Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9; 2010 (7) BCLR 640 (SCA) ; [2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (12 March 2010)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2010
>>
[2010] ZASCA 9
|

|

Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9; 2010 (7) BCLR 640 (SCA) ; [2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (12 March 2010)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
25/2010
In the matter between:
MUSTAFA AMAN ARSE

Appellant
And
MINISTER OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL
DEPARTMENT OF HOME
AFFAIRS

Second Respondent
BOSOSA (PTY) LTD t/a
PROSPECTS TRADING Third Respondent
Neutral citation:
Arse
v Minister of Home Affairs
(25/10)
[2010] ZASCA 9
(12 March 2010)
Coram:
MPATI
P, CLOETE, CACHALIA, MALAN JJA and THERON AJA
Heard:
24
February 2010
Delivered: 12 March
2010
Summary:
Refugees
Act 130 of 1998
and
Immigration Act 13 of 2002
– enactments to be
read together – appellant an asylum seeker issued with asylum
transit permit in terms of
s 23
of
Immigration Act &shy
;– asylum
seeker permit issued in terms of
s 22
of
Refugees Act
– whether
detention of appellant lawful.
________
______________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg) (Willis J sitting as court of first
instance):
An order is made in the
following terms –
(1) The appeal is upheld
with costs including the costs of two counsel;
(2) The order of the
court a quo is set aside and replaced with the following order:
‘
(a) the detention of
the applicant is declared to be unlawful;
(b) the first and second
respondents are directed to re-issue the applicant with an asylum
seeker permit in accordance with
s 22
of the
Refugees Act 130 of 1998
which permit shall remain valid until a decision has been made on the
applicant’s application for asylum and, where applicable,
the
applicant has had an opportunity to exhaust his rights of review or
appeal in terms of Chapter 4 of the
Refugees Act and
the Promotion of
Administrative Justice Act 3 of 2000;
(c) the respondents are
directed immediately to release the applicant in possession of the
asylum seeker permit as set out above;
and
(d) the first and second
respondents are directed to pay the applicant’s costs including the
costs of two counsel.’
_____________________________­­­­­­­­_________________________________________
JUDGMENT
MALAN JA (MPATI P, CLOETE
AND CACHALIA JJA AND THERON AJA concurring):
[1] This is an appeal
with the leave of Willis J against his judgment in the South Gauteng
High Court dismissing the appellant’s
urgent application to secure
his release from the Lindela Holding Facility. The appellant is an
asylum-seeker from Ethiopia whose
application for asylum was refused.
He has appealed against this refusal to the Refugee Appeal Board. The
following order was given
in court immediately after argument was
concluded.
‘
An order is made in
the following terms –
(1) The appeal is upheld
with costs including the costs of two counsel;
(2) The order of the
court a quo is set aside and replaced with the following order:
“
(a) the detention of
the applicant is declared to be unlawful;
(b) the first and second
respondents are directed to re-issue the applicant with an asylum
seeker permit in accordance with
s 22
of the
Refugees Act 130 of 1998
which permit shall remain valid until a decision has been made on the
applicant’s application for asylum and, where applicable,
the
applicant has had an opportunity to exhaust his rights of review or
appeal in terms of Chapter 4 of the
Refugees Act and
the Promotion of
Administrative Justice Act 3 of 2000;
(c) the respondents are
directed immediately to release the applicant in possession of the
asylum seeker permit as set out above;
and
(d) the first and second
respondents are directed to pay the applicant’s costs including the
costs of two counsel.”’
The court indicated that
reasons for the order given would be given. These are the reasons.
[2] The appellant is an
Ethiopian citizen who, according to the founding papers, fled from
Ethiopia owing to persecution by reason
of his tribal affiliation and
political opinion. He arrived in South Africa on 8 December 2008 for
the purpose of applying for political
asylum in terms of the
Refugees
Act 130 of 1998
. He was provided with an asylum transit permit in
accordance with
s 23
of the
Immigration Act 13 of 2002
so that he
could proceed to a Refugee Reception Office to apply for asylum. An
asylum transit permit is valid for a period of 14
days. The appellant
stated that he attempted to gain access to the Port Elizabeth Refugee
Reception Office during that period and
in the months thereafter but
that he did not succeed due to the lengthy queues. On 26 May 2009 he
was arrested in Queenstown where
he spent a week at the police
station before being transferred to Lindela on 2 June 2009. He has
been detained at Lindela since 2
June 2009 under the name Abdul Ahid
Amon.
