L and Another v Minister of Home Affairs and Others (2014/22434) [2014] ZAGPJHC 336; 2015 (4) SA 197 (GJ); [2015] 1 All SA 335 (GJ) (18 November 2014)

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[2014] ZAGPJHC 336
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L and Another v Minister of Home Affairs and Others (2014/22434) [2014] ZAGPJHC 336; 2015 (4) SA 197 (GJ); [2015] 1 All SA 335 (GJ) (18 November 2014)

SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/22434
DATE:
18 NOVEMBER 2014
In
the matter between:
[H……….
L….]
...................................................................................
1
ST
Applicant
[R……….
W….]
..................................................................................
2
nd
Applicant
And
MINISTER
OF HOME AFFAIRS- MR GIGABA
...............................
1
st
Respondent
DEPARTMENT
OF HOME AFFAIRS- MKUSELI APLENI
.............
2
nd
Respondent
CATHAY
PACIFIC AIRWAYS
LTD
..................................................
3
rd
Respondent
ARM-
ANALYTIC
MANAGEMENT
..................................................
4
th
Respondent
ACSA-AIRPORTS
COMPANY SOUTH AFRICA
............................
5
th
Respondent
JUDGMENT
SPILG
J;
INTRODUCTION
1.
The
applicants are Mr H. L……. and his wife R. W…….
They reside in KwaZulu-Natal, having gained rights
of permanent
residence in 2008. They were each issued with permanent residence
permits on 18 August 2008. They allege that on the
same date
permanent residents permits were issued to their three children, X………
who is presently 19 years
of age, Z………. who has
just turned 15 years of age and L……. who is 14 years of
age.
2.
The
family’s permit numbers are consecutively numbered; from
JHB1…. to JHB1…... The permit number

indicates the year when permanent residence was first applied for;
namely in 2005. Each permit also contains a control number.
The
applicants aver that the initial applications for the family members
had been rejected but that the appeals were all successfully
upheld
during 2008.
3.
The
applicants claim that they have travelled abroad together with their
three  children on several occasions since 2008 without

experiencing any difficulties with immigration officials upon
re-entering the country.
4.
On
the evening of 25 July 2014 the three children arrived at OR Tambo
International Airport (‘
OR
Tambo’
)
aboard a Cathay Pacific Airways flight from Hong Kong. The eldest
child’s permit was recorded on the data base of the Department

of Home Affairs (’
Home
Affairs
’).
However immigration officers refused to allow the two younger
children entry into South Africa on the ground that their
residence
permits were not reflected on its system and also concluded that
the permits were fraudulent. The children were
then held at a
facility within OR Tambo operated by ARM-Analytic Management which is
the Fourth Respondent.
5.
Although
the eldest child’s permit was recorded on the system he too was
held  in the facility. It emerged that he was
also denied entry
on the ground that he had accompanied two minors who had produced
fraudulent permits.
6.
Lin
attempted to engage immigration officials at the airport but they
were adamant that the children could not enter the country.
Since it
was after hours Lin could not contact the main offices of Home
Affairs to satisfy them as to the veracity of the permits
by
reference to their control and other numbers or to establish from
them why the two permits were not currently captured on the
Home
Affairs’  data base.
He
appointed attorneys who were not specialists in immigration matters.
They attempted to discuss the issue with immigration officers
at the
airport but were unsuccessful. On advice, the applicants then
appointed Mr Essop of Rossouws Attorneys.
7.
Essop
attempted to engage immigration officials to allow the two children
entry into the country. This was also unsuccessful and,
after being
informed by them that the children would be placed on the 13H00
Cathay Pacific flight to Hong Kong,  Essop contacted
Ms Mlaba,
the registrar of my brother Wright J who was the urgent court duty
judge. The purpose was to obtain an urgent interdict
preventing the
children from being returned to Hong Kong.
The
registrar immediately contacted Wright J who, due to the urgent
nature of a matter affecting minor children, instructed
that
Essop contact him directly. This occurred at about 11H52.
A
few minutes later Essop contacted Wright J. Due to the imminent
departure of the flight (which Essop still believed from the
immigration officials  would be at 13H00) the applicants were
not able to prepare papers or reach the court before the flight’s

departure. Essop however explained the circumstances and grounds for
seeking urgent relief. These included the facts just set out.
My
learned brother was also informed that all the children held
permanent residence permits but the names of the two minor children

were not so reflected on the Home Affairs system.
8.
Wright
J granted an order at about 12H00 interdicting Cathay Pacific from
boarding the two children on its flight. The order was
notified to a
person who claimed to be responsible for boarding the children and
who advised that the children had not yet boarded.
9.
At
approximately 13H00 the court was informed by the applicants’
attorney that he had just learnt from Cathay Pacific that
the
children had been boarded onto the flight which took off at 12H30.
THE
APPLICATION AND COUNTER-APPLICATION
10.
The
applicants seek orders to hold Cathay Pacific and certain individuals
who  they claim wilfully and with
mala
fides
ignored
and frustrated the order from being implemented and similarly ignored
and frustrated subsequent orders made by the learned
judge for the
children’s return.
11.
Wright
J issued three orders against Cathay Pacific in relation to the
applicants’ children. They were;
a.
The
order already mentioned which was issued on 26 July at 12H00. It
prohibited Cathay Pacific from boarding the two minor children
onto
the flight in question;
b.
An
order issued later on the same day at approximately 16H40 which;
i.
directed
Cathay Pacific to return the two minor children on the next available
flight from Hong Kong to OR Tambo;
ii.
directed
Home Affairs and those who operate the holding facilities at the
airport to detain the children on arrival unless the former
agrees to
release them into the custody of the applicants;
iii.
required
all thee respondents, which therefore included Cathay Pacific,
to secure attendance of the two minor children before
Wright J on
Monday 28 July at 14H00;
iv.
postponed
the case to that time on the Monday.
c.
An
order issued on 28 July which;
a.
extended
the reach of the previous order to include the eldest child who it
turned out had also been boarded on the same flight
as his siblings;
b.
directed
Cathay Pacific to return all three children without asking for
payment but subject to its rights of recovery;
c.
postponed
the case to Friday 1 August at 10H00 when it would again be heard
before my brother.
12.
Cathay
Pacific’s counter-application seeks to declare null and void
and otherwise have set aside all the orders that were
granted against
them on the 26
th
and 28
th
July.
13.
The
gravity of the allegations made against Cathay Pacific and certain of
the imputations made by Cathay Pacific in its affidavit
require
scrutiny in what otherwise should have been a straight forward
matter.
THE
APPLICANTS’ CASE
The
applicants make the averments contained in the following paragraphs
to hold Cathay Pacific and two  individuals, a Ms Shirley
Jones
and a Mr Thabo Mashile, in contempt of the court orders granted on
the 26
th
and 28
th
July 2014.
It
turned out much later that the latter’s correct name is Thabo
Mashoene. In order to maintain the narrative as related by
the
applicants and by Ms Mlaba who is the registrar to Wright J, the name
which they understood had been mentioned to them when
they contacted
Cathay Pacific’s offices to inform it of the first order made
will be retained for the time being. It is the
name  that was
recorded by my learned brother in the reasons furnished and which is
mentioned in the
rule nisi
issued in the present application
on 15 August.
14.
On
26 July at approximately 13H00 the applicants’ attorney, Mr
Essop, attended court and advised that he had been informed
by Ms
Zelda Swart, an employee of the airline, that Cathay Pacific’s
flight CX748 had departed at 12H30 with the children
on board.
In
the contempt proceedings Essop states that Swart claimed not to have
been told by Mashile of the telephonic court order given
at about
noon.  She also required a copy of the order to be provided in
writing. Swart also claimed that she was unable to
contact her
superior, who was identified as Ms Shirley Jones.
15.
The
judge was advised by both his registrar and Essop that immediately
upon the order being granted each had independently contacted
a
person who allegedly identified himself as Mr Thabo Mashile and who
they said was an employee of Cathay Pacific. They also said
that they
had advised Mashile of the order that had been granted.
16.
According
to the judge’s registrar Mashile confirmed that he was the
person responsible for boarding the children. He had
also told her
that the children had not yet boarded the flight. Mlaba informed the
judge that Mashile appeared generally uncooperative.
This  was
recorded in paragraph 6 of Wright J’s written reasons of 26
July.
In
his founding affidavit Essop specifically alleged that Mashile
refused to provide the contact numbers of more senior staff and
was
only prepared to convey the information himself to them. Essop had
made the request because Mashile appeared unwilling to comply
with
the order. Mashile reverted to Essop and provided him with the
landline number of the inspectorate division of Home Affairs.
17.
Essop
then contacted Adv Deon Erasmus, the Chief Director of Legal Services
at the Department of Home Affairs.
Adv
Erasmus explained to Essop that once a decision had been made by
immigration officials then the passenger became the responsibility
of
Cathay Pacific. They could do nothing to prevent Cathay Pacific from
boarding the children. He also had no other contact numbers
for
officials at OR Tambo.
The
statement by Adv Erasmus is most disconcerting and may well have
repercussions in relation to Home Affairs and its involvement.
It is
disconcerting because a decade ago the Constitutional Court made it
clear that immigration officers continue to remain responsible
even
after the declaration has been issued and the person has been handed
over to the airline within the international zone of
the airport. See
Lawyers for Human Rights and Another v Minister of Home Affairs
and Another
[2004] ZACC 12
;
2004
(7) BCLR 775
(CC) per Yacoob J at para 40. See also
Abdi and
another v Minister of Home Affairs and others
[2011] 3 All SA 117
(SCA) per Bertelsmann AJA and more recently the detailed discussion
by Davis J in
Mukhamadiva v Director-General, Department of Home
Affairs and another
[2013] JOL 30525
(WCC) at paras 14 to 20.
It
is again cause for judicial comment that despite the court in
Mukhamadiva
making  its decision available  to
Home Affairs “
with the objective that an adequate policy
reflecting the Department's commitment to the Constitution and the
rule of law be followed
in the future
” (at para 21) even
in-house counsel fail to adopt  or comply with the court’s
decision.
18.
I
return to the applicants’ narrative of events. After Essop had
spoken to Adv Erasmus he again contacted Cathay Pacific,
no doubt to
convey what had been told to him. He was able to speak to Swart who
informed him that the flight had departed at 12H30.
19.
Wright
J noted the alleged lack of co-operation by Mashile. Due to the
court’s expressed concern regarding the two minor

