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[2014] ZAGPJHC 198
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South African Human Rights Commission and Others v Minister of Home Affairs: Naledi Pandor and Others (41571/12) [2014] ZAGPJHC 198; 2014 (11) BCLR 1352 (GJ); [2014] 4 All SA 482 (GJ) (28 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 41571/12
DATE:
28 AUGUST 2014
In the matter
between:
SOUTH AFRICAN
HUMAN RIGHTS COMMISSION
...................
First
Applicant AND 40 OTHERS
And
MINISTER OF HOME
AFFAIRS: NALEDI PANDOR
....................
First
Respondent AND 4 OTHERS
J U
D G M E N T
TSOKA, J:
[1] In this
application, the first applicant, South African Human Rights
Commission (“SAHRC”) the second applicant,
People Against
Suffering, Suppression, Oppression and Poverty (“PASSOP”)
and 19 other applicants seek a declaratory
order against the first
respondent, the Minister of Home Affairs (“the Minister”),
the second respondent, the Director-General,
Home Affairs (“the
Director-General”), the third respondent, Acting Head of
Linedela Repatriation Centre (“the
Acting Head”), the
fourth respondent, Bosasa (Pty) Ltd (“Bosasa”) and the
fifth respondent, Chief Magistrate
for the Krugersdorp Magisterial
District, (“Chief Magistrate”) that the respondents’
practices regarding detention
of the 19 applicants and other
detainees, are unconstitutional and in contravention of the
Immigration Act 13 of 2002 (“the
Act”).
[2] The applicants
further seek a systemic order requiring the first to fourth
respondents to provide regular reports to SAHRC about
the number and
status of detainees at Lindela and to permit SAHRC regular access to
Lindela.
[3] Initially, there
were forty-one applicants who sought the order as stated in para [1]
above. Subsequent to the signing of confirmatory
affidavits by the 19
applicants, applicants 27th, Aba Maleku and 35th Herre Mulomba, have
since instructed a different firm of
attorneys. Twenty of the
applicants have not filed confirmatory affidavits with the result
that these applicants are no longer
represented by SAHRC and PASSOP
in these proceedings.
[4] For convenience,
second applicant to forty-fourth applicant shall be referred to as
individual applicants unless the context
suggests that anyone of them
be referred to by their numerical number. The first and second
applicants shall be referred to by
their acronym SAHRC and PASSOP
respectively. Whenever the context otherwise suggests the first and
second applicants will be
referred to as such.
[5] Although there
are five respondents in this matter, only the first to fourth
respondents are opposing the application. The fifth
respondent was
cited as an interested party in these proceedings though no order is
sought against it. In the application, the
first to fourth
respondents shall be referred to as the respondents unless the
context otherwise suggests.
[6] PASSOP is a
community-based, non-profit organization and grassroots movement that
works to protect and promote the rights of
all refugees, asylum
seekers and immigrants in South Africa. PASSOP believes in and
advocates for equality and justice for people
across all societies,
irrespective of nationality, age, gender, race, creed, disability or
sexual orientation. PASSOP has since
become a leading advocate for
refugees and immigrants in their demands for human rights in South
Africa.
[7] The second
applicant and the individual applicants bring this application in
terms of section 38(c), (d) and (e) of the Constitution,
acting in
the interest of a group and/or class of people, in the public
interest and on behalf of its members who are detained
without a
lawful and valid warrant in terms of the
Immigration Act 13 of 2002
and its regulations.
[8] The application
was first launched on 2 November 2012 on an urgent basis to release
all the 39 applicants detained at Lindela,
a repatriation facility in
terms of the Act operated by the fourth respondent on behalf of the
first respondent. Originally, the
applicants sought the immediate
release of the third to thirty-ninth applicants on the basis that the
said applicants were either
detained at Lindela for longer than 120
days or detained beyond 30 days without a warrant being issued for
their continued detention
in terms of the Act. Furthermore, the
individual applicants complained that they were detained in
circumstances where the warrant
authorizing their detention was
issued without the individual applicants being given the notice
mandated by Regulation 28(4) of
the Act. The vast majority of the
individual applicants were detained for more than 48 hours before
being transferred to Lindela
for the purposes of repatriation. Since
the launch of the application, all the individual applicants have
since been released
from detention. It is on this basis, that the
first to fourth respondents oppose the application as moot.
[9] The applicants,
although they concede that the issue of release is moot, contend that
the detention of the individual applicants
remain alive and therefore
not moot as their detention by the first and fourth respondents was
unlawful and contrary to the provisions
of the Act.
