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[2011] ZAGPPHC 71
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Phale v Minister of Home Affairs and Others (22852/11) [2011] ZAGPPHC 71; [2011] 4 All SA 103 (GNP) (20 May 2011)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2011-05-20
Case Number:
22852/11
REPORTBALE
In the matter between:
JERRY OFENSE
PHALE
....................................................................
Applicant
and
THE MINISTER OF
HOME AFFAIRS
.....................................
First
Respondent
THE DIRECTOR GENERAL: DEPARTMENT
OF
HOME
AFFAIRS
................................................................
Second
Respondent
MINISTER OF
POLICE
..........................................................
Third
Respondent
STATION COMMANDER: RUSTENBURG
POLICE
STATION
.............................................................................
Fourth
Respondent
JUDGMENT
SOUTHWOOD J
[1]
The
applicant is to be tried on charges of fraud and contravening the
Immigration Act 13 of 2002 (‘the Act’) in the
Rustenburg
magistrates’ court. During March 2011 the applicant applied to
the Rustenburg magistrates’ court to be
released on bail. The
investigating officer in his criminal case did not object to the
applicant being released but the second
respondent did. On 4 April
2011 the court ordered that the applicant be released on bail of R3
000 subject to stringent reporting
conditions. On the same day an
official of the Department of Home Affairs addressed a ‘Warrant
of Detention of an Illegal
Foreigner’ in terms of the Act to
the Rustenburg SAPS. The warrant reads as follows:
‘
DEPARTMENT:
HOME
AFFAIRS
REPUBLIC OF SOUTH AFRICA
WARRANT OF DETENTION OF
AN ILLEGAL FOREIGNER
[Section
34(1), 34(5) and 34(8) of Act No. 13 of 2002: Regulation 39(2)]
To: Station Commissioner
Head of
Prison/Detention facility
Rustenburg SAPS
As OFENTSE JERRY PITSOE
has made himself/herself liable to
deportation/removal from the Republic and for detention pending such
deportation/removal in
terms of
section 34(1)/34(5)/34(8)
of the
Immigration Act, 2002
, you are
hereby ordered to detain the said
ILLEGAL FOREIGNER FROM BOTSWANA
until such time he/she is
deported/removed from the Republic.
NB: No release may
be effected without the written authority of an immigration officer
by means of a warrant of release referred
to in
regulation 39(12)
of
the regulations published in terms of the Immigration Act, 2002 (Act
No. 13 of 2002).
Immigration Officer
Above the words
‘OFENTSE JERRY PITSOE’ there is an arrow pointing to the
words which have been inserted: ‘to
be re-arrested’ and
underneath that ‘must be re-arrested after paying Bail’.
The signature of the immigration
officer is illegible.
Immediately after the court ordered
that he be released on bail officials of the second respondent
informed the applicant that
he would be re-arrested as soon as he
paid bail. Rather than be re-arrested under the warrant issued in
terms of the Act the applicant
has not paid bail. On 13 April 2011
the applicant launched an urgent application seeking the following
relief:
‘
1. Reviewing,
setting aside and declaring unlawful the warrant of detention which
purports to be issued and/or extended in accordance
with
section
34(1)
of the
Immigration Act, 13 of 2002
, read with
regulation 39(2)
of the regulations thereto dated 4 April 2011;
2. Interdicting the Respondents from
re-arresting the Applicant on the basis that he is an “illegal
foreigner” or any
other charges relating to, or as a result of,
his pending criminal proceedings in the Rustenburg Magistrate’s
Court under
case number D265/11, or his pending civil proceedings in
the South Gauteng High Court under case number 51010/10;
3. Directing the
Respondents, upon payment of bail, to forthwith release the Applicant
in accordance with his bail conditions.’
[2]
The
first and second respondents oppose the application and have filed an
answering affidavit deposed to by Mr. Jurie de Wet an
immigration
officer in the employ of the second respondent who testified in the
applicant’s bail application. The applicant
seeks final relief
on notice of motion and insofar as there are disputes of fact on the
affidavits the principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at
634F-635C must be applied. See also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
para
26.
[3] It appears from
Mr. De Wet’s answering affidavit that the second respondent’s
officials consider that the applicant
is a flight risk and that the
inference is inescapable that the second respondent’s officials
issued the warrant on 4 April
2011 simply to prevent the applicant
from evading deportation to Botswana.