children who were now
en
route
to Hong Kong  the judge contacted Cathay Pacific and spoke
directly to Swart. The speaker phone function was used which enabled

those present in the judge’s chamber to also hear the
conversation.
Wright
J informed Swart to provide reasons why Cathay Pacific should not be
ordered to return the two children to OR Tambo on the
next available
flight. The judge also advised Swart that a proposed draft order had
been prepared in these terms. Swart referred
the judge to her
supervisor who was identified as Ms Shirley Jones. Wright J
furthermore informed her that unless the judge’s
registrar was
told to the contrary an order would be granted against Cathay Pacific
in the proposed terms.
The
judge also provided Swart with Ms Mlaba’s urgent court
cellphone number.
20.
A
draft order was emailed purportedly to the addresses of both Swart
and her superior Ms Shirley Jones.
21.
There
was again contact with Swart. She said that she was still unable to
reach Jones. The court gave her a further opportunity
to contact a
person in authority at Cathay Pacific .
22.
By
16H40 no response had been received from Cathay Pacific and the court
made the following order;
1.
The
third respondent, is to return to OR Tambo International Airport the
children, Z………. L…….
( with date
of birth 18 August 1999 and passport number G3…….) and
Lili Lin( with date of birth 22 November 2000
and passport number
G……….) on the first available Cathay Pacific
flight from Hong Kong to OR Tambo International
Airport.
2.
The
first and second respondents are ordered to admit the children to
South Africa.
3.
The
first and second respondents are interdicted from deporting the
children unless the first and second respondents have a court
order
to that effect.
4.
The
first, second, fourth and fifth respondents are ordered to hold the
children at the fourth respondent’s holding facility
at OR
Tambo international Airport until:
4.1
There is a court order to the contrary or
4.2
they are released into the custody of the applicants at the option of
the first and second respondents.
5.
The
respondents are to allow the children to be visited by the applicants
and the applicants’ legal practitioners immediately
on the
children’s arrival at OR Tambo International Airport.
6.
This
case is postponed to 14H00 on Monday 28 July 2014 in front of Wright
J.
7.
The
second to fifth respondents are to bring the children to court for
the hearing at 14H00 on Monday 28 July 2014 before Wright
J, High
Court building, corner Pritchard and Kruis Streets, Johannesburg,
Court 9F.
8.
The
question of costs reserved.
23.
This
order was also sent by email to the same addresses for Jones and
Swart as previously.
It
is evident that the emails were incorrectly addressed as they were
sent to both Jones and Swart  “@cathypacific.com”,

not “@cathaypacific.com”.
24.
The
matter was called on Monday 28 July 2014. There was no appearance on
behalf of any respondent nor had any answering affidavits
been
served.
The
court was informed that the eldest child had also left with the two
younger children on the flight to Hong Kong. The court then
made the
following order;
1.
The
third respondent is to return to OR Tambo International Airport, on
the first available Cathay Pacific flight, the 19 year old
L….
Child, X………. L……, born 24 June
1995 with passport number G6……...
2.
The
first and second respondents are ordered to admit the said 19 year
old Lin child to South Africa.
3.
The
first and second respondents are interdicted from deporting the said
19 year old L…. child unless the first and second
respondents
have a court order to that effect.
4.
The
first, second, fourth and fifth respondents are ordered immediately
to return the said 19 year old L… child and the child
Z…
L., born 18 August 1999 with passport number G……. and
the child L… L…, born 22 November 2000
with passport
number G…… to the care of the applicants.
5.
Cathay
Pacific is to return the three children to OR Tambo International
Airport without asking for payment but subject to Cathay
Pacific’s
right later to institute legal proceedings for the recovery of any
money which Cathay Pacific considered payable
to it.
6.
This
case is postponed to 10H00 on Friday 1 August 2014 in front of Wright
J.
7.
The
question of costs is reserved.
25.
The
court also handed down written reasons.
In
its reasons the court emphasised its concern for securing the
protection of the children’s best interests under s28(2)
of the
Constitution,  which it clearly explained underpinned the order
that Cathay Pacific return the children to South
Africa on the next
available flight.
The
written reasons also indicated the court’s concern that either
Mr Mashile or Cathay Pacific or both were in contempt of
the earlier
court order as the available information indicated that the order had
been brought to their attention prior to the
flights departure. The
court also set out in its reasons the contact made by the judge’s
registrar and the judge personally
with the persons mentioned earlier
to whom the initial order had been conveyed.
26.
On
the following day Essop attended Cathay Pacific’s offices at OR
Tambo to serve a hard copy of the court order of 28 July
2014 and the
reasons that had been prepared by Wright J.  Swart took both and
was about to sign receipt when a fellow employee
advised her to take
it to Jones. Essop then waited for some 25 minutes when Jones came
through and said that she would not sign.
27.
Jones
confirmed that she was the most senior official in charge at Cathay
Pacific. A copy of the court order and reasons were then
left on
Swart’s desk. Essop also wrote the address for the children in
Hong Kong. Swart refused to receive it. Essop then
contacted the
sheriff of Kempton Park. Neither he nor his deputy was available to
serve the documents. The attorney was able to
serve hard copies on
the State Attorney for the Minister and the Department.
On
30 July the attorney also  emailed  the court orders and
reasons to all the respondents . Once again they were sent
to the
incorrect email address for Cathay Pacific.
28.
Despite
service of the order none of the respondents filed an answering
affidavit or appeared in court on 1 August 2014. Moreover
Wright J
was informed that the children had not been flown back to South
Africa as directed in the court order.
29.
The
applicants sought a
rule
nisi
calling on Cathay Pacific and Mr Thabo Mashile to show cause why they
should not be held in contempt of the court orders already
issued.
Wright
J declined to do so on the ground that the orders had been granted
without a notice of motion or any founding affidavits.
The court
considered it preferable that a formal application be served on the
respondents setting out the history of the case and
the grounds upon
which a contempt of court order would be sought. .
The
court was however prepared to grant a punitive costs order on the
scale as between attorney and client against Cathay Pacific
in
respect of the hearings on 26 July, 28 July and 1 August 2014.
30.
On
12 August 2014 the applicants launched the present urgent application
which was set down on Friday 15 August 2014. The application
was
served at just after 09H00 on Wednesday 13 August on Mr Rangagah at
Cathay Pacific’s offices at OR Tambo International
Airport. Mr
Rangagah identified himself as a supervisor.  The application
was also served on ARM-Analytical management,
on the Airport Company
of South Africa (‘
ACSA’
)
and on both the Minister of Home Affairs and the Department of Home
Affairs at the offices of the State Attorney.
31.
The
papers were served on Cathay Pacific at 09H10 on 13 August for
hearing at 16H00 on the same day. The State Attorney had been
served
on the previous afternoon. The respondents were required to file
their answering affidavits by no later than 16:00 on the
same day.
32.
In
Part A of the application the applicants sought a
rule
nisi
calling
on Cathay Pacific, Shirley Jones and Thulani Mashile to show cause
why they should not be held in contempt of the court
orders granted
on 26 and 28 July 2014.Warrants were also sought to arrest and detain
Jones and Mashile in custody until they were
brought before a court
to explain why they should not be imprisoned for being in contempt of
the two court orders.
Part
B of the order concerned the Department of Home Affairs. The
applicant sought an order reviewing the determination that the
two
minor children are not in possession of  valid permanent
residence permits together with ancillary and alternative forms
of
relief.
The
urgent court only had to consider the contempt of court orders sought
in Part A against Cathay Pacific, Jones and Mashile.
33.
The
matter came before me on 15 August. Despite service of the
application upon Cathay Pacific it did not appear at court. It is

