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[2010] ZAGPJHC 146
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Shabangu v Minister of Home Affairs and Others (49231/10) [2010] ZAGPJHC 146 (10 December 2010)
REPORTABLE
IN GAUTENG SOUTH HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 49231/10
DATE: 10/12/2010
In the matter between
LUCKY
SHABANGU
..........................................................................
Applicant
and
MINISTER OF HOME
AFFAIRS
............................................
First
Respondent
THE DIRECTOR-GENERAL,
DEPARTMENT OF HOME AFFAIRS
…..........................
Second
Respondent
BOSASA (PTY) LTD
t/a LEADING PROSPECTS TRADING
................................
Third Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
EPSTEIN
A J
:
[1] The applicant applies by way of urgency for an
order declaring his detention by the first respondent to be unlawful
and interdicting
his deportation. He also seeks an order directing
his release on certain conditions. The application is opposed by the
first and
second respondents. The third respondent is responsible for
the day to day running of Lindela Holding Facility (“Lindela”).
No relief is sought against the third respondent which has not
opposed this application.
[2] The application relates to the deprivation of
the Applicant’s liberty and the urgency is not contested. In
Mustafa Aman
Arse v Minister of Home Affairs and Others
1
the Supreme Court of Appeal endorsed the principle referred to in
Silvo v Minister of Safety and Security
2
that a “detained person has an absolute right not to be
deprived of his freedom for one second longer than necessary by an
official who cannot justify his detention, and that this right
belongs to both citizens and foreigners”.
3
[3] The starting point is The
Immigration Act, 13 of 2002
, as
amended, (“the
Immigration Act&rdquo
;) which provides in
section 32(2)
that any illegal foreigner shall be deported.
[4] It is common cause that the applicant has no documentation
entitling him to remain in the Republic of South Africa. He is
therefore an illegal foreigner and liable to be deported.
[5] The applicant states in his founding affidavit that he is from
Zimbabwe but was forced to flee as a result of ongoing persecution.
He states that he fled Zimbabwe in order to seek political asylum in
South Africa where he arrived clandestinely in around 2006.
According to his affidavit, shortly after his arrival in this
country, he reported to the Pretoria Refugee Reception Office in
order to apply for asylum. He claims that he was unable to access
the office in order to lodge his asylum claim due to the very
large
number of people with similar intentions. Thereafter, because he was
unemployed and indigent, he did not have the money he
needed to
continue going to the Refugee Reception Office.
[6] Subsequently, in 2008, the applicant was arrested on charges of
fraud. He was released on bail but later convicted and sentenced
on 6
November 2009 to 12 months imprisonment. He served his sentence at
Boksburg Correctional Services and was released on 4 November
2010.
[7] The deponent to the answering affidavit is Joseph Swartland
(“Swartland”). He is an Assistant Director: Directorate
Deportation Department of Home Affairs and stationed at Lindela.
Swartland states that upon the applicant’s release he was
to be
deported to Zimbabwe because he has no valid documentation entitling
him to remain in South Africa and he is an illegal foreigner.
Section 1
of the
Immigration Act defines
“illegal foreigner”
as a foreigner who is in the Republic in contravention of the Act.
[8] On the day of his release, the applicant was taken to Lindela
where he was detained pending deportation. The respondent has
produced a copy of the notification of deportation.
4
The notification is signed by the applicant and date-stamped 4
November 2010.
[9] It is common cause that two days after his detention, an official
from the Zimbabwean Consulate visited Lindela. The applicant
states
that he was told to sign a document for his deportation. He believed
that he had no choice because he had been informed
that he could not
apply for asylum. He therefore signed the document but now fears that
his deportation may be imminent for that
reason. Swartland states
that the applicant was amongst those nationals of Zimbabwe identified
by the Consulate official and then
issued with an Emergency Travel
Certificate (ETC).
[10] Deportation of certain Zimbabwean nationals, including the
applicant, was scheduled to take place on 10 November 2010 from
Lindela. Swartland however states that the private buses which were
procured to transport them did not arrive as scheduled. Consequently
the deportation was postponed. Swartland states that the buses were
procured from a private company and the respondents were not
directly
responsible for the buses not arriving on 10 November 2010. The
Zimbabwean nationals were deported on 8 December 2010,
excluding the
applicant who had by then brought this application to court.
[11] The applicant contends that his detention is unlawful, both in
terms of the
Immigration Act and
the Refugees Act 130 of 1998 (“the
Refugees Act&rdquo
;).
[12] I will deal firstly with the contentions in respect of the
Immigration Act and
thereafter with the
Refugees Act.
