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[2019] ZAGPJHC 470
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O A v Minister of Home Affairs and Others (33905/2019) [2019] ZAGPJHC 470 (1 November 2019)
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Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
33905/2019
In
the matter between:
O
A
APPLICANT
And
THE
MINSTER OF HOME
AFFAIRS
FIRST
RESPONDENT
THE
DIRECTOR GENERAL -
DEPARTMENT
OF HOME AFFAIRS
SECOND
RESPONDENT
LINDELA
HOLDING FACILITY (BOSASA)
THIRD
RESPONDENT
JUDGMENT
WINDELL
J:
INTRODUCTION
[1]
This is an urgent application to declare applicant’s continued
detention unlawful and
for
his immediate release from detention to afford him the opportunity to
apply for asylum.
I
am satisfied that the matter is urgent.
[2]
The first
and second respondents oppose the application and aver that the
applicant is not a
bona
fide
asylum seeker entitled to the protection afforded by the Refugees Act
130 of
1998 ( “the
Refugees Act&rdquo
;),
and
that he should be dealt with in terms of the Immigration Act 13 of
2000 (“the Immigration Act”).
[3]
The first question that therefore needs to be determined is whether
the applicant has furnished this court with sufficient information
to
afford him protection under the
Refugees Act and
for the court to
conclude that the
Refugees Act applied
to him.
THE
FACTS
[4]
In the applicant’s founding affidavit the applicant made the
following averments:
[4]
“
I am an asylum
seeker in the Republic of South Africa. I would face risk of
persecution and danger to my life if I were to return
to my country
of origin.
[14]
Owing to my continued
detention by the respondents:
(i)
I am subjected to on-going violation of my life to human dignity,
freedom of movement and rights against arbitrary detention;
(ii)
I am exposed to the risk of deportation daily;
(iii)
I am being detained unlawfully and without proper grounds in law;
(iv)
I have been denied my rights in terms of the Constitution, The
Refugees Act and
the Immigration Act;
(v)
I face a real risk of persecution and threat to my life, physical
safety and freedom if I am forced to return to my country
of origin.
[18]
I was forced to
flee my country of origin as a result of persecution and in fear of
my life.
[19]
I do not set out
herein the details of my asylum due to the confidential nature of my
claim. I am advised that the right to keep
the contents of an asylum
claim confidential is enshrined in
section 21
(5) of the
Refugees
Act.
[20
]
I entered South Africa
sometime in 2016 after going through a number of countries in the
likes of the Republic of Chad, Cameroon,
Republic of Congo, DRC,
Zambia and Zimbabwe.
[21]
I have been trying to
obtain the asylum seeker permit but to no avail. I have on numerous
occasions approached the Desmond Tutu
Refugees Reception Office in
Pretoria to file an application for asylum, but Immigration officers
always turned me down.
[23]
I have just been
travelling from one town to another in the quest for a legal document
to sojourn in the Republic. That is travelling
to the various Refugee
Reception Offices in the likes of Musina, Durban, Cape Town, Port
Elisabeth and the Desmond Tutu RRO in
Pretoria.
[24]
I was arrested and
detained at Saboswa Police Station until I was transferred to Lindela
Holding Facility in Krugersdorp on the
3
rd
of September 2019. This can be confirmed by my Lindela Card……”
[5]
In a letter from the applicant’s attorneys, Tonie Okorie
Attorneys, attached to the founding affidavit, the following
was
noted:
“
O A is an adult
male from Nigeria who came into the country in 2016 and was arrested
in July 2019 he spent 30 days at the Police
station and was later
discharged to Lindela. A was arrested for being an illegal immigrant
in the republic. He has no criminal
record or pending cases.”
[6]
In their answering affidavit the respondents not only denied that the
applicant was forced to flee his country as a result of
“
persecution
and in fear of his life”,
but also placed the following
facts before court:
1.
In terms of the records of the
Department of Home Affairs, the applicant first entered the Republic
with a relative’s permit
in 2010, which permit expired in
November 2012. The permit was renewed and extended until November
2104. The applicant’s
purported relative was his spouse.
2.
On 9 July 2019, the applicant
was arrested in Siyabuswa for dealing in second hand goods without
complying with statutory requirements.
3.
The applicant was found guilty
of the offence as well as illegally sojourning in the Republic.
4.
In his plea to court for a
lenient sanction, the applicant prepared a statement wherein he
states that he entered the Republic with
a valid passport and permit.
He further stated that his permit expired in 2019 and that he did not
apply for its renewal.
5.
He stated that his reason for
entering the Republic was to look for employment.
6.
On 25 July 2019 the applicant
was cautioned and discharged and his deportation order was signed.
7.