[3] With the assistance
of officials of the second respondent the appellant applied for
asylum status on 3 September 2009 and had
an asylum seeker permit
issued to him in terms of
s 22
of the
Refugees Act. His
application
was, however, rejected by the Refugee Status Determination Officer on
the same day. He appealed to the Refugee Appeal
Board (see
s 26
of
the
Refugees Act) and
a hearing took place on 4 December 2009, but
allegedly in the absence of his legal representatives. The Refugee
Appeal Board has
not yet made its decision on the matter. On 18
December 2009 the appellant launched an urgent application in the
High Court in Johannesburg
for an order interdicting the respondents
from deporting him; declaring his detention from 2 June 2009 to be
unlawful; directing
the first and second respondents to immediately
re-issue an asylum seeker permit to him; and directing his immediate
release from
detention. The application was dismissed. Hence this
appeal.
[4] During the hearing of
the urgent application Willis J urged the parties to come to an
agreement on conditions on which the appellant
could be released. The
respondents suggested that there should be an undertaking by a lawful
resident of South Africa to provide
the appellant with shelter, that
he should pay R 2000 as security to the nearest inspection or Refugee
Reception Office and that
he should report to the nearest Refugee
Reception Office every Tuesday and Friday pending the outcome of his
appeal to the Refugee
Appeal Board. The appellant rejected the
conditions. Willis J was concerned that ‘[w]hile the court
obviously has to have regard
to the importance of a person having
freedom, the court must also have regard to the practicalities that
would arise in ordering
the release of a person such as this
[applicant], who cannot even comply with eminently reasonable
conditions put forward by the
respondents.’ He considered whether
there was any ‘absolute’ statutory unlawfulness in the continuing
detention of the appellant.
Referring to
s 22
of the
Refugees Act he
found that the right to ‘sojourn’ ‘does not necessarily entail
a right to go about freely in South Africa with[out] any
restrictions.
The applicant is sojourning in South Africa, he is not
going to be deported or sent out of South Africa pending the outcome
of his
appeal relating to asylum status. He is indeed sojourning in
South Africa, albeit under restriction.’
[5] Once it is
established that a person has been detained, the burden justifying
the detention rests on the detaining authority.
In
Principal
Immigration Officer and Minister of Interior v Narayansamy
1
Sir John Wessels stated:
‘
Apart from any
legislative enactment, there is an inherent right in every subject,
and in every stranger in the Union, to sue out
a writ of
habeas
corpus
.
This right is given not only by English law, but also by the Roman
Dutch law.
Prima
facie
therefore
every person arrested by warrant of the Minister, or by any other
person, is entitled to ask the Court for his release,
and this Court
is bound to grant it unless there is some lawful cause for his
detention.’
In English law the remedy
is known as
habeas
corpus
but
in Roman Dutch law it is referred to as the
interdictum
de homine libero exhibendo
.
Both terms are used in our law.
2
[6] In the answering
papers the respondents submitted that the Refugee Appeal Board is
entitled to investigate certain factual averments
made by the
appellant so as to make an informed decision about his status in the
country. The deponent expressed the apprehension
that if the
appellant was released before this was done the process might be
frustrated and the proper functioning of the administration
of
justice be undermined. The respondents seek to justify the
appellant’s detention under
s 23
and hence also
s 34(1)
and (2) of
the
Immigration Act. They
provide as follows:
‘
23   Asylum
transit permit —
(1)  The
Director-General may issue an asylum transit permit to a person who
at a port of entry claims to be an asylum seeker,
which permit shall
be valid for a period of 14 days only.
(2)  Despite
anything contained in any other law, when the permit contemplated in
subsection (1) expires before the holder
reports in person to a
Refugee Reception Officer at a Refugee Reception Office in order to
apply for asylum in terms of section 21
of the Refugees Act,
1998 (Act 130 of 1998), the holder of that permit shall become
an illegal foreigner and be dealt with in
accordance with this Act.
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 pm of the first following court day.’
[7] It was submitted on
behalf of the respondents that s 23 meant that the appellant became
an ‘illegal foreigner’ after the expiry
of the asylum transit
permit granted to him. An ‘illegal foreigner’ is a foreigner who
is in the Republic in contravention of
the
Immigration Act.
3
Being
an ‘illegal foreigner’ the appellant may be dealt with in
terms of the
Immigration Act, and
hence detained and deported.