[10] It is
instructive to recall what Nkabinde J said in Pheko and Others v
Ekurhuleni Metropolitan Municipality
2012 (2) SA 598
(CC) dealing
with the issue of mootness where the applicants, in that matter, were
seeking an interdict against their eviction
and even though the
interdict sought against their eviction was moot as they had already
been evicted from their houses. The Constitutional
Court still
proceeded to consider the lawfulness of their eviction. In para [32]
the court said the following –
“It is beyond
question that the interdictory relief sought will be of no
consequence as the applicants have already been removed
from
Bapsfontein. Although the removal has taken place, this case still
presents a live controversy regarding the lawfulness of
the eviction.
Generally, unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity,
equality and freedom.
Needless to say, the applicants have an interest in the adjudication
of the constitutional issue at stake.
The matter cannot therefore be
said to be moot. It is also alive because if we find that the removal
of the applicants was unlawful,
it would be necessary to consider
their claim for restitutionary relief.”
[11] Similarly, if
the court finds that the individual applicants’ detention was
unlawful and thus inimical to the rule of
law and to the development
of a society such as ours, based on dignity, equality and freedom,
the consideration of the issue of
unlawful detention of the
individual applicants presents a live issue worthy of consideration.
The interests of justice dictate
that the lawfulness or otherwise of
the individual applicants must still be considered.
[12] The detention
of the individual applicants is governed by the Act and its
Regulations. Of particular importance is section
34(1) of the Act
which provides as follows –
“(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
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
detained
(a) Shall be
notified in writing of the decision to deport him or her and his or
her right to appeal such decision in terms of this
Act;
(b) May at any time
request any officer attending him or her that his or her detention
for purpose of deportation be confirmed by
warrant of a Court, which,
if not issued within 48 hours of such request, shall cause the
immediate release of such foreigner;
(c) 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;
(d) May not be held
in detention for longer than 30 calendar days without a warrant of
court which on good and reasonable grounds
may extent such detention
for an adequate period not exceeding 90 calendar days, and
(e) Shall be held in
detention in compliance with minimum prescribed standards protecting
his or her dignity and relevant human
rights.”
[13] The reading of
section 34(1) of the Act reveals that an illegal foreigner may be
arrested for the purposes of detention and
may only be detained at a
place so designated by the Director-General, in this matter, Lindela.
Such foreigner shall be informed
of the intention to deport him or
her and that he or she has right to appeal such deportation.
Furthermore, such foreigner may
request that his or her detention be
confirmed by a warrant issued by court within 48 hours of his or her
detention, failing such
warrant such foreigner shall be entitled to
an immediate release.
[14] The illegal
foreigner detained for purposes of deportation shall whenever
possible and practicable be informed of his or her
pending
deportation; his or her right to appeal such deportation and that he
or she may request his or her detention be confirmed
by a warrant
issued by court, in a language he or she understands.
[15] Such foreigner
so detained, shall not be detained for longer than 30 calendar days
which on good and reasonable grounds may
be extended for a period not
exceeding 90 calendar days. The immigration officer shall ensure that
such illegal foreigner’s
right to dignity, and all the human
rights guaranteed in the Bill of Rights are protected.
[16] The relevant
regulation that deals with deportation and detention of illegal
foreigners is Regulation 28. In terms of this
regulation detention
under section 34(1) of the Act must be confirmed by a warrant issued
by an immigration officer. The regulation
reiterates the right of
such illegal immigrant to be informed of the decision to deport him
and that he has a right to appeal such
decision. In terms of
subregulation (4), the 30 calendar days referred to in section 34(1)
may be extended but such extension
must be conveyed to the detainee
to make representations if he or she so wishes.
[17] The procedural
safeguards created by section 34(1) and Regulation 28 allow a
detainee to ensure that a court has all the necessary
information
before it when it decides whether to extend the detention. These
procedural safeguards are necessary and vital in
our constitutional
democracy to guard against abuse and arbitrary deprivation of liberty
which the Constitutional Court in Pheko
and Others described as being
inimical to the rule of law and to the development of a society based
on dignity, equality and freedom.
Furthermore, these vital safeguards
are a reminder that no-one should be detained without trial;
guarantee the right to leave the
Republic and the fair and just
administrative justice enforced through the courts in terms of
section 33 of the Constitution; ensure
the right to access to courts
and the rights of arrested persons to challenge the lawfulness of
their arrest before courts.
