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[2016] ZAGPJHC 127
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Bhayat v Minister of Home Affairs and Others (2016/14517) [2016] ZAGPJHC 127 (24 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/14517
DATE:
24 MAY 2016
In
the matter between:
SABINA
ILYAAS
BHAYAT
...............................................................................................
APPLICANT
(born
HANIF SHAIKH)
And
MINISTER
OF HOME AFFAIRS
MR
MALUSI
GIGABA
.....................................................................................
FIRST
RESPONDENT
DEPARTMENT
OF HOME AFFAIRS
MR
MKUSELI
APLENI
..............................................................................
SECOND
RESPONDENT
SAUDI
ARABIAN
AIRLINES
........................................................................
THIRD
RESPONDENT
ARM-ANALYTICAL
RISK
MANAGEMENT
..........................................................................................
FOURTH
RESPONDENT
ACSA
– AIRPORTS COMPANY OF
SOUTH
AFRICA
...............................................................................................
FIFTH
RESPONDENT
J
U D G M E N T
TWALA
AJ
[1] Applicant
brought this application on urgent basis seeking an order in
following terms:
A.
That
this application be heard in terms of Rule 6 (12) as a matter of
urgency and that the time limits as set out in the Rules pertaining
to service and filing be departed with B.
That
Sabina Ilyaas Bhayat, born 16 July 1987 with current Indian Passport
number N……… be released into the
Republic of
South Africa (“the Republic”) forthwith from wherever she
is being detained;
C.
The
Respondents be interdicted from deporting the above named Sabina
Ilyaas Bhayat pending finalisation of the investigation into
the
reason for her refusal into the Republic by the First and Second
Respondents and finalisation of an internal review of the
First and
Second Respondents’ decision;
D.
Interdicting
and restraining the Respondents from unlawfully removing the said
Sabina Ilyaas Bhayat from the Republic.
E.
Directing
the First and Second Respondents to pay the costs of this application
in the event of opposition on an attorney and client
scale.
[2]
The First and Second Respondents filed their opposing papers to this
application.
[3]
Due to the urgency of the matter, I made an order dismissing the
application, with the applicant to pay the costs thereof. The
reasons
for my judgment are to appear hereunder.
[4]
Applicant contends that he is the husband of Sabina Ilyaas Bhayat
(born Hanif Shaikh), an Indian National with Passport Number
N2…...
She was issued with her previous Indian Passport under her maiden
name with Passport Number F4……. She
is also a
holder of a South African Relative Permit issued to her by the office
of the second respondent on 8 May 2015 with an
expiry date of 7 May
2020.
[5]
It is contended further that there are two (2) minor children born
of the marriage between the applicants, the youngest being
two (2)
years old and the other is six (6) years old.
[6]
The applicants left the Republic on the 13 April 2016 to attend a
religious pilgrimage in Saudi Arabia and returned to the Republic
on
the 27 April 2016 aboard a Saudi Airline flight from Jedda. On
arrival at OR TAMBO International Airport, at the Immigration
Desk,
the applicant was stopped by an Immigration Officer and was taken
into the Immigration Office where she was advised that
she would not
be allowed to enter the Republic. She was subsequently escorted to
the facility of the fourth respondent where she
was advised that she
was to be arraigned for deportation.
[7]
The applicant was never furnished with proper reasons as to why she
was refused entry into the Republic and arraigned for deportation.
[8]
The first and second respondents contend that the matter is not
urgent for the applicant has not exhausted all the internal
remedies
available to her in terms of section 8 of the Immigration Act.
Applicant is refused entry in the Republic for she was
in possession
of a fraudulent permit. She was issued with the notification
regarding the right to request the review by the Minister
of Home
Affairs of the decision of the Immigration Officer. Further,
applicant was issued with a notification that she is an Illegal
Foreigner and is Refused Admission in the Republic.
[9]
It is the first and second respondents’ contention that,
according to the Department’s Movement Control System,
the
applicant, Ms Sabina Hanif Shaikh, the holder of Indian Passport
number F4……, last travel details were recorded
on the
24 March 2008 when she entered the Republic at OR Tambo International
Airport. Further, that the purported Relative’s
Visa endorsed
on page 9 of passport number F4……, bearing reference
number T….. and control number a0……..
is a
fraudulent visa which was not issued by the Home Affairs Department;
Directorate: Permit Functional Services and Visa Management.
