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[2012] ZAGPJHC 15
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Otshudi v Minister of Home Affairs and Others (12/05018) [2012] ZAGPJHC 15 (23 February 2012)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
12/05018
DATE:23/02/2012
In the matter between:
OTSHUDI,
FRANCIS
KIMOTO
...........................................................
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
Summary
Refugees Act no 130 of 1998
– illegal foreigner having
exhausted internal remedies and no further proceedings pending -
falls to be dealt with in terms
of the provisions of the
Immigration
Act no 13 of 2002
.
Contempt of court – minister and officials prevented from
deporting illegal foreigner whilst proceedings pending as they
may be
guilty of contempt of court.
Immigration Act – detention
pursuant to
s 34
of
Immigration Act
– calculation
of initial period of 30 days and extended period
of 90 days to be cumulative. Suspension of 120 day period allowed
by Act for
detention for purposes of deportation in the event of
legal proceedings preventing Department from deporting illegal
foreigner.
WEPENER, J
:
[1] This is an urgent
application in which the applicant seeks a declaration that his
continued detention is unlawful and an order
for his release. In
addition he seeks that the respondents be directed to re-issue him
with a temporary asylum seeker permit in
accordance with s 22 of the
Refugees Act No. 130 of 1998 (‘
the
Refugees Act’
).
[2] I deal with the applicant’s
prayer for a mandamus to re-issue an asylum seekers permit first.
Only two affidavits, a
founding affidavit and an answering affidavit
were filed. There is a serious dispute of fact which cannot be
resolved on the papers.
Mr Dikolomela, appearing for the applicant
requested me to find the version of the applicant to be supported by
probabilities
and to decide the matter on such probabilities. I
decline the invitation. Since time immemorial and at least since the
judgment
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A), the approach to disputed facts in application
proceedings is to have regard to the facts averred by the applicant
which have been admitted by the respondent, together with the facts
alleged by the respondent.
[3] The applicant’s
version regarding his application for a temporary asylum seeker
permit, is put into context by the respondents,
who justify their
actions also with reference to objective evidence in the form of
documents. From this version, it is clear that
the applicant was
less than frank in his founding affidavit. Once the applicant was
found to be an illegal foreigner present in
the Republic of South
Africa, he was afforded to and did utilise the internal remedies
provided for in the
Refugees Act. The
applicant submitted an
application for asylum to a Refugee Status Determination Officer
(‘
RSDO’
)
in terms of
s 21
of the
Refugees Act and
was issued with a temporary
refugee permit as provided for in
s 22
of the
Refugees Act. He
received an answer from the RSDO, (a copy of which is attached to the
founding affidavit) in which he was advised that his application
was
rejected as unfounded pursuant to
s 24(3)(c)
of the
Refugees Act. S
24(3) of the
Refugees Act provides
that the RSDO must, upon the
application of a refugee, either grant asylum; or reject it as
manifestly unfounded, abusive or fraudulent;
or reject it as
unfounded; or refer any question of law to the Standing Committee.
The result is that the provisions of
s 26
of the
Refugees Act come
into operation and an asylum seeker may then lodge an appeal to the
Refugees Appeal Board (‘
RAB’
).
This, the applicant also did whilst his temporary refugee permit was
extended but the RAB eventually dismissed the appeal, thus
ending the
applicant’s reliance on the
Refugees Act to
obtain the status
of an asylum seeker in the Republic.
[4] The applicant exhausted the
internal remedies available to him under the
Refugees Act. The
RAB
decision, which was handed to the applicant, advised him that
henceforth, he will be dealt with in terms of the provisions
of the
Immigration Act No. 13 of 2002 (‘
the
Immigration Ac’
).
That, in my view, brought the applicant’s entitlement to rely
on the
Refugees Act to
an end and his application for an order to
extend his asylum seeker permit is ill-advised and misplaced.
[5] The original temporary asylum
seeker permit issued to the applicant provides that he had to leave
the Republic on 15 June 2010
or such later date as was authorised by
the RSDO. At a later date, and after a further extension of his
temporary permit, the
date upon which the applicant was obliged to
leave the Republic, was extended to 17 October 2011. On 18 October
2011 the applicant
was given the decision of the RAB and arrested and
detained as an illegal foreigner pursuant to the provisions of the
Immigration Act.
