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[2013] ZAECPEHC 34
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Rahim and Others v Minister of Home Affairs (2777/2010; 3707/2010) [2013] ZAECPEHC 34 (9 July 2013)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
In the matter between:
ADBUL RAHIM
..............................................................
Plaintiff
in case no. 2777/2010
HOSSAIN KAMAL
.........................................................
Plaintiff
in case no. 2778/2010
ZAKIR HOSSAIN
...........................................................
Plaintiff
in case no. 2780/2010
HARUN MOHAMMED
....................................................
Plaintiff
in case no. 2781/2010
MOHAMMED SALLA UDDIN
........................................
Plaintiff
in case no. 2782/2010
ADBUL SHAMOL
..........................................................
Plaintiff
in case no. 2783/2010
MUHBUB ALOM
............................................................
Plaintiff
in case no. 2784/2010
TOYOBUR RAHMAN
.....................................................
Plaintiff
in case no. 2786/2010
SUMAN CHUDHURY
.....................................................
Plaintiff
in case no. 2787/2010
MUSTAFI GURRAMAN
.................................................
Plaintiff
in case no. 2806/2010
EUNICE HAYFORD
.......................................................
Plaintiff
in case no. 3238/2010
ZAIUR RAHMAN
...........................................................
Plaintiff
in case no. 3411/2010
MD ALAP
.......................................................................
Plaintiff
in case no. 3532/2010
NORUL ALOM
...............................................................
Plaintiff
in case no. 3706/2010
MAHE MINTU
.................................................................
Plaintiff
in case no. 3707/2010
And
MINISTER OF HOME
AFFAIRS
.....................................................................
Defendant
Coram:
Chetty J
Dates heard:
16
October 2012 to 26 October 2012; 19 June 2013 – 21 June 2013
Date delivered:
9 July
2013
Summary:
Immigration – Act 13 of 2002
– Illegal
foreigners –
S 34(1)
– Whether plaintiffs illegal
foreigners – Whether prison or police cell a place determined
by Director-General for
foreigners’ detention – State –
Interpretation – Principles – Refugees Act –
Temporary asylum
seeker permit – Validity – Expiry
thereof – Delict – Damages – Unlawful arrest and
detention –
Whether established
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Chetty, J
[1] The fifteen (15)
plaintiffs are all foreign nationals; fourteen of them are
Bangladeshis, save the eleventh,
who
is a Ghanaian. They instituted separate delictual actions for damages
against the defendant alleging that each had been unlawfully
arrested
and detained by servants of the defendant acting in the course and
scope of their employment. In the amended plea, the
defendant denied
the unlawfulness of both the arrest and detention, and pleaded that
the plaintiffs had been lawfully arrested
and detained for
deportation to their countries of origin pursuant to the provisions
of
s 34
of the
Immigration
Act
1
>
(the
IA
).
In replication, the plaintiffs alleged that (i) when they were taken
into custody they were not informed (presumably by their
arrestor) of
the statutory provisions under which they were arrested; (ii) denied
that the defendant had complied with the provisions
of
s 34
of the
IA
and, in the alternative,
alleged that the immigration officials, in effecting the arrest,
failed to consider the personal circumstances
peculiar to each of
them and effected the arrest in terms of a blanket policy to detain
suspected illegal foreigners for the purpose
of deportation without
exercising their discretion.
[2] The trials had all
been set down on divers dates, the same attorneys and counsel had
been retained by the parties and the issues
which fell for
adjudication were identical. By direction of this Court the actions
were consolidated for the purpose of trial.
[3] It is not in issue
that the onus of proof, in regard to justification for the admitted
arrest, rests on the defendant. As pointed
out by Eksteen, J, in
Thompson
and Another v Minister of Police and Another
2
The
arrest itself is prima facie such an odious interference with
the liberty of the citizen that
animus
injuriandi
is
thereby presumed in our law, and no allegation of actual subjective
animus
injuriandi
is
necessary (
Foulds
v.
Smith
,
1950
(1) SA 1 (AD)
at
p. 11). In such an action the plaintiff need only prove the arrest
itself and the
onus
will
then lie on the person responsible to establish that it was legally
justified.
