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[2013] ZAGPJHC 142
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Lukombo v Minister of Home Affairs and Others (2013/13552) [2013] ZAGPJHC 142 (13 June 2013)
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:
2013/13552
DATE:13/06/2013
In the matter between:
MANKULA LUKOMBO
….................................................................................
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
);
An order interdicting the First and
the Second Respondents 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;
And costs order against the
Respondent.
This case was argued on the same day
as the matter between Ekene and the Minister of Home Affairs and
Others (case no. 2013/13550).
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
affidavit in support of this application, he arrived in the Republic
of South Africa (South
Africa) in December 2008, fleeing persecution
by the Government Army of the Democratic Republic of Congo (DRC). He
belonged to
a political party that was fighting against the
Government of the DRC. Upon his arrival in South Africa, he applied
for an asylum
seekers permit with the officials of the First and the
Second Respondents (“the Department”) which was duly
issued.
The permit was, however, issued in the name of Samuel Papi
(his father’s name) pursuant to a misrepresentation he made to
the Department as to his true identity. When the permit expired after
two weeks, he made a further misrepresentation as to his
true
identity and was issued with a new permit in the name of Ardy Mukula.
It was only on the third occasion when the second permit
also
expired, that he expressed the intention to apply for a permit using
his name as reflected in the Notice of Motion. The officials
at the
Department brought it to his attention that he had committed the
crime of Fraud. They verbalised their intention to arrest
and even
deport him. The Applicant fled and vanished into the general
population of South Africa, until he was arrested on 05 March
2013 by
officials of the Department. He was taken to the facility of the
Third Respondent where he was detained pending his deportation
to his
country of origin.
3. The Applicant 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 an
intention to apply for asylum, pending the decision on his
application. The said intention
to apply for asylum was expressed in
a letter dated 15 April 2013 directed to the first and the second
Respondents.
1
4. Mr. Nhlanhla Buthelezi, an
Immigration Officer of the First and Second Respondent 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 persisted that the permit was not fraudulent hence there
was no need for him to apply for
asylum. The Applicant had the
opportunity to reply to these allegations in the Replying Affidavit,
yet he opted not to challenge
this. It was further averred in the
same Answering Affidavit that the Applicant was informed of the
decision to deport him and
the right he had to appeal, and he chose
not to appeal. Annexure NB1 was also attached bearing the Applicants
signature to a form
containing the same explanation. The Applicant
disputed this in his Replying Affidavit averring that he is not well
conversant
in English.
5. 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 of the Refugees Act(“the Regulation)
provides,
“
(1) An application
for asylum in terms of section 21 of the Act—
(a) must be lodged by the Applicant in
person at a designated Refugee Reception Office without delay;
(b) must be in the form and contain
substantially the information prescribed in Annexure 1 to these
Regulations; and
(c) must be completed in duplicate.
(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]
6. The Supreme Court of Appeal (the
SCA) held that once a foreigner who is encountered expresses the
intention to apply for an asylum,
regulation 2 (2) entitles him to be
issued with a 14 day permit and to be released immediately.
2
There is therefore no need for the Applicant to show his intention to
apply for an asylum upon arrival in South Africa. The expression
of
that intention by the Applicants while in custody was found to be
sufficient.
3
The reason the SCA took that position is that the Applicants
in
Bula
had
not lodged an application within the terms set out in reg
2(1)
(a)
.
Issues to be determined
7. Issue 1:
Whether the detention of the Applicant is unlawful in view of him
having expressed the intention to apply for asylum;
Issue 2:
The impact of the alleged prior application/s for asylum by the
Applicant.
The second issue is
central to the Court’s finding on the first, in light of the
approach adopted in
Bula
to the effect that the Applicants were entitled to the relief they
sought as they had not lodged any prior applications within
the terms
set out in regulation 2(1)(a). Mindful of the requirement in
regulation 2 (2) of the Refugees Act, Counsel for the Applicant
argued that “[I]t is Applicant’s contention that absent
is documentary proof by the Respondents that the Applicant
had
previously applied for asylum, he is entitled to be given a chance to
do so.”
8. This contention negates and
contradicts what the Applicant averred in his Founding Affidavit. To
highlights this it is opportune
to have regard to his earlier claims
as contained in his Founding Affidavit,
4
“
I am advised that until my
application for asylum has been finalised, I have the right to
sojourn in the Republic, I am advised
that this means the right to
move about freely in the Republic outside of detention. I am advised
further that the only exception
to this, and the only basis on which
an asylum seeker may be detained under the Refugees Act is in terms
of section 23, which provides
that where an asylum seeker permit has
been withdrawn in terms of section 22 (6) of the Refugees Act, the
Minister may cause the
asylum seeker to be detained pending the
finalisation of his or her claim. I have never been issued with an
asylum seeker permit
with my correct names and have thus never had an
asylum seeker permit withdrawn except maybe on the names when I was
wrongly advised.”