however evident that the airline had little opportunity to file an
affidavit.  After hearing
Mr
Waner
for
the applicant I made the following order;
1.
That
a rule nisi be and is hereby issued, returnable on the 09
th
day of September at 10h00 as soon thereafter as the matter may be
heard, in terms whereof the third respondent, Shirley Jones,
(‘
Jones’) and Thulani Mashile (‘ Mashile’) be and are
hereby called upon to show cause, if any, why a
final order should
not be made in the following terms:
i.
That
the Third Respondent, jones and Mashile, be held in contempt of the
orders of this court made on the 26
th
July 2014.
ii.
That
a Writ of Arrest is hereby issued in terms whereof the sheriff or his
deputy, be and is hereby directed to take into custody
Jones,
and Mashile and thereafter hand them over to the officer commanding
the goal in which they be held, who shall detain them
and thereafter
cause them to be brought to this court, as soon thereafter as
reasonably possible, whereupon they shall explain
to this court why a
period of imprisonment, the duration of which shall be determined by
the court, should not be imposed upon
them for her being in contempt
of the orders of this court, dated 26
th
July 2014.
iii.
That
the Third Respondent, Jones and Mashile, be held liable to pay the
Applicant’s legal costs on an attorney and client
scale,
jointly and severally, the one paying, the others to be
absolved.
2.
That
, and in the event of either the Third responded, its manager
alternatively, and in his/ her absence, the deputy manager of
the
Third respondent, Jones/ Mashile( individually or collectively)
failing to appear on the 09
th
September 2014, then and in such event  the judge presiding over
the matter on that day, may issue a  writ of arrest
directing
the sheriff or his deputy, to take into custody  such persons,
who shall be called  upon to show cause why
a period of
imprisonment , the duration of which shall be determined by the
court, should not be imposed upon them for her being
in contempt of
the orders of this court, dated 26
th
July2014, and 28
th
July 2014.
3.
That
this order be served by way of the Sheriff of this court or his
deputy on the manager of the Third Responded alternatively,
and in
his/ her absence, the deputy manager of the Third Responded, Jones
and Mashile.
34.
On
19 August the sheriff served the orders. The returns in respect of
Jones and Mashile are instructive. They both reflect that
Thabo
Mashoene accepted service at Cathay Pacific’s offices at OR
Tambo. In both instances the returns state that Mashoene
identified
himself as the Admin Officer. The sheriff also stated in the return
that Mashoene was the only person present at the
office at the time
of service. This was the first time that it became clear that the
person who Essop and the judge’s registrar
identified as Thabo
Mashile was in fact  Thabo Mashoene. Essop claims that he did
not hear incorrectly and contends that Mashoene
mispronounced his
name deliberately. In my view it is  irrelevant whether they
heard incorrectly or that Mashoene did not
identify himself clearly.
Although the issue is disputed I do not believe that anything need
turn on it.
The
court file does not reflect a return of service on Cathay Pacific
itself.  However they had notification and opposed the

application.
THE
AIRLINE’S AFFIDAVIT
35.
I
again presided in court on 9 September 2014. Cathay Pacific filed an
answering affidavit deposed to on the previous day by its
Country
Manager for South Africa, Mr Rakesh Raicar. It also filed the
counter-application mentioned earlier to declare null and
void or
otherwise set aside the three orders granted on the 26
th
and 28
th
of July.
Mr
Raicar corrected the citation of the airline to Cathay Pacific
Airways Ltd.
36.
Cathay
Pacific acknowledged in the answering affidavit that it is a leading
international airline based in Hong Kong which services
47
international destinations (with landing rights at 188 airports).
37.
In
order to deal fully with the issues and explain the penal nature of
the order I made on 11 November it is necessary to set out
in some
detail the contents of Cathay Pacific’s affidavit.
38.
Mr
Raicar is the country manager for Cathay Pacific in South Africa and
the Indian Ocean region. He was appointed to the position
on 18
August 2014.
His
affidavit states that the first time lawyers were engaged on behalf
of Cathay Pacific for advice or for any other reason
in
relation to the court orders of 26 and 28 July was “
approximately
during the week of the 18
th
of August 2014”
.
If
any of the three court orders granted on the 26
th
and 28
th
of July  were communicated to Cathay Pacific then this statement
is significant for two reasons. Firstly it demonstrates that
its
local management did not consider it appropriate to engage attorneys
before refusing to comply with the second order or before
deciding
not to appear in court on Friday 1 August. It also follows that the
legal defences now relied upon were not present to
the minds of
Cathay Pacific’s officers and staff  at the time it
decided to ignore the orders. Whether this is to be
regarded as
reflecting Cathay Pacific’s attitude towards orders issued by
this court will be considered later.
39.
Despite
only engaging attorneys much later, Mr Raicar claims that Cathay
Pacific’s personnel believed that there was “
no
basis
”
for complying with the court orders because they were obliged to obey
the instructions given by the immigration officials
at the airport.
He avers that Cathay Pacific’s stance is not to avoid or
wilfully disobey the court orders or processes of
any country and
avers that: “
More
importantly, it is imperative that
(it)
complies
with the immigration laws of a foreign country and obviously respects
the aforesaid laws.”
40.
The
main submissions made by Cathay Pacific, Jones and Mashoene are the
following;
a.
prior
to receiving legal advice they did not believe that they were obliged
to comply with the court orders and were “
placed
in the invidious position between the immigration laws of South
Africa, the instructions of the Department of Home Affairs
... on the
one hand and the Court process that had been issued by the …
Court on the other hand.
b.
after
about 18 August, they could not have acted wilfully or with
mala
fides
because
they were relying on legal advice. The advice received was that
Cathay Pacific;
“
was
not bound by any of the orders …as  these orders were in
fact null and void and should not have been granted in
the first
instance. Accordingly the Third Respondent was entitled to ignore the
orders and not comply with them. This was in fact
in accordance with
the instructions which I received from the Third Respondent’s
attorney of record, namely Mr Peter Assenmacher
“
41.
The
airline therefore contends that even if it is bound by the court
orders any non-compliance was not wilful or
mala
fide
,
requirements that must each be established beyond a reasonable doubt
if the individual staff members or Cathay Pacific itself
is to be
held in contempt of court. See
Fakie
NO v CCII Systems(Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at  para 9.
42.
The
affidavit which is supported by Jones and Mashoene  sets out how
all three children were refused entry into South Africa
after
disembarking from the Cathay Pacific flight. Once the children were
declared illegal foreigners by the Department of
Home Affairs
its immigration officers instructed Cathay Pacific to detain the
children and ensure that they board the next Cathay
Pacific flight
from OR Tambo to Hong Kong .
43.
The
written instructions to detain all three children were given  by
way of a declaration issued by Home Affairs to the commander
of
Cathay Pacific flight CX749. The officials were also in possession of
the actual notices issued to each child. The declarations
were in the
old standard form and issued under the provisions of
sections 34(8)
and (9) of the
Immigration Act 13 of 2002
(‘
the
Immigration Act’
)
as read with
Regulation 39(13)
promulgated under that Act.
Although
each declaration was stamped and signed by an immigration officer no
one signed for acknowledgement  of receipt on
behalf of the
master in the designated block. The failure to do so in the
circumstances of the present case where Cathay Pacific
admittedly
uses agents is cause for concern and requires comment.
44.
The
grounds for refusing all three children entry into the country have
been dealt with earlier. Each child was also informed that
the
decision could be appealed  or reviewed within 20 days. The
concerns expressed by Yacoob J in
Lawyers
for Human Right
regarding
the inability of many of those affected to protect their rights or
engage the system from a position of vulnerability
is exemplified by
these events. That little has been done to demonstrate a change of
attitude  pursuant to the Constitutional
Court decision is of
great concern. Reference will be made later to our international
obligations under the United Nations Convention
on the Rights of the
Child.
In
terms of the notices the cost of detaining, maintaining and removing
the children to Hong Kong was to be borne by Cathay Pacific.
The
notices as well as the separate notifications of rights of review by
the Minister were signed by the immigration officer. However
it does
not appear that an interpreter was used as the appropriate
certificate was not filled out or signed. Moreover each child
did not
sign receipt although in some instances a note was made that the
child refused to do so.
45.
Although
the declaration is directed at the commander of the flight on which
the children had  arrived its effect was to direct
Cathay
Pacific to board the children on the return leg of the flight to Hong
Kong. This was flight CX748 departing from OR Tambo
on the following
day, Saturday 26 July, at 12H30.
46.
Mashoene
admits that he was contacted telephonically by Attorney Essop and was
informed that Cathay Pacific must not put the children
on the flight.
The answering affidavits explain that Mashoene answered the call
because he was in Cathay Pacific’s offices
at the airport
handling calls relating both to lost baggage and enquiries.
47.
Earlier
in the same affidavit Raicar explains that Mashoene is not an
employee of Cathay Pacific but of Menzies Aviation (Pty) Ltd
which;
“
at
times provide personnel in the form of their employees to assist in
regard to certain functions that had to be performed on behalf
of the
Third Respondent
(ie;
Cathay Pacific).
Mashoene
assists the Third Respondent generally by handling missing baggage
reports and baggage claims. On the day in question,
Mashoene was at
the offices of Cathay Pacific at OR Tambo ….and was answering
the telephone in regard to baggage claims
and baggage queries.
Mashoene is also employed by Menzies as a Lost Property Agent and in
this regard assists persons whose property
is lost when they arrive …
on a flight”
Cathay
Pacific states that by virtue of these facts and circumstances
Mashoene had no authority  to give effect to that order
on
behalf of Cathay Pacific. It was argued that Mashoene could not bind
Cathay Pacific, as he had nothing to do with embarking
the children
on the flight in question, and his refusal to assist cannot be
imputed to Cathay Pacific.
48.
It
will be observed that there is a contradiction between the two
statements contained in the answering affidavit. In the one it
is
claimed  that Mashoene was answering the phone to deal with
baggage claims
and
enquiries
while later it is claimed that he was only dealing with baggage
claims issues. Moreover the affidavit is silent on the
“
certain
functions”
that
Menzies Aviation performs for and on behalf of Cathay Pacific.
49.
The
answering affidavit proceeds to set out that Mashoene, on being
informed by Essop that a court order had been granted stopping
the
children from boarding the flight, responded that he was unable to
assist and would refer it to Cathay Pacific’s employees.
He
then contacted Ms Zelda Swart who is the airline’s airport
service officer.
50.
Swart
was already at the boarding gate for the flight which is hardly
surprising if the flight was to depart at 12H30; this is confirmed

