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[2013] ZAGPJHC 146
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Power v Minister of Home Affairs and Others (2013/14516) [2013] ZAGPJHC 146 (13 June 2013)
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 2013/14516
DATE:13/06/2013
In the matter between:
MLICHENE POWER
….....................................................
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. On 25 April 2013, Mr. Mlichene
Power (“the Applicant”) moved an urgent application
seeking an order in the following
terms:
Condoning Applicant’s
non-compliance with the rules relating to service and time periods
and dealing with this matter as
one of urgency in terms of Rule 6
(12) of the Uniform Rules of Court;
An order declaring his continued
detention unlawful;
An order directing the Respondents to
issue the Applicant with a temporary asylum seeker permit in
accordance with section 22
of the Refugees Act 130 of 1998 (“the
Refugees Act&rdquo
;);
An order directing the Respondents to
release him immediately and
Costs order against the Respondent.
The matter was postponed on 02 May
2013 to 14 May 2013 to allow the Respondents to file Answering
Affidavits by 07 May 2013 and
for the Applicant to file his Replying
Affidavit by 09 May 2013 by Mabesele J. The Court also ordered that
the Applicant should
not be deported pending the finalisation of this
application.
Background
2. For reasons that will become
clearer later, it is necessary to give the background of the case as
narrated by the Applicant separately
from that presented by the
Respondent. The Applicant is an Ethiopian national. In his Founding
Affidavit he claims to have arrived
in the Republic of South Africa
(South Africa) in January 2011 running away from political
persecution in his country of origin.
His intention was to apply for
asylum, which he eventually did but it expired. He made two trips to
the offices of the Department
of Home Affairs in order to renew it,
but was turned back without assistance. It was on his third visit
there (in December 2012)
that he was arrested and detained at a
police station for a number of days. He was handed over to the
Respondents on 21 December
2012. By the time he moved this
application he had been in custody for over 4 months and the
Respondents furnished him no reasons
for his detention. He also
alleges that he was taken by the Respondents to the Ethiopian Embassy
for identification and for travelling
documents, with a view to have
him deported.
3. In an Answering Affidavit deposed
for the First and Second Respondents, Mr. Buthelezi, an Immigration
Officer of the Department
of Home Affairs disputes much of the
Applicant’s allegations. According to him, the Applicant was
arrested on 20 December
2012 and was served with the Notification of
Deportation as per Annexure “NB1”. In it, it appears that
the Applicant
was informed of the right to appeal the decision to
deport him and he chose not to do so. Contrary to the Applicant’s
averments
that he arrived in the Republic in January 2011, Mr.
Buthelezi alleges that the Applicant was convicted of a crime of
Armed Robbery
in 1998 under a different name. As for the lengthy
detention of the Applicant, Mr. Buthelezi blames this on the
Applicant not being
positively identified by the officers from the
Ethiopian embassy, owing to him using different names.
Attached
to the Respondents’
Answering
Affidavit marked Annexure “
NB2
”
is a document issued by the Department of Justice
and Constitutional
Development dated
26
August 2002
containing details of the
person sentenced therein in 1998
.
4. The information extracted from
Annexure “NB2” indicates that a person named CHARLES
MUCHENE, then aged 34 and South
African born was convicted of 8
criminal offences. Unfortunately, the details of the charges and the
sentences imposed are referred
to annexures which were not attached
to the Respondent’s affidavit. What is, however, clear is that
the case was opened at
John Vorster Square (the current Johannesburg
Central Police Station) under CAS: 1486/05/1997; that the crimes were
committed on
17 May 1997; that he was convicted and sentenced on 27
March 1998 and that on 30 May 2005 he was given a 6 months special
remission
to the sentence. Whatever sentence was imposed, it is clear
that it was a lengthy prison sentence which he served. It is not
clear
as to the date he was released and if there were conditions
attached thereto.
5. In his Replying Affidavit, the
Applicant contends that he signed Annexure “NB1” because
he was asked to, but he did
not understand the contents thereof. He
believed that he exhausted all the internal remedies before bringing
this application.
He further admits that he is the person who was
arrested and sentenced for armed robbery as alleged by the
Respondents.
Issues
7. Two issues raised by the Applicant
have to be determined independent of each other.
Issue 1: Whether the Applicant is a
refugee entitled to an asylum seeker permit.
Issue 2: Whether the period the
Applicant has been in detention is permissible for purposes of
deportation in terms of the Immigration
Act 13 of 2002 (“the
Immigration Act&rdquo
;).