[18] It is against
these background safeguards that the individual detainees in the
present matter aver that their detention beyond
30 calendar days
without a valid and lawful warrant in terms of section 34(1)(d) of
the Act should be declared unlawful and unconstitutional.
In the
present matter, it is undisputed that most, if not all the detainees,
have been detained at Lindela beyond the 30 calendar
days without a
valid and lawful warrant. According to the applicants, which version
is undisputed, it is standard practice by
the first to fourth
respondents that illegal foreigners such as the present applicants
are detained beyond the 30 calendar days
without a valid and lawful
warrant. The applicants’ attorney of record in fact states
that the practice is so rife that
more often than not, the warrant
referred to in section 34(1)(d) of the Act appears for the first time
at court when the detainees
challenge their unlawful detention. Quite
often such warrants do not contain the necessary documentation
prescribed in terms of
Regulation 28.
[19] In the present
matter, the first to fourth respondents only attached a single
warrant in spite of the fact that there are presently
19 detainees
involved. The warrant is in respect of the twelfth applicant, Issako
Mohammed. It purports to have been issued by
the fifth respondent on
2 May 2012 with the view to extend the detention of the said
Mohammed.
[20] On closer
examination the said warrant reveals the following. Although it was
signed by an immigration officer on 25 May 2012,
it bears two Lindela
Holding Facility stamps dated “2012-05-25 and “2012-0605-25”.
It is also purported to have
been signed by the Chief Magistrate.
Though this may be so, as the signature is illegible, the designation
of the person who signed
the warrant is left blank. The purported
extension states that Mohammed was detained on 8 May 2012. Although
it must be accompanied
by a notification as contemplated in terms of
Regulation 28(4)(a) and an affidavit by the immigration officer who
detained Mohammed
and the representation made by Mohammed, none of
these documents are attached. The Chief Magistrate authorised the
extension of
the detention on 2 May 2012 which is incongruent to the
date of the request being 25 May 2012, which means the Chief
Magistrate
extended the detention of Mohammed even before the request
was made by first to fourth respondents.
[21] That the
purported warrant of extension is a botched job, admits no doubt. The
applicants had been unlawfully detained, contrary
to section 34(1)(d)
of the Act. Their right to liberty and such other rights such as the
right to dignity, have been violated by
the first to the fourth
respondents. In the circumstances of this matter, in spite of the
fact that the individual applicants have
since been released, the
interests of justice and the judgment of the Constitutional Court
demand that their detention by first
to fourth respondents should be
pronounced upon.
[22] The court does
not lose sight of the fact that this being an application, it must be
decided on the respondents’ version.
The respondents’
version will only be rejected if it does not raise genuine dispute of
fact but a fictitious one which can
merely be rejected on the papers.
In the present matter, respondents’ version with regard to the
warrant does not raise a
real, genuine and bona fide dispute of fact.
In any event, the Supreme Court of Appeal in Wightman t/a J W
Construction v Headfour
(Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
at para
[13]
, said the following –
“A real,
genuine and bona fide dispute of fact exist only where the court is
satisfied that the party who purports to raise
the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed … When the facts averred
are such that the disputing
party must necessarily possess knowledge of them and be able to
provide an answer (or countervailing
evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare or
ambiguous denial, the court will
generally have difficulty in finding
that the test is satisfied.”
[23] The
respondents’ ambiguous denials, in my view, does not raise ‘a
real, genuine and bona fide dispute of fact’.
The glaringly
self-created dispute of fact is far-fetched and untenable. It is
accordingly rejected as such.
[24] The other hotly
contested issue is the commencement of the 30 calendar day period
envisaged in section 34(1)(d) of the Act.
The applicants contend
that the period should commence from the date that a person is
detained including the period prior to such
person’s arrival at
Lindela. The respondents, on the other hand, contend that the 30 day
period should be calculated from
the time the person is issued with a
deportation notice under Regulation 28(2).
[25] In terms of
section 41 of the Act a police officer or immigration officer may,
without a warrant, detain a person who is suspected
to be an illegal
foreigner in order for such person’s status in the country to
be verified while section 34(1) allows immigration
officer to arrest
an illegal foreigner and to detain such illegal foreigner at Lindela
for the purposes of deportation. If the
arrested and detained person
in terms of section 41 of the Act verifies his status, he or she will
immediately be released. If
not, such person would be detained in
terms of section 34 of the Act. In terms of subsection (2) of section
34, such a person,
including the person arrested and detained to
verify his or her status in terms of section 41 shall not be detained
for more than
48 hours.
