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[2015] ZASCA 92
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Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92; 2015 (4) SA 433 (SCA); [2015] 3 All SA 425 (SCA) (29 May 2015)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA JUDGMENT
Reportable
CASE
NO: 965/2013
In
the matter between:
ABDUL
RAHIM
FIRST
APPELLANT
HOSSAIN
KAMAL
SECOND APPELLANT
ZAKIR
HOSSAIN
THIRD APPELLANT
HARUN
MOHAMMED
FOURTH APPELLANT
MOHAMMED
SALLA
UDDIN
FIFTH APPELLANT
ABDUL
SHAMOL
SIXTH
APPELLANT
MAHBUB
ALOM
SEVENTH
APPELLANT
TOYOBUR
RAHMAN
EIGHTH APPELLANT
SUMAN
CHUDHURY
NINTH APPELLANT
MUSTAFI
GURRAMAN
TENTH APPELLANT
EUNICE
HAYFORD
ELEVENTH
APPELLANT
ZAIUR
RAHMAN
TWELFTH APPELLANT
MD
ALAP
THIRTEENTH APPELLANT
NORUL
ALOM
FOURTEENTH
APPELLANT
MAHE
MINTU
FIFTEENTH APPELLANT
and
THE
MINISTER
OF
HOME
AFFAIRS
RESPONDENT
Neutral
Citation:
Rahim
v The Minister of Home Affairs (
965/2013)
[2015] ZASCA 92
(29 May 2015).
Coram:
Navsa, Majiedt, Mbha & Zondi JJA and Meyer AJA
Heard:
18 May 2015
Delivered:
29 May 2015
Summary:
Detention of illegal foreigners pending deportation in terms of
s
34(1)
of the
Immigration Act 13 of 2002
– illegal foreigners to
be detained in a manner and place determined by the Director-General
– absence of evidence
concerning such determination –
principle of legality – detentions unlawful.
ORDER
On
appeal from
: The Eastern Cape Division of the High Court, Port
Elizabeth (Chetty J sitting as court of first instance).
The
following order is made:
1.
The appeal is upheld and the respondent is ordered to pay the
appellants‟ costs, including the costs of two
counsel.
2.
The order of the court below is substituted by the following order:
'1.
The detention of each of the Plaintiffs is declared to have been
unlawful.
2.
The Defendant is ordered to pay damages to the Plaintiffs as follows:
2.1
To the First Plaintiff an amount of R10 000 together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.2
To the Second Plaintiff an amount of R12 000 together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.3
To the Third Plaintiff an amount of R3 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.4
To the fourth Plaintiff an amount of R6 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.5
To the Fifth Plaintiff an amount of R5 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.6
To the Sixth Plaintiff an amount of R8 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.7
To the Seventh Plaintiff an amount of R20 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.8
To the Eighth Plaintiff an amount of R10 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.9
To the Ninth Plaintiff an amount of R25 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.10
To the tenth Plaintiff an amount of R12 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.11
To the Eleventh Plaintiff an amount of R12 000, together with
interest thereon, at the rate of 15,5 per cent per
annum until the
date of full and final payment thereof;
2.12
To the Twelfth Plaintiff an amount of R18 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.13
To the Thirteenth Plaintiff an amount of R16 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof;
2.14
To the Fourteenth Plaintiff an amount of R14 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof;
2.15
To the Fifteenth Plaintiff an amount of R5 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof.
3.
The Defendant is ordered to pay the Plaintiffs‟ costs of suit,
including the costs of two counsel.'
JUDGMENT
Navsa
ADP (Majiedt, Mbha & Zondi JJA and Meyer AJA concurring):
[1]
This is an appeal against a judgment of the Eastern Cape Division of
the High Court, Port Elizabeth (Chetty J), in terms of
which the
court a quo dismissed the claims of the 15 appellants, all foreign
nationals, for damages said to have been sustained
as a result of
their alleged unlawful arrest and detention at the instance of
officials of the respondent, the Minister of Home
Affairs (the
Minister). The appeal is before us with the leave of the court below.
[2]
This case is adjudicated against the following backdrop. South
Africa has kilometre upon kilometre of porous borders
which the Department of Home Affairs (the Department) has difficulty
controlling. There is public concern about the illegal influx
of
foreigners. Many of our African brothers and sisters and even people,
like most of the appellants, from more distant shores,
flock to our
country in search of a better life and economic opportunities. This
has caused a degree of animosity to be directed
at foreigners and
more recently has led to what has been described as xenophobic
attacks on foreigners. It is vital in this
context to affirm
that we are a constitutional state subscribing to the principle of
legality, an incident of the rule of law.