elsewhere in the answering affidavit as the scheduled departure time
for the flight.
51.
According
to Mashoene and Swart, she told him to inform the applicants’
attorney that the children had been refused entry
into the country,
that the airline was obliged to ensure that they board the flight
departing at approximately 12H30 and that he,
Mashoene;
“
could
inform the attorney .. to telephone the Second Respondent
(ie;
the Department of Home Affairs officials)
at
a telephone number which Swart had furnished Mashoene. Swart informed
Mashoene further that it was only on the instructions of
the Second
Respondent that the Third Respondent could give effect to an order
that the minor children were not to be placed on
the departing
aircraft and that without such an instruction from the Second
respondent, the hands of the Third Respondent were
tied”
52.
Mashoene
states through Raicar’s affidavit that Essop then told him that
if the children boarded the flight he would be arrested
for contempt
of court.
53.
Raicar
then makes the proposition that Cathay Pacific cannot be expected to
adhere to a telephonic instruction “
purportedly
emanating from a Court order in the face of a specific instruction
from the Second Respondent
(ie;
Home Affairs)
that
the minor children had to depart on the next flight out of the
country and in contravention of the
Immigration Act”
The
proposition will be tested later.
54.
Almost
as an aside Raicar then concedes that Mashoene also informed Swart
that “
a
certain lady whose details he did not know of, had also spoken to him
informing him that there was an order not to allow the children
to
depart…. This was only communicated to Swart …
after the aircraft had already departed the Republic of South

Africa.”
It
is significant that Mashoene does not commit himself to when he
received this call or whether the person identified herself.

Accordingly there is no challenge to the contents of the founding
affidavit that;
a.
Mlaba
had identified herself to Mashoene;
b.
when
Mlaba contacted Mashoene he had informed her that  the two
children had not yet boarded the flight and that he was responsible

for their boarding. The claim that this was not his function (even if
correct) is not buttressed by either a denial that he had
made these
statements to the judge’s registrar (or Essop for that matter)
or by any evidence as to who in fact was responsible
at Cathay
Pacific for the children while in its care, which individual was
responsible for boarding the children if it was not
him and who in
fact had boarded the children if it was not him;
c.
Mashoene
refused to provide the contact numbers of any supervisory staff in
authority at Cathay Pacific but said that he would speak
to the
responsible person himself.
In
any event the contents of the reasons provided by Wright J on 26 July
2014 are clear on this score and the third respondent cannot
go
behind them at this stage.
55.
Since
Cathay Pacific had not received any instructions from immigration
officials to the contrary the three children were boarded
onto the
flight.
The
deponent does not state when the children were actually boarded or
who on behalf of Cathay Pacific was responsible for their
boarding.
It is however clear that Cathay Pacific does not attempt to justify
its position on the basis that the children had already
boarded or
that any of their luggage had already been stowed on the flight by
the time either Essop or the judge’s registrar
had spoken to
Mashoene confirming that an order had been granted.
56.
Essop
telephoned Cathay Pacific at approximately 13H15 and spoke to Swart.
He referred to the telephonic court order that had been
granted.
Swart claimed that she told Essop about being contacted earlier by
Mashoene and having informed him to provide Essop with
the number for
Home Affairs since Cathay Pacific was obliged to obey their
instructions. She claimed to have explained to Essop
that Cathay
Pacific was obliged to obey the instructions from immigration
officials and that there was nothing it could do until
immigration
instructed it not to board the children on the flight.
57.
The
version put up by Swart of this conversation does not mention that
she had informed Essop that the flight had already departed
at 12H30
with the children on board or that Essop had not mention, at some
stage during the conversation, that according to the
senior legal
adviser at Home Affairs whom he had just contacted it was outside
their jurisdiction once the children had been handed
over to Cathay
Pacific.
58.
It
was also averred that Mashoene “
was
simply a lost property agent and was in no position to adhere to a
telephonic order that the minor children should not board
the
aircraft. It was not possible for anyone to expect Mashoene to comply
with such a telephonic instruction”.
59.
A
short while later at approximately 14H38, Essop again contacted Swart
to request that Cathay Pacific agree to return the minor
children on
the next available flight  once they had disembarked in Hong
Kong. Swart claimed to have told Essop that she was
not in a position
to agree as this would “
depend
on the persons in charge of the Third Respondent or responsible for
making such a decision”.
She
claimed to have repeated to Essop that this was exclusively a matter
between the applicants and Home Affairs.
At
this stage  Swart mentions that Essop was extremely rude and
aggressive. He insisted that the children be returned to Johannesburg

and once that was done Cathay Pacific could explain its side to the
judge. She claims that Mashoene also told her that Essop displayed

the same temperament towards him.
60.
Swart
then confirms that shortly before 14H50 Wright J contacted her
telephonically and informed her that the court was considering
an
order directing the return of the minor children by Monday morning 28
July. The affidavit proceeds to make certain remarks regarding
the
tone adopted by Wright J and continues:
I
have been informed in this regard that it was not incumbent upon a
Judge of a High Court to force an employee of the Third Respondent
to
agree to such an order. In this regard, I have been further advised
that it is highly imperative that Judges of a High Court
do not get
involved personally in the facts of any particular case.”
More follows much in the same vein.
61.
It
is evident that Mr Assenmacher who was responsible for giving this
advice wishes to ignore that it was by reason of Cathay Pacific’s

South African office’s failure to adhere to the initial court
order that the children’s expedited return was first
being
requested and, failing which would be ordered unless Cathay Pacific
could show reason to the contrary. It should have been
clear that the
judge must have made his decision as upper guardian of minor children
in a matter which concerned the constitutional
rights of minors whose
parents were not accompanying them but  who are living in South
Africa.
62.
It
is relevant when assessing Cathay Pacific’s and Jones’
conduct to refer to another passage in Swart’s affidavit

concerning her discussion with Wright J. Swart claims to have
explained to the judge that since she could not agree to place the

children on a return flight it would be necessary for the judge to
contact Jones who was her superior. However when the judge requested