4
It was suggested that legislation of this nature was in accordance
with international law and fell within the inherent powers of
a
sovereign state to regulate and forbid entrance to foreigners into
its borders or admit them on such conditions as it may see fit
to
prescribe.
5
The right to freedom of movement, it was submitted, is not absolute
and may be limited in appropriate circumstances.
6
Both the
Immigration Act and
the
Refugees Act limit
the rights of the
appellant. Both
ss 9
and
32
of the
Immigration Act contain
such
limitations on the freedom of movement of foreigners. On expiry of
the asylum transit permit issued in terms of
s 23
(1) of the
Immigration Act the
appellant became an ‘illegal foreigner’ and
also guilty of an offence.
7
As an ‘illegal foreigner’ he ‘shall be deported’.
8
Relying on the decision of this court in
Jeebhai
,
9
the submission was made that pending a review or appeal an ‘illegal
foreigner’ may be detained until he or she is deported in
terms of
s 34
of the
Immigration Act.
[8
] Even if the appellant
is an ‘illegal foreigner’ as envisaged by
s 23
of the
Immigration
Act his
detention in terms of
s 34
cannot be justified.
Section 34(2)
permits the detention of an ‘illegal foreigner’ only for a period
not exceeding 48 hours subject to the proviso that if the said
period
expires on a non-court day it ‘shall be extended to four pm of the
first following court day.’ The appellant was arrested
on 26 May
2009 and detained at Lindela since 2 June 2009.
Section 34(2)
is
therefore of no assistance to the respondents.
[9] To justify the
appellant’s detention the respondents sought to bring it within the
ambit of
s 34(1).
The respondents indeed produced the original
warrant of detention dated 26 May 2009 but no evidence that a court
(ie a magistrate’s
court)
10
has extended the period of detention in terms of
s 34(1)(d).
An
‘illegal foreigner’ may in terms of this paragraph not be
detained for a period 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’. The respondents were not able to
produce such a warrant justifying the appellant’s continued
detention.
11
It seems to me that the maximum period of detention permitted under
s 34(1)(d)
is 120 days, ie an initial period of 30 days, followed by
an extended period or periods not exceeding 90 days.
12
[10] A ‘detained person
has an absolute right not to be deprived of his freedom for one
second longer than necessary by an official
who cannot justify his
detention.’
13
The importance of this right ‘can never be overstated’.
14
Section 12(1)(b) of the Constitution guarantees the right to freedom,
including the right not to be detained without trial. This
right
belongs to both citizens and foreigners.
15
The safeguards and limitations contained in
s 34(1)
of the
Immigration Act justify
its limitation of the right to freedom and
the right not to be detained without trial.
16
Enactments interfering with elementary rights should be construed
restrictively. In
R
v Sachs
17
it was said:
‘
[T]he appellant in an
able and admirably objective argument discussed the manner in which
courts of law should approach the interpretation
of statutes which
give the Executive the power to invade the liberty of the individual.
He submitted that such statutes should be
subjected to the closest
scrutiny of courts of law whose function it is to protect the rights
and liberty of the individual. Courts
of law do scrutinise such
statutes with the greatest care but where the statute under
consideration in clear terms confers on the
Executive autocratic
powers over individuals, courts of law have no option but to give
effect to the will of the Legislature as expressed
in the statute.
Where, however, the statute is reasonably capable of more than one
meaning a court of law will give it the meaning
which least
interferes with the liberty of the individual.’
In addition, s 39(2) of
the Constitution requires courts when interpreting a statute that is
reasonably capable of two interpretations
to avoid an interpretation
that would render the statute unconstitutional and to adopt the
interpretation that would better promote
the spirit, purport and
objects of the Bill of Rights, even if neither interpretation would
render the statute unconstitutional.
18
The detention of the appellant is clearly in breach of the express
provisions of s 34(1)(d) of the Immigration Act and is unlawful.
Indeed Mr Semenya who appeared on behalf of the respondents quite
properly conceded this during argument.
[11] The court a quo
referred to the ‘eminently reasonable conditions’ which the
respondents proposed for the appellant’s release.
Since the
appellant could not meet these conditions, Willis J held that his
application had to fail. He reasoned that because no
right was
absolute a balancing act had to be undertaken: the appellant had a
right to freedom but, he said, the State ‘had a legitimate
interest
in trying to curb illegal immigration, in trying to keep track of
persons who have entered the country illegally and ensuring
that
persons who do not have places of shelter and who do not have any
visible means of support, are not free to roam the streets.’