Upon the applicant’s
arrival at Lindela an interview in terms of
section 41
of the
Refugees Act was
conducted.
8.
In terms of the interview the
applicant indicated that he first entered the country in 2005 and
that the purpose was to visit. He
never expressed and intention to
apply for asylum and he never indicated that his reasons for coming
to South Africa was to seek
asylum.
[7]
The applicant seeks final relief in motion proceedings. The
principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1]
is applicable, namely that the application is to be adjudicated on
the respondents’ version, together with those allegations
made
by the applicant which were not disputed by respondents. Whilst the
applicant’s founding affidavit is riddled with unsubstantiated,
bald and vague averments, the respondents have filed a comprehensive
answering affidavit, with annexures, containing damning allegations
against the applicant. The applicant has seen fit not to
file a replying affidavit and the allegations made by the
respondents
therefore stand uncontroverted. Taking into consideration the nature
of the allegations made against the applicant,
I am not surprised.
[8]
The applicant has a duty to place true facts before the court,
especially when it is presented with a contrary version in an
answering affidavit. The applicant’s affidavit contains
glaring inaccuracies and falsehoods and his conduct is abusive
of the
processes of court. His application should be dismissed for this
reason alone. But, even if his founding affidavit would
have been
able to stand scrutiny, he had failed to plead the basic
jurisdictional facts to afford him the protection of the
Refugees
Act.
THE
LAW
[9]
Section 2
of the
Refugees Act provides
that no person may be returned
to any other country, if as a result of such return, such person may
be subjected to persecution
on account of his or her race, religion,
nationality, political opinion or membership of a particular social
group, or his or her
life, physical safety or freedom would be
threatened on account of external aggression, occupation, foreign
domination or other
events seriously disturbing or disrupting public
order in either part or the whole of that country.
[10]
In
Saidi
v Minister of Home Affairs
[2]
,
the
Constitutional Court (“the CC”)
held
that all other provisions of the
Refugees Act are
subordinate to
those of
section 2.
It
emphasised
that
courts must adopt a purposive reading of statutory provisions as one
of
the purposes
of
the
Refugees Act is
to give effect within the Republic to the
relevant international legal instruments, principles and standards
relating to refugees.
At paragraph [29] Madlanga J, writing for the
majority,
stated:
“
The
paramount
importance of protecting genuine refugees from expulsion is
highlighted in the introduction of the Refugee Convention,
which
says:
“
The
principle of non-refoulement is so fundamental that no
reservations or derogations may be made to it. It provides
that
no one shall expel or return (“refouler”) a refugee
against his or her will, in any manner whatsoever, to
a
territory where he or she fears threats to life or freedom.”
[11]
In
Ruta v Minister
of Home Affairs
[3]
,
the
CC affirmed the overarching importance of
section 2
and stated as
follows:
"[24]
This is a remarkable provision. Perhaps it is unprecedented in the
history of our country's enactments. It places the
prohibition it
enacts above any contrary provision of the
Refugees Act itself
- but
also places its provisions above anything in any other statute or
legal provision. That is a powerful decree. Practically
it does two
things. It enacts a prohibition. But it also expresses a principle:
that of non refoulement, the concept that one fleeing
persecution or
threats to "his or her life, physical safety or freedom"
should not be made to return to the country inflicting
it.”
APPLICABILITY
OF THE
REFUGEES ACT
>
[12]
The question that needs to be determined is whether it is sufficient
for an applicant to merely state that he or she wants
to apply for an
asylum without pleading, at the very least, the jurisdictional facts
set out in
section 2
of the
Refugees Act.
[13
]
It is trite that
it
is not within the power of, nor the function of the courts to
determine the merits of an application for asylum in terms of the
Refugees Act, but
that it is for
the
Refugee Status Determination Officer to do so. The Supreme Court of
Appeal (“the SCA”) in
Bula,
[4]
Arse,
[5]
Ersumo
[6]
and
in
Abdi
[7]
,
held, in each of these cases, that the applicants enjoyed the
protection of the
Refugees Act and
ordered their release from
detention. The correctness of these decisions was recently affirmed
by the CC in
Ruta
where
it was held that
the
Immigration Act determines who is an “illegal foreigner”
liable to deportation, and the
Refugees Act, and
that statute
alone, determines who may seek asylum and who is entitled to
refugee status. The CC also stated emphatically
that any delay in
applying for asylum, no matter how long, will not diminish an
applicant’s entitlement to apply.
[14]
The facts in
Bula,
Ersumo, Arse, Abdi and Ruta
are all fairly similar: The applicants fled their home countries and
would be persecuted, or their lives would be endangered, if
they
returned to their home country because of their tribal and/or
political affiliation.