Jones’ cellphone number she admits saying that “
she
was not able to give the number out but Swart informed Judge Wright
that she would phone Jones and would request Jones to contact
Judge
Wright.
Judge
Wright then informed Swart that she had two minutes to revert to him,
failing which Judge Wright would issue an order.”
This
is the first occasion, and one would trust the last, where a person
who is asked by, or on the authority of,  a judge
sitting in an
urgent matter to provide a contact number to decline to do so. In
itself it fails to respect the judicial office.
No one is entitled to
refuse providing a contact number to a presiding  judge when he
or she is dealing with an urgent matter,
irrespective of company
policy. The consequences of such a policy is to remove accountability
and responsibility for corporate
actions at the critical time.
63.
When
Swart phoned Wright J at about 14H55 she claimed that she was unable
to reach Jones. Wright J then afforded her literally another
five
minutes to revert to him as he was not prepared to wait further,
failing which an order would be issued and the matter could
be dealt
with in court on Monday 28 July.
64.
Swart
claims that she was unable to contact Jones and claims that it is for
this reason that she did not revert to Wright J. She
accepts that the
order was only  granted some 25 minutes later at 15H20.
65.
The
deponent to Cathay Pacific’s affidavit proceeds to deal with
Wright J’s reasons for granting the two orders on the
26
th
of July. He does so as if he is responding to an affidavit by a
litigant.
66.
Firstly
Cathay Pacific’s opportunity to deal with any incorrect
statements or submissions that had been made to the judge
was on 28
July when the matter was to be heard, assuming that they were aware
of the hearing. Secondly  the airline cannot
address the reasons
for a judgment as if it is an affidavit. A party must be circumspect
in such cases. While a litigant is entitled
to challenge the
correctness of what had been reported to the judge, or whether
service in a particular form had in fact occurred,
it does not lie in
that party’s mouth to question a recordal by the court that it
received a report at a particular time.
By
way of illustration Wright J recorded in the reasons that Mlaba had
contacted him at 11H52 to advise that Essop wished to apply
for an
urgent order relating to two children who apparently were being
deported on a Cathay Pacific flight leaving OR Tambo at
13H00 for
Hong Kong and that the judge asked Mlaba to provide his cellphone
number to Essop.
Raicar
decides to deal with this paragraph of the judge’s reasons by
stating that save for acknowledging that the flight was
leaving at
12H30 he has no knowledge of the contents of this paragraph.
67.
While
the attorneys are responsible for allowing this, Raicar  is not
immune from censure. He holds a very senior position
covering a large
region in which there are a number  of sovereign states each
with its own judiciary. I would find it difficult
to accept that with
such responsibilities he is unable to bring an independent mind to
bear on the inappropriateness of querying
or otherwise treating with
circumspection a recordal by a judge of what occurred before him or
her. It displays a lack of respect
for the judiciary. Whether this is
isolated or systemic will be considered later.
68.
Raicar
also attempts to explain Cathay Pacific’s non-appearance on 15
August when this matter was first set down on the grounds
that it
”
did
not seek to oppose the orders sought by the Applicants in Part A,
notwithstanding the fact that the Third Respondent is not
in contempt
of any of the orders.
It
is not possible to fathom from the answering affidavit any credible
explanation for Cathay Pacific’s non-appearance on
15 August.
Part A of the order seeks to hold a major international airline in
contempt of court together with a senior employee
who appears to have
been in charge of the South African operations before the arrival of
Raicar. The fact that the airline wished
to demonstrate that the
orders had not been served and that they are to be set aside aside
for want of jurisdiction does not explain
the non-appearance on 15
August. On the contrary these reasons support a need for it to have
attended court.
Accordingly
there is no acceptable explanation for Cathay Pacific’s
non-appearance before the court where it had the opportunity
to state
its position. One would expect that where a party believes that an
adverse order has no  validity it would make use
of the first
available opportunity to bring it to the court’s attention
rather than let the court continue to make further
orders based on
the earlier ones that had been granted, as occurred on 15 August.
69.
Cathay
Pacific contends that;
a.
the first order granted at noon on 26 July is a nullity or otherwise
falls to be set aside because the
Immigration Act precluded
the court
from competently  directing   that Cathay Pacific not
board the minor children unless immigration officials
informed it
that the children were no longer illegal foreigners. Reliance is
placed on the provisions of
sections 8(1)(a)
and (2)(a) read with
34(1) and (8) of that Act;
b.
the subsequent order granted on 26 July and the order of 28 July were
not competent because;
i.
they
amount to mandatory orders over which the court has no control since
Cathay Pacific is a foreign company and the order is to
be performed
in a foreign jurisdiction; namely to return the children from Hong
Kong;
ii.
There
is no valid legal
causa
for
making the order.
These
grounds are set out both as a defence to the contempt application and
as founding the basis for the counter-application to
declare the
three orders a nullity. It is therefore advisable to consider these
issues first.
JURISDCTION
TO INTERDICT THE MINORS BEING BOARDED ON FLIGHT
70.
Cathay
Pacific relies on
sections 8(1)
and (2) as read with 34(8) and (9) of
the
Immigration Act to
contend that only an immigration officer can
countermand the removal of a person once the airline has received a
declaration to
do so and that a court has no jurisdiction to
interfere. The provisions read;
8
Review and appeal procedures
(1)
An immigration officer who refuses entry to any person or finds any
person to be an illegal foreigner shall inform that person
on the
prescribed form that he or she may in writing request the Minister to
review that decision and-
(a)
if he or she arrived by means of a conveyance which is on the point
of departing and is not to call at any other port of entry
in the
Republic, that request shall without delay be submitted to the
Minister; or
(b)
in any other case than the one provided for in paragraph (a), that
request shall be submitted to the Minister within three days
after
that decision.
(2)
A person who was refused entry or was found to be an illegal
foreigner and who has requested a review of such a decision-
(a)
in a case contemplated in subsection (1) (a), and who has not
received an answer to his or her request by the time the relevant

conveyance departs, shall depart on that conveyance and shall await
the outcome of the review outside the Republic; or
(b)
in a case contemplated in subsection (1) (b), shall not be removed
from the Republic before the Minister has confirmed the relevant

decision.
34
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-
(a)
shall be notified in writing of the decision to deport him or her and
of his or her right to appeal such decision in terms of
this Act;
(b)
may at any time request any officer attending to him or her that his
or her detention for the 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 a Court which on good and reasonable grounds
may extend
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.
(2)
The detention of a person in terms of this Act elsewhere than on a
ship and for purposes other than his or her deportation shall
not
exceed 48 hours from his or her arrest or the time at which such
person was taken into custody for examination or other purposes,

provided that if such period expires on a non-court day it shall be
extended to four p.m. of the first following court day.
71.
Nowhere
in these provisions, or anywhere else in the
Immigration Act  is
there an ouster of this court’s jurisdiction to interdict
either immigration officers or, in the parlance of the Act, a master

of the ship  or in this case the commander of an aircraft,
from boarding persons onto a flight. The Act, as with all
other
pieces of legislation assumes lawful conduct. It remains open for a
person to challenge the actions taken by immigration
officials on
grounds such as the exercise by an immigration officer of his powers
being
ultra
vires
the enabling legislation (eg;
Lan
v OR Tambo International Airport Department of Home Affairs
Immigration Admissions and another
2011
(3) SA 641
(GNP)
per
Du
Plessis AJ at paras 45 to 53).
72.
South
Africa passed into its second decade of democracy and so too has our
Constitution and its Bill of Rights
[1]
.
This is a democratic country governed under law, of which the
Constitution is the supreme law.
73.
Section
165(5) which deals with the judicial authority in South Africa
expressly states that  an “
order
or decision issued by a court binds all persons to whom and organs of
state to which it applies
.”
74.
The
question regarding  the original order, in this leg of the
enquiry,  is not whether the decision can survive the scrutiny

of on appeal  but whether the court had the jurisdictional
competence to issue it having regard to the wording of the Act.
In
the present case, there can be no doubt that the court was concerned
with the constitutional rights of minor children. Wright
J was at
pains to set this out in the reasons provided.
75.
In
Lawyers
for Human Rights
the
Constitutional Court expressly dealt with the courts’ reach in
such cases and said:
[26]
The only relevant question in this case therefore is whether these
rights are applicable to foreign nationals who are physically
in our
country but who have not been granted permission to enter and have
therefore not entered the country formally. These rights
are integral
to the values of human dignity, equality and freedom that are
fundamental to our constitutional order. The denial
of these rights
to human beings who are physically inside the country at sea- or
airports merely because they have not entered
South Africa formally
would constitute a negation of the values underlying our
Constitution. It could hardly be suggested that
persons who are being
unlawfully detained on a ship in South African waters cannot turn to
South African courts for protection,
or that a person who commits
murder on board a ship in South African waters is not liable to
prosecution in a South African court.
[27]
Once
it is accepted, as it must be, that persons within our territorial
boundaries have the protection of our courts
,
there is no reason why “everyone” in sections 12(2) and
35(2) should not be given its ordinary meaning. When the Constitution

intends to confine rights to citizens it says so. All people in this
category are beneficiaries of section 12 and section 35(2).
It is not
necessary in this case to answer the question whether people who seek
to enter South Africa by road at border posts are
entitled to the
rights under our Constitution if they are not allowed to enter the
country.
(emphasis
added)
76.
The
Supreme Court of Appeal in
Abdi
unequivocally
affirmed at para 28 that
The
argument that a South African court has no jurisdiction over the
Inadmissible Facility by virtue of the fiction that it does
not form
part of the Republic’s territory is wrong.
77.
In
view of these decisions and many others including the recent
comprehensive re-assertion of the position in
Mukhamadiva
it is not open to any individual, involved with airlines and
international passenger arrivals and departures, to believe
that the
court has no jurisdiction and act in defiance of a court order.
78.
We
have already reached the milestone in our nations journey since
democracy where a conscious decision, taken by a person holding
a
responsible position, that an administrative direction can trump a
court order interdicting the implementation of that direction
pending
a hearing is
per
se
one taken in bad faith. It is inimical to the core principles of the
Constitution. To hold otherwise will open the floodgates of
professed
ignorance by any given authority whether in the private or public
sector.
79.
It
is trite that superior courts are empowered under the Constitution as
read with legislation envisaged under it to interdict the

implementation of any decision or power conferred on immigration
officers or obligations imposed on other persons such as the master

of a ship or commander of an airline under the
Immigration Act.
Mr
Waner
on
behalf of the applicants readily identified the provisions of section
28(2)  of the Constitution which provide:
“
A
child’s best interests are of paramount importance in every
matter concerning the child”
80.
An
indication of the store the Constitution places on the protection of
children’s rights appears from the specific protections

enumerated in subsection (1), which are also illustrative of the
purposive constitutional intent of the section as a whole. In
this
context regard may also be had to section 28(1)(g) which protects a
child against detention except as a measure of last resort
and
section 28(1)(g) which respects a child’s right to family or
parental care, or to appropriate alternative care.
81.
More
specifically , as pointed out by Mr Waner, section 8(2) of the
Children’s Act 38 of 2005 requires that:
‘
All
organs of state in any sphere of government and all officials,
employees and representatives of an organ of state must respect,