Our Constitution demands a
normative standard and we must be held bound by it. In adjudicating
this case, sight will not be lost
of the logistical and other
difficulties that the Department experiences in dealing with an
influx of foreign nationals. At the
same time we cannot lose sight of
our constitutional duty to do justice in accordance with
constitutional norms. I turn to deal
with the relevant facts and the
applicable law.
[3]
Fourteen of the appellants are Bangladeshis. The eleventh appellant
is Ghanaian. All of the appellants were asylum seekers who
had
applied for asylum in terms of s 21 of the Refugees Act 130 of 1998
(the RA) and had, in terms of s 22(1) of the RA, been granted
an
asylum seeker permit. Section 22(1) reads as follows:
'The
Refugee Reception Officer must, pending the outcome of an application
in terms of section 21(1), issue to the applicant an
asylum seeker
permit in the prescribed form allowing the applicant to sojourn in
the Republic temporarily, subject to any conditions,
determined by
the Standing Committee, which are not in conflict with the
Constitution or international law and are endorsed by
the Refugee
Receptions Officer on the permit.'
Section
22(3) of the RA, recognising that the process for finalising such
applications is protracted, provides:
'A
Refugee Reception Officer may from time to time extend the period for
which a permit has been issued in terms of subsection (1),
or amend
the conditions subject to which a permit has been so issued.'
[4]
Having been granted asylum seeker permits, the appellants attended at
the Port Elizabeth office of the Department at regular
intervals to
have their permits extended in contemplation of the finalisation, not
just of a decision in respect of the application
for asylum, but also
of an appeal to an appeal board in terms of s 26 of the RA. If the
officials of the respondent are to be believed
each one of the
appellants were arrested only after:
(i)
they had been informed in their home language that their appeals had
been unsuccessful and were thus illegal
foreigners; and
(ii)
they had been informed of their rights to pursue further processes to
thwart deportation.
[5]
The power to arrest and detain the appellants was claimed in terms of
s 34(1) of the Immigration Act 13 of 2002 (the IA), which
reads as
follows:
'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.'
(My emphasis.)
[6]
At the commencement of the trial in the court below there were
several issues in dispute. The appellants disputed their status
as
determined by the Department and which at trial was the asserted
basis of their arrest, namely that of being illegal foreigners.
Furthermore, the appellants contended that at the time of their
arrest they had not been provided with reasons. They also complained
that their rights: (i) to use further processes provided for in the
IA to resist deportation and; (ii) under the Constitution (especially
s 35 which deals with the rights of arrested, detained and accused
persons); and (iii) to Consular access and assistance in terms
of
Article 36(1)
(b)
of the Vienna Convention on Consular
Relations, 1963, were not explained to them, rendering their
detention unlawful. Importantly,
they invoked the principle of
legality in relation to s 34(1) of the IA, contending that they could
only, as prescribed by that
subsection, be detained
in
a
manner
and
at
a
place
determined
by the Director- General of the
Department, which they were adamant had not occurred. The submission
was that this requirement of
s 34 was in appreciation of the right of
illegal migrants recognised in civilised states, namely, that they
should, because of
their vulnerability, be treated as a separate
category of detainees and be rigorously separated from the general
prison population.
The appellants submitted that their detention at
either Kwazakhele police station or St Albans prison or New Brighton
Police, or
other police station or prison (as fourteen of the fifteen
appellants had spent the greater part of their detention at a prison
or police station), or even at Lindela deportation facility was in
disregard of the provisions of s 34 as they were not places
'determined
by' the Director-General, thus rendering their detention unlawful.
[7]
At inception the appellants applied in the court below, in terms of
Uniform Rule 33, for a decision to be made separately, in
respect of
their contentions set out at the end of the preceding paragraph,
namely, the interpretation and application of s 34(1)
in relation to
a determination by the Director-General. Simply put, the appellants
argued that the respondents were required to
prove that a
determination as contemplated in s 34(1) of the IA had been made by
the Director-General, and the appellants contended
that the absence
of such a determination would render the detention unlawful. They
sought a separation of and a decision on this
issue. Chetty J ruled
against them and a trial ensued on all the issues in dispute.