[26] In my view, the
respondents, whether effecting the arrest and detention under section
41 or 34 of the Act are granted a leeway
of 48 hours to detain such a
person without a warrant. This being the case, and in accordance
with the limitations of rights in
terms of section 36 of the
Constitution, which limitation is, in my view, reasonable and
justifiable in an open and democratic
society based on human dignity,
equality and freedom, the 30 calendar days should commence only after
the expiry of the 48 hour
period and not when such arrested and
detained person is issued with a deportation notice under Regulation
28(2).
[27] The above
interpretation does justice to the language of both sections 41 and
34 of the Act. It also accords with the provisions
of section
35(1)(d) of the Constitution in terms whereof a person arrested on
allegations of having committed an offence must be
brought to a court
as soon as reasonably possible, but not later than 48 hours after
arrest or the end of the first court day after
the expiry of the 48
hours, if the 48 hours expire outside ordinary court hours or on a
day which is not an ordinary court day.
Courts have, over the years,
preferred interpretation of legislation that favours personal liberty
of individuals. See Jaga v Dönges
NO and Another
1950 (4) SA 653
(A) at 657, 661 and 668.
[28] In the result,
the applicants are entitled to the relief sought, that the
calculation of the commencement of the 30 calendar
days commences
only after the expiry of 48 hours permitted by section 34(2), and
includes the period of detention prior to the
person arriving at
Lindela.
[29] The applicants
further contend that the procedure followed by the respondents in
detaining the individual applicants at Lindela
beyond the 30 calendar
days is contrary to Regulation 28(4) which provides that –
“28(4) An
immigration officer intending to apply for the extension of the
detention period in terms of section 34(1)(d) of
the Act shall –
(a) Within 20 days
following the arrest of the detainee, serve on that detainee a
notification of his or her intention on a form
substantially
corresponding to Form 31 contained in Annexure A;
(b) Afford the
detainee the opportunity to make representations in this regard
within three days of the notification contemplated
in paragraph (a)
having been served on him or her; and
(c) Within 25 days
following the arrest of the detainee, submit with the clerk of the
court an application for the extension of
the period of detention on
a form substantially corresponding to Form 32 contained in Annexure
A.”
[30] It is the
individual applicants’ contention that the procedure prescribed
by the regulation was neither followed nor
an opportunity afforded to
them to make representations prior to the 30 day period being
extended.
[31] In Bula v
Minister of Home Affairs
2012 (4) SA 560
(SCA) at para [84],
rejecting any notion of substantial compliance with the regulation,
the Court said the following –
“[84] The
subregulation is couched in peremptory terms. It involves the liberty
of an individual and must be strictly construed.
In Arse, Malan JA in
para 10, dealing with the fundamental rights to liberty, said the
following:
'The importance of
this right can never be overstated. Section 12(1)(b) of the
Constitution guarantees the right to freedom, including
the right not
to be detained without trial. This right belongs to both citizens and
foreigners. The safeguards and limitations
contained in
section 34(1)
of the
Immigration Act justify
its limitation of the right to freedom
and the right not to be detained without trial. Enactments
interfering with elementary rights
should be construed
restrictively.'
There is no room for
the 'substantial compliance' approach of the court below …”
[32] Similarly, in
Jeebhai and Others v Minister of Home Affairs and Another
2009 (5) SA
54
(SCA) at para [63] the court said the following –
“[63] Given
that the deprivation of Mr Rashid's liberty was prima facie unlawful,
it was for the respondents to justify such
deprivation. In this
instance one would have thought that as a bare minimum the
respondents would have sought to show compliance
with reg 28. It
would to my mind have been a relatively simple matter to have adduced
duly completed forms 28 and 35 as proof of
compliance with reg 28.
That the respondents failed to do. After all, it seems to me that the
reg 28 safeguards exist, not just
for the benefit of the illegal
foreigner, but also to protect the respondents against unjustified
and unwarranted claims flowing
from detention or deportation, or both
… It follows that Mr Rashid's detention and subsequent
deportation were unlawful.”
[33] The
respondents’ attempt to rely on Mr Issako Mohammed’s
warrant being in compliance with
Regulation 28(4)
is of no
consequence. As pointed above, no reliance can be placed on what
appears to be a fictitious extension of the detention.
