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[2013] ZAGPJHC 141
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Ekene v Minister of Home Affairs and Another (2013/13550) [2013] ZAGPJHC 141 (13 June 2013)
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SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 2013/13550
DATE:13/06/2013
In the matter between:
CHUKUKWA
MAXWELL EKENE
….....................................................
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
JUDGMENT
RATSHIBVUMO AJ
:
Introduction
1. This matter, initially
brought as an urgent application was removed from the urgent roll and
postponed to the opposed roll, following
an order by Carelse J on 23
April 2013. The Applicant seeks relief in the following terms:-
An order 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 (“the
Immigration Act&rdquo
;);
An order interdicting
the first and the second Respondent from deporting the Applicant
pending his application for asylum in terms
of
section 22
of Act 130
of 1998 (“the Refugees Act”) until such application is
fully and finally determined including the right
of appeal and
review;
An order declaring the
detention of the Applicant to be unlawful;
An order directing the
Respondents to release the Applicant forthwith;
A cost order against the
Respondent.
The matter was argued on
the same day as the matter between Lukambo and the Minister of Home
Affairs and others (2013/13552). Counsel
appearing for the Applicant
and the Respondent in both cases were the same. The facts were
similar to a large extent and parties
were accordingly allowed to
refer to each of these cases when necessary, without repeating the
arguments contained herein.
Background
2. According to the
Applicant’s Founding Affidavit, he is a Nigerian national who
arrived in the Republic of South Africa
(South Africa) on 31 October
2011 as a visitor. He left South Africa on 22 November 2011 and came
back on 27 December 2011. Upon
his return to South Africa, he was
allegedly fleeing from attacks perpetrated by his fellow countryman
of the Islamic faith upon
those of Christian faith. He therefore
arrived in South Africa as an Asylum Seeker. He however did not
express any intention to
apply for asylum at that stage.
3. The Applicant avers
that he was taken to an agent known to him only as Mr. Otto(“the
agent”) who accompanied him
to the Department of Home Affairs
(“the Department”) administered by the First and the
Second Respondents. The agent
informed him that he would arrange a
life partner for him, whom he would register with the Department.
Fees were disbursed to the
agent and in return he presented him with
a receipt bearing the stamps of the Department. The said receipt was
attached to his
affidavit.
1
Attached to the Applicant’s Founding Affidavit is a document
allegedly presented to him by the agent, informing him of the
decision allegedly taken by the Department, rejecting his application
on the basis that he had provided a false address and a fraudulent
notarial contract. After the agent presented the latter document to
the Applicant, he had no further dealings with him.
4. The Applicant was
arrested on 22 March 2013 for being illegally in South Africa and was
detained at the Third Respondent’s
premises pending his
deportation to Nigeria. He now avers that his detention is unlawful
according to the Refugees Act, since he
was entitled to be released
from detention the moment he expressed his intention to apply for
asylum, pending a decision on such
application. The said intention to
apply for asylum was expressed in a letter dated 15 April 2013
directed to the First and Second
Respondents.
2
5. Mr. Nhlanhla
Buthelezi, an Immigration Officer of the Department alleges in an
Answering Affidavit, that upon his arrest the
Applicant was found in
possession of a fraudulent document (“permit”) as
foreshadowed in
sec 29
(f) of the
Immigration Act. It
is further
alleged that the Applicant insisted that the permit was not
fraudulent; hence he saw no need to apply for asylum. The
Applicant
had an opportunity to reply to these allegations in the Replying
Affidavit, but opted not to challenge this. It was further
averred in
the Answering Affidavit that the Applicant was informed of the
decision to deport him and his right of appeal thereto,
yet he opted
not to appeal the decision. Annexure NB1 was attached bearing the
Applicants signature to a form containing the same
explanation.
Issues for
determination
6. Issue 1:
Does
the fact that the Applicant chose not to appeal the decision to
deport him, preclude him from bringing this application?
Issue 2:
Can the
Applicant still express an intention to apply for asylum, more than a
year after his arrival in South Africa?
Issue 3:
The Court
is also called upon to make a finding on the impact of the
fraudulently issued permit found in possession of the Applicant,
as a
precursor to his very recent intention to apply for asylum. The
findings on these issues will by implication clarify the issue
whether the Applicant’s detention is unlawful and whether he is
entitled to apply for an Asylum Seeker’s permit.