[4] Although the legality
of the plaintiffs’ detention was rather cryptically placed in
issue in the pleadings, its ambit
was considerably widened during the
cross-examination of various witnesses called by the defendant when
the propriety of the conditions
in which the plaintiffs were held in
the St Albans,
and
the North End prisons and the police stations was pertinently placed
in issue. In actions for damages for wrongful imprisonment
too, our
courts have adopted the principle that such infractions are
prima
facie
illegal.
Once the imprisonment has
been admitted or proved the onus rests upon the defendant to allege
and prove the existence of grounds
in justification.
[5] In
Minister
of Justice v Hofmeyer
3
,
Hoexter, JA, considered
the question whether the propriety of the conditions in which a
detainee had been detained could render
the detention unlawful. After
an exhaustive analysis of case law,
and
in particular, the dissenting judgment of Corbett,
JA,
in
Goldberg
and Others v Minister of Prisons and Others
4
,
the learned judge stated the following at 139H-142C: -
“
The
dissenting judgment of Corbett JA begins at 38
in
fin
.
The learned Judge of Appeal pointed out (at 39A-C) that, although
counsel for the appellants, in presenting his case to the Court,
had
disavowed reliance upon the common law, the common-law position
of a sentenced prisoner and the general effect thereon
of the Prisons
Act and the prison regulations had been debated to some extent at the
Bar; and that he was therefore minded to make
'some tentative
observations in this connection'. Following immediately thereon,
Corbett JA made the remarks quoted by King J as
the second classic
statement. I shall refer to what Corbett JA said in the passage
concerned as 'the
residuum
principle'. At 39C-E the following observations were made:
'It
seems to me that fundamentally a convicted and sentenced prisoner
retains all the basic rights and liberties (using the word
in its
Hohfeldian sense) of an ordinary citizen except those taken away from
him by law, expressly or by implication, or those
necessarily
inconsistent with the circumstances in which he, as a prisoner,
is
placed.
Of course, the inroads which incarceration necessarily
make upon a prisoner's personal rights and liberties (for sake of
brevity
I shall henceforth speak merely of "rights") are
very considerable. He no longer has freedom of movement and has no
choice
in the place of his imprisonment. His contact with the outside
world is limited and regulated. He must submit to the discipline
of
prison life and to the rules and regulations which prescribe how
he must conduct himself and how he is to be treated while
in prison.
Nevertheless, there is a substantial
residuum
of basic rights which he cannot be denied; and,
if he is denied them, then he is entitled, in my view, to legal
redress.'”
And concluded by saying:
-
“
For
these reasons I would respectfully express my agreement with the
general approach reflected in the
residuum
principle enunciated by Corbett JA in the
Goldberg
case. Moreover, in seeking to identify or to circumscribe basic
rights, I would approve the critical approach adopted by Corbett
JA in the
Goldberg
case in regard to the efficacy or otherwise of a test based upon the
distinction between 'comforts' on the one hand and 'necessities'
on
the other hand. In this field of inquiry, so I consider, the line of
demarcation between the two concepts is so blurred and
so acutely
dependent upon the particular circumstances of the case that the
distinction provides a criterion of little value. An
ordinary amenity
of life, the enjoyment of which may in one situation afford no more
than comfort or diversion, may in a different
situation represent the
direst necessity. Indeed, in the latter case, to put the matter
starkly, enjoyment of the amenity may be
a lifeline making the
difference between physical fitness and debility; and likewise the
difference between mental stability
and derangement. I therefore
also respectfully endorse the following remarks (at 41F-H) in the
dissenting judgment in the
Goldberg
case:
'It
is said that a prisoner has no right to study or to access to
libraries or to receive books; that these facilities are privileges
not rights, comforts not necessities. To my mind, this is
an over-simplification. To test the position, suppose that an
intellectual,
a university graduate, were sentenced to life
imprisonment and while in gaol was absolutely denied access to
reading material -
books, periodicals, magazines, newspapers,
everything; and suppose further that there was no indication that
this deprivation was
in any way related to the requirements of prison
discipline, or security, or the maintenance of law and order within
the prison
and that, despite his protests to the gaol authorities,
he continued to be thus denied access to reading material. Could it
be correctly asserted that in these circumstances he would be
remediless? That all he could do was to fret for the comforts which
he was denied?'