9. The Applicant in the same affidavit
avers that when he arrived in South Africa in December 2008, he
applied for asylum and was
issued with the asylum seekers permits on
two different occasions before fleeing, when confronted with
allegations of fraud.
5
Notwithstanding his claims on oath in his Founding Affidavit, the
Applicant opportunistically distances himself from the asylum
seekers
permits that were issued to him on the basis that he had furnished
wrong names to the officials of the Department and as
a result, the
permits were in the wrong names or rather not in his current names.
He justifies this contention on an allegation
that it was on the
advice by a person or persons working at the same offices that he
furnished wrong names. For that reason, he
believes he did not commit
fraud.
10. I do not see how the Applicant
can genuinely argue that what he did was not fraudulent while he
admits that he gave different
names. The fact that in giving the said
wrong names, he was acting on the advice of somebody else does not
absolve him from what
he did. He, on his own contradictory versions,
was more than prepared to collude with such person or persons and not
follow the
virtuous path.
11. Equally, the asylum seekers
permits that were issued to him, irrespective of the names given when
he applied, remain issued
to “him” because if he is
removed, there would not be a recipient of such actions other than
him. If the Applicant’s
argument was to be accepted, there
would be a void as to whom the permits were issued to, as it is clear
that he was the recipient
of such permits. If the contention by the
Applicant was to be accepted, it could have far reaching
consequences. By way of exposition
and comparison, the Applicant has
approached this Court under the name Mankula Lukombo. In the absence
of any authentic documentation
from his country of origin, the Court
can only take his word that he is the person he alleges he is, but it
may turn out that he
is not the person he alleges he is, as when he
applied for asylum on the first two occasions under false names. In
the event that
his application is unsuccessful under the current name
in this application, would he be entitled to launch another
application
using different names? It is the Applicant who has chosen
the names he used for this application and the names in his prior
applications
to the Department. He cannot blame his attorneys for the
decision he finally makes even when the attorneys may have advised
him
to act in a particular manner.
12. Even if the Applicant’s
contention was to be accepted, he had an opportunity to clear himself
when fraud allegations were
made against him. Instead of standing up
to what he believes to clear himself, he ran away and evaded due
process of law. It is
only after his arrest, that he has seemingly on
advice of his legal representatives revived his desire to apply for
an asylum seekers
permit, after being on the run and sojourning in
South Africa illegally again since December 2008 albeit under the
different names
to the ones he uses for purposes of this application.
13. It is accordingly the finding of
this Court that the Applicant had indeed applied for an asylum as
provided for in Regulation
2(1) of the Refugees Act, on two prior
occasions using different names to his current identity.
14. In Iqbal v The Minister of Home
Affairs and Others,
6
Spilg J distinguished the matter where the Applicant had an
opportunity to apply for asylum from the Bula case when he stated,
“
I
am also satisfied that as this case does not fall within the
Bula
type
situation as
explained in
Ersumo
at
para 19, because the court is not
dealing
with “
a first encounter by an
immigration officer with an illegal
foreigner
who has not made application for asylum
.
”
7
[Own emphasis]. I am of the view that the matter at hand is equally
distinguishable from
Bula
for the same reasons.
15. I according find that the
Applicant on Issues 1 and 2 was unsuccessful in showing that when his
attorneys wrote a letter to
the First and the Second Respondents, he
had not applied for asylum before. The Applicant has failed to show
that the two asylum
seekers permits issued when he applied for them
were not issued to him, but to another person or persons. The
Applicant when confronted
about the two prior fraudulent applications
failed to exhaust the internal remedies regarding the said
applications when he opted
to flee instead of appealing the non-issue
or non-renewal of the same.
16. For the reasons stated above, I
make the following order
1. The application is dismissed with
costs.
_____
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 ML2
2
Bula and Others v Minister of Home Affairs and
Others
2012 (4) 560 (SCA)
3
See
Bula and Others
v Minister of Home Affairs and Others
supra
at
paragraph 72.
4
See paragraphs 46-48 of the Founding Affidavit.
5
See paragraphs 25 -29 of the Founding Affidavit.
6
[2013] 2 All SA 455
(GSJ).
7
At paragraph 65.