7. It was submitted on the Applicant’s
behalf that once he voiced the intention to apply for asylum, he is
entitled to be
released in terms of the
Refugees Act. Counsel
placed
heavy reliance on the matters of Bula and Others v Minister of Home
Affairs and Others
1
and Arse v Minister of Home Affairs and Others
2
in support of this contention. In my view, the facts in Bula and Arse
are readily distinguishable from the present case.
It is opportune to pause for a moment
to revisit the decisions alluded to. The ratio in Bula was arrived at
by the Supreme Court
of Appeal (the SCA) pursuant to the provisions
of the
Refugees Act. Regulation
2(2) of the
Refugees Act provides
:
“
2(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
subregulation 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.
”
8. The SCA found in Bula that
“
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
.”
3
With this in mind
it is noteworthy that none of the Applicants in
Bula
had a record of previous convictions, either in South Africa or from
their Country of origin, as distinct from this matter.
9. Lastly, the
circumstances making the Applicants in
Bula
refugees who sought asylum in South Africa were laid bare to the
Court. They fled from State persecution flowing from their support
of
the opposition party. The details including the name
s
of the party, their movements and detailed dates were well documented
before the Court. None of their averments (regarding the
reason they
fled from their country of origin) could be countered.
4
10. In contradistinction, the
Applicant in this matter chose not to disclose anything as to why he
needed asylum in South Africa.
What he states in his affidavit is
that he arrived in South Africa in January 2011. He states in vacuum
that he was running away
from political persecution in his country.
He states that he was issued with an asylum seeker permit which
expired. He gives no
details as to when or where he applied for it,
when and where it was given and when it expired. In light of the
concessions made
by the Applicant in his Replying Affidavit, we now
know that he was economic with the truth when he said he arrived in
South Africa
in 2011, since he was here in 1997 already. Without
giving any clarity about which part of his Founding Affidavit was
incorrect
and which one (if any) was true, the Applicant simply
admits to the conviction and states nothing further. He does not
explain
how he was convicted in South Africa before his arrival. It
remains unknown if he indeed applied and was issued with the permit
since no dates where given for the Respondents to verify.
11. Further to this there is no
allegation by the Applicant suggesting that when he was detained at
Lindela, he voiced the intention
to apply for asylum. All he alleges
is that he asked to be released so he could legalise his stay in the
country. For the stated
reasons, the circumstances of the Applicant
are not similar to those raised in Bula.
12. Even if the Applicant was to
apply for an asylum in South Africa, he would not lawfully qualify
for same in view of the provisions
of the
Refugees Act. Section
4 (1)
(b) of the
Refugees Act provides
,
“
Exclusion
from refugee status.—(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—
(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
…”
It is common cause that the Applicant
was convicted of crimes of inter alia, armed robbery in South Africa
and served a term of
incarceration.
13. Counsel for the Applicant argues
that although the Applicant was convicted as such, it does not follow
that through the conviction
and sentence, he is automatically
disqualified from being a refugee. He contended that one would have
to be declared an “undesirable
person” by the Director
General of the Department of Home Affairs in accordance with
section
30
(1) of the
Immigration Act. The
said declaration did not take
place in respect of the Applicant and the Applicant, so it was
submitted, was entitled to have his
day of declaration if it would
happen, after which he may appeal against such declaration.
Section
30
of the
Immigration Act provides
,
30. Undesirable
persons.—(1) The following foreigners
may be
declared undesirable by the
Director-General, as prescribed, and
after
such declaration, do not qualify for a visa, admission into the
Republic, a temporary or a permanent residence
permit
:
…
(g) anyone with
previous criminal convictions without the option of a fine for
conduct which
would
be an offence in the Republic, with the exclusion of certain
prescribed offences
…
(2) Upon
application by the affected person, the Minister may for good cause
waive any of the grounds of undesirability.
[Own emphasis]
14. In the matter of Mateku v
Minister of Home Affairs and Others,
5
Makume J held that “
When the Applicant’s
term of imprisonment expired he was transferred
to
Lindela with the sole intention to deporting because he had
automatically
been declared an
undesirable alien
..
.
That declaration of judicial incompetence
(being
unfit to possess a firearm)
and the
imprisonment having
ensued it was not
necessary for the Director
(General)
to
issue a separate declaration.
The
declaration was automatic and followed upon the conviction
.”
