected.
[94] As set out in Jeebhai v Minister of Home Affairs
2009 (5) SA
54
(SCA) at para [2], Cachalia JA held that:
“for deportation to be carried out lawfully, the action or
procedure used to facilitate an illegal foreigner’s removal
from the country must be done in terms of the Act. ”
[95] It is my finding that the respondents have not acted contrary
to the principles evoked above.
[96] It is thus my finding that the applicant has not made out a
case for the grant of the above prayer also. There is no country
that
is prepared to acknowledge him as a citizen. He has not applied for
a refugee status although he belatedly and half-heartedly
avers at
the end of his founding affidavit that he is an economic refugee.
This aspect falls in line with what the respondents
deposed to and
asserted, namely, that the applicant told officials that he came to
South Africa to look for employment in May 2011.
It is my considered
view and finding that even if that was so, the laws of this land
should be respected. As stated above, to obtain
work in this country
as an alien, one must qualify for a work permit after satisfying the
requirements I listed above for the grant
of a work permit.
[97] The applicant does not end there : he now also seeks permanent
residence permit despite the manner in which he entered South
Africa.
He was not prepared to be frank with the immigration authorities and
this Court and disclose how he entered this country.
He does not
even start with a temporary residents’ permit. Applicant has
displayed an above average degree of arrogance
and scant regard for
the laws of this country and the respondents may have a case if they
do not accede to his demands.
[98] Lastly, it is so that counsel for the applicant abandoned
prayers 5 and 6 during arguments. This cause of action was based
on
their erroneous belief and contention that the magistrate’s
further extension of his detention warrant had expired on
2 November
2011. As already stated above, this Court should decide issues
herein based on the cut-off date of 28 October 2011,
being the date
on which this application was launched. The Applicant’s
abandonment of prayers 5 and 6 are thus premature
or ill thought
[99] That being so therefore, the respondents’ point in
limine needs to be examined.
[100] It is so that the applicant wanted this Court to review and
set aside the order granted by the magistrate in extending the
life
of the warrant of detention for a further 90 days. He however did not
join the magistrate as a party. That would make the
proceedings
incomplete. I would uphold the point –in limine.
[101] The respondents pleaded and submitted that the application be
postponed indefinitely to allow the applicant to join the
magistrate.
[102] In the light of the order I intend to give, it is my
considered view and finding that the above order would be an exercise
in futility. Courts of law are presumed not to intend to issue
rulings, orders or judgments that are academic in the circumstances
of each particular case.
[103] It is my further finding that the applicant ought to have
joined the relevant magistrate to these proceedings. Failure to
do so
renders them deficient in a fatal way.
ORDER
[104] After perusing the papers filed of record herein, listening to
counsel during argument, checking the relevant laws and authorities
and fully considering this matter, the following is the order of the
court:
The application by the applicant herein is dismissed;
In the light of the possible impecuniosity of the applicant it is
ordered that each party pays its own costs.
No formal ruling is made in respect of the point in limine
although as state above, it stands or should have stood to be
upheld.
_____________________________
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT ADV U JUGROOP
INSTRUCTED BY LAWYERS FOR HUMAN RIGHTS
JOHANNESBURG
TEL NO: 011 – 339 1960
COUNSEL FOR THE RESPONDENTS ADV M BOFILATOS
INSTRUCTED BY STATE ATTORNEYS
JOHANNESBURG
TEL NO: 011 – 330 7665
DATE OF ARGUMENT 10 NOVEMBER 2011
DATE OF JUDGMENT 28 NOVEMBER 2011