protect and promote the rights of children contained in this Act.’
The
court also exercises powers as the upper guardian of all minor
children within its jurisdiction.
82.
Whereas
the
Immigration Act provides
for certain procedures of review and
appeal, the courts regularly issue interim interdictory orders
preventing deportation pending
the outcome of such processes or to
enable the review process to be initiated prior to the individual
being removed from the country.
In the present case the court simply
ordered that the two minor children not be boarded onto the flight
pending a hearing before
it. The effect was that the children would
remain in detention until a court hearing. This is readily apparent
from the subsequent
order made on the same day.
83.
Moreover,
no person can simply ignore a court order because of a personal view
that it could not have been competently given. In
such cases the
order must be complied with unless set aside. See
The
Master of eth High Court (North Gauteng High Court, Pretoria v Motala
and another
2013
(3) SA 325
(SCA) At no stage has it been suggested that the court
usurped a power it did not have. That it had such power is a given
for at
least the reasons provided earlier in relation to minor
children. It clearly also enjoys such powers under section 33
of
the Constitution as read with the
Promotion of Administrative
Justice Act 3 of 2000
. The
Lawyers
for Human Rights
case
at para 20 also referred to the potential infringement of the rights
to dignity and freedom.
84.
The
point taken by Cathay Pacific is therefore devoid of merit.
It
should be added that South Africa ratified the United Nations
Convention on the Rights of the Child on 16 June 1995. It can be

distilled from articles 3, 9, 10 and 37
[2]
of the Convention that there are significant  procedures that
are recommended to be adopted and requirements met before a
State
Party takes a decision which has the effect of separating a child
under 18 years from his or her parents or preventing their

re-unification.
In
particular detention should be used as a measure of last resort. The
fundamental consideration remains the welfare of the child.
In a case
where both parents are permanent residents within South Africa the
basis for justifying the forced separation of minor
children from
their parents touches a raw nerve in our collective consciousness.
JURISDICTION
OVER CATHAY PACIFIC
85.
Cathay
Pacific argues that it is a Hong Kong registered company and
therefore a
peregrinus
over
which the court has no jurisdiction . It also appears to argue that
the court is effectively directing Cathay Pacific in Hong
Kong to
arrange for the return tickets to be booked since the children are
currently there.
86.
Mr
Pincus
for
Cathay Pacific appeared to abandon the first point when the
provisions of section 23 of the Companies Act 71 of 2008 (‘
the
Companies Act’
)
were pointed out. He also withdrew the second point when asked
whether his client was contending that Cathay Pacific’s
offices
in South Africa or elsewhere in the world could not book a one way
return ticket from Hong Kong to the destination serviced
by that
office if the sponsor was located outside Hong Kong (such as a parent
or spouse).
87.
Nonetheless
the following appears evident.  A foreign company which conducts
business in South Africa is subject to this court’s

jurisdiction in respect of any cause of action which arose out of its
activities here. This has been a settled part of our law
even when
foreign companies could trade freely in South Africa through branch
offices without having to be registered under local
company law
legislation. The authoritative case regularly cited is
Appleby
(Pty)
v
Dundas Ltd
1948(2) SA 905 (E). The decision concerned a foreign English company
with its head office in Portsmouth and one of its branch office
in
Johannesburg. It had concluded contracts within the jurisdiction of
the Port Elizabeth Circuit Local Division and was sued in
that court
for a money judgment.
88.
The
court was required to  consider the meaning of the words
‘
resided
in the Union’
for the purposes of section 5 of the Administration of Justice Act 27
of 1912, which later was re-enacted as section 19 of the
Supreme
Court Act 59 of 1959, in order to render a person or legal entity
amenable to the jurisdiction of a superior court within
South Africa.
Hoexter J held at 912 that;
the
defendant, by virtue of the business which it carries on at its
branch in Johannesburg, is sufficiently resident in the Union
to make
it amenable, in respect of any cause of action arising out of such
business, to the jurisdiction of any Division of the
Supreme Court
which is competent to adjudicate upon that cause of action.
89.
The
authority relied upon in
Appleby
included
the following statement by Innes JA (at the time) in
Beckett
Ltd v Kroomer Ltd
1912 AD 324 at 338 which, as pointed out by Hoexter J (at 911)
accepted the principle as far as foreign companies are concerned
but
refrained from deciding whether it applied to domestic companies:
'With
regard to the contracts of local branches, the balance of convenience
would probably be in favour of their being enforced
by local
tribunals competent to adjudicate upon the subject-matter. But
whether it would be found possible in such cases to apply
to domestic
companies
the
principle recognised in regard to foreign corporations
in Wallis v Gordon Diamond Co., and also laid down by an American
Court in Aldrick v Anchor Coal Co. (41 Am. State Rep. 831), is
a
point which does not arise in these proceedings.'
(emphasis
added)
90.
A
significant consequence of finding that a foreign company resides in
South Africa, even if only because it carries on business
within the
courts area of jurisdiction and a recognised  jurisdictional
ground (
ratio
juirsdictionis)
exists within its jurisdiction, was that it precluded the attachment
of a person or property to found  (or confirm) jurisdiction
by
reason of the express provisions of section 28 (1) of the repealed
Supreme Court Act 59 of 1959
[3]
The
current
Superior Courts Act 10 of 2013
is to similar effect by reason
of the provisions of
sections 21(1)
and
28
which read:
“
21(1)
A Division has jurisdiction over all persons residing or being in,
and in relation to all causes arising and all offences
triable
within, its area of jurisdiction and all other matters of which it
may according to law take cognisance …. “
28
Prohibition on attachment to found jurisdiction within Republic
No
attachment of property to found jurisdiction shall be ordered by a
Division against a person who is resident in the Republic.
91.
Accordingly
multinational companies carrying on business within South Africa
cannot elect to become opaque for certain purposes.
In this regard
the following passages in
Appleby
bear
repeating (at 911)
“
In
the American case cited the principle was stated in the following
terms:
'Where
a corporation created in one jurisdiction is permitted to do business
in another, it is to be deemed to be a resident and
subject to the
jurisdiction of the courts of the latter, in all matters founded upon
contracts made or causes of action arising
there.'
The
same principle was stated by Lord St Leonards in a slightly different
form in the case of Carron Iron Co v Maclaren
[1855] EngR 700
;
(5 H.L.C. 416
at p.
450):
'The
corporation cannot have the benefit of a place of business here
without yielding to the persons with whom it deals a corresponding

advantage.'”
The
judgment provides further illustrations of the point.
92.
Appleby
has
been consistently followed and approved in respect of the application
of the
forum
conveniens
regarding
external companies which conduct business within this court’s
jurisdiction and where there is another jurisdictional
ground
present. See particularly
Bisonboard
Ltd v K Braun Woodworking Machinery (Pty) Ltd
[1990] ZASCA 86
;
1991
(1) SA 482
(A) especially at 497B-C and 498B and most recently
Fabricius J in
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
2014 (3) SA 265
(GP) especially at para 16.
93.
The
case of
ACL
Group (Pty) Ltd and others v Qick Televentures FZE
2013 (1) SA 508
(FB) is the only recent case which has not
followed
Appleby
.
With respect to the learned acting judge the reliance on the judgment
of
Joseph
and Another v Air Tanzania Corporation
1997 (3) SA 34
(W) as authority for the proposition that
Appleby
is
no longer good law appears to take the reasoning of Streicher J (at
the time) out of context.
94.
In
ACL
Group
the
court said at para 20 that;
“
The
question posed in this matter is simply whether a foreign company,
which has been duly registered as an external company in
terms of the
Companies Act and
which conducts business in the Republic, is
resident in the Republic for the purposes of s 28(1) of the Supreme
Court Act. For
the reasons that follow, I am of the opinion that a
duly registered external company, conducting business in the
Republic,
cannot be said to be resident in the Republic
for purposes of s 28(1) of the Supreme Court Act, regardless that the
cause of action
(dispute) arises from the business activities of the
external company in the Republic.”
95.
In
my respectful view  the reasoning in
ACL
Group
is
not in conformity with that of my brother Fabricius J in
Multi-Links.
I
am bound by the latter decision unless I find it clearly wrong. I do
not. On the contrary it sets out in compelling terms the
adoption of
the
ratio
in
the line of cases progressing from
Appleby
and
Bisonboard
to
the application of the decision in
Bid
Industrial Holdings (Pty) Ltd v Strang and Another (Minister of
Justice and Constitutional Development, Third Party)
2008 (3) SA 355
(SCA). I respectfully adopt the reasoning.
96.
In
addition it appears to me, and with respect to the decision in
ACL
Group,
that
there is a fundamental difference between an external company as
defined under the provisions of  the old Companies Act
1973 and
the present
Companies Act 2008
.
97.
Under
the old Act the foreign company only had to establish a place of
business to qualify as an external company whereas under
the new Act
it must conduct business within the country
[4]
.
This is not a simple change of wording. It indicates a significant
change of intention borne out by a comparison between the way
the two
Acts treat the acquisition of property in South Africa. Under the old
Act the  acquisition of immovable property by
a foreign company
was alone sufficient to establish a place of business within the
Republic whereas that is not enough to constitute
the carrying on of
business under the new Act. The new Act expressly excludes the simple
acquisition of immovable property as amounting
to conducting a
business (section 23(2A)).
98.
The
reason for the change of legislative intent appears to arise because
under the old Act the establishment of a business was not
enough to
determine residence. In addition the external company would have to
demonstrate that it was actually carrying on business
in South Africa
to satisfy one of the jurisdictional links, the other being the
existence of a jurisdictional ground such as the
cause of action
arising within the court’s jurisdiction; in the sense that
legal proceedings duly arose under the common
law within the court’s
jurisdiction. See
Bisonboard
Ltd
at 468C-D and the analysis of other leading cases by Fabricius J in
Multi-Links
at para 13.
99.
By
contrast, under the present Act an external company must in fact
carry on business within the Republic to qualify. Prof Delport
in
The
New
Companies Act Manual
at
8 ftn 18 suggests that the term “
carrying
on business”
in
the
section 1
definition of an external company bears a different
meaning to the phrase “
conducting
business”
in
section 23.
In my view the terms are interchangeable and reflect no
more than a stylistic variation to suit the context. Although the
English
text was signed, the Afrikaans text supports this; the
section 1definition
adopts the phrase “ ‘
n
buitelandse maatskappy wat in die Republiek sake doen
”
,
section 23(1)
the phrase  “n
buitelandse
maatskappy moet ….  begin sake doen
”
and
section 23(2)
also speaks of “
'n
vreemde maatskappy geag word een te wees wat sake …. in die
Republiek doen
”
100.
Under
the present Act an external company is obliged to register if it
actually conducts business (or non-profit activities) as
defined
under subsection (2) unless such activities are limited to those set
out in subsection (2A)
101.
As
pointed out in
Bisonboard
at
499E-F the enquiry does not end if there is a recognised ground of
jurisdiction. The doctrine of effectiveness must also be satisfied
in
the sense that the court is able to give effect to the judgment
sought although the degree of effectiveness required may have
been
diluted over time  (and see also
Multi-Links
at
para 15)
102.
In
the present case it is clear that Cathay Pacific conducts business in
South Africa. It has a staff contingent which includes
local
employees, a booking  office as well as a dedicated local
reservation hotline. It has concluded contracts with Menzies
Aviation
(Pty) Ltd for ground handling requirements including access to its
premium lounge facility at OR Tambo and according to
its web-site,
international transit passengers proceed to the Menzies Aviation
Service transit desk. This information is also readily
ascertainable
from its own webpages.
103.
The
requirement of effectiveness is also satisfied as Cathay Pacific and
its local personnel are amenable to the court’s jurisdiction