”
[6] It is apparent from
the aforegoing discourse that where the conditions of a
detainee’s/prisoner’s confinement amount
to a denial of
such person’s fundamental personality rights,
such an infraction could,
per se
,
render the detention
unlawful. Cognisant of the onus thus resting upon it, the defendant
adduced evidence from a number of witnesses
to attest to the fact
that not only was the arrest justified by operation of law but that
the conditions in which the plaintiffs
had been detained in the
prisons and police cells did not violate any of their fundamental
rights so as to render the detention
unlawful. Although none of the
plaintiffs testified,
during
argument,
Mr
Beyleveld
submitted that the
evidence adduced by the defendant was wholly insufficient to
discharge the onus resting upon it to prove that
(i) the plaintiffs
were illegal foreigners, (ii) upon arrest, each of the plaintiffs was
appraised of his/her constitutional rights,
(iii) the plaintiffs were
lawfully detained in a place determined by the Director-General, (iv)
their conditions of detention subscribed
to lawful minimum standards,
and (v) that, in any event,
the
immigration officials who arrested the plaintiffs failed to exercise
any discretion whatsoever.
The
argument advanced requires a thorough analysis of s 34(1), which,
under the rubric, “
Deportation
and Detention of illegal foreigners”
,
provides as follows: -
“
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.”
[7] Mr
Beyleveld
argued that
ex
facie
the
aforegoing provisions, in order to establish the lawfulness of the
arrest, the defendant had to prove not only that the plaintiffs
were
illegal foreigners but that the institutions in which they had been
incarcerated were places determined by the Director-General
of Home
Affairs for their detention. As part of his armoury on the latter
requirement, he relied principally on the unreported
judgment of
Raulinga, J, in
Lawyers
for Human Rights v Minister of Safety and Security and 17 Others
5
(
SMG
)
and the acquiescence,
under
cross-examination,
by
immigration officials called by the defendant,
to
the proposition put to them that they were not aware that the
prisons/police station cells in which the plaintiffs had been
detained were places which had been determined by the
Director-General as institutions in which the plaintiffs could
lawfully be
detained. I propose to deal
seriatim
with each of the
submissions advanced on behalf of the plaintiffs.
Were the plaintiffs
illegal foreigners
[8] The submission that
the defendant failed to discharge the onus to prove that the
plaintiffs were illegal foreigners is a spurious
one and proceeds
from a false premise. In terms of s 22(1) of the
Refugees
Act
(
RA
)
6
,
a refugee reception
officer is obliged,
“
pending
the outcome of an application for asylum”
,
to issue an asylum seeker with an asylum seeker permit subject to any
condition as may be endorsed thereon by the refugee reception
officer. The
RA
provides the machinery
for the consideration of an application for asylum and for any appeal
or review of an adverse decision. Consequently,
and cognisant of the
prolixity of the process, the legislature made provision in s 22(3)
for the extension of the permit. It provides
as follows: -
“
(3)
A Refugee Reception Officer may from time to time extend the period
for which a permit has been issued in terms of subsection
(1), or
amend the conditions subject to which a permit has been so issued.”
The reference to
subsection (1) therein expressly connotes that the extension is
granted “
pending
the outcome of the application”
.
[9] Nonetheless, Mr
Beyleveld
strenuously argued that
in any event the temporary permits only expired at midnight on the
date reflected thereon as the expiry
date. I interpolate to say that
each of the standard asylum seeker temporary permits makes provisions
for the insertion by an immigration
official of the expiry date of
the temporary permit. Although both of the immigration officials who
arrested the plaintiffs, Messrs
Simakade
and
Ntezo
,
were browbeaten into
agreeing with the assertion made by Mr
Beyleveld
during cross-examination
that the plaintiffs’ permits were valid on the date of their
arrest, such concession does not inure
to the plaintiffs benefit.
An assertion put by a
cross-examiner, during his cross-examination of a witness, is not
evidence nor does it acquire such status
by the witness’
silence or non-refutation of what is put.
Upon
a proper construction of s 34(1) the permits are valid pending the
outcome of the application and lapse upon final rejection.