In
Bula
,
nineteen Ethiopians fled their home country to escape political
persecution and in fear of their lives, and walked for a year
through
Kenya, Tanzania and Mozambique before arriving in South Africa. The
appellants were all supporters of the opposition political
party in
Ethiopia, the Oromo Liberation Front and as such they were pursued,
threatened and in some cases severely injured by the
police and
members of the ruling Ethiopian Peoples’ Democratic Front.
Because of the confidential nature of the allegations,
and relying on
the provisions of
section 25
of the
Refugees Act, no further
specific
details were provided. In
Arse
the
appellant was an Ethiopian citizen who, according to his founding
papers, fled from Ethiopia because of persecution by reason
of his
tribal affiliation and political opinion.
In
Abdi
the appellants fled from Somalia to the Republic and were granted
refugee and asylum seeker status in the Republic. It was not
disputed
that Somalia was a
failed
or dysfunctional state that is unable to maintain public order or
protect the lives of its citizens and that the appellants’
lives would be in danger if they were to be forced to return to that
country.
In
Ruta
the
respondent
was a Rwandan national allegedly employed as a soldier in the Rwandan
army. He
entered
the Republic in 2014 as a soldier in its exiled armed struggle
against the then Rwandan government. In 2015 he was told,
in effect,
that he was to kill someone from a rival party. He was not willing to
do so and approached the Directorate for Priority
Crime
Investigation, the Hawks, and disclosed his mission to them. The
applicant was then placed in witness protection. He was
moved around
South Africa by the Hawks and during this time abortive efforts were
made to secure refugee status for the applicant.
[15]
In
Ersumo
the
applicant had left Ethiopia because of a well-founded apprehension of
being persecuted for his political opinions, and because
of that
fear, he was unwilling to return to Ethiopia. The court was satisfied
that there was “
sufficient
material to indicate [the applicant] may have a valid claim to
refugee status”
and that being so the court did not have to consider “
whether
he could have succeeded if less had been placed before the court.”
[16]
The facts of
Ruta,
Bula,
Arse,
Ersumo and Abdi
are
wholly distinguishable from the facts
in
casu
.
In
all these matters the applicants pleaded the necessary jurisdictional
facts to bring them under the purview of
section 2
of the
Refugees
Act.
The
applicant in the present matter, however, failed to set out any facts
which would bring him within the ambit of the
Refugees Act. The
applicant also relied on
section 21
(5), the 'confidentiality'
provision of the
Refugees Act. Section
21(5) provides that “
the
confidentiality of asylum applications and the information contained
therein must be ensured at all times”
save when the Refugee Appeals Authority may, in certain
circumstances, allow any person or the media to attend and report on
such
hearing. The respondents reliance on
section 21
(5) does not
preclude the applicant from the need to furnish any information
whatsoever pertaining to those fundamental issues
dealt with in
section 2
of the
Refugees Act.
>
[17]
A party seeking the protection of the
Refugees Act must
, at the very
least, plead the jurisdictional facts set out in
section 2
of the
Refugees Act to
enable the court to find that resort to the
Refugees
Act is
justified. The necessity for setting out the factual
basis is not so that the court can consider the merits of the
application
for asylum but in order to satisfy the court that the
application is one which could invoke consideration and application
of the
Refugees Act. Absent
fundamental and necessary averments it is
impossible for this court to determine the application and the
dispute before it. Furthermore,
taking into account the
particular facts of this matter, it is difficult to escape the
conclusion that the application to this
court was an abuse of court
process.
[18]
In
Saidi,
the
CC
reiterated that this is not about non-return for the sake of it, but
that it is about not returning asylum seekers to the very
ills –
recognised
as bases for seeking asylum
(my
emphasis) – that were the reason for their escape from
their countries of origin.
The
applicant has not disclosed sufficient information to meet the
standard applied in
Bula,
Ersumo, Abdi, Arse
and
Ruta
and is
not entitled to the protection of the
Refugees Act.
WARRANT
OF DETENTION
[19]
At the hearing of the application the applicant submitted that even
if the court should find that the applicant is not afforded
the
protection of the
Refugees Act, that
his detention was unlawful as
there is no valid warrant of detention. It was submitted that if
there was no valid warrant, the
applicant should be released
summarily. As this aspect was not specifically dealt with by
the applicant in the founding affidavit,
leave was granted to the
respondents to file a supplementary affidavit dealing with this
aspect.
[20]
Section
34 (1) of the Immigration Act deals with deportation and detention of
illegal foreigners. The section reads as follows:
“
(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.”
[21]
The respondents filed a supplementary affidavit wherein it is averred
that there was a valid warrant of detention permitting
the continued
detention of the applicant. Attached to the supplementary affidavit
were the following documents:
1. “
WARRANT OF
DETENTION OF ILLEGAL FOREIGNER”
dated 26 July 2019.