[6] Upon his arrest, the
applicant was given a notification of his intended deportation
pursuant to
s 34(1)(a)
of the immigration Act. The notice also
advised the applicant that he has the right to appeal the decision to
deport him to the
Director General within 10 working days of receipt
of the deportation notice as well as his right to request that his
detention
be confirmed by a warrant issued by a court. The detention
of the applicant was by means of a warrant issued by an immigration
officer authorising the station commander or head of the detention
facility to detain the applicant. (See
Jeebhai
v Minister of Home Affairs
2009 (5) SA 54
SCA at para 26. There was, since 18 October 2011, an
obligation upon the respondents to deport the applicant pursuant to
s
32(2)
of the
Immigration Act. The
applicant again had internal
remedies which were available to him under the
Immigration Act such
as an appeal to the Director General pursuant to
s 8(4)
of the
Immigration Act. He
did not avail himself of these remedies.
[7] I interpose to mention that
the lawfulness of the decision of the immigration officer to detain
the applicant pending his deportation
was not raised in the affidavit
or in argument before me.
[8] The basis upon which the
applicant seeks relief in this court is, firstly, that
s 29
of the
Refugees Act provides
that detention for a period longer than 30 days
is unlawful unless sanctioned by a judge and because there was no
such sanction,
his continued detention should be declared unlawful.
The
Refugees Act, however
, ceased to be of application since the
arrest of the applicant on 19 October 2011 when his internal appeals,
pursuant the
Refugees Act, failed
.
[9] The applicant also relies
on the fact he has been detained at Lindela for more than 100 in
support of his contention that
his detention is unlawful. The answer
to that is found under the
Immigration Act. S
34(1)(d) of the
Immigration Act provides
that the initial period of detention of an
illegal foreigner may be extended by a court for a period not
exceeding 90 calendar
days. It is common cause that a magistrate’s
court may do so. The applicant was arrested on 19 October 2011 and
his first
period of detention of 30 days expired on 17 November 2011.
However, the respondents obtained an extension of 90 days from a
magistrate.
This additional period of 90 days would have expired on
17 February 2012 – a date after the institution of the present
application,
which was served on the respondents on 10 February 2012.
The expiry date of the 120 day period during which a foreigner may
be
held in detention was consequently not an issue canvassed in the
affidavits before me. In any event Ms Manaka, appearing for the
respondents, advised me that the respondents are of the view that
once an application is served upon them by an illegal foreigner
they
are prevented from deporting such an applicant despite being within
the 120 day period in fear of being found in contempt
of court. This
apprehension is well justified as a person who interferes with the
administration of justice will be in contempt
of court. If the
respondents deported the applicant whilst these proceedings are
pending, they could, in my view, depending on
the circumstances, be
guilty of contempt of court or of obstructing the course of justice
as the deportation could influence the
effectiveness of any order
granted resulting from the application. See
Fein
& Cohen v Colonial Government
1906 (23) SC 750
and
Afrikaanse
Pers-Publikasie (Edms) Bpk v Mbeki
1964 (4) SA 618
at 627. In Herbstein and Van Winsen The Civil
Practice of the High Court of South Africa 5
th
edition (Ed Cilliers Loots and Nel) Volume 2 page 1098 it is said:
‘
Contempt of court ex
facie curiae, again broadly speaking, could be divided into two
categories, firstly, contempt which solely
relates to scandalising of
the court such as ‘words which tend, or are calculated, to
bring the administration of justice
into contempt’ or a
statement or document which tends to prejudice or interfere with the
administration of justice in a pending
proceeding.’
The Supreme Court of Appeal held
in
Midi Television t/a
E-TV v Director of Public Prosecution
[2007] ZASCA 56
;
2007 (5) SA 540
SCA at 547A that conduct should not ‘tend’
to bring the administration of justice into disrepute, but it should
actually
hold a real risk that prejudice will occur. There seems to
me to be no reason to limit contempt proceedings to statements or
documents
as stated by the learned authors. Any conduct which
prejudices or interferes with the administration of justice in
pending proceedings
would, in my view, be in contempt of court. See
R v Gray
1900 (2) QB 36
where it was said:
‘
It cannot be doubted...
that the article does constitute a contempt of Court; but as these
applications are, happily, of an unusual
character, we have thought
it right to explain a little more fully than is perhaps necessary
what does constitute a contempt of
Court, and what are the means
which the law has placed at the disposal of the Judicature for
checking and punishing contempt of
Court.