The
evidence adduced conclusively established that each of the
plaintiffs’ applications for asylum had been refused by the
refugee status determination officer, a decision subsequently
ratified by the failure of the review and appeal procedures. None
of
the applicants availed themselves of the appeal procedure envisaged
by s 26 of the
RA
and the rejection of the
application for asylum rendered them illegal foreigners liable for
deportation in terms of s 34(1) of the
IA
.
Were the
institutions in which the plaintiffs were held upon arrest, places
determined by the Director-General for their detention?
[10] Mr
Beyleveld
next submitted that upon
a proper construction of s 34(1),
the
place determined for the detention of an illegal foreigner had to be
designated as such by the Director-General as found by
Raulinga J in
SMG
.
As a precursor to
considering the validity of the submission and, a fortiori,
the correctness of the
finding in
SMG
,
it is apposite to restate the cardinal rules of construction of a
statute laid down by Stratford,
JA,
in
Bhyat
v Commissioner for Immigration
7
where the learned judge
said the following: -
“
The
cardinal rule of construction of a statute is to endeavour to arrive
at the intention of the lawgiver from the language employed
in the
enactment. That is a trite statement of the law, but does not assist
us to ascertain the intention when the language has
made it obscure.
Hence there has been evolved a number of subsidiary rules of
construction, which are enunciated and applied in
the decisions of
our own Courts and in those of Great Britain. Sometimes perhaps one
finds one of these rules over emphasised and
sometimes another, but,
all must yield in the last resort to the intention of the Act to be
gathered from a consideration of its
provisions in their entirety. It
is now settled law both here and in England, though formerly it was
not, that in the process of
ascertaining intention it is permissible
to have regard to the title of the Act. "It has been held, that
you cannot resort
to the title of an Act for the purpose of
construing its provisions. Still, as was said by a very sound and
careful judge, 'the
title of an Act of Parliament is no part of the
law, but it may tend to show the object of the Legislature "
per
LORD
MACNAGHTEN in
Fenton
v Thorley & Co.
(1903,
A.C at p. 447). This view has been more than once adopted in our
Courts and as recently as last year: see
South
African Railways and Harbours v Edwards
(1930, A.D
at p. 5). But there is undoubtedly an older and less qualified rule
of construction and that is that in construing a
provision of an Act
of Parliament the plain meaning of its language must be adopted
unless it leads to some absurdity, inconsistency,
hardship or anomaly
which from a consideration of the enactment as a whole a court of law
is satisfied the Legislature could not
have intended."
[11] As I shall in due
course elaborate upon, I find myself in respectful disagreement, not
only with the reasoning of Raulinga
J, but moreover, the meaning
which he ascribes to the provision in question. Principally, the
relief which the applicants sought
in
SMG
was
for a declaratory order that the use of the Soutpansberg Military
Grounds as a detention facility for the incarceration and
subsequent
deportation of illegal foreigners in terms of the Act was unlawful.
The judgment records that the defendant, the Minister
of Safety and
Security, had negotiated and obtained permission from the South
African National Defence Force to utilise the Soutpansberg
Military
Grounds as a holding facility for illegal immigrants and regarded it
as an extension of the Musina police station. It
is furthermore
apparent from the judgment that during the hearing, the defendant
conceded that the Soutpansberg Military Grounds
did not conform to
the minimum standards for detention encapsulated in annexure “B”
to the Immigration Regulations.
In the course of his judgment, and
after reproducing the provisions of s 34(1) in full, the learned
judge said the following: -
“
As
already discussed above the interpretation of the relevant provisions
of the
Immigration Act should
be contextualised within the final
Constitution. The interpretation should be such that the
Immigration
Act alleviate
hardships rather than worsen them. It is for that
reason that the
designation
of any
facility
used for the purpose of deportation of illegal foreigners must be
determined
by
the Director-General of Home Affairs before it is used for that
purpose. It therefore means that although the police officers
are in
terms of
section 41(1)
of the
Immigration Act, also
vested with the
power to arrest and detain illegal foreigners, they are, however,
tasked to do so in terms of
section 34
of the Act. The SAPS concedes
that it detains and deports illegal foreigners from the SMG.