[8]
The court below, considering the evidence and having regard to the
applicable statutory provisions, rejected the submissions
on behalf
of the appellants that they were not illegal foreigners because their
asylum-seeker permits had not yet expired at the
time that they were
arrested. Chetty J reasoned that such permits remained valid only
until the outcome of the applications and
that they lapsed upon the
application or any associated review or appeal being finalised.
[9]
The court below also dealt with the submission on behalf of the
appellants that the arresting officials were imbued with a discretion
and were required to consider arrest as a last resort in the
deportation process and that in respect of the appellants they did
not apply their minds to each individual case but rather arrested all
of the appellants on the basis of a blanket policy that all
illegal
foreigners were subject to arrest. The contention on behalf of the
appellants was that the arresting officials could have
considered
requiring the appellants to report regularly or they could have
employed other means to monitor their position until
deportation was
imperative – ie arrest should have been a final resort after
all other processes available to them were exhausted.
The court
below, after considering the evidence, said the following:
[I]t
is clear . . . that the decision to arrest and deport the plaintiffs
was not arbitrary but effected against the background
of all material
factors.'
[10]
Furthermore, the court below rejected the appellants‟ claims
that they had not been informed of their rights; in terms
of ss
34(1)
(a)
and
(b)
of the IA; s 35 of the
Constitution; and the Vienna Convention. Chetty J also rejected the
assertion that proper warrants for the
detention of the appellants
had not been issued. He accepted the evidence on behalf of the
respondent that the appellants‟
rights had been explained to
them in a language they understood and
that the anomalies
in the documents
presented in evidence were overcome by the
viva
voce
evidence of the officials who effected the arrests. He rejected
the appellants‟ attack on the integrity of the interpreters
employed by the Department.
[11]
Dealing with the question whether, in terms of s 34(1) of the IA,
there had to be a special determination by the Director-General
for
the detention of illegal foreigners. Chetty J had regard to the
decision in
Lawyers
for
Human
Rights
v
Minister
of
Safety
and Security and 17 others
[2009]
JOL 23612
(GNP) in which Raulinga J held that the IA aimed at setting
in place a new system of immigration control which ensured, inter
alia,
that immigration control is conducted within „the highest
applicable standards of human rights protection‟. The court
there held that „no facility can be used for detention and
deportation of foreigners without the necessary designation by
the
Director-General of Home Affairs‟. Chetty J disagreed. He had
regard to s 34(7) of the IA which provides:
'(7)
On the basis of a warrant for the removal or release of a detained
illegal foreigner, the person in charge of the prison concerned
shall
deliver such foreigner to that immigration officer or police officer
bearing such warrant, and if such foreigner is not released
he or she
shall be deemed to be in lawful custody while in the custody of the
immigration officer or police officer bearing such
warrant.'
His
reasoning in relation to the effect of that subsection is set out in
the latter part of para 14 of the judgment of the court
below:
'There
is a clear indication in subsection (7), which refers to the
detention of an illegal foreigner in a prison that it is the
place
which the Director-General had determined that an illegal foreigner
be detained pending his or her deportation. Although
the term
“
prison
” is not defined in the
IA
,
its meaning is hardly obscure. By necessary implication, it includes
a police cell or lock-up.'
[12]
The court below also placed reliance on the following part of the
minority judgment in
Jeebhai
&
others
v
Minister
of
Home
Affairs
&
another
2009 (5) SA 54
;
[2009] ZASCA 3
(SCA):
'The
detention contemplated in s 34(2) must be by warrant addressed to the
station commissioner or head of a detention facility.
Thereafter the
suspected illegal foreigner may either be released or, if he is in
fact an illegal foreigner, detained further under
s 34(1) for the
purpose of facilitating the person‟s deportation.'
Chetty
J concluded as follows:
'It
follows from the aforegoing analysis that the finding by Raulinga, J,
that the place of detention contemplated by s 34(1) has
to be
designated as such in order to render an illegal foreigner‟s
detention lawful, was clearly wrong. I am satisfied that
the
plaintiffs were lawfully detained at the prisons or police stations
for purposes of deportation.'
[13]
It is against the conclusions set out in the preceding paragraphs
that the present appeal is directed. Before us counsel on
behalf of
the appellants accepted that in practical terms a decision on the
discrete point the appellants had applied to have decided
by the
court below, as set out in para 7 above, would be dispositive and
that a decision on quantum could then be made on the available
evidence.
[14]
It is necessary to record the number of days that each appellant
spent in detention. Before doing so, it is also
necessary
to note that they were released after litigation, in terms of
agreements reached with the Department and court orders
to that
effect followed. We were informed that the appellants, who were all
arrested during 2010, were still in the country and
that various
processes in relation to their continued stay in our country were
still being undertaken and were not yet finalised.
