Bhati v Minister of Home Affairs (500/09) [2009] ZAECPEHC 16 (28 April 2009)

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[2009] ZAECPEHC 16
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Bhati v Minister of Home Affairs (500/09) [2009] ZAECPEHC 16 (28 April 2009)

IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE - PORT ELIZABETH
)
CASE
No. 500/09
NOT
REPORTABLE
In
the matter between:-
NASEER
AHMED BHATI
Applicant
and
MINISTER
OF HOME AFFAIRS
Respondent
JUDGMENT
Van
der Byl, AJ:-
[1]
On 23 April 2009 I dismissed the Applicant’s application with
costs on the basis that reasons for my decision would be furnished
at
a later stage.
Those
reasons appear from what follows.
[2]
The Applicant was on 5 March 2009 granted, as a matter of urgency,
by agreement between the parties, an order in terms of which
a
decision of the Respondent to the effect that the Applicant is
ordered to leave the Republic on 6 March 2009 was suspended pending

the finalization of this application.
[3]
It is, as is apparent from the founding papers, the Applicant’s
case -
(a)
that he, as a Pakistani national, clandestinely arrived in South
Africa on an undisclosed date to seek asylum;
(b)
that he was on 20 February 2003 granted an Asylum Seeker Temporary
Permit (
Annexure NAB 2
) in terms of section 2 of the Refugees
Act, 1998 (Act 130 of 1998), which granted him the right to reside
temporarily in the Republic
for the purpose of applying for asylum in
terms of that Act, but which required him to leave the Republic on or
before 27 March
2003 or such later date as may be duly authorised by
a Refugee Status Determination Officer if his application for asylum
is rejected;
(c)
that, as indicated by him in his replying affidavit, the aforesaid
date was, as is apparent from the back side of the Asylum
Seeker
Temporary Permit which was not disclosed in his founding affidavit,
extended from time to time;
(d)
that, although it appears from the back side of that Permit that it
was last extended to 7 July 2003, there are other asylum
permits
issued to him, but that he “
lost the copies thereof
”;
(e)
that he during his stay in the Republic met a lady, Ruth Desire de
Grass, who is a South African citizen who he married on
20 April
2006;
(f)
that he then by virtue of his marriage launched an application for a
temporary residence permit at the Port Elizabeth Regional
Office of
the Department of Home Affairs which was issued to him on 31 (sic)
April 2006, valid until 30 April 2008, by an officer
in the
Department who was later dismissed for having committed “
misconduct
which relates to the issuing of work permits to persons who are
alleged not to have complied with the legal requirements
for such
permits
”;
(g)
that he on 29 April 2008 submitted an application for the renewal of
his temporary residence permit which was received by the
Department
under file No. PE564/08;
(h)
that he was, however, despite having reported to the Department on
various occasions thereafter, “
not assisted
” by the
Department on this application;
(i)
that on the occasion of one of his visits he was handed a letter
(
Annexure NAB 5
) in which he was required to appear on his
pending application at the Department on 27 August 2008 so as to
furnish the Department
with documentary proof that he complied with
all the requirements for the permit;
(j)
that he did submit “
all the required documentation
”, but
that he was on 20 February 2009 handed the order (
Annexure NAB 1
)
to leave the country by 6 March 2009.
[4]
The relevant portion of
Annexure NAB 1
reads as follows:
“
You
are hereby notified that as an illegal foreigner in contravention of
the provisions of the Immigration Act 2002, (Act No. 13
of 2002), you
are guilty of an offence for which you may be charged in a court of
law.
However,
as you have undertaken to leave the Republic voluntarily you are
hereby ordered to leave the Republic by 24h00 hours on
6 March 2009,
failure of which a warrant of for your deportation will be issued in
terms of section 34 of the said Act and you
will be detained and/or
charged pending your removal.
”.
[5]
In view of these facts, relying on the provisions of
section 8
of
the
Immigration Act, 2002
, it is the Applicant’s contention that he
should have been informed in writing on a prescribed form that he may
in writing request
the Minister to review a decision that he is an
illegal foreigner or that he should otherwise have been allowed the
right to make
an application to the Director_General for the review
or appeal of such a decision.
[6]
Accordingly, so it is furthermore contended, the “
decision
”
that he was an illegal foreigner constitutes “
administrative
action
” envisaged in the Promotion of Administrative Justice
Act, 2000 (Act 3 of 2000), and that the Respondent, through his
officials,
breached his constitutional rights by not having given him
notice of the decision and not having afforded him the opportunity to