I do
not agree. A court, generally, cannot impose conditions for the
release of a person unlawfully detained. Section 35(2)(d) of
the
Constitution entitles any person who is detained to challenge his or
her detention before a court and, if the detention is unlawful,
‘to
be released.’ This can be contrasted with s 35(1)(f) which allows a
person arrested for allegedly committing an offence to
be released
from detention if justice permits ‘subject to reasonable
conditions’. It follows, it seems to me, that the Constitution
does
not permit the imposition of conditions on a person such as the
appellant for his release. As long ago as 1879, De Villiers
CJ stated
that where a detention is unlawful the only course open was to order
the release of the person immediately. In
In
Re Willem Kok and Nathaniel Balie
19
De Villiers CJ said:
‘
It is unnecessary to
consider the rights which under the Roman-Dutch law free persons had
to a release or to the writ
de
homine libero exhibendo
,
for, in my opinion, the rights of the personal liberty, which persons
within this colony enjoy, are substantially the same, since
the
abolition of slavery, as those which are possessed in Great Britain.
Where those rights are violated this Court would at least
have the
same power of restraining such violation as the Supreme Court of
Holland had to interdict the infringement without sufficient
cause of
the rights to personal liberty as understood by the Roman-Dutch law.
But in addition to the powers vested in this Court
under the
Roman-Dutch law, there are certain statutory provisions, which not
only add to the powers of the Court, but make it the
bounden duty of
the Court to protect personal liberty whenever it is illegally
infringed upon ... Supposing that the applicants had
been detained in
one of the ordinary gaols of the colony, and it had been brought to
the notice of the Court that they were so kept
without a lawful
warrant, it surely would have been competent for the Court to call
upon the gaoler to produce the prisoners and
justify the detention.
Can it then make any difference that they are detained in a military
fortress instead of an ordinary gaol?
I think not. In either case the
person in whose custody they are is bound to produce his warrant or
other authority for detaining
them, and in case the return to the
order of Court be found to be clearly bad it would be the duty of the
Court, under ordinary circumstances,
to order their discharge. But
then it is said the country is in such an unsettled state, and the
applicants are reputed to be of
such a dangerous character, that the
Court ought not to exercise a power which under ordinary
circumstances might be usefully and
properly exercised. The disturbed
state of the country ought not in my opinion to influence the Court,
for its first and most sacred
duty is to administer justice to those
who seek it, and not to preserve the peace of the country … The
Civil Courts have but one
duty to perform, and that is to administer
the laws of the country without fear, favour or prejudice,
independently of the consequences
which ensue.’
[12] For these reasons
the continued detention of the appellant cannot be justified in terms
of the
Immigration Act and
he is entitled to his immediate release.
The respondents’ reliance on that Act is also misconstrued: it
ignores the provisions
of the
Refugees Act, as
I shall demonstrate.
It is necessary to examine the provisions of the latter Act.
[13] The court a quo held
that the appellant’s detention was compatible with the provisions
of
s 22
of the
Refugees Act. This
enactment gives effect in South
Africa to international instruments and law relating to refugees and
provides for the reception of
asylum seekers. It was enacted to
regulate applications for and recognition of refugee status and to
provide for the rights flowing
from that status. It must be
interpreted and applied with due regard to the 1951 Convention
Relating to Status of Refugees, the 1967
Protocol Relating to the
Status of Refugees and the Convention Governing the Specific Aspects
of Refugee Problems in Africa (OAU
1969), the Universal Declaration
of Human Rights (UN 1948) and other human rights instruments to which
South Africa is or becomes
a party.
20
[14]
Section 2(a)
of the
Refugees Act provides
that:
‘
Notwithstanding any
provision of this Act or any other law to the contrary, no person may
be refused entry into the Republic, expelled,
extradited or returned
to any other country or be subject to any similar measure, if as a
result of such refusal, expulsion, extradition,
return or other
measure, such person is compelled to return to or remain in a country
where –
(a) he or she may be
subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership
of a particular group;
or
(b) his or her life,
physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination
or other events seriously
disturbing or disrupting public order in either part or the whole of
that country.’