The individual
applicants’ detention contrary to
Regulation 28
is, in my view,
unlawful. In any event the warrant cannot, by extension, be used as
an excuse by the respondents to extend the
detention of the other
individual applicants. Their continued detention was unlawful. See
also Sikuola v Minister of Home Affairs
and Others [2012] ZAGPJHC 98.
[34] The
respondents’ contention that the applicants should have
reviewed the issue of the warrant instead of challenging
its validity
is, in my view, misplaced. The applicants seek a declaratory order
that their continued detention is unlawful. They
do not complain
about the warrant purportedly issued by the Chief Magistrate. In any
event in Municipal Manager: Quakeni and Others
v F V General Trading
CC
4 All SA 231
(SCA) where a similar argument was raised with regard
to an invalid contract instead of reviewing such contract, the court,
in
that matter, said the appellant had ‘raised the question of
the legality of the contract squarely, just as it would have done
in
a formal review. In these circumstances, substance must triumph over
form … The appellants’ failure to bring formal
review
proceedings under PAJA is no reason to deny them relief’. The
applicants have squarely raised the legality of respondents’
practice. Their failure to bring formal review proceedings regarding
the issue of the warrant is of no moment.
[35] With regard to
the declaratory relief relating to detention of illegal foreigners
for a period longer than the maximum 120
days, the respondents
readily concede that they are not entitled to do so but contend that
it is impossible to comply with the
law because the Department of
Home Affairs (“the Department”) is unable to ensure that
the illegal foreigners are deported
within the said 120 days. The
reasons advanced by the Department is that the individual foreigners
concerned refuse to furnish
the ‘Inspectorate with their
correct identities and places of origin’ and that their
embassies fail and/or refuse to
co-operate in identifying their
citizens timeously or at all. And sometimes their embassies fail to
issue the concerned illegal
foreigners with emergency travel
documents to facilitate the deportation. On this basis, the
respondents contend and argue that
it is impossible to comply with
the law.
[36] The
respondents’ reliance on impossibility to comply with the clear
provisions of the law is misplaced. On the papers
there is no
evidence that the individual applicants lied about their identity or
country of origin. There is furthermore no evidence
that the
embassies concerned are un-cooperative in issuing emergency travel
documents and that in the event of such embassies co-operating
with
the Department, the emergency travel documents cannot be issued
within 120 days. The respondents’ contention that impossibility
to comply with the law is therefore necessary and justifiable, is
untenable. The detention of illegal foreigners beyond 120 days
without a warrant is unlawful and unconstitutional. The detention of
the individual applicants beyond the 120 days is illegal.
[37] In argument,
counsel for the respondents readily conceded that his clients’
argument is not that 120 days is insufficient
for his clients to
comply therewith and which would necessitate the Department to
approach Parliament to change the law. He, however,
maintained the
respondents’ stance that it is the illegal foreigners and their
embassies that do not co-operate with the
Department. Counsel was
unable to advance any cogent reasons why political pressure could not
be exerted on the relevant embassies
to co-operate. As things stand,
it is neither necessary nor justifiable to illegally detain
foreigners beyond 120 days without
a warrant. The conduct is unlawful
and unconstitutional and ‘inimical to the rule of law and to
the development of a society
based on dignity, equality and freedom.’
[38] In Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para
[58]
the
court, stating that local government shall regulate its affairs
within the law, stated the above stated principle thus –
“[58] It seems
central to the conception of our constitutional order that the
Legislature and Executive in every sphere are
constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by the law
…”
The respondents
cannot therefore detain illegal foreigners beyond 120 days without a
valid legal warrant.
[39] In Arse v
Minister of Home Affairs 2012 (4) 544 (SCA) the Supreme Court of
Appeal at para [9] stated the maximum period of
detention permitted
under section 34(1)(d) of the Act as 120 days, i.e. the initial
period of 30 days, followed by the extended
period or periods not
exceeding 90 days.
[40] In the
circumstances, the respondents’ conduct of detaining illegal
foreigners beyond the maximum 120 days is unlawful
and
unconstitutional. There can be no basis for the argument, as the
respondents do, that there is a discretion to extend the
maximum
detention period beyond 120 days whenever it is necessary or
justifiable. The contended necessity and the justification
have no
source in law. In any event the contended discretion is inconsistent
with section 12(1)(b) of the Constitution which prohibit
the
respondents to detain the illegal foreigners without trial.
