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[2023] ZAFSHC 404
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Minister of Home Affairs v Nwanko - Appeal (A118/2022) [2023] ZAFSHC 404 (17 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
case no
:
A118/2022
In
the appeal of:
MINISTER
OF HOME AFFAIRS
Appellant
and
PETER
IFEANYI NWANKO
Respondent
CORAM:
MHLAMBI J, MOLITSOANE J et CRONJé,
AJ
HEARD
ON:
12 MAY 2023
DELIVERED
ON:
17 OCTOBER 2023
JUDGMENT
BY:
MOLITSOANE, J
[1]
The Respondent (Plaintiff in the Court a quo)
instituted a claim against the Appellant (Defendant in the Court a
quo) for unlawful
detention. The Court a quo granted an order to
separate the merits and quantum in terms of Uniform Rule 33(4) and
dealt with the
merits only. For convenience, the parties will
be referred to as in the Court a quo. The trial Court partially
upheld the
claim and granted the following orders:
a)
The Defendant shall be liable to the
Plaintiff for any proven or agreed to damages he suffered following
from his unlawful detention
for the following periods:
a.a)
2 June 2013 to 6 August 2013;
a.b)
6 September 2013 to 9 October 2013;
b)
The Defendant is liable for the
Plaintiff’s costs of suit on a party and party scale, with the
following exception:
c)
Each party shall be liable for his own
costs occasioned by the postponements and/or removal from the roll of
the matter prior to
the first day of trial.
[2]
The Defendant is aggrieved and appeals the orders as set out above
except for the
order contained in paragraph (c).
[3]
In essence, the judgment and order are in brief assailed on the
following grounds:
3.1
That the South African Police Service transferred the Plaintiff in
terms of an occurrence book to them as they required
his presence in
Court on a drug-related matter;
3.2
The respondent’s continued detention was thus at the behest of
the SAPS and yet the Plaintiff failed to join
the Minister of Police
in these proceedings;
3.3
That there was no necessity for the Defendant to issue a further
warrant for the detention of the respondent since
he was no longer
held at their behest;
3.4
The Plaintiff conceded that his detention was unlawful;
3.5
Throughout the period of the respondent’s detention up until
September 2013, Plaintiff was held in terms of
warrants validly
issued by Defendant, or in terms of the court order granted by the
Magistrate on 3 June 2013;
3.6
The Court was satisfied with the validity of these documents and
there was accordingly no basis to find that the
Plaintiff was
unlawfully detained;
3.7
The Court’s findings relating to the validity of the warrants
of detention and the Court order left no room
for a finding that
Plaintiff was unlawfully detained.
[4]
The Plaintiff’s cause of action is pleaded as follows in the
particulars of
claim:
6.
On or about the 3
rd
May at or near number 31 Doren Street at Welkom the Plaintiff was
arrested by police who took him to Welkom Police Station where
he was
detained without being charged as an illegal immigrant in South
Africa.
7.
On
the 6
th
August 2013, the immigration officers known as Ms. Yvonne and Mr.
Ramakau booked the Plaintiff out of the police cells and he was
taken
to Lindela Holding facilities in Krugersdorp for the purpose of
deportation.
8.
Upon the arrival at Lindela
Holding facilities, the immigration officers (Yvonne and Ramakau)
tried to hand the Plaintiff over to
Lindela officials, upon
verification of Plaintiff’s status which was submitted to
immigration officer in Welkom, it was found
that the Plaintiff’s
application for the extension of his permit issued by Department of
Home Affairs was pending (see Annexure
“B”) and a copy of
acknowledgment of the receipt of the same (see annexure “C”).
9.
The immigration officers in
Lindela would not admit the Plaintiff and thereafter he was taken
back to Welkom police station, were
he remained incarcerated in the
dark dingy cell for 5(five) months from 3 May – 9 October 2013
when he was formally charged
under case number A376/2013 of being
illegal foreigner in the Republic of South Africa and was granted
bail (see annexure “C”).
10.
The Plaintiff attended Welkom
magistrate court until the charges were withdrawn on 4 December 2013.
11.