[4] The following facts are common
cause or are not in dispute:
(1) the applicant who also goes under
the surname ‘Pitsoe’ is a Botswana citizen, born in
Botswana on 15 August 1970,
his father a South African citizen and
his mother a Botswana citizen;
(2) the applicant
has lived in both Botswana and South Africa and returned to Botswana
in 1996. When in South Africa the applicant
has lived with an aunt
in Rustenburg;
(3) in 2009 the
applicant was accused of murder in Botswana and fled to South Africa:
he feared that he would not receive a fair
trial and that if he is
found guilty the death penalty could be imposed;
(4) in November
2009
the applicant was arrested in South Africa and extradition
proceedings were brought against him in the Mankweng magistrates’
court in Limpopo;
(5) on 2 March 2010
the extradition proceedings against the applicant were withdrawn
apparently because the Botswana government
refused to give an
assurance that the applicant would not be subject to a death sentence
if found guilty;
(6) on 3
March 2010 officials under the control of the first and second
respondents detained the applicant as an ‘illegal foreigner’
in terms of the Act and took him to the Lindela Holding Facility
where he was detained ‘for the purposes of deportation’;
(7) from 4 March 2010 until 28
February 2011 the applicant was detained at the Lindela Holding
Facility;
(8) on 22 December
2010, while he was being detained, the applicant launched an
application against
inter
alia
the
first and second respondents in the South Gauteng High Court under
case number 51010/2010 seeking, firstly (in Part A of the
notice of
motion), an order directing the first and second respondents and the
third respondent in the application, Bosasa (Pty)
Ltd, to release the
applicant from detention and an order, pending final determination of
the relief sought in part B of the notice
of motion, prohibiting the
respondents from taking any action whatsoever to cause the applicant
to be deported, extradited or removed
from South Africa to Botswana
and secondly, (in part B of the notice of motion), orders:
‘
1. Condoning,
to the extent necessary, the applicant’s failure to exhaust any
applicable internal remedies provided for in
the
Immigration Act 13
of 2002
;
2. Reviewing, setting aside and
declaring invalid the decision to declare the applicant as an illegal
foreigner,
3. Declaring the detention of the
applicant unlawful and unconstitutional;
4. Reviewing and setting aside the
decision of the first and/or second respondent that the applicant is
to be deported and/or removed
from South Africa to the Republic of
Botswana without first obtaining a written assurance from the
Government of the Republic of
Botswana that he will not face the
death penalty in Botswana under any circumstances;
5. Declaring the deportation and/or
extradition and/or removal of the applicant to the Republic of
Botswana unlawful and unconstitutional,
to the extent that such
deportation and/or extradition and/or removal be carried out without
the written assurance from the Government
of Botswana that the
applicant will not face the death penalty there under any
circumstances;
6. Prohibiting the respondents from
taking any action whatsoever to cause the applicant to be deported,
extradited or removed from
South Africa to Botswana until and unless
the Government of the Republic of Botswana provides a written
assurance to the respondents
that the applicant will not be subject
to the death penalty in Botswana under any circumstances’;
(9) the applicant’s
application for final relief under case number 51010/10 is to be
heard on 23 and 24 May 2011 together
with a similar application for
the same relief brought by Emmanuel Tsebe against the first and
second respondents under case number
27682/10;
(10) before the applicant’s
application for interim relief could be heard on 25 January 2011 the
first and second respondents
gave an undertaking to the applicant
that pending the finalisation of the applicant’s application
alternatively receipt of
an assurance by the Government of Botswana
that the death penalty will not be imposed on the applicant, or if
imposed, will not
be carried out, the applicant would not be deported
to Botswana. In the same letter dated 19 January 2011 the state
attorney informed
the applicant that he would be charged with
contravening the Act in the course of the following week;
(11) on the strength of the first and
second respondents’ undertaking the applicant withdrew his
application for interim relief;
(12) on 28 February 2011 officials of
the Department of Home Affairs took the applicant from the Lindela
Holding Facility to the
Rustenburg Police Station to be charged with
contravening the Act;
(13) on 2 March 2011 the applicant
appeared in the Rustenburg magistrates’ court and applied for
bail. The application was
postponed to 8 March 2011;
(14) on 8 March
2011 the state opposed the grant of bail and tendered the evidence of
Mr. J.J. de Wet (the deponent to the respondents’
answering
affidavit), the senior immigration officer in Gauteng, who testified
that the applicant was a fugitive from justice and
therefore
considered to be an ‘undesirable person’ in terms of
section 29 of the Act and that as an ‘undesirable
person’
the applicant is not eligible for any status in terms of the Act and
must be considered an illegal foreigner;
(15) on 4 April 2011 the Rustenburg
magistrates’ court granted bail on the following conditions:
‘
1. The applicant must report
every Monday to Saturday between the hours of 6am and 6pm at the
Rustenburg Police Station;
2.
