About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 485
|
|
A T v Minister of Home Affairs and Others (33524/2014) [2019] ZAGPJHC 485 (27 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
33524/2014
In
the matter between:
A
T
Applicant
and
THE
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
JUDGMENT
Goedhart
AJ
[1]
The applicant, a Senegalese national, sought asylum in South Africa.
He arrived in South Africa in July 2012 and was granted
a temporary
asylum seekers permit in terms of section 22 of the Refugees Act 130
of 1998 (“the
Refugees Act&rdquo
;), which was
extended on a number of occasions.
[2]
On 11 December 2014, the applicant was approached by two immigration
officials who were not convinced that his temporary permit
was valid.
His permit was confiscated. He was transferred to the Free State
Police Station where he remained in custody until 19
December 2014,
when he was taken to court.
[3]
On 19 December 2014, he was charged with being an illegal foreigner.
He applied for bail with the assistance of the Legal Aid
Board. The
State opposed the application for bail. It appears that the matter
was postponed, presumably to 8 January 2015.
[1]
[4] The applicant’s
application for bail was successful. However, although he was granted
bail, upon his release, the applicant
was immediately rearrested by
the same immigration official. He was then taken from the Free State
to Pretoria Central Police Station
where he was detained until 20
January 2015, when he was transferred to the Lindela Detention
Facility for deportation.
[5]
The applicant inquired about his asylum permit, but was informed that
his asylum claim had been rejected. He then requested
his legal
representatives to commence with a
Rule 53
review application which
was launched on 9 February 2015.
[6]
The applicant’s attorney addressed a letter of demand to the
Department of Home Affairs on 9 February 2015. The letter
of demand
sets out that the applicant has commenced an application for review,
and that his continued detention was unlawful and
that the applicant
be furnished with a warrant of release by 10h00 on 12 February 2015.
[7]
No warrant of release having been received, the applicant launched an
urgent application for his release. The urgent application
was served
upon the State Attorney on 12 February 2015.
[8]
On 17 February 2015 Mailula J granted an order directing that the
applicant be forthwith released from the Lindela Detention
Facility.
Further, that the respondents were directed, in terms of
Regulation
2(2)
of the
Refugees Act to
re-issue the applicant with a temporary
asylum seekers permit in terms of
section 22
of the
Refugees Act
pending
the finalisation the review application. Costs were reserved.
[9]
In this application, the applicant seeks an order for costs against
the respondents relative to the proceedings of 17 February
2015, as
well as the costs of the current application.
[10]
The current application seeking costs was launched on 17 January
2018. The first and second respondent delivered an answering
affidavit on 20 April 2018. Mr Wittes, the Legal Administration
Officer of the first and second respondents deposed to the answering
affidavit. He is responsible for all immigration matters which fall
under the jurisdiction of the Chief Directorate of Legal Services.
[11] The opposition is
premised upon the following:
11.1 The order of 17
February 2015 does not contain an order that the applicant’s
detention was unlawful;
11.2 There are logistical
problems, and the respondents are given a very short time within
which to investigate matters of this
nature;
11.3 The investigations
require the co-operation of the country of origin of the foreign
national to enable the respondents to verify
the identity of the
foreign national. The respondents experience that the countries of
origin are unco-operative or recalcitrant
making the verification
process difficult;
11.4 The letter of demand
of 9 February 2015 came to his attention on 11 February 2015;
11.5 The urgent
application was launched on Thursday, 12 February 2015 for hearing on
Tuesday, 17 February 2015 leaving the respondents
with very little
time within which to respond;
11.6
The urgent application was “avoidable and unnecessary”
and the review application had not been completed, making
the urgent
application premature.
[12]
Whilst the respondents were at pains to point out the logistical
difficulties experienced by the respondents, nowhere in the
answering
affidavit to this application do the first and second respondents set
out on what basis it contends that its officials
were justified in
detaining the applicant. Given the facts set out by the applicant in
his founding affidavit, an explanation for
the conduct of the
immigration officials ought to have been forthcoming. More
particularly, why the immigration official saw fit
to detain the
applicant immediately after he was released on bail after he had been
detained without a warrant from 11 December
2014 to 8 January 2015.
