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[2012] ZAECPEHC 12
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Alam v Minister of Home Affairs (3414/2010) [2012] ZAECPEHC 12; 2012 (5) SA 626 (ECP) (16 February 2012)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
Case No.:
3414/2010
Date
Heard: 9 February 2012
Date
Delivered: 16-02-2012
In the
matter between:
JANNATU
ALAM
…..............................................................................................
Plaintiff
and
THE
MINISTER OF HOME AFFAIRS
….........................................................
Defendant
JUDGMENT
PICKERING
J:
On 15 November 2010 plaintiff, an adult male, instituted an action
against defendant for damages suffered by him in consequence
of his
alleged wrongful and unlawful arrest and detention by employees of
the defendant. The action is defended by the defendant
who has
demanded security for costs in terms of Rule 47 from the plaintiff in
the sum of R250 000 on the grounds that plaintiff
is a
peregrinus
who owns no unmortgaged or indeed any immovable
property in South Africa. Plaintiff declined to furnish such security
and, accordingly,
defendant has launched an application for an order
directing plaintiff to furnish it.
This matter was heard together with three other similar matters,
namely
Babul v The Minister of Home Affairs, case no. 2704/10;
Mohammed v The Minister of Home Affairs, case no. 2781/10; and Nasir
v The
Minister of Home Affairs, case no. 3412/10.
Although the
facts in each of these cases differed to some extent the similarity
between them is such that counsel were agreed
that my decision in
this matter would be decisive of the three other applications as
well.
It is common cause that plaintiff was born in Bangladesh. He arrived
in South Africa via OR Tambo International Airport on 1 October
2008.
After his arrival he lodged an application for refugee status in
terms of section 21 of the Refugees Act No 130 of 1998 (“the
Act”) and was issued with a temporary asylum seeker permit.
According to plaintiff this permit was extended from time to
time,
the final such extension being up to 21 February 2010. He was
interviewed by a Refugee Reception Officer on 5 November 2008
and, on
the same date, the Refugee Status Determination Officer rejected his
application for refugee status. Plaintiff noted an
appeal to the
Refugee Appeal Board against this decision. That appeal was dismissed
on 20 January 2010.
Noteworthy from the decision of the Refugees Appeal Board is that
because plaintiff, for some reason undisclosed in these papers,
failed to appear at the hearing of the appeal the Board was unable to
“
establish whether the criteria for section 3(a) or (b) are
met
”. In the circumstances the Board found itself unable to
resolve the “
factual and credibility issues
”
before it and accordingly dismissed the appeal. I should mention that
section 3 of the Act deals with the circumstances
under which a
person would qualify for refugee status.
Also of relevance from the Board’s reasons is its statement
that “
an application for re-hearing in terms of Rule
20(2)(i) must be supported by an affidavit in which the appellant’s
claim for
refugee status as well as the reasons for the appellant’s
non-appearance must be clearly set out.”
According to plaintiff he only received notification of the dismissal
of his appeal on 19 February 2010, on which date he was arrested
without a warrant by employees of the defendant and detained until 18
March 2010 when he was released by order of this Court. So
too were
the other plaintiffs referred to above arrested but subsequently
released by Court order. Although the order granted in
the present
plaintiff’s case does not make it clear that such release was
pending the final determination of an application
to be brought by
plaintiff for the review of the decision to reject his application
for asylum it is common cause that such is
the case. In the case of
the plaintiff Babul, referred to above, his application for review
was successful and, on 8 December 2010,
Dambuza J granted an order to
the effect that the Refugee Appeal Board re-open and re-hear his
appeal.
It is these arrests and detentions which have given rise to the
various actions of the plaintiffs.
In this regard the defendant admits in the present case that
plaintiff was arrested without a warrant of arrest by an immigration
officer but pleads that this occurred on 18 February 2010 and that
the officer was acting in terms of
section 41(1)
of the
Immigration
Act 13 of 2002
. Defendant pleads further that the said immigration
officer:
“
3.2.1 requested the Plaintiff to
identify himself as either a citizen, permanent resident or
foreigner;
3.2.2 was not satisfied that the Plaintiff was entitled to be in
South Africa;
3.2.3 interviewed the Plaintiff about his status;
3.2.4 took the Plaintiff into custody without a warrant of arrest;
3.2.5 took reasonable steps to assist the Plaintiff in verifying
his status; and
3.2.6 detained the Plaintiff in terms of
section 34
of the
Immigration Act until
9 March 2010 when he was released.”
In a replication thereto plaintiff denied that the provisions of
either
section 41(1)
or
section 34
of the
Immigration Act were
complied with.