without the need to attach its aircraft or the airfares due to it
from local airline agents.
104.
The
second point regarding the alleged extra-territorial nature of the
order( to provide the children with seats on a flight from
Hong Kong)
also appeared to be conceded.  It is clear that one can enter
Cathay Pacific’s office or telephone its number
in South Africa
to book a one way ticket to South Africa  from Hong Kong. A
simple illustration is a parent purchasing a one
way ticket for a
child who has completed her studies abroad.
105.
In
insofar as the jurisdictional ground is concerned, Cathay Pacific
failed to comply with a court order when it boarded the children

within the area of this court’s jurisdiction. The admitted
violation of the court order occurred here and this court is the

proper court to be seized of jurisdiction, even if it only does so
under  the
forum
conveniens
doctrine(see
Bisonboard
).
Cathay Pacific does not claim that its office here lacks the capacity
or authority to make a booking for a flight leaving Hong
Kong for
South Africa. Finally this court has the ability to continue to fine
the airline and attach assets here in execution if
it does not pay.
106.
These
constitute sufficient criteria to have enabled Wright J to grant a
mandatory order. In
Foize
Africa (Pty) Ltd v Foize Beheer BV and others
2013
(3) SA 91
(SCA) Leach JA on behalf of the court held at para 10 that
The
issue is really one of  effectiveness, and while I accept that a
court of this country should not grant an interdict against
a
peregrinus where the act sought to be interdicted would take place
outside its area of jurisdiction,  this is not such a
case. This
is a matter involving a contract concluded in this country, which is
to be performed in this country, which the respondents
threaten to
breach in this country, and which the appellant, an incola,
seeks to enforce in this country. In these circumstances
a court of
this country will be able to enforce an interdict if granted, even if
contempt proceedings are not available (about
which I express no
opinion).
In
my view the present case is on an equal footing. The obligation to
comply with the first court order arose within this court’s

jurisdiction, it had to be complied with here and was breached here.
The subsequent order, for reasons already stated, can be readily

complied with by Cathay Pacific’s office in this country and
there is no fact placed before the court in the affidavit of
Cathay
Pacific to say that it cannot. It has been particularly silent on
that score.
CONTEMPT
OF COURT
107.
The
test and the threshold evidential requirement for making a finding of
contempt of court has been set out earlier.
108.
It
is common cause that the first order could not have been delivered in
written form prior to the expected time of the flights
departure on
26 July. It is common cause that Mashoene was informed of the order
and despite Swart’s protestations to the
contrary to the
judge’s registrar and to Essop it is clear  from Cathay
Pacific’s affidavit that she would have
been  aware of the
order before the children, on Cathay Pacific’s version, were in
fact boarded onto the flight. In
any event Cathay Pacific cannot
claim that Mashoene is not a responsible person acting as its agent,
even if not its employee.
There are a number of reasons for this;
a.
Mashoene
was instructed by a responsible employee of Cathay Pacific not to
provide the contact number of its senior supervisory
staff member on
duty, being at the very least Ms Swart. That being the case he was
given the trappings of authority to receive
notification of the court
order on its behalf. It is not possible to have it both ways;
b.
Mashoene
is employed by Menzies Aviation yet he accepted service of the court
orders as the administration officer at Cathay Pacific’s

offices at OR Tambo. A sheriff’s return constitutes
prima
facie
evidence.
c.
Menzies
Aviation, as appears earlier, does not perform only baggage clearance
on behalf of Cathay Pacific. The case reported in
SAFLII where it
challenged a tender award demonstrates that it provides both
passenger and baggage clearing services for major
airlines (
Menzies
Aviation South Africa (Pty) Ltd v South African Airways (Pty) Ltd and
others
[2009]
ZAGP JHC 65 at para 7). This is also borne out by what is stated
earlier. It appears that Raicar has not been entirely open
with the
court as to the services provided by Menzies Aviation and the
functions Mashoene has actually performed on its behalf
as an
employee of  Cathay Pacific’s service agent.
109.
This
court has no hesitation in finding that notification of the order to
him was notification to Cathay Pacific and that Swart
had actual
knowledge before the flight departed.
110.
It
is also common cause that Swart refused to comply with the first
order. Mashoene conveyed as much on the version given by the
airline.
The fact that a deliberate decision was taken to ignore the order
because of the declaration given effectively to Cathay
Pacific by
immigration officials satisfies the requirements for wilfulness.
111.
I
have found that it is not possible to act
bona
fide
,
having regard to the pronouncements of the Constitutional Court and
the Supreme Court of Appeal over an extended period,  when

deliberately refusing to comply with a court order . In this case the
failure to obtain advice despite knowing that the order emanated
from
the High Court and the failure to immediately approach immigration
officials and advise them of the court order further demonstrates
mala
fides
and
a complete disrespect for the writ of this court. The contempt was
committed by Cathay Pacific through its officials.
112.
However
I am unable to find that Mashoene acted wilfully since he was obliged
to obtain instructions from and was under the authority
of Swart.
113.
The
failure to comply with the subsequent court orders of 26 July and 28
July were similarly wilful as a deliberate decision had
been taken.
Moreover Jones’ conduct as set out earlier demonstrates that
she was not prepared to accept that the failure
to comply with the
first court order required to be remedied immediately because of the
invasion of the minor children’s
rights. While the orders may
not have been emailed , the content was known and yet, having the
most senior position at the time,
she deliberately chose to ignore
the fact that a judge had gone so far as to personally call the
airline to secure the children’s
rights.   I have no
hesitation based on the facts set out earlier to find that Jones
acted
mala
fide
and
displayed lack of concern and disrespect for the authority of the
court. This is further demonstrated by her refusal to sign
for the
court order and her failure to attend court on both the 1
st
and the 15
th
August despite the alleged claim that the orders were a nullity. I
should add that the eldest child had been returned to Hong Kong