2. “
WARRANT OF
DETENTION”
dated 26 July 2019 signed by the Additional
Magistrate at Siybuswa Magistrate’s Court.
3. “APPLICATION
TO COURT FOR EXTENSION OF DETENTION AND AUTHORISATION BY COURT FOR
THAT EXTENSION”
dated
20 August 2019, confirming the extended detention of the applicant.
[22]
The order of the magistrate dated 20 August 2019 does not specify for
what period the detention was extended for. There is
also no
indication that there was an application for the extension of his
detention after 20 August 2019. The applicant is
therefore, for
these two reasons alone, released with immediate effect.
[23]
There is, however, another issue that needs to be resolved.
That
issue concerns the declaration of invalidity of section 34 (1)(b) and
(d) by the CC in the matter of
Lawyers
for Human Rights v Minister of Home Affairs and Others.
[8]
THE
INVALIDITY OF SECTIONS 34(1(b) and (d) OF THE IMMIGRATION ACT.
[24]
On 29 June 2017, the CC, in the matter of
Lawyers
for Human Rights v Minister of Home Affairs and Others,
[9]
declared
section
34 (1)(b) and (d) inconsistent with sections 12 (1) and 35 (2)(d) of
the Constitution and hence, invalid.
The
declaration of invalidity was suspended for 24 months from the date
of the order to enable Parliament to correct the defect.
In paragraph
4 of the order the CC ordered that:
“
4.
Pending legislation to be enacted within 24 months or upon the expiry
of this period, any illegal foreigner detained under s
34(1) of
the Immigration Act shall be brought before a court in person within
48 hours from the time of arrest or not later
than the first court
day after the expiry of the 48 hours, if 48 hours expired outside
ordinary court days.
5.
Illegal foreigners who are in detention at the time this order is
issued shall be brought before a court within 48 hours from
the date of this order or on such later date as may be
determined by a court.
6.
In the event of Parliament failing to pass corrective legislation
within 24 months, the declaration of invalidity shall operate
prospectively.”
[25]
The 24 months expired on 29 June 2019. Counsel for the respondents
confirmed during the hearing that the Immigration Act has
not been
amended during the suspension period. From the available sources at
present it would appear that Sections 34(1)(b) and
(d) are invalid
and there are no other sections in the Immigration Act warranting the
further detention of an illegal immigrant
after his or her initial
appearance in court.
[26]
The applicant
in
casu
has been released and the validity of his detention is moot. However,
it is, in my view, in the interests of justice necessary
to consider
the position of illegal immigrants in the position of the applicant.
In
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa
[10]
the
court said:
“
It
is by now axiomatic that mootness does not constitute an absolute bar
to the justiciability of an issue. The court has
a discretion
whether or not to hear a matter. The test is one of the
interests of justice. A relevant consideration
is whether the
order that the court may make will have any practical effect either
on the parties or on others. In the exercise
of its discretion
the court may decide to resolve an issue that is moot if to do so
will be in the public interest. This
will be the case where it
will either benefit the larger public or achieve legal certainty.”
[26]
Counsel for both the applicant and the respondents are requested to
make submissions on this issue before 25 November 2019.
In addition,
this court will issue directions inviting any interested parties to
be joined as
amici
of the court and to make submissions. In
particular, I will invite submissions from Lawyers for Human Rights,
who argued for the
declaration of invalidity of sections 34(1)(b) and
(d) in
Lawyers for Human Rights v The Minister of Home Affairs,
as
well as from the Minister of Justice and Correctional Services
.
________________________________________
L. WINDELL
JUDGE OF
THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
Counsel
for appellant:
Adv. TL Dikolomela
Instructed
by:
Tony Akorie Attorneys
Counsel
for respondents: Nthabiseng Thokoane
Instructed
by: Office
of the State Attorneys Johannesburg
Date
matter heard: 11
October, 22 October 2019 and
1 November 2019
Judgment
date: 1
November
2019
[1]
1984
(3) SA 623 (A)
at
634H - I
[2]
2018
(4) SA 333
(CC) at [27].
[3]
2019
(2) SA 329
(CC)
[4]
Bula
v Minister of Home Affairs
2012
(4) SA 560 (SCA)
[5]
Arse
v Minister of Home Affairs
2012 (4) SA 544 (SCA)
[6]
Ersumo
v Minister of Home Affairs
2012 (4) SA 581 (SCA)
[7]
Abdi
v Minister of Home Affairs 2011 (3) SA 37 (SCA).
[8]
2017
(5) SA 480 (CC)
[9]
2017
(5) SA 480 (CC)
[10]
[2004] ZACC 24
;
2005
(4) SA 319
(CC).