He
must report every Monday, Wednesday and Friday between the hours of
8am and 4pm at the local immigration office;
3. SAPS investigating officer, Mr.
Phahlele, must assist as far as possible with the monitoring of his
reporting at both the police
station and the immigration office; and
4. He must not interfere with any
witnesses or evidence in the matter’;
(16) in granting
bail the magistrates’ court was required to consider a report
from a Correctional Services official which
concluded that
section
62(f)
of the
Criminal Procedure Act 51 of 1977
is not recommended for
the applicant (i.e. a further bail condition should not be imposed
that the applicant be placed under the
supervision of a probation
officer or correctional official) and the evidence of the
investigating officer who did not object to
the grant of bail.
[5] The right not
be deprived of freedom arbitrarily or without just cause applies to
all persons in South Africa whether they are
there illegally or not –
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004
(4) SA 125
(CC)
paras
26-27. It is also well-established that –
1. Any detention
is
prima
facie
unlawful;
2. The onus is on the detaining power
to justify the detention;
3. Every detained person has the
absolute right not to be detained for one second longer than
necessary where the state cannot justify
his detention;
4. If the detaining
power is unable to justify the detention the detainee must
consequently be released immediately. See
Arse
v Minister of Home Affairs
2010
(7) BCLR 640
(SCA)
paras
5 and 10.
[6] It will be
remembered that the officials of the Department purported to act in
terms of section 34 of the Act when issuing the
warrant. The
relevant provisions of the Act provide that –
‘a “foreigner”
means an individual who is not a citizen’
‘“illegal foreigner”
means a foreigner who is in the Republic in contravention of the Act’
‘”deport or deportation”
means the action or procedure aimed at causing an illegal foreigner
to leave the Republic
in terms of the Act’
‘”undesirable person”
means a person contemplated in section 30’ which provides that
specified foreigners
may be declared undesirable by the Director
General, including (f) anyone who is a fugitive from justice’
‘Section 32 Illegal foreigners
–
(1) Any illegal
foreigner shall depart, unless authorised by the Director-General in
the prescribed manner to remain in the Republic
pending his or her
application for a status.
(2) Any illegal foreigner shall be
deported’
‘Section 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 –
(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.
(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.’
[7] In
Ulde
v Minister of Home Affairs and Others
[2009]
ZASCA 34
(31/3/09)
at para 7 the court said with regard to the exercise of the
discretion in terms of section 34(1) of the Act:
‘Bearing in
mind that we are dealing here with the deprivation of a person’s
liberty (albeit of an illegal foreigner’s),
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 of the Transvaal
“(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.”’
In para 11 the court found that once
the decision had been taken to charge the appellant, and the
magistrate had decided to release
him on bail, this should have been
taken into account as a relevant and material factor in a further
decision to detain him and
that the fact that the magistrate had
decided to grant bail could not be ignored and that by ignoring the
order the respondent
had detained the applicant for unacceptable
reasons.
[8] In his
answering affidavit Mr. De Wet records the respondents’ reasons
for the issue of the warrant as follows:
’
12.2 Within
the context, however, of deportation, the considerations are vastly
different to those which the Honourable Magistrate
needed to apply.
I say so by virtue of the fact that the purpose and intention of the
Criminal Procedure Act, is
materially different to that of the
detention which the First and Second Respondents seek of the
Applicant in terms of the
Immigration Act. The
objective of the
former is to secure a conviction whilst the objective of the latter
is to secure the person of an illegal foreigner
in order that a
deportation may be given effect to.
12.3 It is
inconceivable that a deportation can take place without the physical
detaining of an illegal foreigner’s person.
I say so by virtue
of the fact that, as part of the deportation process, an illegal
foreigner needs to be identified by the embassy/high
commission of
the country of origin of the illegal foreigner. The only manner in
which this can take place, is by physically taking
the illegal
foreigner to the embassy/high commission concerned. It is
inconceivable that such a person, if released, will, by
his own
volition, report to an embassy/high commission for purposes of
identification and it is also even more unlikely that an
illegal
foreigner is going to report to the Department’s Deportation
Holding Facility, for purposes of the deportation upon
being
requested to do so.
12.4 The Department has faced
countless instances where illegal foreigners who have been released
after an initial detention period
of 120 days, simply fail to report
as and when required, for purposes of effecting or finalising the
deportation of the individual
concerned. It simply does not happen.’
And, in his answer
to the applicant’s allegations that although the reporting
conditions are onerous he would be able to
abide by the conditions in
order to secure his release; that he would present himself for trial
and that in view of the charges
against him and his view that he did
not unlawfully obtain his South African ID book, it is in his
interest that he see these char
ge
through to their finality, de Wet simply dismissed these allegations
as ‘not sufficient’ and commented –
‘The history
of the Applicant and his movement throughout the Republic of South
Africa, as a fugitive, from the justice system
within both South
Africa and Botswana are sufficient to justify the reasonable belief,
as an Immigration Officer, that the Applicant
will simply “vanish
under the radar”, not to be seen in the event of the hearing in
Johannesburg in the South Gauteng
High Court not being in his favour.