[13
] The relevant sections of the
Immigration Act upon
which the
applicant relies are
sections 34(1)
and
34
(2) which read as follows:-
“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 -
...
...
...
may not be held in detention for longer than 30 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
...
(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”.
5
[14] Thus, in terms of
Section 34(1)(d)
of the
Immigration Act, an
illegal foreigner may only be held in detention for 30 days. This
period can only be extended by a warrant of a court for a period
not
exceeding 90 calendar days.
[15] It is common cause that no warrant was sought nor obtained. As
stated by Swartland, the deportation was to take place on
10 November
2010 which was well within the 30 day period. However, as also
stated, the buses contracted to transport the foreigners
to Zimbabwe
did not arrive and the deportation had to be re-scheduled. The
applicant was detained on 4 November 2010 and the 30
day period
accordingly expired on 4 December 2010. From 5 December 2010 the
applicant’s detention was unlawful in that no
warrant extending
the detention had been obtained.
[16] It is irrelevant as to who was to blame for the non-arrival of
the buses or that the officials at Lindela themselves were
blameless.
The fact remains that it was incumbent upon those responsible for
the applicant’s detention to ensure that any
period of
detention exceeding 30 days was authorised by a warrant issued in
terms of
section 34(1)(d)
of the
Immigration Act. It
matters not
that the buses arrived within four days after the 30 day period
relating to the applicant had expired. It is a matter
of illegality
and not the degree of the illegality.
[17] It is for the first respondent to establish that the detention
of the applicant is justified.
6
[18] In the absence of a warrant, the continued detention of the
applicant beyond 30 days became unjustified. In Zeeland v Minister
of Justice and Constitutional Development
7
,
citing Ingram v Minister of Justice
8
the following is stated:
“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 the interference
to establish a ground of justification.“
[19] On this basis, the applicant is entitled to his immediate
release.
[20] I turn now to the
Refugees Act. The
applicant claims that he is
an asylum seeker. He states that upon his admission to Lindela he
attempted to inform the officials
of the first respondent of this and
that he has continued to inform them of his wish to apply for asylum.
He however states that
he was told that because he came from prison,
he could not apply for asylum. On 13 November 210 the applicant’s
legal representatives
advised in a letter of his intention to apply
for asylum.
[21] In terms of
section 1
of the
Refugees Act “asylum
”
means refugee status recognised in terms of the
Refugees Act; “asylum
seeker” means a person who is seeking recognition as a refugee
in the Republic; “refugee” means any person who
has been
granted asylum in terms of the
Refugees Act.
[22
] Pertinent to this application are the following provisions of
the
Refugees Act:
Section
8(1) - The Director-General may establish as many Refugee
Reception Officers in the Republic as he or she, after consultation
with
the Standing Committee, regards as necessary for the purposes of
this Act.
Section 8(2) - Each Refugee Reception Office must consist of at
least one Refugee Reception Officer and one Refugee Status
Determination
Officer.
Section 21(1) - An application for asylum must be made in person in
accordance with the prescribed procedures to a Refugee Reception
Officer at any Refugee Reception Office.
[23] It is clear, therefore, that an application for asylum can only
be made to a Refugee Reception Officer at a Refugee Reception
Office.
[24] Lindela is not a Refugee Reception Office - it is a place
determined by the Director-General as provided for in
section 34(1)
of the
Immigration Act as
a holding facility.
[25] In terms of
Section 21(2)
of the
Refugees Act, it
is the Refugee
Reception Officer who –
(a) must accept the application form from the applicant;
(b) must see to it that the application form is properly completed
and, where necessary, must assist the applicant in this regard;
(c) may conduct such inquiry as he or she deems necessary in order
to verify the information furnished in the application; and
(d) must submit any application received by him or her, together
with any information relating to the applicant which he or she
may
have obtained, to a Refugee Status Determination Officer, to deal
with it in terms of
section 24.
[26] I emphasize that the Refugee Reception Officer is to be found at
a Refugee Reception Office and not at a holding facility
such as
Lindela. It is to be noted that in terms of regulation 2 of the
Refugee Regulations, an application for asylum in terms
of
section 21
of the
Refugees Act must
be lodged by the applicant in person at a
designated Refugee Reception Office without delay.
[27] An asylum seeker permit is dealt with in
Section 22(1).
22(1) 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
Reception Officer on the permit.
The permit provided for in subsection (1) may be extended by a
Refugee Reception Officer in terms of Section 22(3).