[41] Lastly, it is
unhelpful for the respondents to submit and argue that if illegal
foreigners are released on certain conditions
after the expiry of 120
days, such foreigners would not comply with the conditions of their
release. The submission and argument
is without any legal basis. The
Act does not authorise conditional release after the expiry of 120
days. On expiry of the 120 days,
the illegal foreigners must be
released. In Arse the Supreme Court of Appeal at para [11], rejecting
the imposition of conditions,
stated that ‘…it seems to
me, that the Constitution does not permit the imposition of
conditions on a person …
for his release.’
[42] The applicants
also seek a systemic relief ordering the respondents to cease the
ongoing violations of the Act and to report
to SAHRC on a regular
basis, at least quarterly, the steps (a) taken to comply with the
above orders; (b) to furnish SAHRC with
particulars of all persons
detained at Lindela in excess of 30 days; and (c) the basis for such
person’s continued detention
and to produce any valid warrants
issued; and lastly (d) allowing SAHRC access to Lindela.
[43] The respondents
resist the systemic relief on the basis that the orders sought
‘amount to over-regulation of the executive’
and that in
any event SAHRC has the powers to monitor and assess the observance
of human rights in terms of section 184(1)(c) of
the Constitution.
[44] Despite
numerous court orders requiring the Department to release people from
Lindela, respondents’ unlawful and unconstitutional
conduct
persist. The urgent court roll of this division is crowded by
applications emanating from Lindela. Invariably, the respondents’
unlawful conduct only ceases once an urgent application for release
of the person, detained contrary to the provisions of the Act,
is
launched. The opposition of this matter by the respondents and their
submissions and argument, that it is necessary and justifiable
to
detain persons illegally, reveal one thing and one thing only: that
it cannot be left to the respondents to comply with the
provisions of
the Act and to act accordingly. An order without continued
monitoring and reporting will be ineffective in vindicating
the
rights of detainees at Lindela.
[45] On 18 February
2000, more than fourteen years ago, Boruchowitz J granted an order in
terms whereof the respondents were ordered
not to detain any person
at Lindela for more than 30 days in terms of the Aliens Control Act
96 of 1991, the predecessor of the
Act. Since then, this Court and
many other courts all over the country, including the Supreme Court
of Appeal, have stated that
detention of illegal foreigners for more
than 30 days and 120 days without a valid warrant of arrest is
unlawful and unconstitutional.
In spite of these judicial
pronouncements, the respondents still persist in detaining illegal
foreigners for more than 30 days
and a maximum of 120 days without
valid warrants having been issued. This is so in the face of the
Constitutional Court in Fedsure
Life having authoritatively stated
that ‘the Legislature and the Executive in every sphere are
constrained by the principle
that they may exercise no power and
perform no function beyond that conferred upon them by the law ….’
[46] In support of
systemic relief, the applicants have attached reports by national and
international organisations reporting on
illegal and unconstitutional
practices at Lindela where illegal foreigners are detained prior to
their deportation. In 2005, the
UN Working Group on Arbitrary
Detentions noted that people are ‘arrested, and sent to a
repatriation centre and deported
with no other form of process or
recourse, sometimes spending months in detention awaiting removal.’
In 2007, Amnesty International
reported forty-four detainees had
been held between 35 days and 16 months. In 2008, the Office of the
High Commission of Human
Rights noted that in South Africa, a
democratic state founded on human dignity, the achievement of
equality and the advancement
of human rights and freedoms, ‘migrants
… run the risk of being arrested (including wrongfully),
detained (including
for longer periods than authorised by law: in
2006 hundreds of suspected illegal immigrants detained at Lindela
Repatriation Centre
were unlawfully held beyond the period allowed
under the
Immigration Act (30
days and 120 days with a court warrant)
and deported.’
[47] In 2009, the
Lawyers for Human Rights (“LHR”), on their own, brought
13 applications to have persons released from
detention as they were
being held at Lindela for more than 120 days. In 2010, the LHR
litigated a further 8 matters concerning
detainees held for more than
120 days at Lindela. During 2011, the UN Special Rapporteur
recognised that ‘the biggest challenge
was the absence of
monitoring and oversight in existing procedures with regard to
immigration, including detention.’
[48] Despite the
judicial pronouncements and both the national and international
reports condemning these practices, the respondents
persist in these
unlawful and unconstitutional practices. It is as a result of these
unlawful and unconstitutional practices that
SAHRC and PASSOP seek an
order for systemic relief. In opposition the respondents can only
say the order sought by SAHRC and PASSOP
is ‘overregulation of
the Executive’. And I understand their submission and argument
to be that the granting of such
relief would encroach on the
principle of separation of powers. Furthermore, the respondents
submit and argue that the several
reports attached are hearsay and
therefore unhelpful to the applicants’ cause.