[15]
The details of the appellants‟ detention are set out hereafter:
(i)
First appellant – 16 days.
(ii)
Second appellant – 18 days.
(iii)
Third appellant – 4 days.
(iv)
Fourth appellant – 8 days.
(v)
Fifth appellant – 7 days.
(vi)
Sixth appellant – 13 days.
(vii)
Seventh appellant – 30 days.
(viii)
Eight appellant – 16 days.
(ix)
Ninth appellant – 35 days.
(x)
Tenth appellant – 18 days.
(xi)
Eleventh appellant – 18 days.
(xii)
Twelfth appellant – 26 days.
(xiii)
Thirteenth appellant – 23 days.
(xiv)
Fourteenth appellant – 20 days.
(xv)
Fifteenth appellant – 7 days.
[16]
In the court below the respondent accepted that he bore the onus to
justify the detention. The high-water mark of the respondent‟s
case, insofar as a determination by the Director-General in relation
to the manner and place of detention was concerned, was the
evidence
of Mr Mudiri Matthews, the Chief Director of Immigration
Inspectorate, at the Department‟s Pretoria office. He was
referred by counsel on behalf of the respondent to a document
purporting to be a service-level agreement between the Department
and
a private company for the provision of a deportation facility at the
Lindela Detention Facility, Krugersdorp, at which illegal
foreigners
could be detained, pending deportation. Four of the fifteen
appellants spent a limited time at Lindela subsequent to
their
detention elsewhere. Mr Matthews had no personal knowledge concerning
the conclusion of the contract and was unable to take
the matter any
further than a supposition that there must have been a determination
by the Director-General in terms of s 34(1)
of the IA. There was no
viva voce
evidence by the Director-General. No document of any
kind purporting to be a determination in terms of s 34(1) of the IA
was presented.
[17]
Faced with this conundrum, counsel on behalf of the respondent sought
refuge in the following submissions: First, that s 34(1)
does not
prescribe how the determination by the Director-General is to be made
and therefore, having regard to the „everyday
use‟ of the
word „determine‟ nothing more is required of the
Director-General than a firm or conclusive decision
about where
illegal foreigners may be detained. It was contended that „determine‟
has a very different connotation
from the word „designate‟.
The contention was that Lindela is the only facility in the country
whose sole purpose is
to detain illegal foreigners for purposes of
their deportation. Furthermore, it was contended that Matthews‟
evidence concerning
Lindela as a transit facility that served to hold
illegal foreigners until their deportation could not be ignored.
Moreover, so
the submission was developed, it must be clearly
understood that Lindela, together with police and prison cells, are
places
that the Director-General has determined as places where
illegal foreign nationals may be detained until their deportation. It
was argued that the evidence by the respondent‟s witnesses was
that the appellants were detained as a means to an end in the
course
of facilitating their deportation and thus their detention was in
accordance with s 34(1). Second, reliance was placed on
the minority
judgment of Cachalia JA in
Jeebhai
and the judgment of
the Constitutional Court in
Lawyers
for
Human
Rights
and
another
v
Minister
of
Home
Affairs
and
another
2004 (4) SA 125
;
[2004]
ZACC 12
(CC), as support for the contention that detention at any
state detention facility would suffice.
[18]
I
now
turn
to
deal
with
the
respondent‟s
contentions
set
out
in
the
preceding
paragraph.
Before
us
it
was
uncontested
that
it
is
internationally
accepted
that
illegal
foreign
nationals are particularly vulnerable and that international best
practice dictates
that
they should be
kept
apart from the
general
prison
population.
In
the
Report
of the
Special
Rapporteur of the Human Rights Council of the United Nations
on
the rights of
migrants
for
2012,
[1]
which
has a particular focus on the detention of migrants in irregular
situations,
it
is
noted
that
the
fact
that
a
person
is
irregularly
in
the
territory
of
a
state
does
not imply that he or she is not protected by international human
rights standards.
The
Special Rapporteur noted with concern that irregular entry and stay
by
migrants is
considered
a criminal offence in some countries. Whilst s 48 of the IA does make
it an
offence
to enter, remain or depart from South Africa
with a
concomitant punitive
sanction,
this
is
not
what
we
are
dealing
with
here.