In terms of the
Refugees
Act a
person qualifies for refugee status if he or she has a
well-founded fear of being persecuted by reason of his or her race,
tribe,
religion, nationality, political opinion or membership of a
particular social group, and is outside the country of his or her
nationality
and is unable or unwilling to avail him or herself of the
protection of that country or, not having a nationality and being
outside
the country of his or her former habitual residence is unable
or, owing to such fear, unwilling to return to it.
21
A person also qualifies for refugee status if owing to external
aggression, occupation, foreign domination or events seriously
disturbing
or disrupting public order in either a part or the whole
of his or her country of origin or nationality he or she is compelled
to
leave his or her place of habitual residence in order to seek
refuge elsewhere.
22
Any dependant of either of the two categories of persons referred to
also qualifies for refugee status.
23
Certain groups of people do not qualify for refugee status. These
include persons in respect of whom there is reason to believe that
they have committed a crime against peace, a war crime or a crime
against humanity, or a crime, albeit not of a political nature,
which
would if committed in South Africa be punishable by imprisonment.
24
Persons who are guilty of acts contrary to the objects and principles
of the United Nations Organisation or the Organisation for
African
Unity,
25
and
persons who enjoy the protection of any other country are also
excluded.
26
Provision is made for the cessation of refugee status.
27
[15] The
Refugees Act and
the regulations
28
made under it prescribe the procedure to be followed when applying
for asylum. An application for asylum must be made to a Refugee
Reception Officer at any Refugee Reception Office.
29
The Refugee Reception Officer must ensure that the application is
properly completed and must, if necessary, assist the applicant
in
completing the form. He or she may also conduct an enquiry in order
to verify the information furnished in the application. The
application must then be submitted to a Refugee Status Determination
Officer.
30
No proceedings may in terms of
s 21(4)
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; or
(b) such person has been
granted asylum.’
[16]
Section 22
deals
with an asylum seeker permit to be issued to an asylum seeker. It
provides:
‘
(1)  The
Refugee Reception Officer must, pending the outcome of an application
in terms of
section 21(1)
, issue to the applicant an asylum seeker
permit in the prescribed form allowing the applicant to sojourn in
the Republic temporarily,
subject to any conditions, determined by
the Standing Committee, which are not in conflict with the
Constitution or international
law and are endorsed by the Refugee
Reception Officer on the permit.
(2)  Upon the
issue of a permit in terms of subsection (1), any permit issued to
the applicant in terms of the Aliens Control
Act, 1991, becomes null
and void, and must forthwith be returned to the Director-General for
cancellation.
(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.
(4)  The
permit referred to in subsection (1) must contain a recent photograph
and the fingerprints or other prints of the
holder thereof as
prescribed.
(5)  A permit
issued to any person in terms of subsection (1) lapses if the holder
departs from the Republic without the
consent of the Department.
(6)  The
Department may at any time withdraw an asylum seeker permit if—
(a) the applicant
contravenes any conditions endorsed on that permit; or
(b) the application for
asylum has been found to be manifestly unfounded, abusive or
fraudulent; or
(c) the application for
asylum has been rejected; or
(d) the applicant is or
becomes ineligible for asylum in terms of section 4 or 5.
(7)  Any
person who fails to return a permit in accordance with subsection
(2), or to comply with any condition set out
in a permit issued in
terms of this section, is guilty of an offence and liable on
conviction to a fine or to imprisonment for a
period not exceeding
five years, or to both a fine and such imprisonment.’
[17] The Refugee Status
Determination Officer must make the decision regarding the
application for asylum. He or she may request any
information or
clarification from the applicant or the Refugee Reception Officer,
may consult with or invite a United Nations High
Commissioner for
Refugees representative to furnish information and may, with the
permission of the asylum seeker, provide the latter
representative
with any information that may be requested.
31
When the application is considered the Refugee Status Determination
Officer must have due regard to s 33 of the Constitution and
must, in
particular, ensure that the applicant fully understands his or her
rights and responsibilities and the evidence presented.
32
He or she must at the conclusion of the hearing grant asylum; or
reject the application as manifestly unfounded, abusive or
fraudulent;
or reject it as unfounded; or refer any question to the
Standing Committee.
33
Provision is made in the
Refugees Act for
the review by the Standing
Committee of certain decisions made by the Refugee Status
Determination Officer.
34
An asylum seeker may also appeal against the decision of the Refugee
Status Determination Officer to reject his application as being
unfounded.
35
The Appeal Board may confirm, set aside or substitute any decision
taken by a Refugee Status Determination Officer in terms of
s 24(3).