The Plaintiff was detained at the
instance of the aforementioned immigration officers, whose full and
further particulars not known
him.
12.
As direct result of the said
prolonged incarceration, Plaintiff was unlawfully and or without
justifiable cause deprived of his
liberty from the 3
rd
May until 9
th
October 2013 when he was granted bail.”
[5]
The Plaintiff is a Nigerian national. He entered South Africa on 13
January 2006.
According to him, he came to South Africa on a spousal
permit. The evidence reveals, however, that he met and married his
South
African wife about a month later. Although in evidence in
chief, he averred that he married his wife in 2007, his marriage
certificate
revealed that the marriage was concluded on 8 February
2006. He thereafter applied for a spousal permit. He confirmed that
it was
a condition of his permit that he and his wife must stay
together in one place. He confirmed that from the time that he
entered
this country, he had never worked.
[6]
It is common cause that the Plaintiff was arrested on 3 May 2013 in
Welkom by members
of the South African Police Service. He was further
detained at the said police station. On 15 May 2013, his wife deposed
to an
affidavit. In the affidavit, his wife avers that they had been
married for seven years. She further avers that she was working in
Boksburg while the plaintiff was looking for employment in Welkom.
She confirmed that as a result, they could not stay together
during
the marriage.
[7]
In the particulars of claim, it is pleaded and admitted also in the
plea that the
Plaintiff was arrested by members of the SAPS
[1]
.
He was, however, adamant that he was arrested by members of the
Defendant
[2]
. According to
the Plaintiff, Mr Ramakau, at times in the company of one Yvonne, who
are both immigration officers dealt with
him during his detention and
also kept him in detention. He testified that a few days following
his arrest, the said immigration
officers visited him in the cells.
He gave them a document entitled ‘
Acknowledgement
of receipt
’
which proved that he had applied for an extension of his permit.
These officials however told him that his permit was fake.
They also
told him and one Mr Bashir, with whom he was kept in the holding
cell, that they must buy tickets to enable them to be
deported. He
asked to be taken to Lindela to verify his papers. He was taken by
Ramakau to Lindela on 6 August 2013 where he gave
his receipts to an
official there. The official informed Ramakau that the Plaintiff had
applied for an extension of his permit
and further that the
application was still pending. The official at Lindela refused to
accept him in the facility. Ramakau took
him back to Welkom.
[8]
It needs to be mentioned that the Plaintiff’s spousal permit
expired on 10 May
2012. On 15 May 2012, he applied for an extension
of the said expired permit. According to him, one is allowed one
month within
which to apply for an extension after it has expired.
[9]
Upon his return from Lindela, he instructed a legal representative to
assist him and
on 9 October 2013 he was released on bail of R500.
According to him on 6 August 2013, he was served with a ‘notice
of rights’.
He testified that after his return from Lindela, he
never saw Ramakau and Yvonne. His application for extension of the
spousal
permit was rejected because according to him it was said that
he did not stay with his wife.
[3]
He was never told that he could appeal the decision to deport
him or that he could ask to be taken to court to confirm the
decision.It is his testimony that after paying bail of R500 for being
an illegal immigrant he never appeared in court again and
he did not
know what happened to the case.
[10]
Mr Nicolaas Gerhardus Jacobus Breed, the Control Immigration Officer
and supervisor of the immigration
officers Mr Ramakau and Ms. Yvonne
Bofolo testified for the defendant. He testified that when a
permit that allows a foreigner
to be in the country expires, such a
foreigner automatically becomes illegal in the country. According to
him, a foreigner must
apply for the extension of the permit before
its expiry as a pending application will not detract from the fact
that the foreigner
is now automatically illegal in the country.
[11]
Section 32 of the Immigration Act 13 of 2002 (the Act) provides as
follows:
“
(
1)
Any illegal foreigner shall depart unless authorised by the Director
General in the prescribed manner to remain in the Republic
pending
his or her application for status.
(2)
Any illegal foreigner shall be deported”.