Any act
done or writing published calculated to bring a Court or a Judge of
the Court into contempt, or to lower his authority, is a contempt
of
Court. That is one class of contempt.’
(Own underlining).
In the circumstances, any act
performed by the respondents that could prejudice or defeat the
possible future court order, may constitute
contempt of court once
the respondents have received notice of the application. In my view,
there can be no doubt that the deportation
of the applicant prior to
the completion of these proceedings holds a real risk that prejudice
for the applicant will follow.
De Villiers JP said in
Yamomoto
v Athersuch and Another
1919 TPD 105
at 108:
‘
But
it would be interfering with the administration of justice when the
same act is done with the object of defeating a possible
order of
court, for the due and effective administration of justice demands
that acts with such an object should not be allowed
.’
Baker AJ (as he then was) said in
Consolidated Fish (Pty)
Ltd v Zive and Others
1968 (2) SA 517
C at 524G as follows:
‘
It seems logical to say
that where a respondent is accused of having done something in order
to prevent a possible future order
from being granted or, if granted
from having any effect, the applicant for his committal should have
to prove mala fides...’
[10] I am of the view that the
120 day period during which the respondents are entitled to comply
with their legal obligations
cannot be thwarted by an application
which precedes the completion of the 120 day period. It could not
have been the intention
of the legislature that an applicant through
his actions by instituting proceedings could deprive the respondents
of the right
to detain the applicant for a period of 120 days in
order to deport him. Indeed, in
Koyabe
and Others v Minister of Home Affairs and Others
2010 (4) SA 327
(CC) at para [50] it was said:
‘
The
Immigration Act has
as its objective the important task of regulating the admission of
foreigner nationals to, their residence in, and their departure
from
South Africa.’
The respondents are tasked to
perform the functions under the
Immigration Act. If
the applicant is
the cause that the respondents are prevented from deporting him
lawfully within the period of 120 days, by launching
an application
prior to the expiration of the period of 120 days, during which a
foreigner may be lawfully detained, one must regard
the period during
which the proceedings are brought by such a foreigner as having
suspended the running of the period of 120 days.
In this matter the
application was launched and served 7 days prior to the expiration of
the 120 day period. The respondents should
have that period of time
after the completion of these proceedings to take steps to deport the
applicant if they so wish, as they
were prevented from doing so
during the time when this application was pending. This conclusion
is based on the view that a party
who is the cause of another’s
inability to exercise his or her rights, could not be heard to say
that the other party has
lost that right. It is akin to the
principle referred to in
MacDuff
and Co Ltd (In Liquidation) v Johannesburg Consolidated Investment Co
Ltd
1924 AD 57
–
a person who prevented the fulfilment of a condition, is deemed to
have allowed such a condition to be fulfilled. In the
instant matter
that would mean that the condition (the 120 day period) will only be
fulfilled after the expiry of 120 days excluding
the period during
which the respondents were prevented from performing their duties
i.e. from the date of service of the application
to its finalisation.
It is also based on the same principle often applied when a party is
prevented from taking steps, that the
period during which it is so
prevented from taking steps is excluded from the calculation of any
period during which that party
should have taken steps - the rule
lex
cogit ad impossibilia
is
applicable. See
Montsisi
v Minister van Polisie
1984 (1) SA 619
(A) at 635A-636E:
‘
Ek
het tot die gevolgtrekking gekom dat wel so bevind kan word, en wel
in die lig van die algemene oorwegings wat die spreuk
lex
non cogit ad impossibilia
ten grondslag lê (
D
50.17.185:
impossibilium
nulla obligatio est
)
en wat inhou dat iemand se versuim om 'n verpligting na te kom
wanneer dit vir hom onmoontlik was om dit na te kom, hom nie tot
sy
nadeel toegereken word nie. Die toepassing van die beginsel is
welbekend in die kontraktereg in die geval van kontrakte waar
prestasie deur 'n party deur oormag onmoontlik gemaak word. Kyk bv
Peters,
Flamman and Co v Kokstad Municipality
1919 AD 427
, waar hierdie Hof (
per
SOLOMON WN AR) onder meer gesê het (op B 435):
"...
the authorities are clear that if a person is prevented from
performing his contract by
vis
major
or
casus
fortuitus..