Detention and deportation of illegal
foreigners can only be done in a
manner and at a place determined by the Director-General.”
[12] It is apparent from
the terms of the judgment that as an aid to interpreting the
provision,
the
judge sought guidance in the Constitution and Immigration
Regulations, in particular, the provisions of s 28(1) to (5) and
annexure “B” thereto, the minimum standards of detention.
What he omitted to do was to look at the clear language of
s 34 in
its totality to determine what the intention of the legislature was.
Had he done so, as I shall in due course advert to,
the need to
embark upon a largely irrelevant enquiry would not have arisen. The
question whether an earlier statute or regulations
framed thereunder
may be used as an interpretative aid is trite - it is impermissible
for a court to have recourse to regulations
to interpret a statute
under which it is framed. As was pointed out by van Heerden,
J,
in
In
re Milne
8
,
where the learned judge,
in holding that it was impermissible to do so, said at p731B-D: -
“
As
Lord RADCLIFFE remarked
In
re MacManaway
1951 AC 161
at 177 with reference to subsequent enactments throwing
light upon the meaning of an earlier one, it was -
"well
to remember that the one thing which at least is certain amid a
good deal that is speculative is that those who
framed and enacted
the earlier statute, the meaning of which is in question, could by no
possibility have foreseen in what terms
those who framed and enacted
the later statute were destined to express themselves".
These remarks apply,
perhaps more strongly, when the subsequent enactment is of a
subordinate nature and even more so when it is
in the form of
regulations.”
[13] This finding
restated a principle of law expounded by Holmes, JA, in
Chief
Registrar of Deeds v Hamilton-Brown
9
where the learned judge
stated the legal position thus: -
“
.
. .
a
regulation cannot determine the interpretation of a statutory
provision.”
[14] As adumbrated
hereinbefore, the language employed in s 34(1) is clear and
unambiguous. The subsection cannot be interpreted
in isolation but
contextually. Section 34 is posited under the rubric,
“
Deportation
and detention of illegal foreigners”
which, together with ss
32, 33, 35 and 36 constitute the
“
Enforcement
and Monitoring”
provisions
of the
IA
.
There is a clear indication in subsection (7)
10
,
which refers to the detention of an illegal foreigner in a prison
that it is the place which the Director-General had determined
that
an illegal foreigner be detained pending his or her deportation.
Although the term
“
prison”
is
not defined in the
IA
,
its meaning is hardly obscure. By necessary implication, it includes
a police cell or lock-up.
[15] Although s 34(1)(e)
merely prescribes that an illegal foreigner
“
shall
be held in detention in compliance with minimum prescribed standards
protecting his or her dignity and relevant human rights
”
,
Yakoob, J, in
Lawyers
for Human Rights v Minister of Home Affairs
11
remarked that the
subsection
“
refers
to prescribed standards of detention which again suggests a state
facility”
.
A similar interpretation as to the place envisaged in s 34(1) was
adopted in
Jeebhai
and Others v Minister of Home Affairs and Another
12
where Cachalia, JA,
stated as follows: -
“
The
detention contemplated in s 34(2) must be by warrant addressed to the
station commissioner or head of a detention facility.
Thereafter the
suspected illegal foreigner may either be released or, if he is in
fact an illegal foreigner, detained further under
s 34(1) for the
purpose of facilitating the person's deportation.”
[16] It follows from the
aforegoing analysis that the finding by Raulinga, J, that the place
of detention contemplated by s 34(1)
has to be designated as such in
order to render an illegal foreigner’s detention lawful, was
clearly wrong. I am satisfied
that the plaintiffs were lawfully
detained at the prisons or police stations for purposes of
deportation.
[17] As adumbrated
hereinbefore however, the conditions under which the plaintiffs were
incarcerated in the prisons and police cells
was assailed as
constituting a violation of their fundamental rights which, it was
contended,
per se
, rendered their detention unlawful. It is
common cause that certain of the plaintiffs (the St Albans detainees)
were incarcerated
at the St Albans prison whilst others were held at
the Kwazakhele police cells, and the eleventh plaintiff, at the
female section
of the North End prison. Mr
Japie Sampson
(Sampson)
, was the officer commanding the facility in which the
St Albans detainees were incarcerated. His evidence that the latter
were
kept apart from criminal offenders and under conditions which
did not deleteriously violate any of their basic rights was
challenged
under cross-examination by Mr
Beyleveld
and the
suggestion was repeatedly made that their incarceration violated
virtually all of their fundamental rights.