We
are
dealing
with
detention
pending
deportation. In this regard the following comments of the Special
Rapporteur are apposite (para 13):
‘
He
[the Special Rapporteur] wishes to stress that irregular entry or
stay should never be considered criminal offences: they are
not per
se crimes against persons, property or national security. It is
important to emphasize that irregular migrants are not
criminals per
se and should not be treated as such.’
The
Special Rapporteur‟s statements on places of detention of
migrants are significant (para 33):
‘
The
Standard Minimum Rules for the Treatment of Prisoners provide
that
persons imprisoned
under
a
non-criminal
process
shall
be
kept
separate
from
persons
imprisoned
for
a
criminal
offence.
Additionally,
the
Working Group on Arbitrary
Detention
stated
in
its
deliberation
No.
5
that
custody must be effected in a public establishment specifically
intended for
this
purpose or,
when
for practical reasons, this is not the case, the asylum-seeker or
immigrant must be placed
in
premises
separate
from
those
for
persons
imprisoned
under
criminal
law.
At
the
regional
level,
the
Principles
and Best Practices on the Protection of Persons Deprived of Liberty
in the
Americas
[2]
provide
that asylum- or refugee-status-seekers and persons deprived of
liberty due to
migration
issues shall not be deprived of liberty in institutions designed to
hold persons deprived
of
liberty on criminal charges.’ (footnotes omitted)
In
para 34 of the report the following appears:
‘
However,
information received by the Special Rapporteur indicates that
migrants are detained in a wide range of places, including
prisons,
police stations, dedicated immigration detention centres, unofficial
migration detention centres, military bases, private
security company
compounds, disused warehouses, airports, ships, etc. These detention
facilities are placed under the responsibility
of many different
public authorities, at local, regional or national level, which makes
it difficult to ensure the consistent enforcement
of standards of
detention. Migrants may also be moved quite quickly from one
detention facility to another, which also makes monitoring
difficult.
Moreover, migrants are often detained in facilities which are located
far from urban centres, making access difficult
for family,
interpreters, lawyers and NGOs, which in turn limits the right of the
migrant to effective communication.’
It
further bears mentioning that the report reveals that detentions have
not been shown to reduce migration anywhere in the world,
and in this
regard it is reported in para 8 that:
‘
The
Special Rapporteur would like to emphasize that there is no empirical
evidence that detention deters irregular migration or
discourages
persons from seeking asylum. Despite increasingly tough detention
policies being introduced over the past 20 years
in countries around
the world, the number of irregular arrivals has not decreased. This
may be due, inter alia, to the fact that
migrants possibly see
detention as an inevitable part of their journey.’
[19]
The
Inter-American
Commission
on
Human
Rights
(IACHR),
in
terms
of
Resolution
03/08
of
the
Inter-American
Commission
on
Human
Rights
of
Migrants,
International
Standards and the Return Directive of the EU,
(25
July 2008),
[3]
resolved
as
follows:
‘
As
international law establishes, migrants may not be held in prison
facilities. The holding of asylum seekers and persons charged
with
civil immigration violations in a prison environment is incompatible
with basic human rights guarantees.’
Article
17(2)
of
the
International
Convention
on
the
Protection
of
the
Rights
of
All
Migrant
Workers and Members of Their Families,
[4]
(although
it must be noted that South
Africa
is not a signatory), provides:
‘
Accused
migrant workers and members of their families shall, save in
exceptional circumstances, be separated from convicted persons
and
shall be subject to separate treatment appropriate to their status as
unconvicted persons. Accused juvenile persons shall be
separated from
adults and brought as speedily as possible for adjudication.’
Article
17(3) reads as follows:
‘
Any
migrant worker or member of his or her family who is detained in a
State of transit or in a State of employment for violation
of
provisions relating to migration shall be held, in so far as
practicable, separately from convicted persons or persons detained
pending trial.’
[20]
Cognisant
of international best practice the legislature adopted s 34(1) of the
IA,
with
the Director-General being required to make a determination which
would be in line
with
what
is
set
out
in
the
preceding
paragraphs.
The
detention
of
illegal
foreigners
subject
to deportation in circumstances such as in the present case is not
subject to the
Criminal
Procedure
Act
51
of
1977
.
Section
34(1)
of
the
IA
regulates
their
detention.
Thus,
the
detention
can
only
take
place
as
prescribed
by
that
subsection
and
that
means
in the manner and at a place determined by the Director-General. The
exercise
of
public power is constrained by the principle of legality which is
foundational to the rule of law.