Its
details were fraudulently captured on the Movement Control System by
user-id B….. on 16 May 2015. There is no record
that an
application with reference number T……. was submitted at
a VFS office.
[10]
Counsel for the applicant contends that the applicant was not given
adequate notice and reasonable explanation why she is not
allowed to
enter the Republic. Her constitutional rights to freedom and her
right to human dignity have been infringed by the respondents.
She is
married with two minor children and she is on forced separation from
her family by the behaviour of the respondents.
[11]
Counsel for the respondents argues that the matter is not urgent for
the applicant has not exhausted all internal remedies
available to
it. The laws of the Republic prohibit someone to enter the Republic
if that person is found to be using fraudulent
documents. Applicant
is not detained by the Republic but is in the hands of the airline
that brought her to the Republic. Applicant
has the right to apply
for the review of the decision of Immigration Officer by the Minister
of Home Affairs in terms of Section
8 of the Immigration Act, Act 13
of 2002 (“the Act”) as amended. Applicant has chosen not
to exercise her right to
review the decision in terms of the Act.
[12] Section 12 of
the Constitution of the Republic of South Africa, Act 108 of 1996
(
the Constitution
) provides as follows:
“
12
Freedom and Security of the person
(1)
Everyone has the right to freedom and
security of the person, which includes the right-
a)
Not
to be deprived of freedom arbitrarily or without just cause;
b)
Not
to be detained without trial;
c)
To
be free from all form of violence from either public or private
sources;
d)
.
. . . . . . . . . . . . . . . . . . . . . . .
[13]
I agree that this matter deserves the urgent attention of this Court
for the freedom of an individual is in issue in this case.
However,
section 36 of the constitution provides for the limitation of
such rights in certain instances.
[14] Section 36 of
the Constitution provides as follows:
Limitation
of rights
“
36
(1)
The rights in the Bill of Rights may
be limited only in terms of law of general application to the extent
that the limitation is
reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including –
a)
The
nature of the right;
b)
The
importance of the purpose of the limitation;
c)
The
nature and extent of the limitation;
d)
The
relation between the limitation and its purpose; and
e)
Less
restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
Constitution, no law may limit any right entrenched in the
Bill of
Rights”.
[13]
It is apparent from the papers that applicant has been denied entry
into the Republic in terms of section 29 (b) (vi) of the
Act. She is
a prohibited person by virtue of the fact that she is in possession
of a fraudulent relative visa. It is my view therefore
that applicant
is not in unlawful detention but is detained by operation of the law
of general application. She has been interviewed
by an Immigration
Officer and was informed of the decision and the reasons therefore.
Form 5 was completed and she signed it acknowledging
receipt thereof.
[14] Section 8 of
the Act provides as follows:
(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), the
request shall be submitted to the Minister within three days after
that decision;
(2) . . . . . . . .
. . . . . . . . . . . . . . . . . . .
(3)
………………………………………
[15]
I agree with the respondents’ contention that the applicant
has not exhausted all the internal remedies available to
it in terms
of the Act. She has not applied to the Minister for review of the
decision of the Immigration Officer as prescribed
by the Act. She
cannot therefore approach this Court for relief on urgent basis
and/or at all unless she has exhausted the internal
remedies as
provided by the Act otherwise her application is premature.
[16]
Section 7 of the Promotion of Administration of Justice Act, Act 3
of 2000 (PAJA) provides as follow:
“
7.
Procedure for judicial review
1)
……………………………………………
2)
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice”.
[17]
I agree with Counsel for the Respondents that the applicant’s
action before this Court is premature and that this Court
may only
review the decision of the respondents if exceptional circumstances
exist and on application by the applicant. However,
the applicant has
not shown the existence of exceptional circumstances and there is no
application before this Court which justifies
the exemption of the
applicant from the obligation to exhaust the internal remedies
available to it in terms of the Immigration
Act.
[18] In the
circumstances, I confirm the order I made at the hearing of this
matter which is the following:
A.
The
application is dismissed
B.
The
applicant to pay the costs of this application.
TWALA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for Applicant:
Adv M Kajee
Instructed by:
ISMAIL ATTORNEYS
TEL:
073
678 6425
Counsel for
Respondents
Instructed by:
State Advocate
THE
OFFICE OF THE STATE ATTORNEY
TEL:
011 337 7180
Date of Hearing:
29 APRIL 2016
Date
of Judgment:
24
MAY 2016