Sampson
refuted the
allegations in the strongest terms. There is, to my mind, no
substance to the assertions put to
Sampson
under
cross-examination – they are based entirely upon speculative
hypotheses unsupported by any direct testimony. Lieutenant
Davids’
,
the community service commander at the Kwazakhele police station,
testimony, likewise stands uncontroverted. The import of his
evidence
was that although the conditions under which the Kwazakhele detainees
were kept were not ideal, they nonetheless conformed
to acceptable
standards.
The alleged failure
to notify the plaintiffs of their rights
[18] The legality of the
plaintiffs’ arrest was moreover assailed on the basis that they
were: -
(i) not informed upon
their arrest or immediately thereafter of their rights delineated in
s 34(1)(a) and (b);
(ii) not informed,
promptly or otherwise, in a language they could understand of their
rights in terms of s 35 of the Constitution;
(iii) they were not
advised, promptly or otherwise, of their rights in terms of s
36(1)(b) of the Vienna Convention on Human Relations,
1963; and
(iv) warrants,
substantially corresponding to Form 28 of Annexure “A” of
the Immigration Regulations, were not issued
in respect of the
detention of certain of the plaintiffs.
[19]
It
was submitted that,
ex
facie
certain
of the standard forms used by the immigration officials which
encompassed the Constitutional rights,
(s
35), and bore the plaintiffs’ signatures, the date and time
reflected on the
“
certificate
by detainee
”
and
that of the interpreter, differed. In their testimony,
both
Simakade
and
Ntezo
testified that, given the
passage of time which had elapsed since their interviews with the
plaintiffs, they had no independent
recollection of any of the
interviews and relied entirely on the information contained in the
various documents bearing their respective
signatures. I unreservedly
accept their evidence that they were able to communicate with the
plaintiffs who fully understood the
import of the various rights and
warnings conveyed to them,
and
that,
in
those instances where the documents themselves contained anomalous
entries, they took the added precaution of enlisting the assistance
of the interpreters to once more advise the plaintiffs of their
constitutional rights. During his cross-examination of both
Simakade
and
Ntezo
,
Mr
Beyleveld
,
in seeking to lay the basis for the argument that the s 34 rights had
not been conveyed to the plaintiffs on arrest, pointed to
certain
incongruities on the notification of deportation forms.
[20] It is indeed so that
in certain instances, the dates on the warrants of arrest,
notification of deportation notices and the
certificates by the
interpreters,
do
not correspond. There is however no statutory requirement that the s
34(1)(a) and (b) rights be communicated to an illegal foreigner
upon
his arrest. It is evident from the wording of subsection (c) which
provides for the notification to be given
“
when
possible, practicable and available in a language that he or she
understands”
that
the legislature recognised the very real possibility that an
interpreter may not be readily available upon arrest.
[21] Both the
interpreters, messrs
Hoossain
and
Mansoor’s
impartiality, and a fortiori, reliability as witnesses, was assailed
during their cross-examination and both were confronted with
sworn
affidavits ostensibly emanating from them and bearing their
signatures, (exhibits “1D” and “1E”).
Therein, both admitted to complicity with officials in the employ of
the defendant, to record false information detrimental to
the
plaintiffs which, in the final analysis, would adversely affect the
success of their application for asylum. Their veracity
was sought to
be impugned by calling Mr
Mijanur Rahman Wahied
, (a.k.a
Sohail
), one of the leaders of the expatriate Bangladeshi
community residing in Port Elizabeth. It is unnecessary, for purposes
of this
judgment, to consider his testimony in any detail. Suffice it
to say, his evidence is palpably untrue and I have no doubt that the
two sworn statements were prepared by him and did not emanate from
Hoossain
or
Mansoor
. Cursory examination of the
statements reveal that they are identical and gives the lie to
Wahied’s
evidence that he merely acted as their
amanuensis. I reject his evidence in totality and accept
Hoossain
and
Mansoor’s
evidence that they signed the statements
under duress. I furthermore accept their evidence that in all the
instances they interpreted,
they did so honestly and conscientiously.