[49] Although the
reports are hearsay, in terms of
section 3(1)(c)
of the
Law of
Evidence Amendment Act 45 of 1988
, should, in the interests of
justice, particularly where such reports are utilized by the
applicants in vindication of violation
of human rights be admitted as
evidence. In Kaunda and Others v The President of the Republic of
South Africa
2005 (4) SA 235
CC the Constitutional Court had regard
to similar reports. At para [123] the Court reasoned as follows:
‘...Whilst
this Court cannot and should not make a finding as to the present
position in Equatorial Guinea on the basis of
only these reports, it
cannot ignore the seriousness of the allegations that have been made.
They are reports of investigations
conducted by reputable
international organisations and a Special Rapporteur appointed by the
United Nations Human Rights Committee.
The fact that such
investigations were made and reports given is itself relevant in the
circumstances of this case.’ See
also Tantoush v Refugee Appeal
Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T). In any event, the reports are
public documents and are indeed consistent with the unlawful and
unconstitutional practices
of the respondents, which practices are
undisputed.
[50] In the context
of the relief sought by the applicants, it is instructive to recall
what the Constitutional Court said in Minister
of Home Affairs and
Others v Tsebe and Others; Minister of Justice and Constitutional
Development and Another v Tsebe and Others
2012 (5) SA 467
CC. The
Court in refusing repatriation of an accused person suspected of
committing murder in Botswana, and on conviction facing
a death
penalty, at paras [67] and [68] said the following –
‘We as a
nation have chosen to walk the path of the advancement of human
rights. By adopting the Constitution we committed
ourselves not to do
certain things. One of those things is that no matter who the person
is and no matter what the crime is that
he is alleged to have
committed, we shall not in any way be party to his killing as a
punishment and we will not hand such person
over to another country
where to do so will expose him to the real risk of the imposition and
execution of the death penalty upon
him. This path that we, as a
country, have chosen for ourselves is not an easy one. Some of the
consequences that may result from
our choice are part of the price
that we must be prepared to pay as a nation for the advancement of
human rights and the creation
of the kind of society and world that
we may ultimately achieve if we abide by the constitutional values
that now underpin our
new society since the end of apartheid.
If we as society or
the State hand somebody over to another State where he will face the
real risk of the death penalty, we fail
to protect, respect and
promote the right to life, the right to human dignity and the right
not to be subjected to cruel, inhuman
or degrading treatment or
punishment of that person, all of which are rights our Constitution
confers on everyone.’
[51] In the present
matter, we cannot fail the individual applicants. They deserve
nothing but conduct that is lawful and has a
source in law; conduct
which promotes the right to human dignity that is conferred on
everyone of us by the Constitution. In any
event, in terms of
section 172(1)(b) of the Constitution, the court has powers to
declare any conduct, such as the respondents’
conduct, that is
inconsistent with the Constitution, invalid and its stead may make an
order that is just and equitable and to
‘allow the competent
authority (the respondents) to correct the defect.’ This, in
my view, is not usurping the executive
powers. In exercising this
power, the court is merely doing what it is authorised to do by the
Constitution, our supreme law.
[52] Based on the
aforegoing, it is declared that –
52.1 The detention
of the Fourth, Fifth, Seventh, Ninth, Tenth, Twelfth, Fourteenth,
Fifteenth, Sixteenth, Seventeenth, Nineteenth,
Twenty-Second,
Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Ninth, Thirtieth,
Thirty-Third, and Thirty-Sixth applicants at
the Lindela Repatriation
Centre was unlawful.
52.2 The actions
and/or practices of the first and second respondents set out in
paragraphs 52.2.1 to 52.2.4 below are unlawful
and unconstitutional:
52.2.1 Detaining
persons for a period exceeding 30 calendar days from the date on
which that person was first arrested and detained,
pending his or her
removal from the country, in the absence of a valid and lawful
warrant issued by a magistrate’s court
on good and reasonable
grounds for a period not exceeding 90 calendar days in terms of
section 34(1)(d) of the Immigration Act
13 of 2002 (“the Act”).