3>
36
[18] A person whose
asylum seeker permit has been withdrawn by the Department of Home
Affairs in terms of
s 22(6)
may be arrested and detained pending
finalisation of the application for asylum, in the manner and at a
place determined ‘with
regard to human dignity’.
37
However,
s 29(1)
provides:
‘
No person may be
detained in terms of this Act for a longer period than is reasonable
and justifiable and any detention exceeding
30 days must be reviewed
immediately by a judge of the High Court of the provincial division
in whose area of jurisdiction the person
is detained, designated by
the Judge President of that division for that purpose and such
detention must be reviewed in this manner
immediately after the
expiry of every subsequent period of 30 days.’
[19] The respondents’
reliance on
s 23(2)
of the
Immigration Act to
justify the appellant’s
detention is, as I have said, misconceived.
Section 23(2)
provides
that ‘[d]espite anything contained in any other law’ the holder
of an asylum transit permit becomes, on expiry of the
permit, an
‘illegal foreigner’ liable to be dealt with under the
Immigration
Act. This
contention, however, does not account for
s 21(4)
of the
Refugees Act which
provides that ‘[n]otwithstanding 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 in
the country if that person has applied for asylum in terms of
s 21(1)
until a decision has been made on his or her application and that
person has had an opportunity to exhaust his or her rights or review
or appeal in terms of the
Refugees Act. Section
23(2) of the
Immigration Act is
a general enactment passed after the
Refugees Act
which
deals with the specific situation of refugees. In so far as
there may be a conflict between the two provisions they should be
reconciled.
Where two enactments are not repugnant to each other,
they should be construed as forming one system and as re-enforcing
one another.
In
Petz
Products v Commercial Electrical Contractors
38
it was said:
‘
Where different Acts
of Parliament deal with the same or kindred subject-matter, they
should, in a case of uncertainty or ambiguity,
be construed in a
manner so as to be consonant and inter-dependant, and the content of
the one statutory provision may shed light
upon the uncertainties of
the other.’
The two provisions can be
reconciled with each other without doing violence to their wording
and in accordance with the spirit of
the international instruments
the
Refugees Act seeks
to give effect to.
39
It follows that
s 23(2)
of the
Immigration Act ceases
to be of
application when an asylum seeker permit is granted to an ‘illegal
foreigner’. He or she can thereafter no longer be
regarded as an
‘illegal foreigner’ and no proceedings may be instituted or
continued against such a person in respect of his
or her unlawful
entry into or presence in the country until a decision has been made
on his or her application or he or she has exhausted
his or her
rights of review or appeal. The judgment in
Jeebhai
40
on which the respondents rely did not consider
s 21(4)
of the
Refugees Act. It
is of no assistance to them in this matter.
[20] There are other
reasons why the detention of the appellant is unlawful under the
Refugees Act. First
, he has been detained for a period far in excess
of 30 days.
Section 29(1)
of the
Refugees Act prohibits
the detention
of a person for a longer period than is ‘reasonable and
justifiable’ and, in any event, ‘any detention exceeding
30 days’
must be reviewed by a judge of the High Court. It is common cause
that the appellant’s detention has never been reviewed
by the High
Court.
[21] Second,
s 23
regulates the detention of an asylum seeker. This may only be done
‘if the Department has withdrawn an asylum seeker permit in
terms
of
section 22(6)’.
The withdrawal of the asylum seeker permit is
thus a jurisdictional fact for the
lawful detention of the
asylum seeker. It is common cause that appellant’s asylum seeker
permit has not been withdrawn.
[22] Third,
s 22
of the
Refugees Act obliges
the Refugee Reception Officer to issue to an
applicant for asylum ‘an asylum seeker permit … allowing the
applicant to sojourn
in the Republic temporarily.…’ As I have
said, in the court a quo Willis J held that the right to sojourn did
not necessarily
entail a right to move about freely in South Africa
without any restrictions. The applicant was sojourning in South
Africa, he opined,
albeit under restriction. I do not agree.
‘Sojourn’ means ‘to make a temporary stay in a place; to remain
or reside for a time’,
41
which implies a decision to stay or remain in a certain place. This
is not the same as the detention of a person in a place against
his
will. 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.
42
The
provisions of
ss 38(1)
,
39
(1)(a),
42
(1) and
49
(6) prohibiting the
employment, teaching or harbouring of an ‘illegal foreigner’ and
rendering these acts offences cannot be applied
to an asylum seeker
to whom a permit in terms of
s 22
has been issued. His or her
detention would also be in contravention of
s 2
of the
Refugees Act
entrenching
the State’s international obligation of
non-refoulement
.