In his affidavit opposing the order sought plaintiff states with
regard to the rejection of his application for asylum that he
is “
in
the process of bringing an application for the judicial review of the
decisions taken by the Refugee Status Determination Officer
and by
the Refugee Appeal Board to reject my application for asylum. In
order to further facilitate the drawing of my review application,
my
attorneys of record have requested access to the file pertaining to
my application for asylum in terms of the
Promotion of Access to
Information Act, 2000
, but same has not yet been granted and my
asylum application is still pending for determination. I respectfully
submit that I am
thus presently lawfully residing within the
Republic
.
In the premises I am not a peregrinus.”
In reply thereto Mr Menze, the Senior Legal Administration Officer of
the Department of Home Affairs, reiterates that plaintiff
is indeed a
peregrinus
. He proceeds to state as follows:
“
Although the Plaintiff resides in the
Republic lawfully (by virtue of his application for asylum being
considered), he is not an
incola. This is apparent if regard is had
to the provisions of the Refugees Act, 1998 (Act No. 130 of 1998) and
the
Immigration Act. On
the Plaintiff’s own version, his
application for asylum having been rejected and the appeal against
the rejection of his
application having been dismissed, he is an
illegal foreigner with no right of residence in the Republic.”
Significantly, no mention whatsoever is made by Mr Menze of the
application for judicial review, which, according to plaintiff,
is
still pending for determination. The plaintiff’s averments in
this regard must therefore be accepted.
Mr Bloem, who with Ms Msizi appears for the defendant, has submitted
that, having regard to the fact that plaintiff’s application
for asylum has been rejected, plaintiff cannot claim to be an
incola
of South Africa, despite the fact that a court application for a
review of such decision is pending. This is so, he submits, because
the
Refugees Act makes
no provision for an asylum seeker to be
recognised as a resident of South Africa before such asylum seeker is
granted refugee status.
He submits that the
Refugees Act “
envisages
that for a refugee to obtain residence in South Africa such
application would have to be made in terms of the
Immigration Act No.
13 of 2002
”.
In my view, in the present matter the focus should more properly fall
upon “
domicile”
as opposed to “
residence”
.
In
Protea Assurance Co. Ltd v Januszkiewicz
1989 (4) SA
292
(W) Goldstone J stated as follows at 294F- :
“
I have not been referred to a single
case, and I have found none, where it was held that a non-resident
plaintiff who is domiciled
within the jurisdiction of the Court can
be required to provide security for costs. On the other hand there
are cases such as Joosub
Salaam
[1940 TPD 117]
where the Court has
had regard to domicile as the relevant test. In my opinion, the
proper approach is therefore that domicile
or
residence of some permanent or settled
nature is sufficient to constitute a person an incola for the purpose
of being obliged to
furnish security for costs.”
(My
emphasis)
The common law of domicile has now been modified by the Domicile Act
No. 3 of 1992 but, insofar as the common law has not been
amended,
the Act obviously remains a secondary source. See
Boberg
: Law
of Persons and the Family 2
nd
edition p. 90-91. In my
view, in the light of such modification, the learned Judge in
Sukovs
v Van der Walt
[1998] 3 All SA 664
(O) erred, with respect, in
deciding the issue of domicile on the basis of an intention to reside
in South Africa permanently,
without reference to the provisions of
the Domicile Act.
Section 1 of the Domicile Act provides:
“
(1) Domicile of choice
Every person who is of or over the age of 18 years …. shall
be competent to acquire a domicile of choice, regardless of such
a
person’s sex or marital status..
(2) A domicile of choice shall be acquired by a person when he is
lawfully present at a particular place and has the intention to
settle there for an indefinite period.”
It is accordingly necessary to determine firstly, whether plaintiff
is “lawfully present” in South Africa.
In
Arse v Minister of Home Affairs
2010 (7) BCLR 640
(SCA) the
following was stated at 654A-B:
‘
After an asylum seeker permit has been
issued to him or her the asylum seeker cannot be regarded as an
“illegal foreigner”
as contemplated by the
Immigration
Act.’
(See
too
Kiliko and Others v Minister of Home Affairs and Others
2007 (4) BCLR 416
(C);
2006 (4) SA 114
(C) para 27.)
It is clear therefore, in my view, that, whilst plaintiff’s
application for refugee status was being considered by the relevant
authorities, plaintiff was “lawfully present” in South
Africa. Indeed, Mr Menze concedes as much in the passage from
his
affidavit which I have set out above. It follows, in my view, that
whilst plaintiff’s court application for a review
of the
decision refusing his refugee status is pending plaintiff remains
“lawfully present” in the country.