6
15. It is my respectful view that the
declaration of any person as being undesirable in accordance with
section 30
of the
Immigration Act has
nothing to do with the
application for asylum or the
Refugees Act. The
whole purpose of the
declaration in
section 30(1)
is that, as
section 30(1)
provides
“…
after such declaration,
[the
persons]
do not qualify for a visa,
admission into the
Republic, a temporary or
a permanent residence permit
.” It
follows that it is only when the Director General of the Department
of Home Affairs wishes to have a convicted person
precluded from
qualifying for
a visa, admission into the
Republic, a temporary or a permanent residence
permit
, that he would make such a
declaration. The process of applying for asylum by a refugee is a
different process
sui generis
not referred to in
section 30.
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16. Equally, I do not find any ground
for the argument that when the Act disqualifies certain persons as
being “excluded from
refugees’ status,” it should
still be considered if they qualify. I would agree with these
sentiments if there was
a dispute on whether the Applicant was
convicted as provided for in
section 4
(1) (b) of the
Refugees Act,
for
one would need to have his day for such a determination to be
made. Once a determination is made to the effect that the Applicant
was convicted, or that there is no dispute on that fact; the
Department and its officers have no discretion to qualify a
disqualified
person. There is however, a discretion afforded the
Minister to waive any of the grounds of undesirability, when dealing
with those
declared undesirable. From this exposition by the Court,
the Applicant is prima facie disqualified from refugees’ status
by virtue of his convictions and sentence.
Unlawful detention
17. It was submitted for the
Applicant that the detention beyond the statutory limit was unlawful.
There is nothing on papers before
me to suggest that the Applicant
was issued with a permit and that his detention may have been due to
a withdrawal of the same
by the First respondent in terms of
sections
23
and
29
of the
Refugees Act. In
fact, Annexure “NB1”
shows that the detention of the Applicant was in accordance with the
provisions of
section 34
of the
Immigration Act. Section
34 (1) (d)
of the
Immigration Act provides
,
“
Deportation
and detention of illegal
foreigners.—(1) 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—
(d)
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
.”
18. It appears to be common cause
that the Applicant was detained for 4 months without any detention
warrant signed by the Court
as stipulated in
section 34
of the
Immigration Act. Without
such detention warrant, the maximum the
Respondents would be entitled to detain the Applicant would be 30
days. The Respondents
contend in the Answering Affidavit that the
Applicant’s detention for longer than is permissible was
because he could not
be positively identified by the officials from
the Ethiopian Embassy, owing to the Applicant using a different name
at the time
of such identification.
19. In his Replying Affidavit the
Applicant contends that the name that he used at Lindela is the name
that is used when the Ethiopian
Embassy issue the Emergency Travel
Certificate (ETC). He further states ‘the issue of multiple
identities is not sufficient
ground to deport me.’ While
Annexure “NB2” confirms that the Applicant has another
name than the one he used
for purposes of this application, he seems
to concede in the statement quoted above that he has multiple
identities. But he fails
to indicate which one is the said name that
he used at Lindela which he claims is the name the embassy would use
for issuing him
with the ETC. It appears that there is merit in the
contention that the Applicant is the author of his misfortunes. The
question
is whether that justifies the detention of the Applicant.
20. In Arse v Minister of Home
Affairs and Others
7
the SCA held that once a person established that he had been
detained, the detaining authority had the burden to justify the
detention.
The detention of the Applicant would be unlawful even if
the
Refugees Act was
to be used as a basis for his detention, since
the Applicant was detained for longer than 30 days without a review
of his detention
by a High Court.
8
Counsel for the Respondent submitted that if the Court orders the
release of the Applicant, it could be the last they ever see
him
because he has multiple identities. It seems likely that the
Respondents may find it difficult to trace the Applicant judging
by
the period he has been in the Country and the difficulty in
identifying him by his own embassy officials. But such does not
justify the blatant ignorance of the statutory provisions which
started when the Applicant was detained for longer than 30 days
without any attempt to have the detention of the Applicant confirmed
by the Court. Given the background of the Applicant having
multiple
names and the difficulty in identifying him, I have no doubt that the
Court would have authorised such further detention,
up to the
required maximum statutory limit.
21. A detained
person has an absolute right (which belongs to both citizens and
foreigners) not to be deprived of his freedom for
one second longer
than permissible by law by an official who cannot justify such
detention.