[28] I turn to the relief sought in the notice of motion. The
applicant seeks the following orders:
1. Interdicting respondents from deporting the applicant unless and
until his status under the
Refugees Act has
been lawfully and
finally determined (paragraph 4 of the notice of motion).
2. Directing the respondents to forthwith release the applicant in
possession of an asylum transit permit issued in accordance
with
section 23
of the
Immigration Act read
with regulation 2(2) of the
Refugee Regulation (Forms and Procedure) 2000, valid for 14 days
allowing him to report to a Refugee
Reception Office in order to
lodge an asylum application in terms of the
Refugees Act (paragraph
6
of the notice of motion).
3. Directing the first and second respondents to accept the
applicant’s asylum application and to issue him with a
temporary
asylum seeker permit in accordance with
Section 22
of the
Refugees Act pending
the finalisation of his claim, including the
exhaustion of his rights of review or appeal in terms of chapter 4
of the
Refugees Act and
the Promotion of Administrative Justice Act
3, of 2000 (paragraph 7 of the notice of motion).
[29] Relevant therefore are the following:
(a)
Section 23(1)
of the
Immigration Act which
provides:
The Director-General may issue an asylum transit permit to a person
who at a port of entry claims to be an asylum seeker, which
permit
shall be valid for a period of 14 days only.
(b) Regulation 2(2) of the Refugee Regulations which provides:
Any person who entered the Republic and is encountered in violation
of the Aliens Control Act, who has not submitted an application
pursuant to sub-regulation 2(1), but indicates an intention to apply
for asylum shall be issued with an appropriate permit valid
for 14
days within which they must approach a Refugee Reception Office to
complete an asylum application.
[30] In my view, what the applicant seeks in this application is not
competent for the following reasons: -
(a) An asylum transit permit in terms of
Section 23
of the
Immigration Act can
only be issued to a person at a port of entry.
This does not apply to the applicant who is in detention at Lindela
which is not
a port of entry.
(b) The officials at Lindela cannot accept an application for asylum.
I have already stated that it is not a Refugee Reception
Office;
nor are the officials Refugee Reception Officers as required by
section21 of the
Refugees Act.
(c
) The applicant cannot be issued with an asylum seeker permit. This
can only be issued by a Refugee Reception Officer.
[31] The applicant also sought to rely on
regulation 2(2)
and
contends that he is entitled to be issued with an appropriate permit
because he has indicated his intention to apply for asylum.
However,
regulation 2(2)
applies to a person encountered in violation of the
Aliens Control Act who has not submitted an application pursuant to
sub regulation
2(1) but has indicated an intention to apply for
asylum. The applicant was not “encountered”. “Encounter”
means unexpectedly meet or be faced with (South African Concise
Oxford Dictionary). This does not apply to the applicant. He
had
been in prison and was transferred after serving his sentence
directly from the prison to Lindela.
[32] In the premises I find that the applicant is not entitled to the
relief sought in paragraphs 6 and 7 of the notice of motion.
[33] Concern has been expressed on behalf of the applicant that once
he is released from detention he will immediately be re-detained
and
deported. However, should this happen, he will then be a person who
has entered the Republic and encountered in violation
of the
Immigration Act and who has not submitted an application pursuant to
sub-regulation 2(1). Upon indication of his intention
to apply for
asylum, he shall then be issued with the appropriate permit valid for
14 days, as provided for in regulation 2(2).
[34] Insofar as costs are concerned, the applicant was unlawfully
detained after the 30 day period provided for in section 34(1)(d)
expired without a warrant extending such period. The applicant was
therefore entitled to bring this application and there is no
reason
why he should not be entitled to his costs.
[35] In the circumstances I make the following order.
The applicant’s detention is declared to be unlawful.
The applicant is to be released forthwith.
The first and second respondents are directed to pay the costs of
the application.
________________
EPSTEIN AJ
Applicant’s counsel : Adv Nicole Lewis
Applicant’s Attorney : Lawyers for Human Rights
Respondents counsel : Adv Naome Manaka
Respondents Attorney : The State Attorneys Office Johannesburg
1
2010 (7) BCLR 640
(SCA) para 10.
2
1997 (4) SA 657
(W) at 661 H - I
3
Lawyers for Human Rights and Another v Minister of Home
Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC) para
27.
4
This is a notification issued in terms of Section 7(1)(g) read with
Section 34(1)(a)
of the
Immigration Act, and
Regulation 28(2).
5
">
5
“court” is defined as a magistrate’s court.
6
Arse,
supra
,
at para 5.
7
[2008] ZACC 3
;
2008 (4) SA 458
(CC) at para 25
8
1962 (3) SA 225
(W) at 227