Since the appellant’s asylum seeker permit has expired and has not
been extended in terms of
s 22(3)
of the
Refugees Act it
is necessary
to order that an asylum seeker permit be re-issued to him.
[23] I am aware of the
concerns of the respondents as expressed in the judgment of the court
a quo that the state has a legitimate
interest in trying to curb
illegal immigration.
43
However, these concerns could have been addressed by the imposition
of conditions in terms of
s 22
of the
Refugees Act and
their
effective monitoring.
44
___________________________
F R Malan
Judge of Appeal
APPEARANCES:
APPELLANT: Steven
Budlender (with him Irene de Vos)
Instructed by Lawyers for
Human Rights, Johannesburg
Webbers, Bloemfontein
RESPONDENT: IAM Semenya
SC (with him N Manaka)
Instructed by State
Attorney, Johannesburg
State Attorney,
Bloemfontein
1
1916 TPD 274
at 276. See
Jeebhai
& others v Minister of Home Affairs & another
2009
(5) SA 54
(SCA) para 22;
Zealand
v Minister of Justice and Constitutional Development & another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para
25;
Minister van Wet en
Orde v Matshoba
1990 (1)
SA 280
at 284E-F;
Minister
of Law and Order & others v Hurley & another
1986
(3) SA 568
(A) at 589E-F.
2
See S Kentridge ‘Habeas corpus procedure in South Africa’
(1962)
79
SALJ
283
;
DL Carey Miller ‘A judicial extension of the interdict de libero
homine exhibendo’ (1975) 92
SALJ
242; Lawrence Baxter
Administrative Law
(1984) 692 ff.
3
Section 1
of the
Immigration Act.
4
Section 32
of the
Immigration Act.
5
See
Nishimura Ekiu v The
United States
[1892] USSC 26
;
(1892) 142
US 651
at 659 cited with approval in
Minister
of Home Affairs & others v Watchenuka & another
2004 (4) SA 326
(SCA) para 29.
6
Minister of Home Affairs &
others v Watchenuka & another
2004 (4) SA 326
(SCA) para 28.
7
Section 49(1)
of the
Immigration Act.
>
8
Section 32(2)
of the
Immigration Act. See
Jeebhai
& others v Minister of Home Affairs & another
2009
(5) SA 54
(SCA) paras 21 ff.
9
Jeebhai & others v
Minister of Home Affairs & another
2009 (5) SA 54
(SCA) para 32.
10
Section 1(1)
of the
Immigration Act.
11
The procedure to obtain such a warrant for the further detention of
an ‘illegal foreigner’ is regulated by Regulation 39(5)
of the
Immigration Regulations GN R616,
GG
27725, 27 June 2005.
12
In
Kanyo Aruforse v
Minister of Home Affairs; Director-General, Department of Home
Affairs and Bosasa (Pty) Ltd
(GSJ)
(case 2010/1189) an unreported judgment of Meyer J delivered on 25
January 2010 in which he said in para 17: ‘The intention
of the
statute undoubtedly includes an intention to deport illegal
foreigners from this country. But the maximum period for which
any
person may be so detained in terms of s 34(1) is a period of 120
days. I also respectfully fail to appreciate how this interpretation
will defeat the said purpose of the
Immigration Act. In
terms of its
preamble the Act aims at putting in place a new system of
immigration control which
inter
alia
ensures that:
“immigration laws are efficiently and effectively enforced,
deploying to this end the significant administrative
capacity of
the Department of Home Affairs, thereby reducing the pull factors of
illegal immigration”; “immigration control
is performed within
the highest applicable standards of human rights protection”; “a
human rights based culture of enforcement
is promoted”; and “civil
society is educated on the rights of foreigners and refugees”.’
The citations are from paragraphs
(g), (l), (n) and (p) of the
preamble. Whether the extension must be a single one need not be
decided here. It appears as if the
word ‘adequate’ in s 34(1)(d)
should read ‘aggregate’ so that more than one extension is
possible although the aggregate
period may not exceed 90 days. See,
generally, LC Steyn
Die
Uitleg van Wette
5
th
ed (1981) by SIE van Tonder in co-operation with NP Badenhorst, CH
Volschenk and JN Wepener 58 ff.