This resulted in his further detention until the order of 17 February
2015.
[13]
The first and second respondent fail to deal with the flagrant
disregard of the procedural requirements set out in the
Refugees Act
and
the Regulations thereto, as well as the provisions of the
Immigration Act, 13 of 2002
in the answering affidavit. The
respondents also do not provide any information as to the outcome of
the review application
launched by the applicant. Given that the
application seeking an order for the reserved costs was launched in
January 2018, the
respondents had ample opportunity between 17
February 2015 and 24 April 2018 to complete its investigations and to
place the relevant
information before the court.
[14] In
Ulde v
Minister of Home Affairs and another
2009 (4) SA 522
(SCA),
Cachalia
JA held [at paras 7 and 8]:
“
Bearing
in mind that we are dealing here with the deprivation of a person's
liberty (albeit of an illegal foreigner), the immigration
officer
must still construe the exercise of his discretion in favorem
libertatis when deciding whether or not to arrest or
detain a
person under
s 34(1)
- and be guided by certain minimum standards in
making the decision. Our courts have over the years stated these
standards as imposing
an obligation on the repository of a
discretionary power to demonstrate that he has 'applied his mind to
the matter' - in the celebrated
formulation of Colman J in Northwest
Townships (Pty) Ltd v The Administrator, Transvaal and Another:
'(A)
failure by the person vested with the discretion to apply his mind to
the matter (includes) capriciousness, a failure on the
part of the
person enjoined to make the decision, to appreciate the nature and
limits of the discretion to be exercised,
a failure to
direct his thoughts to the relevant data or the relevant
principles, reliance on irrelevant considerations,
an arbitrary
approach, and the application of wrong principles.'
The
approach I have outlined is now subsumed under s 12(1)(a) of the
Constitution which provides that freedom may not be deprived
'arbitrarily or without just cause'. Simply put, a person may not be
deprived of his freedom for unacceptable reasons
.
However, once the decision-maker
has demonstrated that the discretion has been properly exercised, a
court will not interfere,
even if it appears that the wrong decision
was made.” (footnotes omitted) (own emphasis)
[15]
On the facts presented, the detention of the applicant was
unjustified and in breach of his right to freedom and security of
person and not to be deprived of his freedom arbitrarily and without
cause, as enshrined in section 12 of the Constitution. The
conduct of
the immigration officials as set out in the founding affidavit
remains unexplained and uncontested on the papers before
me. Under
these circumstances, the first and second respondents’
opposition to the application for costs was ill-advised.
The
suggestion that the urgent application was “premature”
given the review application, and that the applicant’s
internal
remedies ought to have been exhausted, is without merit on the
uncontested facts.
[16]
The third respondent did not oppose the relief sought by the
applicant. Given the judgment in
Murray
& others NNO v African Global Holdings (Pty) Ltd (306/2019)
[2019] ZASCA 152
(22/11/2019),
no
information in regard to the third respondent’s current status
was placed before me. I therefore make no order against
the third
respondent.
[17] In the result, I
make the following order:
17.1 The first and second
respondents are to pay the applicant’s costs of the urgent
application launched on 12 February 2015,
culminating in the order of
17 February 2015, on an opposed basis, as well as the costs of this
application, on the attorney and
client scale, jointly and severally,
the one paying the other to be absolved.
________________
G-M
Goedhart
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE
PLAINTIFF:
Adv T L Dikolomela
PLAINTIFF’S
ATTORNEYS:
Melford Monwa Attorneys
COUNSEL FOR THE
DEFENDANT:
Adv P Muthige
DEFENDANT’S
ATTORNEYS:
State Attorney: Johannesburg
DATE OF
HEARING:
25 November 2019
DATE OF
JUDGMENT:
27 November. 2019
[1]
The
date in the founding affidavit is 8 January 2014, which logically
cannot be correct.