This presents the dilemma faced by officials in the employ of the
Department of Home Affairs
in particular, when it concerns the flight
risk of individuals who have no roots whatsoever in the Republic of
South Africa. The
Applicant is one of them.’
[9]
At
the outset it must be noted that De Wet did not issue the warrant and
he does not say that he authorised the issue of the warrant
or
instructed that the warrant be issued after taking these
considerations into account. The person who issued the warrant has
not made an affidavit to explain why he/she issued the warrant and
consequently it cannot even be suggested that the warrant was
issued
on de Wet’s instructions after proper consideration of the
relevant circumstances. The respondents have therefore
not explained
why the warrant was issued, and, in the absence of satisfactory
reasons the issue of the warrant appears to be arbitrary
and cannot
stand.
[10] Even if Mr. De Wet’s
evidence must be considered as the reasons for issuing the warrant
they are unacceptable for the
following reasons:
(i) they show that
in every case where a person is deported the respondents detain the
person – the respondents therefore
do not properly apply their
mind in every case. The situation is therefore the same as that in
the
Ulde
case;
(ii) the
respondents
did not have the facts on which to base a reasonable belief that the
applicant is a flight risk. The applicant’s history
does not
show that he is a fugitive from justice in both South Africa and
Botswana. There is no evidence that the applicant has
been charged
or even arrested on any charge in Botswana and thereafter absconded.
At best the statement is partially true –
the applicant is
evading the processes of the criminal law system in Botswana
regarding a murder charge by coming to and remaining
in South Africa
– see
Escom
v Rademeyer
1985
(2) SA 654
(T)
at
657J-661I and in particular at 658H and 661I. As far as South Africa
is concerned the statement is completely untrue and it
is in fact
completely misleading. There is no evidence whatsoever to show that
in South Africa the applicant knows that the machinery
of the law
requires his attendance to face charges against him and that he is
keeping himself outside the reach of the law. In
addition there is
no evidence of any crimes committed by the applicant in South Africa.
The Correctional Services report prepared
for the Rustenburg
magistrates’ court says with regard to Criminal and other
behaviour in general –
‘(i)
Present
crime:
Fraud
(ii)
Previous
convictions:
The accused indicated that he does
not have previous convictions
(iii)
Suspended/postponed
sentences:
No
suspended or postponed sentences
(iv)
Previous
sentences of correctional supervision/parole placements:
No previous
sentences of correctional supervision or parole placements
(v)
Violation
of parole conditions/ escapes/ absconding
No
violation of parole conditions, escapes or absconding.’
(iii) t
he
respondents did not wish to detain the applicant for the purpose of
deportation. They simply wanted to detain him so that he
would be
available for deportation in the event that the Johannesburg High
Court refuses his application. The respondents had
undertaken not to
deport the applicant pending the outcome of the application. The
respondents therefore knew that for a period
of at least six weeks
the applicant could not be deported. The respondents therefore
issued the warrant for the applicant’s
arrest for a purpose not
authorised by the Act – see
Jeebhai
and Others v Minister of Home Affairs and Another
2009
(5) SA 54
(SCA)
para
48;
Minister
of Safety and Security v Sekhoto
2011
(2) All SA 157
(SCA)
paras
28-31.
[11] The
respondents have therefore not shown that the warrant was lawful and
the applicant is entitled to relief. For present
purposes it is not
necessary to consider all the other arguments presented.
[12] The following order is made:
I The Warrant of Detention of an
Illegal Foreigner issued on 4 April 2011 in terms of section 34(1) of
Act 13 of 2001 (a copy of
which is annexed to the applicant’s
founding affidavit as Annexure JOP 1) is declared to be unlawful and
is set aside;
II Until the
applicant’s application in the South Gauteng High Court under
case number 51010/2010 is finally disposed of the
respondents are
interdicted from re-arresting the applicant because he is an ‘illegal
foreigner’ or on other charges
relating to his pending criminal
proceedings in the Rustenburg magistrates’ court under case
number D265/11;
III The respondents are ordered to
release the applicant forthwith upon payment of his bail in
accordance with the bail conditions
of the Rustenburg magistrates’
court on 4 April 2011;
IV The first and second respondents
are ordered to pay the applicant’s costs of this application
subject to any other costs
order already in force.
____________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO:
22852/11
HEARD
ON: 17 May 2011
FOR
THE APPLICANT: ADV. N.T. LEWIS
INSTRUCTED
BY: Pretoria Law Clinic
FOR
THE RESPONDENT: ADV. G. BOFILATOS SC
INSTRUCTED
BY: State Attorney
DATE
OF JUDGMENT: 20 May 2011