[5]
In
s 34(1)
the words that dictate the manner and place of
detention are
deliberate
and not superfluous. Detention pending deportation can only occur
according
to its
prescripts. Reliance on
s 34(7)
by the court below and the
respondents is
misplaced.
The latter subsection of the IA regulates the removal or release of
a
detained
illegal
foreigner
on
the
basis
of
a
warrant
to
be
presented
to
„the
person
in
charge
of the prison‟. It does not follow that the prison referred to,
does not have to be
determined
by
the
Director-General
as
a
place
at
which
an
illegal
foreigner
may
be
detained
pending deportation. There is nothing to prevent a determination by
the
Director-General
that
a
discrete
part
of
a
prison
or
other
State
detention
facility
which
meets
international standards, is to be used as a place at which illegal
foreigners can be
detained
pending their deportation.
[21]
The court below and the respondents relied on the following dictum in
the Constitutional Court decision in
Lawyers
for
Human
Rights
v
Minister
of
Home
Affairs
2004
(4) SA 125
;
[2004] ZACC 12
(CC) (para 39) for their contrary view:
'
Section
34(1)
is concerned with a situation different from that contemplated
by
s 34(8).
Subsection (8), in part, is concerned with and authorises
the detention of people suspected of being illegal foreigners on a
ship
by which they arrived. It will be remembered that
s 34(8)
gives
immigration officers a choice. They can either be content with the
detention of the people concerned on the ship, or cause
people to be
detained elsewhere.
Section 34(1)
is designed to
cater
for
the
situations
in
which
illegal
foreigners are
detained
in
a
facility
over
which
the
government
has control and which is serviced or frequented by State officers.'
(My emphasis.)
It
was submitted on behalf of the respondent that the latter part
of the paragraph indicates that a detention facility which
the State
services and over which it has control would suffice, without a
specified determination having to be made by the Director-
General.
In that case the court was concerned with the validity of
ss 34(2)
and (8) of the IA.
Section 34(8)
provides for the detention of a
person at a port of entry or on a ship.
Section 34(1)
was referred to
by the Constitutional Court by way of contrast.
Section 34(2)
deals
with the maximum period of detention of a person detained in terms of
the IA for purposes other than his or her deportation.
The issue we
are presently grappling with was not raised or dealt with by the
Constitutional Court in that case, and in any event
it seems tenuous
to interpret the above dictum, in which the Constitutional Court was
explaining the general context of one section
and contrasting it
against the general context of another, as conclusively determining
the substantive requirements laid down by
those provisions.
[22]
The reliance on the minority judgment by Cachalia JA in
Jeebhai
is
also unwarranted. In para 24, referred to earlier, on which reliance
was placed, the following appears:
'The
detention contemplated in
s 34(2)
must be by warrant addressed to the
station commissioner or head of a detention facility. Thereafter the
suspected illegal foreigner
may either be released, or if he is in
fact an illegal foreigner, detained further under
s 34(1)
for the
purpose of facilitating the person‟s deportation.' (Footnotes
omitted.)
The
respondents once again sought to persuade us that this passage
indicated that any detention facility would suffice for the detention
of illegal foreigners pending deportation without a specific
determination having to be made by the Director-General. In
Jeebhai,
this court was concerned with an individual who fell within the
definition of illegal foreigner and who was therefore subject to
arrest in terms of
s 34
of the IA. The decision of the court flowed
from the failure of the respondent to secure a warrant for his
detention and deportation
in terms of the applicable regulation. This
court was not there dealing with the point presently under
discussion.
[23]
In
Zealand
v
Minister
of
Justice
and
Constitutional
Development
2008 (4) SA 458
;
[2008] ZACC 3
(CC),
the Constitutional Court reaffirmed a long-standing principle. The
following appears in para 25:
'This
is not something new in our law. It has long been firmly established
in our common law that every interference with physical
liberty is
prima facie unlawful. Thus, once the claimant establishes that an
interference has occurred, the burden falls upon the
person causing
that interference to establish a ground for justification. In
Minister
van
Wet
en
Orde
v
Matshoba
[1990
(1) SA 280
;
[1989] ZASCA 129
(A)], the Supreme Court of Appeal again
affirmed that principle, and then went on to
consider
exactly what must be averred
by an applicant complaining of unlawful detention.