.
he is discharged from liability".
Dieselfde
beginsel geld in ons erfreg in die geval van onmoontlike voorwaardes
in testamente: kyk bv
D
35.1.6.1;
Voet
28.7.9.16; Corbett ea
The
Law of Succession in South Africa
op 115, 118; Lee en Honoré
Family,
Things and Succession
2de uitg op para 633. Wat die deliktereg betref, het mnr
Mahomed
ons verwys na
Hay
v The Divisional Council of King William's Town
1 EDC 97
waar - op grond van Engelse beslissings - beslis is dat die
Afdelingsraad, wat 'n sekere pad nie herstel het nie, die verweer kon
opwerp dat hy deur oorlogstoestande verhinder was om die nodige werk
te doen, en dat dit 'n geval van
lex
non cogit ad impossibilia
was. Die beginsel wat die spreuk ten grondslag lê, word in ons
reg ook in die strafreg erken en toegepas. Ek verwys in hierdie
verband na die beslissing van hierdie Hof in
R
v Hargovan and Another
1948
(1) SA 764
(A)
. In hierdie geval is die beskuldigdes daaraan
skuldig bevind dat hulle 'n opdrag wat kragtens 'n oorlogsregulasie
aan hulle gegee
is, nie nagekom het nie. Dit het geblyk dat hulle
daardie opdrag nie kon uitgevoer het sonder om 'n vroeëre opdrag
wat kragtens
'n ander regulasie aan hulle gegee is, te negeer nie.
GREENBERG AR het onder meer gesê (op 769 - 770):
"If
under reg 5 (1)
(a)
any person is required by the Controller to deliver to him a
consignment of any commodity in regard to which the Controller has
power under reg 5 to make such an order, then, in my opinion, the
person to whom the order is directed would not be bound by a
later
order made by the Secretary as long as the Controller's order is
still in force. I think that the maxim
lex
non cogit ad impossibilia
would apply. (See
Baily
v De Crespigny
LR 4 QB 180
;
Peters,
Flamman & Co v Kokstad Municipality
1919 AD 427
;
MacDuff
& Co Ltd v Johannesburg Consolidated Investment Co Ltd
1924 AD 573
at 600; Broom
Legal
Maxims
9th ed at 171 - 3.) The cases on the point, in the main at any rate,
deal with civil and not criminal obligations but I see no
difference
in principle between the two cases, and in
Halsbury
(vol 31 2nd ed at
s 753)
it is stated generally that the performance
of a statutory obligation is excused if it is rendered impossible by
the operation
of a subsequently enacted statute."
(Kyk ook
die bespreking van onmoontlikheid as 'n regverdigingsgrond in die
strafreg in De Wet en Swanepoel Strafreg 3de uitg op
90 - 91; Snyman
Strafreg
op 102 - 104.)
Mnr
Roos
,
namens die respondent, het betoog dat in die Romeins-Hollandse reg
die beginsel wat in die spreuk
lex
non cogit ad impossibilia
opgesluit is tot onmoontlikheid van prestasie in die geval van
kontrakte beperk is en dat, wat die beslissing in die
Hargovan-
saak betref, GREENBERG AR se beroep op twee sake wat om die
kontraktereg gaan (nl
Peters,
Flamman & Co v Kokstad Municipality (supra
)
en
MacDuff
& Co Ltd v Johannesburg Consolidated Investments Co Ltd
1924 AD 573
op 600) as regverdiging vir die toepassing van die spreuk
in die strafreg, ongeregverdig was. Die beslissing toon dat GREENBERG
AR deeglik daarvan bewus was dat die twee sake waarna hy verwys het
met kontraktuele verpligtinge te doen gehad het, maar dat hy
van
mening was dat daar nie op grond van beginsel tussen verpligtinge in
die siviele reg en verpligtinge in die strafreg onderskei
kan word
nie. Hy het ook gesê, soos uit die aanhaling uit sy uitspraak
hierbo blyk, dat in die Engelse reg, volgens
Halsbury
,
"the performance of a statutory obligation is excused if it
is rendered impossible by the operation of a subsequently enacted
statute".