Exercise of
discretion
[22] Both
Simakade
and
Ntezo
testified that although s 34 vested them with the
power to arrest an illegal foreigner, they nonetheless were aware
that they nonetheless
retained a discretion whether or not to arrest
and detain the plaintiffs.
Simakade’s
evidence was as
follows: -
But there are processes
on deporting the person, so which I consider firstly if the person,
for example, I take a decision to deport
him, I don’t just take
a decision to deport him. There are some considerations that need to
take place whether to see if
because indeed obviously the person is
illegal. But then I have to take consideration to see whether the
person will leave the
country on his own or he has the passport or
he’s voluntarily willing to leave the country by himself. That
means in that
case he doesn’t have to be detained or arrested
in order for him to be deported. And secondly in a case the
consideration
which I take for a person who is unable to leave the
country by himself, so therefore another consideration whereby that
person
obviously he has to be deported, but then the question of
detention it relies on or maybe determining more on the status of the
applicant in terms of checking that this applicant has applied for
other permits except for the asylum which is sect. 22 permit.
In a
case whereby like the plaintiff maybe is married to a South African
citizen, or he’s got relatives and all such things.
So in cases
like that I don’t deport them but I will still detain them for
the purpose of getting the proof or whatever the
reason may be before
I take the decision to deport them. And secondly I take into
consideration on the process take into consideration
the personal
circumstances of the plaintiff, whether the plaintiff has got fixed
assets; he’s got lawful employment; or he’s
got assets
and all that. But in none of all these cases that I’ve dealt
with, these eight cases, none of them confirmed to
me that he has got
assets or he is married to a South African citizen and therefore
wishes to change the status from asylum seeker
to use the
(indistinct) permit. And also there was none of them who confirmed
that they are conducting their lawful businesses,
etc. etc. So that’s
where I took the decision to deport them, sorry to detain them for
the purpose of deportation, ja. So
that’s how the process goes”
Ntezo’s
evidence mirrored that of
Simakade
. It is clear from the
aforegoing reproduction of the evidence that the decision to arrest
and deport the plaintiffs was not arbitrary
but effected against the
background of all material factors.
[23] I am satisfied that
the defendant has discharged the onus resting upon it and, in the
result the following order will issue:
The action instituted
by each of the plaintiffs is dismissed with costs, such costs to
include the costs of two counsel.
_______________________
D. CHETTY
JUDGE OF THE HIGH
COURT
APPEARANCE:
For the plaintiffs: Adv
A. Beyleveld SC / Adv A.C Moorhouse
Instructed by McWilliams
& Elliott
83 Parliament Street,
Central
Port Elizabeth
Ref: Terri-Ann Radloff
Tel: (041) 582 1250
For the defendant: Adv M.
Moerane SC / Adv T. Sibeko SC / Adv N. Msizi
Instructed by State
Attorney
29 Western Road, Central
Port Elizabeth
Ref: Avian Barnett /
Leonie Hart
Tel: (041) 585 7921
1
Act
No, 13 of 2002
2
1971
(1) SA 371
(E) at p374H
3
[1993] ZASCA 40
;
1993
(3) SA 131
(AD)
4
1979
(1) SA 14
(A)
5
Case
No, 5824/2009 (North Gauteng Province)
6
Act
No, 130 of 1998
7
1932
AD 125
at p129
8
1984
(1) SA 727
9
1969
(2) SA 543
AD at 547H “. . . a regulation cannot determine the
interpretation of a statutory provision.”
10
“
(7)
On the basis of a warrant for the removal or release of a detained
illegal foreigner, the person in charge of the prison concerned
shall deliver such foreigner to that immigration officer or police
officer bearing such warrant, and if such foreigner is not
released
he or she shall be deemed to be in lawful custody while in the
custody of the immigration officer or police officer
bearing such
warrant.”
11
[2004] ZACC 12
;
2004
(4) SA 125
12
2009
(5) SA 54
(SCA) at para [24]B