[12]
It is common cause that the spousal permit of the Plaintiff expired
on 10 May 2012. Although
he insists that he applied for its
‘extension’ on 15 May 2012, the undisputed evidence is
that such a permit had already
expired. His assertion that he had a
grace period of a month to apply for its extension after it had
expired is not based on any
legal foundation. Section 43(2) of the
Act provides in peremptory terms that “
a foreigner shall
depart upon expiry of his or her status.
” The expiry of his
permit thus put him in the category of ‘illegal foreigners’
and was thus subject to deportation
in terms of the Act and the
Regulations promulgated thereunder. The court a quo was in my view
correct in finding that the Plaintiff
was an illegal foreigner
irrespective of whether he had contravened the terms of the permit or
not or whether he had to apply for
the extension of the expired
permit.
[13]
Section 34 of the Act deals with the deportation of foreigners and
provides as follows:
“
(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
.”
[14]
It is necessary to repeat the following paragraph of the judgment of
the court a quo as in my
view it has much bearing in the adjudication
of this appeal:
“
[131]
The initial 30 - day detention period was extended on 3 June 2013
when Ramakau’s application to a magistrate was granted.
It was
not alleged that the magistrate failed to exercise his discretion in
granting the extension or that he exercised his discretion
improperly, arbitrarily, or unreasonably. Considering the duty of
courts to scrutinise carefully all steps taken which invade on
a
person’s right to freedom and security of person,
I
cannot however shut my eyes against the failure by the Defendant to
present evidence on the reasons which Ramakau considered good
and
reasonable for an extension of the Plaintiff’s detention or
relating to the reasons why a specific period of detention
was
considered reasonable and necessary
. (my emphasis) Breed’s
assumption that there ‘must have been good reasons’ is
unfortunately not good enough.”
[15]
It is common cause, at least in the pleadings, that the Plaintiff was
arrested by members of
the SAPS for being illegal in the country. The
Plaintiff does not contend that his arrest was unlawful. On 10 May
2013, a warrant
for his detention was issued by Mr Ramakau for his
detention on behalf of the Defendant. The lawfulness of this warrant
of detention
was not disputed. It can thus be accepted, as also found
by the court a quo that at least following his arrest, the subsequent
detention was lawful. The problem, however, arises from the finding
that such lawfulness of the arrest ended on 2 June 2013. This
thus
has a bearing on the liability imposed on the first period referred
to in the order.
[16]
Regulation 28(4) promulgated under the Act provides as follows:
“
An
immigration officer intending to apply for the extension of the
period in terms of s34(1)(d) shall-
a)
Within 20 days following the
arrest of the detainee, serve on that detainee a notification of his
or her intention on a form substantially
corresponding to form 31;
b)
Afford the detainee the
opportunity to make representations in this regard within three days
of the notification contemplated in
paragraph (a) having been served
on him or her;
c)
Within 25 days following the
arrest of the detainee, submit with the clerk of the court an
application for the extension of the
period of detention.”
[17]
As can be seen from the excerpt of the judgment of the court a quo
above, the court held that
no allegations were made that the
magistrate failed to exercise his discretion improperly in granting
the extension of the order.
It is undisputed that an
application was made to the magistrate for the further detention of
the Plaintiff. The Defendant
issued the warrant for the detention of
the Plaintiff within the prescribed time as contemplated in s34(1)
and an application was
made before the magistrate. The magistrate
considered the application and in his sole discretion and based on
the evidence before
him, granted the further detention of the
Plaintiff.
[18]
The court a quo holds the view, presumably based on the onus the
Defendant is saddled with to
justify the detention, that the
liability of the Defendant arises on the fact that Ramakau failed to
give ‘good and reasonable’
reasons for the extension of
the Plaintiff’s detention. In this regard, the court a quo
relies on
De
Klerk v Minister of Police
[4]
.
In my view reliance on De Klerk is misplaced. There was a substantive
application that served before the magistrate for the extension
of
the detention. No procedural defect is alluded to against the
granting of the order. The discretion the magistrate exercised
is
also not attacked. It can be accepted that Ramakau presented evidence
to the satisfaction of the magistrate to properly exercise
his
discretion that further detention was warranted. Much as the court a
quo appears not to be satisfied with Ramakau, the fact
is that
Ramakau had to ‘satisfy the Magistrate’ and not the court
a quo. The Plaintiff does not contend otherwise.