In the absence of any significant South African authority, Grosskopf
JA found the law concerning the
rei vidicatio
a useful
analogy. The simple averment of the plaintiff‟s ownership and
the fact that his or her property is held by the defendant
was
sufficient in such cases. This led that court to conclude that, since
the common-law right to personal freedom was far more
fundamental
than ownership, it must be sufficient for a plaintiff who is in
detention simply to plead that he or she is being held
by the
defendant. The onus of justifying the detention then rests on the
defendant. There can be no doubt that this reasoning applies
with
equal, if not greater, force under the Constitution.' (Footnotes
omitted.)
[24]
In
Jeebhai
, Ponnan JA said the following about the detainee in
that matter (para 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.'
In
the present case, it was for the respondent to show that the
Director-General had made the determinations contemplated in s 34(1).
This they failed to do. No attempt was made to show that any part of
St Albans prison or any part of any police holding cells,
or indeed
even in respect of the Lindela detention centre, was determined by
the Director-General, in accordance with international
norms to be a
place at which illegal foreigners were to be detained pending
deportation. The making of a determination by the Director-General
under s 34(1) of the IA seems, on its face, to be both a relatively
simple exercise while at the same time being crucially important
in
upholding the rights of detained foreign persons. No attempt was made
by the respondent to justify the failure to do so. And,
although the
issue did not arise for a final determination in this case, I would
add that it seems to me that such a determination
must be publicly
proclaimed as this is vital for certainty and effective
administration according to constitutional and international
standards. The reasoning of Raulinga J set out in para 11 above is
accordingly unassailable. It follows that the detention of all
of the
appellants was unlawful. It is not necessary to deal with the other
conclusions reached by Chetty J save to state that I
have
reservations about his ready acceptance of the evidence of the
respondent‟s officials, that they explained to each appellant
his or her rights including the rights to Consular access. The
evidence adduced before Chetty J by the respondent concerning
interpretation
by way of telephone is ludicrous. In respect of one of
the appellants it was accepted that there was no opportunity to
explain
the rights he was entitled to pursue. That leads us to the
next question, which is the quantum of damages.
[25]
Counsel on behalf of the appellants accepted that the appellants had
failed to present evidence concerning the conditions under
which they
were held and furthermore had failed to testify about the personal
impact of detention. Such evidence as there was about
the conditions
at St Albans prison and at Kwazakhele police station was elicited by
way of cross-examination of the respondent‟s
witnesses. It
certainly appears, as would be the case with many people who cross
our borders without the necessary authorisation,
that most of the
appellants did so to earn a living and make a better life.
Appellants‟ counsel conceded that this sparse
material was far
from satisfactory and urged us to do the best we could under the
prevailing circumstances.
[26]
It was conceded in the court below that the asylum-seeker application
forms were what they purported to be and the information
therein was
unchallenged. The appellants provided information in support of their
application for asylum which included, inter
alia, the floods in
Bangladesh as a reason for seeking asylum in South Africa which,
predictably, the appeal board held to be manifestly
unfounded. The
appellants chose not to testify to controvert that conclusion. I
agree with the conclusion by the court below that
the appeal board
decision superseded the temporary asylum-seeker permit. Whilst the
appellants certainly have the right to pursue
further processes to
resist deportation, the limited information referred to earlier in
this and the preceding paragraph is the
sparse basis upon which we
are called upon to make a determination concerning quantum. The
parties agreed that, should we incline
in favour of the appellants on
the law point, we would be at large to determine compensation.
[27]
The
deprivation of liberty is indeed a serious matter.
In
cases of non-patrimonial
loss
where
damages
are
claimed
the
extent
of
damages
cannot
be
assessed
with
mathematical
precision.
In
such
cases
the
exercise
of
a
reasonable
discretion
by
the
court
and
broad
general
considerations
play
a
decisive
role
in
the
process
of
quantification.
[6]
This
does not, of course, absolve a plaintiff of adducing evidence which
will
enable a court to make an appropriate and fair award. In cases
involving deprivation
of
liberty
the
amount
of
satisfaction
is
calculated
by
the
court
ex
aequo
et
bono
.
Inter
alia
the following factors are relevant:
(i)
circumstances under which the deprivation of liberty took place;
(ii)
the conduct of the defendants; and
(iii)
the
nature and duration of the deprivation.
[7]
Having
regard to the limited information available and taking into account
the factors referred to it appears to me to be just to
award globular
amounts that vary in relation to the time each of the appellants
spent in detention. The third appellant spent the
least amount of
time in detention, namely, four days. In my view a fair amount to be
awarded to him as compensation would be R3
000. The fifth and
fifteenth appellants spent seven days in prison. In my view, a fair
amount in respect of their detention would
be an amount of R5 000.