submit representations.
[7]
The Respondent’s version differs materially, factually and
legally, from the Applicant’s approach in this matter.
[8]
As is apparent from the answering affidavit, the Respondent’s case
is based on the following facts:-
[9]
In
the first place
it is averred, as opposed to the
Applicant’s allegations that he entered the country illegally,
that, according to a questionnaire
(
Annexure ISK 1
) completed
by the Applicant on 5 December 2008 in respect of his marriage, the
Applicant indicated that he entered the country
on 7 February 2003
for the Cricket World Cup. On a question posed in the questionnaire
whether he ever applied for asylum or refugee
status, he for some
inexplicable reason denied that he has ever so applied for asylum.
[10]
In
the second place
it is averred that, although the
Applicant was granted an Asylum Seeker Permit on 20 February 2003
which granted him the right
to remain in the country until 27 March
2003, he never pursued and in fact abandoned his application for such
asylum so that he
was, at the latest, unlawfully in the country from
28 March 2003.
[11]
In
the third place
it is averred that, as is apparent
from
Annexure NAB 4
, the permit for which he sought extension
on 28 April 2008 was already an extended permit. Although an
application for the extension
of a temporary residence permit must
refer to the “
source of the original temporary residence
permit
”, his application referred to an old passport without
indicating the page number which is already, so it is contended, an
irregularity.
The passport in which
Annexure NAB 4
is affixed
is a passport issued to the Applicant in Lahore, Pakistan, on 6
November 2002 from which it appears that the extended
permit was
issued to him on 31 May 2006 (and not 31 (sic) April 2006, as
alleged). At that time his old passport must obviously
have been
expired at the time he entered the Republic. It accordingly follows
that had a temporary residence permit previously
been issued to him
it should have been recorded in his passport. His passport, however,
contains no such indication.
[12]
In
the fourth place
it is averred that it would appear
that the batch from which this permit was issued (which was,
incidentally, issued by a certain
Ms. Hange) was issued to Ms. Hange
on a date after the permit was issued to the Applicant. It,
furthermore, appears that the file
number under which the permit was
issued is a file allocated to an Egyptian national by the name of
Kamal Mohamed and that no file
exists in respect of the Applicant.
The fact that no file has been created in respect of the Applicant is
an indication that the
permit was issued fraudulently. This is one of
the reasons why Ms. Hange had been dismissed for fraudulently issuing
permits.
[13]
In
the fifth place
it is averred that, because the
Applicant had at the time already been unlawfully in the country for
three years (ie., as from
27 March 2003 until 26 April 2006, he would
not have qualified in terms of
section 48
of the
Immigration Act,
2002
, for a temporary residence permit.
[14]
In
the sixth place
it is averred that
Annexure NAB
5
was handed to the Applicant so as to afford him, against the
background of the apparent fraudulent issue of his temporary
residence
permit, the opportunity to provide proof of any initial
application for a temporary residence permit which preceded the
permit
issued in 2006, but the Applicant has to date failed to
provide such proof.
[15]
In
the seventh place
it is averred that
Annexure
NAB 1
, designed to facilitate voluntary departures from the
country, was handed to the Applicant on 20 February 2009 because he,
after
having been explained that should he fail to leave he could be
charged for contravening the Act, agreed to leave the country as
an
illegal foreigner.
[16]
In
the eighth place
it is averred that in the
circumstances no formal communication envisaged in section 8 of the
Act was required and that it would
only have been necessary on his
failure to have left the country, whereupon, he would have been
informed in terms of section 34
of the Act of a decision to be
deported from the country.
[17]
In his replying affidavit the Applicant indicated -
(a)
that his temporary residence permit was actually issued on 31 May
2006 and was valid until 30 May 2008;
(b)
that
Annexure ISK 1
, being a document, although filled in in
relation to his marriage, which was not filled in by him, “
might
be one of many documents
” he was made to sign;
(c)
that his asylum permit was extended on various occasions as is
apparent from the back side of form
Annexure NAB 2
, and
indicated that he lost copies of permits issued after the last date
to which his permit was extended;
(d)
that, if he was unlawfully in the country, he would not have been
allowed to enter into a marriage and that he as a matter
of fact used
his asylum seeker temporary permit to get married;
(e)
that his temporary residence was not fraudulently issued to him or
that any of the irregularities in processing in his application
was
as a result of any fraudulent conduct on his part;
(f)
that he did not sign
Annexure NAB 1
voluntarily, but was
forced to sign the form and never undertook to leave the Republic
voluntarily;
(g)
that his application for the extension of his temporary residence
permit was never considered or, had it been refused, it should
have
been communicated to him in accordance with
section 8(3)
of the
Immigration Act, 2002
, which would have entitled him to take the
matter on review or appeal;
(h)
that he in effect seeks a review of the decision of the Respondent
not to extend his temporary residence permit.
[18]
Mr. Nepgen who appeared on behalf of the Respondent in effect raised
two contentions in his opposition to the relief claimed
by the
Applicant -
(a)
firstly
, that the Applicant irregularly and
incorrectly seeks to make out a case in reply which was not made out
in his founding affidavit,
namely, that he was in effect seeking to
review the decision of the Respondent not to extend his temporary