In die
lig van wat hierbo gesê is, kan daar nie bevind word dat die
spreuk
lex
non cogit ad impossibilia
net tot die kontraktereg beperk is nie, en ek is verder van mening
dat die toepassing van die spreuk op 'n geval soos die onderhawige
geregverdig sou wees. Dit sou die toepassing wees van 'n reël
wat reeds in ander afdelings van ons reg erken word, en daar
kan myns
insiens nie gesê word dat dit op grond van beginsel nie in 'n
geval soos die onderhawige moet geld nie.
Dit skyn
duidelik te wees dat in die Engelse reg die spreuk
lex
non cogit ad impossibilia
nie net tot sekere gebiede van die reg beperk is nie. In Craies
On
Statute Law
7de uitg op 268, word in die algemeen gesê:
"Under
certain circumstances compliance with the provisions of statutes
which prescribe how something is to be done will be
excused. Thus, in
accordance with the maxim of law
lex
non cogit ad impossibilia
,
if it appears that the performance of the formalities prescribed by a
statute has been rendered impossible by circumstances over
which the
persons interested E had no control, like an act of God or the King's
enemies, these circumstances will be taken as a
valid excuse."’
[11] Having regard to the
aforegoing, I am of the view that by virtue of the impossibility for
the respondents of continuing with
their duties to deport the
applicant on pain of being found to be in contempt of court, the
running of the 120 day period must
be regarded as having been
suspended from the date that the application was served on the
respondents until the finalisation of
these proceedings with the
result that the applicant’s continued detention was not
unlawful at the time when the application
was launched, nor would it
be for a period of 7 days after finalisation of these proceedings.
[12] In order to overcome the
120 day detention period difficulty counsel for the applicant argued
that the 90 day extension, which
was granted by the magistrate,
commenced on the date on which the extension was granted. Ms Manaka
argued that the total period,
which a foreigner may be detained is
120 days and that the respondents are obliged to apply for an
extension of time prior to the
initial 30 day period expiring and
that the 90 days’ extension only commences from the expiry of
the initial 30 day period.
I agree that the application for the
granting of an extension does not shorten the initial period of 30
days during which a foreigner
may be detained.
S 34(1)(d)
of the
Immigration Act reads
as follows:
‘
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 –
…
…
…
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 extend such detention for an
adequate period not exceeding 90 calendar days, …’
S 34(1)(d)
states that ‘
such
detention’
i.e.
the 30 days may be extended. The decision by the magistrate also
makes it clear that the magistrate confirmed the ‘
application
for the extended detention’
.
The extended detention is a period of 90 days which follows upon the
initial 30 day period. See the judgment of Meyer J in
Aruforse
v Minister of Home Affairs
2011 (SACR) 69 GSJ at paras [13] and [14] and the remarks of Malan J
in Arse v Minister of Home Affairs 2010 [3] All SA 261 at
para 9.
[13] Counsel for the applicant
also argued that the extension granted by the magistrate was
unlawful. The argument was based on
the allegation that the
magistrate did not have the necessary documentation before him when
granting the order. Counsel, however,
conceded that for this issue to
be properly raised it was necessary to join the magistrate whose
conduct is being attacked. Nevertheless
the magistrate recorded that
‘
after perusing
the documentation referred to above …’
.
The documents referred to are listed although not attached to the
respondents’ answering affidavit in this application.
I cannot
find that the documents were not attached to the application which
served before him and that the magistrate acted unlawfully.
[14] Having come to the
aforegoing conclusions the applicant has failed to show an
entitlement to a temporary refugee permit or
that his continued
detention is unlawful and the application is consequently dismissed
with costs.
_____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT: ADV DIKOLOMELA
INSTRUCTED BY: MZAMO ATTORNEYS
COUNSEL FOR THE RESPONDENTS: MS N
MANAKA
INSTRUCTED BY: STATE ATTORNEY
DATE OF HEARING: 16 FEBRUARY 2012
DATE OF JUDGMENT: 23 FEBRUARY
2012