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[2019] ZAGPJHC 303
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SA v Minister of Home Affairs and Others (26921/2019) [2019] ZAGPJHC 303 (4 September 2019)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 26921/2019
In
the matter between:
S
A
(ASYLUM
NO:
PTANGA006040515) APPLICANT
AND
THE
MINISTER OF HOME AFFAIRS FIRST
RESPONDENT
THE
DIRECTION GENERAL
DEPARTMENT
OF HOME AFFAIRS SECOND
RESPONDENT
BOSASA
(PTY)
LTD THIRD
RESPONDENT
JUDGMENT
TWALA
J
[1]
In this application which served before the urgent Court, the
applicant seeks an order against the respondents in the following
terms:
I.
Dispensing,
so far as need be, with the forms and service provided for in the
Uniform Rules of Court and disposing of this application
at such time
and place and in such manner and according to such procedure as this
Court deems meet in terms of rule 6(12) of the
rules of this Court;
II.
Declaring
the detention of the applicant unlawful;
III.
The
respondents are directed to release the applicant from detention from
Lindela Holding Facility forthwith;
IV.
To the
extent necessary, permitting the applicants to bring this application
without exhausting any applicable internal remedies
provided for in
section 8
of the
Immigration Act 13 of 2002
;
V.
To the
extent necessary, reviewing and setting aside any decision of a
Magistrate’ Court to extend a warrant of detention,
if an issue
or extended in terms of
section 34(1)(d)
of the
Immigration Act read
with
Regulation 28(4)
of the regulation thereto;
VI.
The
respondents are directed to re-issue the applicants with asylum
seekers permit in terms of
section 22
of the
Refugees Act 130 of 1998
pending the outcome of the Review proceeding at the Gauteng High
Court (Pretoria), under case number 2019/00149;
VII.
Interdicting
the respondents from deporting the applicants unless and until their
status under the
Refugees Act, 130 of a998
, has been lawfully and
finally determined;
VIII.
The
respondents are directed to pay costs of this application jointly and
severally one paying the other to be absolved.
[2]
Although the respondents did not file any opposing papers, they
nevertheless opposed the application. Further, it is noteworthy
that
prayers VII and VIII of the notice of motion are phrased as though
there is more than one applicant whereas only one applicant
has been
cited.
[3]
It is common cause that the applicant, a Nigerian national was issued
with an Asylum Seeker Temporal Permit No: PTANGA006040515
on the 21
st
June 2018 which permit expired on the 20
th
of September 2018. In July 2018 he was arrested for fraud and was
sentenced to 18 months imprisonment on the 12
th
of February 2019. He has now served 5 months of his sentence and
released on parole but transferred to Lindela on the 11
th
of July 2019 on the recommendation that he be deported. It is further
not in dispute that the applicant filed an application for
review of
the refusal of his asylum permit with the Gauteng Division of the
High Court on the 7
th
of January 2019.
[4]
Counsel for the applicant contended that the applicant cannot be
detained for the purposes of deportation to his country of
origin
whilst he has a review application pending before the Court regarding
the refusal of his application as an asylum seeker.
The detention of
the applicant, so it was contended, is unlawful since he has now been
detained for more than 30 days without an
order of Court in terms of
the
Refugees Act. The
authorities must justify the further detention
of the applicant but have failed to do so.
[5]
Counsel for the respondents contended that the matter is not urgent
since the detention was effected on the 11
th
of July 2019 and it is only now that the applicant is approaching
this Court on urgency. The respondents were only served with
the
papers and given only 2 days to respond and this is prejudicial to
the respondents. The applicant testified in its founding
affidavit that it is the Department of Correctional Service that
recommended its deportation and transferred it to Lindela for
that
purpose. However, the applicant has failed to join the Department of
Correctional Service in these proceedings. Further,
so the
argument went, the applicant has failed to establish why it did not
prosecute its application for review nor why it was
not prepared to
exhausted all the internal remedies available to it in terms of the
law. The applicant has failed to take the Court
into confidence and
testify as when he was to be deported nor to show papers to that
effect. He has failed to disclose whether
he is a prohibited or
unlawful immigrant as provided by the law.
[6]
It is trite law and in terms of the bill of the rights enshrined in
the Constitution of the Republic of South Africa Act, 108
of 1996
that, everyone has the right to freedom and security of the person,
which includes the right not to be deprived of freedom
arbitrarily or
without just cause.
[7]
The Refugees Act, 130 of 1998
(“The Act”)
provides
as follows:
“
Section 29
Restriction of
detention:
29(1) No person
may be detained in terms of this Act for a longer period than is
reasonable and justifiable and any detention exceeding
30 days must
be reviewed immediately by a judge of the High Court of the
provincial division in whose area of jurisdiction the
person is
detained, designated by the Judge President of that division for that
purpose and such detention must be reviewed in
this manner
immediately after the expiry of every subsequent period of 30 days.”
[8]
There is a plethora of authority that the liberty and freedom of
person is paramount to the extent that his detention even for
a
minute is unlawful if such detention is not justified in law. I am of
the respectful view therefore that if the detention of
the applicant
is against the law, as in this case it is against s29 of the Act, the
matter then becomes urgent and requires the
urgent attention of the
Court.
[9]
I find myself in agreement with counsel for the applicant that the
respondents have failed to establish that the further detention
of
the applicant is justified after he has been detained for a period
exceeding 30 days as required by the Act. It is my considered
view
therefore that the detention of the applicant is unjustified and
unlawful and he should therefore be released.
[10]
Having made the above finding, I am of the view that it is not
competent of this Court to direct the Home Affairs Department
on what
it needs to do in this matter and therefore do not find it necessary
to accede to the other prayers in the notice of motion.
[11]
In the circumstances, I make the following order:
1.
Prayers
1, 2 , 3 and 8 of the notice of motion are granted.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 30
th
August 2019
Date
of Judgment: 4
th
September 2019
For
the Applicant: Adv L. Dikokomele
Instructed
by: Tony Okorie Attorneys
Tel:
011 420 0620
For
the Respondents: Adv. J Malema
Instructed
by: State Attorney
Tel:
011 330 7600