7. It is opportune as a
point of departure to have reference to the statutory provisions that
the Applicant relies on, in his allegation
that his detention is
unlawful. Regulation 2(2) of the Refugees Act(“the Regulation)
provides,
“
(2) Any person who
entered the Republic and
is encountered in violation of the Aliens
Control Act
, who has not submitted an application pursuant to
sub-regulation 2 (1),
but indicates an intention to
apply for asylum shall be issued with an appropriate permit
valid
for 14 days within which they must approach a Refugee Reception
Office to complete an asylum application.” [
Own emphasis
]
8. The Supreme Court of
Appeal (“the SCA”) dealt with the interpretation of the
Regulation
supra
in the case of
Bula
and Others v Minister of Home Affairs and Others
3
as follows:-
“
The
word 'encountered' in reg 2(2) must be given its ordinary meaning,
which is
to
meet or come across unexpectedly.
The regulation does
not require an individual to
indicate an intention
to apply for asylum immediately he or she is encountered, nor should
it be interpreted as
meaning that when the person does not do so there and then he or
she is precluded from
doing so thereafter. The purpose of ss 2 is clearly to ensure that
where a foreign
national indicates an
intention to apply for asylum, the regulatory framework of the
R
efugees Act
kicks
in, ultimately to ensure that genuine asylum seekers are not turned
away. It is clear
that
the appellants, when they were detained at Lindela, communicated to
the
department's
officials and enforcement officers by the letter referred to earlier
in this
judgment
that they intended to apply for asylum. Once the appellants, through
their
attorneys,
indicated an intention to apply for asylum they became entitled to be
treated in
terms
of reg 2(2) and to be issued with an appropriate permit valid for 14
days, within
which
they were obliged to approach a refugee reception office to complete
an asylum
application.
”
9. In light of this
interpretation, it would mean there is no merit in the contention by
the Respondents in arguing that the Applicant
should have shown his
intention to apply for asylum the moment he entered South Africa. It
also appears that the intention shown
by the Applicant through a
letter sent through his attorneys would suffice to show his intention
to apply for asylum; analogous
to the position is
Bula
.
10.
In refusing the Applicant an order directing the Minister of Home
Affairs to issue him with an asylum seeker permit, the Court
as per
Epstein AJ
4
reached the conclusion that a foreigner in detention at Lindela
cannot claim he was being encountered and as a result, the expression
of the intention to apply for asylum could only be shown by a
foreigner upon entry into South Africa, not at Lindela, since Lindela
was not the Refugees Reception Office. This view was found to be
wrong by the SCA
5
.
In accordance with the decision of
Bula
from
the SCA, it follows in the context of the matter at hand, that once
the provisions of Regulation 2(2) of the Refugees Act kicks
in, the
arguments advanced by the Respondents on Issue 1 and 2
supra
cannot
be sustained.
11. The last issue is the
impact of being in possession of the fraudulently issued permit. Mr.
Buthelezi of the Department in his
Answering Affidavit avers that if
the Applicant is permitted to rely on the Refugees Act under the
circumstances, it would render
section 29(f)
of the
Immigration Act
nugatory
. It is opportune in the circumstances to visit the said
statutory provision which provides as follows:-
“
(29)(1) The
following foreigners are prohibited persons and do not qualify for a
visa, admission into the Republic, a temporary
or a permanent
residence permit:
…
( f ) anyone
found in possession of a fraudulent residence permit, passport or
identification document.
(2) The
Director-General may, for good cause, declare a person referred to in
subsection (1) not to be a prohibited person.”
12. My understanding of
section 29
of the
Immigration Act is
that once a person is found in
possession of any of documents of the genus stipulated in the
Immigration Act, analogous
to the fraudulent residence permit in this
matter, he automatically
sine
lege
becomes a prohibited person and would not qualify for a visa,
admission into the Republic, a temporary or permanent residence
permit. At face value it means that the said person would be in
violation of the
Immigration Act if
he is found in South Africa. The
two pieces of legislation provide a conundrum in that the same
persons that Regulation 2 (2) of
the Refugees Act refers to when its
states,
6
“
any
person who entered the Republic and
is
encountered in violation of the Aliens Control Act
7
…”
are the persons section 29(f) envisages.