13
Silva v Minister of Safety
and Security
1997 (4) SA
657
(W) at 661H-I.
14
Lawyers for Human Rights &
another v Minister of Home Affairs & another
[2004] ZACC 12
;
2004 (4) SA 125
(CC) para 36.
15
Lawyers for Human Rights &
another v Minister of Home Affairs & another
[2004] ZACC 12
;
2004
(4) SA 125
(CC) para 27;
Jeebhai
& others v Minister of Home Affairs & another
2009
(5) 54 (SCA) para 26.
16
Lawyers for Human Rights &
another v Minister of Home Affairs & another
[2004] ZACC 12
;
2004
(4) SA 125
(CC) para 43.
17
1953 (1) SA 392
(A) at 399F-H. See further
Dadoo
Ltd & others v Krugersdorp Municipal Council
1920 AD 530
at 552;
Johnson
v Minister of Home Affairs & another
1997 (2) SA 432
(C) at 434J – 435A.
18
Investigating Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd & others: In re Hyundai
Motor Distributors (Pty) Ltd &
others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 22-6;
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd
[2008] ZACC 12
;
2009
(1) SA 337
(CC) paras 46, 84 and 107;
Fraser v Absa Bank Ltd (National Director of Public Prosecutions as
Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA
484
(CC) para 47.
19
(1879) 9 Buch 45 at 65-66 and 71.
20
Section 6
of the
Refugees Act. See
John Dugard SC with contributions
by Daniel Bethlehem QC, Max du Plessis and Anton Katz
International
Law. A South African Perspective
3ed (2005) 348 ff; FJ Jenkins ‘Coming to South Africa: An overview
of the application for asylum and an introduction to the Refugees
Act’ (1999) 24
SAYIL
182; M Beukes ‘“Economic refugees”: South African reality in
international refugee law’ (2002) 27
SAYIL
206.
21
Section 3(a)
of the
Refugees Act. See
Union
of Refugee Women & others v Director: Private Security Industry
Regulatory Authority & others
2007 (4) SA 595
para 29.
22
Section 3(b)
of the
Refugees Act.
23
Section
3(c) of the
Refugees Act.
>
24
Section 4(1)(a)
and (b) of the
Refugees Act.
25
Section
4(c) of the
Refugees Act.
26
Section
4(d) of the
Refugees Act.
27
Section
5 of the
Refugees Act.
28
GN R 366,
GG
21075, 6 April 2000 as amended by GN R938,
GG
21573,
15 September 2000.
29
Section 21(1)
of the
Refugees Act.
30
Section
21(2) of the
Refugees Act.
31
Section
24(1) of the
Refugees Act.
32
Section 24(2)
of the
Refugees Act.
33
Section
24(3) of the
Refugees Act. See
also
s 24(4).
34
">
34
Section 25(1)
and (2) of the
Refugees Act.
35
Section
26(1) of the
Refugees Act.
36
Section
26(2) of the
Refugees Act.
37
>
Section 23 of the Refugees Act.
38
1990 (4) SA 196
(C) at 204H-I. See
R
v Maseti & others
1958
(4) SA 52
(E) 53H-I;
Nkabinde
v Nkabinde and Nkabinde
1944
WLD 112
at 122;
Johannesburg
City Council v Makaya
1945
AD 252
at 257 and 259;
Chotabhai
v Union Government & another
1911
AD 49.
Steyn
above
p 153 and 188 ff.
39
See Dugard above p 351 and
s 6
of the
Refugees Act.
>
40
Jeebhai & others v
Minister of Home Affairs & another
2009
(5) SA
54
(SCA).
41
Oxford Universal Dictionary
sv
‘sojourn’. A
‘sojourner’ is ‘a temporary resident’.
42
Kiliko & others v
Minister of Home Affairs & others
2006 (4) SA 114
(C) para 27;
Tafira
& Others v Ngozwane & others
(GNP)
(case 12960/06 delivered on 12 December 2006) para 23.
With reference to
Minister
of Home Affairs & others v Watchenuka & another
2004
(4) SA 326
(SCA) Dugard above p 351 remarks that ‘[a]sylum seekers
are thus authorized in general to work or study in South Africa
pending
the finalization of their applications for asylum.’
43
See para
11 above.
44
See Annexure 3 to the Refugee Regulations (Forms and Procedure)
published under GN R 366,
GG
21075, 6 April 2000 as amended by GN R938,
GG
21573, 15 September 2000.