because the siblings were.
114.
A
finding that Jones is in contempt
a
fortiori
results
in the airline being in contempt.
115.
At
this stage the appropriate sanctions appear to be the imposition of
fines . However it will be necessary to hear submissions
on the
amounts that should paid.
116.
Finally
it is necessary  to express this courts disquiet at the manner
in which Cathay Pacific and its attorney chose to engage
this court
with regard to the attempts made by Wright J to secure the protection
of the children and effect compliance with the
first order. The
airline’s averments regarding the appropriateness of the
judge’s actions, as set out earlier, are
themselves
inappropriate. There is little doubt that any judge would have
intervened to secure the implementation of  an order
to
repatriate minor children to the country of residence of their
parents (see the steps taken by the Du Plessis AJ in
Lan
at
paras 16 and 27 where the imminent deportation and then continued
detention of an adult were in issue) . In this regard the court
takes
its responsibilities as upper guardian of minor children seriously.
The  actions taken by Wright J in this matter speak
eloquently
to that. Rather than suggest that the steps taken  by the court
appear inappropriate, Cathay Pacific’s management
and its
attorney should reflect on the former’s disobedience of the
court order and failure to take the simple remedial steps
advocated
by the judge as an immediate solution. There is no reason why they
failed to comprehend why a judge in the urgent court
found it
necessary to engage directly with the airline when it disobeyed the
court order relating to the minor children.
ORDER
117.
It
is for these reasons that I made the following order last week,
although certain of the dates for filing affidavits have now
been
changed:
1.
The
Third Respondent is held to be in contempt of the court orders
granted on 26 July 2014 by Wright J under case number 2014/22434
in
that;
a.
It
boarded the applicants’ two minor children, Z….. and
L….. onto flight CX748and did not  disembark
them despite
the  interdict preventing it from boarding the said children,
b.
it
did not return the said children to OR Tambo International Airport on
a Cathay Pacific flight departing from Hong Kong despite
the
second order granted to that effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
2.
The
Third Respondent is held to be in contempt of the court orders
granted  on 28 July 2014 by Wright J under the said case
number
in that;
it
did not return the applicant’s eldest child X……….
to OR Tambo International Airport on a Cathay Pacific
flight
departing from Hong Kong despite  the order granted to that
effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
3.
Ms
Shirley Jones is held to be in contempt of the second court order
granted on 26 July 2014and the order granted  on 28 July
2014 by
Wright J under the said case number in that .
she
did not cause Cathay Pacific to return the applicant’s three
children to OR Tambo International Airport on a Cathay Pacific
flight
departing from Hong Kong despite  the orders granted to that
effect;
and
for the reasons set out in the judgment to be handed down by Friday
14 November 2014
4.
The
counter-application brought by the Third Respondent is dismissed
5.
The
Third respondent is pay;
a.
the
costs of the application to date, including all the reserved costs on
the scale as between attorney and client;
b.
the
costs of the counter-application brought by it on the scale as
between attorney and client
6.
The
sanctions to be imposed on the Third Respondent and Jones for their
contempt of the court orders are the payment of fines.
7.The
Third Respondent is to show cause to this court on Thursday 11
December 2014 before Spilg J at 10H00 or so soon as the matter
can be
heard why it should not be;
a.
fined
for its contempt of the court order of 26 July 2014 in a significant
sum;
b.
fined
for its contempt of the second court order of 26 July and the order
of 28 July 2014;
i.
in
a sum equal to the cost of a premium economy class ticket for each of
the applicants three children on a scheduled Cathay Pacific
passenger
flight from Hong Kong to OR Tambo International Airport ;
ii.
in
a further sum payable weekly commencing on Friday 22 November 2014
for so long as it fails to comply with the orders and fails
to return
all the children to Johannesburg on a Cathay Pacific flight as
aforesaid ;
c.
ordered
to pay the costs of these further proceedings on the scale as between
attorney and own client
8.
Jones
is to show cause to this court on Thursday 11 December 2014 before
Spilg J at 10H00 or so soon as the matter can be heard
why she should
not be fined for her contempt of the second court order of 26 July
and the order of 28 July 2014 in a significant
sum of money relative
to her salary and position at the time;
9.
The
Third Respondent and Jones shall file their affidavits by no later
than Wednesday 3 December 2014. The affidavit of the Third
Respondent
must include;
a.
the
annual financial returns of the Third Respondent for the last two
years as required to be submitted in terms of South African
company
and tax laws
b.
details
of the current airfare for a one way Cathay Pacific airline ticket on
its scheduled passenger airline flight from Hong Kong
International
Airport to OR Tambo International Airport Johannesburg for a person
twelve years and older on business class, premium
economy class and
economy class;
c.
details
of the cost of delaying an aircraft from its slotted departure flight
time before the aircraft doors have been closed where
a passenger and
his or her baggage must be located and taken off the flight;
d.
details
of the cost of aborting the take-off of a flight, once the aircraft
doors are closed and the gantries,  jet bridges
or stairs have
been withdrawn, in order to have a passenger disembark with his or
her luggage
e.
the
pay package and monthly salary slips of Jones for the last twelve
months
10.
The
Applicant shall file any affidavit in answer by no later than Friday
5 December 2014;
11.
The
Third Respondent and Jones shall file any affidavit in reply by no
later than Tuesday 9 December 2014
12.
The
Third Respondent shall index, paginate and bind the papers by no
later than Wednesday 10 December 2014
Date
of hearings: 15 August and 12 September 2014
Date
of order: 11 November 2014
Date
of judgment: 18 November 2014
Legal
representatives
For
applicants: Adv H Waner
Rossouws
Attorneys
For
Third Respondent: Adv S Pincus
Assenmacher
Attorneys
[1]
Initially the interim Constitution, 200 of 1993.
[2]
United Nations Convention on the Rights of the
Child
Article 3
1. In all actions
concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative
authorities or
legislative bodies, the best interests of the child shall be a
primary consideration.
2. States Parties undertake
to ensure the child such protection and care as is necessary for his
or
Article 9
1. States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except when
competent
authorities subject to judicial review determine, in
accordance with applicable law and procedures, that such separation
is necessary
for the best interests of the child. Such determination
may be necessary in a particular case such as one involving abuse or

neglect of the child by the parents, or one where the parents are
living separately and a decision must be made as to the child’

s place of residence.
2. In any proceedings pursuant to paragraph 1,
all interested parties shall be given an opportunity to participate
in the proceedings
and make their views known.
3.
States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations
and direct
contact with both parents on a regular basis, except if it is
contrary to the child’ s best interests.
Article 10
1.
In accordance with the obligation
of States Parties under article 9, paragraph 1, applications by a
child or his or her parents
to enter or leave a State Party for the
purpose of family reunification shall be dealt with by States
Parties in a positive,
humane and expeditious manner. States Parties
shall further ensure that the submission of such a request shall of
itself entail
no adverse consequences for the applicants and for the
members of their family.
2. A child whose parents
reside in different States shall have the right to maintain on a
regular basis save in exceptional circumstances
personal relations
and direct contacts with both parents. Towards that end and in
accordance with the obligation of States Parties
under article 9,
paragraph 2, States Parties
Article 37
States Parties shall ensure that:
(a) …
(b)
No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child
shall
be in conformity with the law and shall be used only as a measure of
last resort and for the shortest appropriate period
of time;
(c) Every child deprived of liberty shall be treated with
humanity and respect for the inherent dignity of the human person,
and
in a manner which takes into account the needs of persons of
their age. In particular, every child deprived of liberty shall be

separated from adults unless it is considered in the child’ s
best interest not to do so and shall have the right to maintain

contact with his or her family through correspondence and visits,
save in exceptional circumstances;
(d) Every child deprived
of his or her liberty shall have the right to prompt access to legal
and other appropriate assistance
as well as the right to challenge
the legality of the deprivation of his or her liberty before a court
or other competent, independent
and impartial authority and to a
prompt decision on any such action.
[3]
Section 28 (1) provided: “
No
attachment of person or property to found jurisdiction shall be
ordered by a court of any division against a person who is
resident
in the Republic”
[4]
Compare:
Under the 1973 Act:
Section 1: 'external company' means a company or
other association of persons, incorporated outside the Republic, the
memorandum
of which was lodged with the Registrar under the repealed
Act, or which, since the commencement of this Act, has
established
a place of business
in the Republic and for purposes of this
definition establishing a place of business shall include the
acquisition of immovable
property;
Under the 2008 Act:
Section 1:
'external company' means a foreign
company that is
carrying on business
, or
non-profit activities, as the case may be, within the Republic,
subject to section 23 (2);
Section 23 reads:
(1) An external company must register with the
Commission within 20 business days after it first begins to conduct
business, or
non-profit activities, as the case may be, within the
Republic-
(a) as an external non-profit company if, within the
jurisdiction in which it was incorporated, it meets legislative or
definitional
requirements that are comparable to the legislative or
definitional requirements of a non-profit company incorporated under
this
Act; or
(b) as an external profit company, in any
other case.
(2) For the purposes of subsection (1), and the
definition of 'external company' as set out in section 1, a foreign
company must
be regarded as 'conducting business, or non-profit
activities, as the case may be, within the Republic' if that foreign
company-
(a) is a party to one or more employment
contracts within the Republic; or
(b) subject to subsection (2A), is engaging in
a course of conduct, or has engaged in a course or pattern of
activities within
the Republic over a period of at least six months,
such as would lead a person to reasonably conclude that the company
intended
to continually engage in business or non-profit activities
within the Republic.
(2A) When applying subsection (2) (b), a foreign
company must not be regarded as 'conducting business activities, or
non-profit
activities, as the case may be, within the Republic'
solely on the ground that the foreign company is or has engaged in
one or
more of the following activities:
(a) Holding a meeting or meetings within the
Republic of the shareholders or board of the foreign company, or
otherwise conducting
any of the company's internal affairs within
the Republic;
(b) establishing or maintaining any bank or other
financial accounts within the Republic;
(c) establishing or maintaining offices or agencies
within the Republic for the transfer, exchange, or registration of
the foreign
company's own securities;
(d) creating or acquiring any debts within the
Republic, or any mortgages or security interests in any property
within the Republic;
(e) securing or collecting any debt, or enforcing
any mortgage or security interest within the Republic; or
(f) acquiring any interest in any property
within the Republic.