9
Chapter 2 of the Constitution
10
:
The Bill Of Rights provides in section 7 that, Rights-
7.1 This Bill Of Rights is a
cornerstone of democracy in South Africa. It enshrines the rights all
people(my emphasis) on our country
and affirms the democratic values
of human dignity, equality and freedom.
7.2 The state must respect, protect,
promote and fulfil the rights in the Bill of Rights.
7.3 The rights in the Bill of Rights
are subject to the limitations contained or referred to in section
36, or elsewhere in the
Bill.
(Section 36 of the Bill:Limitation of
Rights provides:
36.1 the rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the realition between the
limitation and its purpose, and
(e) less restrictive means to achieve
the purpose.
36.2 Except as provided in seubsection
(1) or in any other provision of the Constitution, no law may limit
any right entrenced in
the Bill of Rights.
22. The To this
end, s
ection 35(2)(d) of the Constitution
entitles any person who is detained to challenge his or
her
detention before a Court and, if the detention is unlawful, 'to be
released
.
'
”
11
While it appears that the Respondent had a
clear right to deport the Applicant, failure to respect and uphold
the laws of the Country
cannot be condoned by the Courts.
12
23. The SCA held
that “
[a]
Court,
generally, cannot impose conditions
for the release of a person unlawfully detained.
Any
decision that allows further detention of the Applicant would be
furthering the unlawful detention by the Respondents. While
it could
be true that once released, the Respondents may not be able to trace
the Applicant, it can be said of the Respondents
that they would be
the authors of such misfortunes in that while the mechanism was there
through which the detention could be made
lawful, they decided to
turn a blind eye to it. In a criminal matter, by way of analogy, even
if a person has committed serious
crimes, Courts will notwithstanding
the seriousness of the charges he faces, order the release of the
detainee if his detention
is longer than 48 hours.
13
In the matter at hand the detention has exceeded the threshold of
both the
Immigration Act and
Refugee Act, without any basis for the
limitation of the constitutionally entrenched rights of the Applicant
in sections 9(1) and
34 of the Constitution, notwithstanding his
mala
fides
.
24. In the result, the Applicant was
unsuccessful in showing that he is an asylum seeker or that he
qualifies to be a refugee. The
Respondents were as such within their
right to deport him. He was, however, successful in showing that his
detention is unlawful.
Costs
25. It is clear from the above that
the Applicant did not make a full disclosure when he brought this
application on urgent basis.
He misconstrued the truth about the date
he arrived in South Africa. While there is partial success in his
application, the Court
is of the view that it should express its
displeasure by not awarding him the costs that otherwise he would be
entitled to.
14
26. For the reasons stated above, I
make the following order:-
1. The Applicant’s detention is
declared to be unlawful.
2. The Applicant is to be released
forthwith.
3. There is no order as to costs.
_____________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
Date Heard: 22 May 2013
Judgment Delivered: 13 June 2013
For the Applicant: Adv. TL
Dikolomela
Instructed by: Mafuwane MJ
Attorneys
Johannesburg
For the Respondent: Adv. M Gumbi
Instructed by: State Attorneys
Johannesburg
1
2012 (4) SA 560
(SCA).
2
2012 (4) SA 544
(SCA.
3
Bula and Others v Minister of Home Affairs and Others supra
at
paragraph 72.
4
Bula and Others v Minister of Home Affairs and Others supra
at
paragraph 4 & 5.
5
Case no. 2012/34977 handed down on 28 November
2012 by the South Gauteng High Court, Johannesburg
6
At paragraphs 25 & 26.
7
Supra
8
See
section 29
(1) of the
Refugees Act.
9
Lawyers for Human Rights &
another v Minister of Home Affairs & another
[2004] ZACC 12
;
2004
(4) SA 125
(CC)
;
Silver
v Minister of Safety and Security
1997
(4) SA 657
(W)
at
661
and
Rowan v
Minister of Safety & Security NO
[2011] JOL 26906
(GSJ).
10
The Constitution of the Republic of South Africa,
Act
108 of 1996
11
Arse v Minister of Home Affairs and Others supra
at paragraph
11
12
Sec
8.1 of the
Constitution provides, “the Bill of Rights applies to all law,
and binds the legislature, the executive, the
judiciary and all
organs of state”
13
Rowan v Minister of Safety & Security NO
supra.
14
Trakman NO
v Livshitz
1995
(1) SA
282
(A) at 288E–F
and
Schlesinger
v Schlesinger
1979
(4) SA 342
(W) at 349