The fourth appellant spent 8 days in detention. In my view, a fair
amount in relation to his detention,
is an amount of R6 000. The
sixth appellant spent 13 days in detention. In my view, a fair amount
in relation to his detention
would be an amount of R8 000. The first
and eight appellants spent 16 days in detention. In my view, a fair
amount for them is
R10 000. The second, tenth and eleventh appellants
spent 18 days in detention. In my view an amount of R12 000 is
appropriate.
The fourteenth appellant spent 20 days in detention. In
my view an amount of R14 000 is adequate. The thirteenth appellant
spent
23 days in detention. In this regard
an amount of R16 000 appears proper. The twelfth
appellant spent 26 days in detention. In my view an amount of R18 000
is satisfactory. The seventh appellants spent 30 day in detention.
An
award of R20 000 seems in order. The ninth appellant spent 35 days in
detention. In my view an amount of R25 000 appears fair.
[28]
The following order is made:
1.
The appeal is upheld and the respondent is ordered to pay the
appellants‟ costs, including the costs of two
counsel.
2.
The order of the court below is substituted by the following order:
'1.
The detention of each of the Plaintiffs is declared to have been
unlawful.
2.
The Defendant is ordered to pay damages to the Plaintiffs as follows:
2.1
To the First Plaintiff an amount of R10 000 together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.2
To the Second Plaintiff an amount of R12 000 together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.3
To the Third Plaintiff an amount of R3 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.4
To the fourth Plaintiff an amount of R6 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.5
To the Fifth Plaintiff an amount of R5 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.6
To the Sixth Plaintiff an amount of R8 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.7
To the Seventh Plaintiff an amount of R20 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.8
To the Eighth Plaintiff an amount of R10 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.9
To the Ninth Plaintiff an amount of R25 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.10
To the tenth Plaintiff an amount of R12 000, together with interest
thereon, at the rate of 15,5 per cent per annum until
the date of
full and final payment thereof;
2.11
To the Eleventh Plaintiff an amount of R12 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof;
2.12
To the Twelfth Plaintiff an amount of R18 000, together with interest
thereon, at the rate of 15,5 per cent per annum
until the date of
full and final payment thereof;
2.13
To the Thirteenth Plaintiff an amount of R16 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof;
2.14
To the Fourteenth Plaintiff an amount of R14 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof;
2.15
To the Fifteenth Plaintiff an amount of R5 000, together with
interest thereon, at the rate of 15,5 per cent per annum
until the
date of full and final payment thereof.
3.
The Defendant is ordered to pay the Plaintiffs‟ costs of suit,
including the costs of two counsel.'
M S NAVSA ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT:
A Beyleveld SC (with him A C Moorthouse and D S Bands)
Instructed by:
McWilliams &
Elliott Inc., Port Elizabeth Webbers, Bloemfontein
FOR
RESPONDENTS:
M T K Moerane SC (with him L T Sibeko SC and W Msizi)
Instructed by
The State Attorney,
Port Elizabeth The State Attorney, Bloemfontein
[1]
François Crèpeau, A/HR/C/20/24 (2 April 2012) para 13,
available at:
http://www.ohchr.org/Documents/HRBodies
/HRCouncil/RegularSession/Session20/A-HRC-20-24_en.pdf
(accessed
27 May 2015).
[2]
Inter-American Commission on Human Rights (IACHR), Resolution 1/08
(13 March 2008), available at:
http://www.refworld.org/docid/48732afa2.html
(accessed
27 May 2015).
[3]
Available at:
http://www.refworld.org/docid/488ed6522.html
(accessed 27 May 2015).
[4]
United Nations
Treaty
Series
vol.2220,
p. 3; Doc. A/RES/45/158, available at:
https://www.ohchr.org/english/law/cmw.htm
(accessed
27 May 2015). Adopted 18 December 1990.
Entered
into force 1 July 2003.
[5]
See
Fedsure
Life Assurance v Greater Johannesburg TMC
1999
(1) SA 374
;
[1998] ZACC 17
(CC) at
399B-C
and
Pharmaceutical
Manufacturers of South Africa: In re Ex Parte President of the
Republic of
South
Africa
2000
(2) SA 674
;
[2000] ZACC 1
(CC) para 40.
[6]
J M Potgieter, L Steynberg and T B Floyd
Visser
& Potgieter’s Law of Damages
3
ed (2012) at 568.
[7]
H J Erasmus and J J Gauntlett „Damages‟ in 7 Lawsa 2ed
at para 101.