The provisions of section 21(4)(a) of the Act are also relevant in
this regard. They provide:
“
(4)
Notwithstanding
any law to the contrary, no proceedings may be instituted or
continued against any person in respect of his or her
unlawful entry
into or presence within the Republic if-
(a) such person has applied for asylum in terms of subsection (1),
until a decision has been made on the application and, where
applicable, such person has had an opportunity to exhaust his or her
rights of review or appeal in terms of Chapter 4;
”
It was in the light of these provisions, so Mr. Bloem informed me,
that the orders releasing the various plaintiffs had been granted.
The fact that plaintiff’s presence is precarious because of the
possibility of his application to court eventually being
dismissed
is, in my view, not relevant to the present enquiry as to his
domicile save that, as was stated by Cloete J (as he then
was) in
Toumbis v Antoniou
1999 (1) SA 636
at 641C-J it is “a
factor from which his intention to remain permanently may be
deduced”.
In this regard Cloete J stated further as follows at 641F-G :
“
Once the Court is satisfied as to the
intention of the de cuius, probabilities as to the permanence or
otherwise of his continued
presence cease to be relevant. The concept
of ‘residence’ must not be confused with the physical
element necessary
for the acquisition of a domicile of choice.
Whatever criteria must be satisfied for the de cuius to be considered
‘resident’
in South Africa (see
Kallos
and Sons (Pty) Ltd v Mavromati
1946
WLD 312
;
Tick v Broude and
Another
1973 (1) SA 462
(T) at
469G), it is trite that the physical requirement for the acquisition
of a domicile of choice is simply presence in the country
concerned.”
Although, as was stressed by Mr. Bloem, the facts in the
Toumbis
case,
supra
, were markedly different from those in the present
matter the principles set out therein are nevertheless, in my view,
applicable.
I would refer further to
Van Rensburg v Ballinger
1950(4) SA
427 (T), the head note of which reads as follows at 427C-E:
“
A prohibited immigrant is not by virtue
of the mere prohibition debarred from acquiring a domicile in this
country.
The power of a higher authority to terminate a person’s
residence in a particular area cannot affect the question whether
that person intended to make his permanent abode there. If the power
of termination is actually exercised then naturally with the
disappearance of physical residence the domicile thus acquired is
brought to an end. Until such termination the only effect of
the
possibility of that power of deportation being exercised by a higher
authority is that the person may be taken to realise the
precarious
character of his residence and consequently may not be held to have
formed the intention of making his permanent home
in such area.”
In my view therefore, pending the final determination of the
plaintiff’s court application for review, his presence in this
country is lawful (albeit precarious and permissive).
The next issue to determine is whether or not plaintiff has the
intention to settle in South Africa “for an indefinite period”
(the
animus manendi
).
This intention is clearly less than the intention to settle in South
Africa permanently. The following exposition of “
intention
to settle
permanently” in
Eilon v Eilon
1965 (1) SA
703
(AD) at 721A is, in my view, incompatible with an intention to
settle at a place “
indefinitely
”.
“
(T)he onus of proving a domicile of
choice is discharged once physical presence is proved and it is
further proved that the de cujus
had at the relevant time a fixed and
deliberate intention to abandon his previous domicile, and to settle
permanently in the country
of choice. A contemplation of any certain
or foreseeable future event on the occurrence of which residence in
that country would
cease, excludes such an intention. If he
entertains any doubt as to whether he will remain or not, intention
to settle permanently
is likewise excluded.”
See too
Boberg
: Law of Persons and the Family at 102-3.
In my view, in the circumstances of the case, it is clearly
plaintiff’s intention, if permitted, to settle in South Africa
for an indefinite period. He has been living in South Africa since
October 2008, a period of three years and four months. He is
making
every effort to remain here; he has applied for refugee status; he
has launched or is about to launch court proceedings
in order to
review and set aside the refusal to grant him such status. In this
regard it cannot be said that his application for
review has no
reasonable prospects of success. It will be remembered that his
appeal to the Refugees Appeal Board was not dismissed
on the merits
but by reason of his non-appearance at the hearing of the appeal. The
Board itself, in its reasons, envisaged an
application being made for
a rehearing. In the case of the plaintiff
Babul
the review
application was successful. There is further nothing to refute
plaintiff’s assertion that he has the intention
to settle here
indefinitely if permitted.