[19]
The warrant of detention granted by the magistrate allowed for a
detention for a period not exceeding
90 days as contemplated in
s34(1) (d). The detention of the period up to 6 August thus fell
within the 90 days as contemplated
in the Act. The court a quo
referred to
Jeebhai
and Others v Minister of Home Affairs and Another
[5]
.
I quote it as in the judgment of the court a quo:
“
It
is true…that the failure of the respondents to comply with the
regulations…was not raised pertinently on the papers.
But, it
does not follow… that the failure precludes the point being
raised before this court as a point of law.
Once
the Plaintiff placed the lawfulness of his detention in issue, the
Defendant was required at the very minimum, to adduce sufficient
facts to prove that every procedural requirement …was complied
with.”
It
is settled that the order granted by a Court remains valid until set
aside. The order of the magistrate has not been set aside
and it
remained valid and binding until it was finally executed. I agree
with Counsel for the Defendant that if the order of the
magistrate is
challenged, then in that case, the Minister of Justice and
Correctional Services should have been joined in these
proceedings.
Non-joinder of the said Minister disposes of the reliance on
Jeebhai
.
For fear of repeating myself, the Plaintiff in this case did not
attack the fact that the magistrate inappropriately exercised
his
discretion. In the absence of such an attack, the order he made
remains valid and binding. I find that the court a quo erred
in
finding that the period of detention from 2 June 2013 to 6 August
2013 was unlawful.
[20]
The court a quo also found that the Defendant was unlawfully detained
during the period 6 September
2013 to 9 October 2013. On 26 August
2013, the police informed the Respondent that the Plaintiff was
arrested for possession of
drugs under Welkom CAS 306/4/2012. A
request was also made that he should not be deported as he was needed
to stand trial. Clearly,
the Plaintiff was then handed over to the
police. This is also illustrated by the fact that the immigration
officers no longer
went to check on him until he was released. Mr
Breed testified that the ‘transfer’ of the Plaintiff from
the Defendant
would have been done by an occurrence book entry. The
detention of the Plaintiff was at this stage at the behest of the
SAPS. The
court a quo accepted the evidence of Breed in this regard.
[21]
If one accepts that the Plaintiff was handed over to the SAPS by an
occurrence book entry, surely
the inference to be drawn in those
circumstances is that the Minister of Police should have been joined
in these proceedings. This
is also illustrated by the fact that the
Plaintiff was arrested by the police. The Court a quo was also taken
aback by the approach
of the Plaintiff in this case. The court said:
“
[87]
The came a surprising submission, namely that the Plaintiff is not
claiming damages based on unlawful arrest but only based
on his
detention for such inordinate time. Mr Steenkamp indicated that he
was of the opinion as an officer of the court, that Plaintiff
failed
to prove that his arrest had been effected unlawfully”
The
failure to join the Minister of the Police is also fatal to the
Plaintiff’s case, at least for a claim for damages from
6
September 2013 to 9 October 2013. This thus disposes of the second
leg of liability imposed by the court a quo on the Defendant.
The
appeal must thus be upheld. I accordingly propose the following
orders:
ORDER
1.
The appeal is upheld;
2.
The order of the court a quo is set aside and replaced with the
following:
“
The
Plaintiff’s claim is dismissed with costs.”
3.
The Respondent is ordered to pay the costs of the appeal.
P.
E. MOLITSOANE, J
I
agree
J.J
MHLAMBI, J
I
agree
P.
R. CRONJé, AJ
On
behalf of the Appellant:
Adv.RT
Williams SC
Instructed
by:
The
State Attorney
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
MJD Steenkamp
Instructed
by
Jacobs
Fourie
BLOMFONTEIN
[1]
See para 6 of the particulars of claim and corresponding para 6 of
the plea on pages 9-10 and 19 respectively.
[2]
Pages 258[ lines 18-25[ and 260 [lines 1-17] of the record.
[3]
See page 235 of the paginated record.
[4]
2020(SACR 19 (CC).
[5]
2009(5 SA 54(SCA0.