52.2.2 Exercising
their powers and functions on the basis of a miscalculation of the
period referred to in section 34(1)(d) of the
Act, on the mistaken
basis that the 30 day period commences with the arrival of the person
detained at the Lindela Repatriation
Centre, instead of applying the
section on the correct basis that the 30 day period commences on the
date when the person is first
arrested and detained under s 34(1), or
when the period for detention under s 41 permitted by s 34(2)
expires, and includes the
period of detention prior to the person
arriving at the Lindela Repatriation Centre.
52.2.3 Obtaining and
enforcing a warrant for detention after the said 30 day period as
contemplated in s 34(1)(d) of the Act without
following a fair
procedure as previously required by regulation 28 of the Regulations
promulgated under the Act (GN R616 in GG
27725 of 27 June 2005), and
now required by regulation 33 of the Regulations promulgated under
the Act (GN R413 in GG 37679 of
22 May 2014) and in particular
failing to serve on the relevant detainee a copy of the prescribed
notice and affording such detainee
a fair opportunity to make
submissions in relation to the proposed extension of his or her
detention and in failing to ensure that
such representations are
conveyed to the magistrate for purposes of proper consideration
thereof prior to making a decision on
whether or not to issue the
warrant for further detention.
52.2.4 Detaining
persons for a period in excess of 120 days.
52.3 The first,
second and fourth respondents are directed to take all steps
reasonably necessary or appropriate, without delay,
to ensure that
the practices referred to in paragraphs 52.2.1-52.2.4 above are
terminated forthwith, and in particular to ensure
that:
52.3.1 No person is
detained for a period exceeding 30 calendar days from the date on
which that person was first arrested and
detained, pending his or her
removal from the country, in the absence of a valid and lawful
warrant issued by a magistrate’s
court on good and reasonable
grounds for a period not exceeding 90 calendar days in terms of the
Act.
52.3.2 Their powers
and functions are exercised on the basis of the period referred to in
section 34(1)(d) of the Act, on the basis
that the 30 day period
commences on the date when the person is first arrested and detained
under s 34(1), or when the period for
detention under s 41 permitted
by s 34(2) expires, and includes the period of detention prior to the
person arriving at the Lindela
Repatriation Centre.
52.3.3 A warrant is
obtained for detention after the said 30 day period as contemplated
in s 34(1)(d) of the Act by following a
fair procedure as required by
regulation 33 of the Regulations promulgated under the Act (GN R413
in GG 37679 of 22 May 2014),
and in particular to serve on the
relevant detainee a copy of the prescribed notice and affording such
detainee a fair opportunity
to make submissions in relation to the
proposed extension of his or her detention and to ensure that such
representations are conveyed
to the magistrate for purposes of proper
consideration thereof prior to making a decision on whether or not to
issue the warrant
for further detention.
52.3.4 No person is
detained for a period in excess of 120 days.
52.4 The first to
fourth respondents are directed to provide the first applicant, on a
regular and at least quarterly basis, with
a written report
(including any information currently being furnished to the first
applicant) setting out:
52.4.1 The steps
taken to comply with this order on an ongoing basis and in particular
the steps taken to ensure that no person
is detained in contravention
of this order.
52.4.2 Full and
reasonable particulars in relation to any person detained at the
Lindela Repatriation Centre for a period in excess
of 30 days from
the date of that person’s initial arrest and detention,
including the following:
52.4.2.1 The
person’s full names.
52.4.2.2 The
person’s country of origin.
52.4.2.3 The reason
for the person’s detention.
52.4.2.4 The date on
which that person was arrested.
52.4.2.5 The basis
on which they seek to justify that person’s continued detention
beyond the 30 day period and whether a
warrant for extension of the
detention beyond 30 days has been authorised in terms of
section
34(1)(d)
of the
Immigration Act (with
a copy of such warrants to be
provided).
52.5 The first to
fourth respondents are directed to provide the first applicant, on a
regular and at least quarterly basis, with
access to the Lindela
Repatriation Centre and the detainees.
52.6 The applicants
may approach this court for further relief on reasonable notice and
after filing such additional papers as may
be appropriate, should the
need arise for further relief to be sought.
52.7 The first and
second respondents are ordered to pay the costs of this application,
including the costs of two counsel.
M P TSOKA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR
APPLICANT: Paul Kennedy SC & Michael Bishop
INSTRUCTED BY:
Legal Resources Centre
COUNSEL FOR
RESPONDENT: M A Albertus SC & E A De-Villiers Jansen
INSTRUCTED BY:
The State Attorney
DATE OF HEARING:
7 August 2014
DATE OF JUDGMENT:
28 August 2014