residence permit and
that he was lawfully in the Republic by virtue
of an extension of his asylum seekers temporary permit; and
(b)
secondly
-
(i)
that
Annexure NAB 1
does not constitute a decision as
envisaged in the Promotion of Administration of Justice Act, 2000,
but only affects the Applicant
in so far as it sets a date before
which he must voluntarily depart from the Republic, it being common
cause that he is an illegal
foreigner, which date the Applicant does
not take issue with and which does not adversely affect his rights
and has no direct or
external legal effect;
(ii)
that section 8(3) of the Immigration Act, 2003, is not available to
the Applicant at this stage of the process and may only
be available
should a decision be taken to deport him upon which he would be
required to be given notice in terms of the said section
8(3).
[19]
As far as the first of Mr. Nepgen’s contentions is concerned, it
is trite that an applicant is required to make out his
or her case
fully in his or her founding affidavit (see:
Titty's Bar &
Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974 (4) SA 362
(T) t
368B-369A; Director of Hospital Services v Mistry
1979 (1) SA 626
(A)
at 635H-636C; Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd
1984 (3) SA 202
(T) at 205E
). The Applicant’s founding
affidavit contains no facts set ou in such a complete fashion that it
can not even remotely be seen
as an application to review a decision
not to consider his application for extension of his temporary
residence permit or to compel
the Respondent to consider his
application (see:
Victor v Victor
1938 WLD 16
; Riddle v Riddle
1956(2) SA 739 (C) at 748; Van Aswegen v Van Aswegen 1967(1) SA 571
(O) at 574
). As a matter of fact the evidence shows, as is
apparent from
Annexures NAB 5
and
ISK 6
, that it was in
the course of the consideration of the Applicant’s application for
the extension of his temporary residence permit
that on 13 August
2008 his attention was drawn to the irregularities in relation to the
issue of his temporary residence permit,
that he was informed that
the Respondent has come to the conclusion that he did not qualify for
the permit, that it had been fraudulently
issued and that any
foreigner who is in possession of a fraudulent permit does not
qualify for a temporary residence permit. In
these circumstances he
was invited to provide within 14 days proof that his application for
a temporary residence permit complied
with all the legal
requirements.
It
is, apart from the Applicant’s attempt to make out a new case in
his replying affidavit, quite clear that his application for
the
extension of his temporary residence permit was indeed considered.
[20]
This brings me to the second of the contentions raised by Mr.
Nepgen.
In
this regard there appear to be some factual disputes on the papers,
particularly, in so far as it is denied by the Applicant
that he ever
agreed to voluntarily depart from the country and that he was forced
to sign
Annexure NAB 1
(which, incidentally, is an allegation
not raised in his founding affidavit as one would have expected him
ti have done under all
the circumstances.
This
is in my view a matter where the principles enunciated in
Plascon_Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634F-635B
should be applied, namely, to
consider the matter on the allegations made in the respondent’s
opposing papers and the allegations
contained in the founding papers
which are not in dispute.
[21]
In doing so, I must say that I in any event have grave doubts on the
truthfulness of the Applicant’s allegations made in
both his
founding and replying affidavits in so far as he, for instance,
failed to disclose relevant facts in his founding affidavit,
such as,
that he was, for example, forced to sign
Annexure NAB 1
.
[22]
In argument it is submitted by Mr. Booi who appears on behalf of the
Applicant, relying on the decision in
Gamevest (Pty) Ltd v
Regional Land Claims Commissioner, Northern Province and Mpumalanga
2003(1) SA 373 (SCA)
,
that the issue of
Annexure
NAB 1
indeed constitutes “
administrative action
”
because it has been issued in compliance with provisions of the
Immigration Act, 2002
, and the regulations made thereunder.
In
the
Gamevest case
the Court attempted to set out the
types of actions which may in principle be regarded as
administrative actions envisaged in
the
Promotion of Administrative
Justice Act, 2000
, with which I with respect agree.
I
am, however, unable that any of those actions can find application in
the circumstances of this matter.
It
is, as is apparent from the facts to which I have already referred
to, clear -
(a)
that the Applicant was on 13 August 2008 requested to submit proof
that his application for the extension of his temporary
residence
permit complied with all the legal requirements;
(b)
that he failed to do so or failed to submit such proof;
(c)
that it was, therefore, common cause on 20 February 2009, being the
date on which
Annexure NAB 1
was handed to him that he, not
being in possession of a temporary residence permit or any other
authorization authorizing him to
be in the country, was an illegal
foreigner;
(d)
that he, thereupon, agreed to leave the country on 6 March 2009,
being a date 14 days as from 20 February 2009, being the period

prescribed by
regulation 39(17)
of the regulations promulgated in
terms of the
Immigration Act, 2002
, in Government Notice R1480 of 25
November 2002.
It
is for these reasons I dismissed the Applicant’s application with
costs on 23 April 2009.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT
ADV M BOOI
On
the instructions of:- MACI INCORPORATED
Suite
3, Adderly Arcade
697
Govan Mbeki Avenue
North
End
PORT
ELIZABETH
Ref
: /S.M/0178/08/Sb
Tel:
(041) 484 2762
ON
BEHALF OF RESPONDENT ADV J J NEPGEN
On
the instructions of: STATE ATTORNEY
29
Western Street
Central
PORT
ELIZABETH
Ref:
0386/2009/L
Tel:
(041) 585 7921
DATE
OF HEARING 23 April 2009
JUDGMENT
DELIVERED ON 28 April 2009