I should mention that the reference in
Davel and Jordaan
: Law
of Persons, 4
th
ed at p.46 to refugees not acquiring
domicile in the place in which they found refuge but instead
retaining their last domicile
must be read in its proper context. The
learned authors are referring to refugees in this context as
belonging to a category of
persons without a fixed address such as
“
hoboes, persons fleeing before the law and those who have
abandoned their previous domicile and who have not yet acquired
another
domicile of choice.”
This does not apply in the
present case.
I am satisfied therefore that plaintiff is domiciled in South Africa
and that he is not a
peregrinus
. The application therefore
falls to be dismissed on this basis.
In the event that I were to be wrong in coming to this conclusion I
am, however, nevertheless still of the view that the application
should be dismissed. As was stated in
Magida v The Minister of
Police
1987 (1) SA 1
(AD) at 14D-E and 15D-E, where a
peregrinus
alleges that he is unable to furnish security for costs owing to his
own impecuniousity, it must be left to the judicial discretion
of the
Court to decide, having regard to the particular circumstances of the
case as well as to considerations of equity and fairness
to both the
incola
and the
peregrinus
, whether the latter should be
compelled to furnish, or be absolved from furnishing, security for
costs. It was stated further therein
there is no justification for
requiring a Court to exercise its discretion in favour of a
peregrinus
only sparingly. See too:
Vanda v Mbuqe v Mbuqe
1993 (4) SA 93
(Tk).
Sight should also not be lost in the determination of this issue of
the provisions of s 34 of the Constitution concerning the right
of
access to the Court. The provisions of Rule 47 must be construed, as
far as is possible, consistently therewith.
It seems to me, in the exercise of my discretion, that the nature of
plaintiff’s action against defendant is of particular
relevance. He seeks compensation in respect of defendant’s
alleged breaches of his right to liberty and the security of his
person. He alleges that the employees of the defendant who arrested
and detained him did not comply with the relevant provisions
of the
Immigration Act and
that therefore his arrest and detention were
unlawful. He was, he says, at the time of his arrest, in possession
of a temporary
asylum seekers permit which had not yet expired. He
was unaware that his appeal had been dismissed. The very nature of
his action
against the defendant therefore concerns the lawfulness of
his presence in South Africa at the time of his arrest.
It must also be borne in mind that, as an asylum seeker, he is in a
particularly vulnerable position. In
Union of Refugee Women v
Director: Private Security Industry Regulatory Authority and Others
2007 (4) SA 395
(CC) at 406G-407E Kondile AJ stated:
“
[28] Refugees are unquestionably a
vulnerable group in our society and their plight calls for
compassion. As pointed out by the
applicants, the fact that persons
such as the applicants are refugees is normally due to events over
which they have no control.
They have been forced to flee their homes
as a result of persecution, human rights violations and conflict.
Very often they, or
those close to them, have been victims of
violence on the basis of very personal attributes such as ethnicity
or religion. Added
to these experiences is the further trauma
associated with displacement to a foreign country.
[29] The condition of being a refugee has thus been described as
implying ‘a special vulnerability, since refugees are by
definition persons in flight from the threat of serious human rights
abuse’. This is reflected in South Africa legislation
governing
the status of refugees …
[30] In South Africa, the reception afforded to refugees has
particular significance in the light of our history. It is worth
mentioning
that
Hathaway
lists apartheid as one of the ‘causes
of flight’ which have resulted in the large numbers of refugees
in Africa. During
the liberation struggle many of those who now find
themselves among our country’s leaders were refugees
themselves, forced
to seek protection from neighbouring States and
abroad.”
Mr Bloem stressed the financial prejudice which would be occasioned
to the State should the impecunious plaintiff not be ordered
to pay
the requisite security for costs. This is, of course, a weighty
consideration. Such an order, however, would have the effect
of
precluding plaintiff from proceeding with his action against
defendant, an organ of State. In the circumstances, in my view,
public interest considerations dictate that he not be denied access
to the court.
In my view, therefore, weighing up all the circumstances, it would be
fair and just to absolve plaintiff from furnishing security
to
defendant.
On either basis therefore there is, in my view, no merit in the
application. The following order will therefore issue:
The application for security for costs is dismissed with costs, such
costs to include the costs of two counsel.
_________________________
J D PICKERING
JUDGE OF THE HIGH COURT
Appearing
on behalf of Plaintiff: Adv. Beyleveld S.C and Adv. Moorhouse
Instructed
by: McWilliams & Elliott Inc, T. Radloff
Appearing
on behalf of Defendant: Adv. Bloem S.C. and Adv. Msizi
Instructed
by State Attorneys Offices