13. To elaborate on the
conundrum caused by the Immigration and Refugee Acts, the Refugees
Act identifies and lists those who would
not qualify for Refugee
status. Ironically being in possession of a fraudulently issued
permit is not one of them. Section 4 of
the Refugees Act provides,
(1) A person
does not qualify for refugee status for the purposes of this Act if
there is reason to believe that he or
she—
(a) has committed a crime
against peace, a war crime or a crime against humanity, as defined in
any international legal instrument
dealing with any such crimes; or
(b) has committed a crime
which is not of a political nature and which, if committed in the
Republic, would be punishable by imprisonment;
or
(c) has been guilty of
acts contrary to the objects and principles of the United Nations
Organisation or the Organisation of African
Unity; or
(d) enjoys the protection
of any other country in which he or she has taken residence.
14. The Applicant could
fall into the category of persons listed in section 4(1) (b) of the
Refugees Act, if the Department had
laid charges of Fraud or any
other related offence against the Applicant in respect of the
possession of the fraudulently issued
permit. In the event of a
sentence of imprisonment as envisaged by section 4(1)(b) of the
Refugees Act, the Applicant could be
disqualified from applying for
asylum. However, the Applicant has to date not been charged as
aforesaid and this Court is therefore
not enjoined to speculate on
the prospects or otherwise of this issue or the intentions of the
Department in this regard.
15. Having noted what I
have said in the preceding paragraph, I am also mindful of the
sentiments expressed in
Shabangu
v Minister of Home Affairs and Others
8
where the Applicant had been convicted of fraud and was sentenced to
direct imprisonment. Notwithstanding his conviction, the Court
granted the relief sought for
Shabangu’s
release from unlawful detention. In a similar vein in
Zaheer
Iqbal v Minister of Home Affairs
and Others
9
,
the Court was conscious of the fact that the Applicant was involved
in a marriage of convenience with a South African so he could
get
South African citizenship. That ground was not enough to deny him the
relief sought, for his release from detention and for
an order
directing the Minister of Home Affairs to issue him with an asylum
seekers permit. Iqbal’s application however,
fell to be
dismissed as it was not his first expression of an intention to apply
for asylum as required by Regulation 2(2) of the
Refugees Act. There
is accordingly no basis for the argument advanced on Issue 3 that if
the Applicant is permitted to rely on
the Refugees Act that it would
render
section 29(f)
of the
Immigration Act nugatory
.
16. I am accordingly
satisfied that the Applicant whilst having been encountered in
violation of the
Immigration Act
, he has indicated his intention to
apply for asylum as envisaged in Regulation 2(2) of the Refugees Act.
17. For the reasons
stated above, I make the following order:-
Subject
to the
Applicant
approaching a
R
efugee
R
eception
O
ffice
as contemplated in para
graph
D
below, the
F
irst
and
S
econd
Respondent
s are
interdicted from deporting the
Applicant
unless and until
his
status under the
Refugees Act, 130 of 1998
, has been lawfully and
finally determined.
It
is declared that the detention of the
Applicant
is unlawful.
The
Respondent
s are
directed to release the
Applicant
forthwith.
It
is declared that, in terms of
R
eg
ulation
2(2) of the Refugee Regulations, the
Applicant
is
entitled to remain lawfully in the
Republic of South Africa for a period of 14 days, in order to
allow
him
to approach a
R
efugee
R
eception
O
ffice.
The
F
irst and the
S
econd
Respondents
are
directed, upon submission by the
Applicant
of
his
asylum application, to accept the
Applicant'
s
asylum application and to
issue
him
with
a
temporary asylum seeker
s
permit in accordance with
s 22
of the
Refugees Act, pending
finalization of
his
claim, including the exhaustion of
his
rights of review or appeal in
terms of
ch
apter
4 of the
Refugees Act and
the
Promotion of Administrative Justice Act 3 of
2000.
The
F
irst and
S
econd
Respondent
s are
ordered
to pay the costs of
this
application
.
__________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE
HIGH COURT
Date Heard: 22 May
2013
Judgment
Delivered: 13 June 2013
For the
Applicant: Adv. S Mkata
Instructed
by: Mkata Attorneys
Johannesburg
For the
Respondent: Adv. M Gumbi
Instructed
by: State Attorneys
Johannesburg
1
See Annexure C2.
2
See Annexure C4
3
2012 (4) 560 (SCA) at paragraph 72.
4
See
Shabangu v
Minister of Home Affairs & others
[2011] JOL 27199
(GSJ) paragraph 30
5
See
Bula and Others v Minister of Home Affairs and Others
2012 (4) 560 (SCA) at paragraph 72
6
See paragraph 7 above.
7
Aliens Control Act has been repealed by the
Immigration Act.
8
Supra
9
(39302/10) [2013] ZAGPJHC 5; (21 January 2013)