Ulde v Minister of Home Affairs and Another (320/08) [2009] ZASCA 34; 2009 (4) SA 522 (SCA) ; 2009 (8) BCLR 840 (SCA) ; [2009] 3 All SA 332 (SCA) (31 March 2009)

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Ulde v Minister of Home Affairs and Another (320/08) [2009] ZASCA 34; 2009 (4) SA 522 (SCA) ; 2009 (8) BCLR 840 (SCA) ; [2009] 3 All SA 332 (SCA) (31 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 320/08
In
the matter between:
MANJAR ALI SHAIK YUSUF ULDE
........................................
APPELLANT
v
MINISTER OF HOME AFFAIRS
........................................
FIRST
RESPONDENT
PERSON IN CHARGE – LINDELA
........................................
SECOND RESPONDENT
DETENTION CENTRE
LAWYERS FOR HUMAN RIGHTS
........................................
AMICUS CURIAE
Neutral citation:
Ulde
v Minister of Home Affairs
(320/2008)
[2009]
ZASCA 34
(31 March 2009).
Coram: Mpati
P, Streicher, Ponnan, Cachalia JJA et Hurt AJA
Heard: 16 February 2009
Delivered: 31 March 2009
Summary: An arrest of an illegal
foreigner under
s 34(1)
of the
Immigration Act 13 of 2002
is subject
to the exercise of a discretion by an immigration officer. The
discretion is to be construed
in
favorem libertatis
.
Where a magistrate had granted bail to a suspected illegal foreigner,
an immigration officer could not ignore this fact in the
exercise of
his discretion.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High Court,
Johannesburg (Sutherland AJ sitting as court of first instance).
The following orders are made:
(1) The appeal is upheld and the respondents are ordered
to pay the appellant’s costs;
(2) The appeal against the referral of Mr Zehir Omar to
the Law Society of the Northern Provinces is dismissed;
(3) Paragraphs (1) and (2) of the order of the court
below are set aside and in their place the following order is made:
‘
(a) It is declared that the detention of the
applicant is invalid and is set aside.
(b) The respondents are to pay the costs of the
application.’
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (
Mpati
P, Streicher, Ponnan JJA, Hurt AJA concurring)
[1] This is an appeal against the judgment of the
Johannesburg High Court (Sutherland AJ) dismissing an application by
the appellant
for his detention at the Lindela Detention Centre at
the respondents’ instance to be declared unlawful.
1
The appellant has since been deported to India. The high court
granted the appellant leave to appeal to this court on the grounds

that if he returns lawfully he may contemplate a claim for damages
for his alleged unlawful detention and that its judgment could
be an
impediment. The appellant is represented by Mr Zehir Omar in this
appeal as he was in the court below. I mention this because,
as
appears from the concluding paragraph in this judgment, Mr Omar has a
personal interest in the order that is being appealed
against.
[2] The high court considered two grounds to support the
averment that the detention was unlawful: First, that the question of
the
appellant’s status as an illegal immigrant was the subject of
criminal proceedings in the Kempton Park Magistrate’s Court and

that those proceedings disqualified the respondents from dealing with
him through the machinery of the immigration laws, and, secondly
that
the appellant’s detention was invalid because the respondents had
not complied with the provisions of
s 8
of the
Immigration Act 13 of
2002
before detaining him. It dismissed both. In the judgment of this
court in
Jeebhai v Minister of Home Affairs
,
2
which will be delivered together with the judgment in the present
case, the second issue was decided in favour of the respondents.
[3] Before us, Mr Katz, on behalf of the
amicus
curiae
, raised a new point which is
indirectly related to the first ground. He submitted that in
arresting the appellant, and then detaining
him, the immigration
officer failed to exercise any discretion, or to the extent that he
did, failed to do so properly. Accordingly,
so he submitted, the
appellant’s arrest and subsequent detention was unlawful.
[4] The facts that are relevant to deciding this issue
are these. The appellant was arrested on 15 January 2008, it having
been
alleged that he had obtained a passport and identity documents
given to him by the Department of Home Affairs fraudulently. The

documents were seized and remained in the possession of an
immigration official, Mr Moodley. The appellant faced criminal
charges
relating to alleged contraventions of the
Immigration Act in
the Kempton Park Magistrate’s Court. On 4 February 2008, the
magistrate released him on bail despite the respondents’ vigorous

opposition. In this regard they filed a detailed affidavit by an
immigration officer, Willem Vorster, setting out the grounds for

their opposition. These included the strength of the case against him
and the likelihood that he would not stand trial if he was
released
on bail.
[5] Two days later, while on a visit at Lindela
Detention Centre the appellant was confronted by an immigration
official, Mr Matone
Peter Madia, who asked him to produce proof of
his entitlement to be in the country. Madia’s version of what
happened appears
from his answering affidavit:
‘
5.1 After initially, in terms
of
s 41
of the
Immigration Act requesting
the applicant to produce
documentation or any other form of proof of his entitlement to be
lawfully within the borders of the Republic
of South Africa, the
applicant informed me of the fact that his travel document was in
possession of a certain Mr R Moodley who
is an employee of the
Department of Home Affairs in the special Investigations Branch. I
then informed the applicant that I would
communicate with Mr Moodley
to assess what the position was regarding his passport.
5.2 I then telephonically
communicated with Mr Moodley who thereupon informed me that, after
investigations by the relevant sections
of the Department of Home
Affairs, it was found that the applicant’s entire sojourn, from the
outset, in the Republic of South
Africa is based upon fraudulent
documentation . . .
5.3 I was then also informed of
the content of the affidavit of Mr W Vorster which was tendered
during the recent bail proceedings
(which I have, subsequent to the
lodging of this application had sight of).
I then confronted the
applicant on the allegations made by Mr Moodley and which are
contained in the affidavit of Mr Vorster,
upon which the applicant
was unable to furnish me with satisfactory answers, as a
consequence whereof I was of the opinion
that
I was not
satisfied that the applicant is entitled to be in the Republic of
South Africa and thereafter proceeded to detain
the applicant in
terms of
s 34
of the
Immigration Act, as
is the Department of Home
Affairs’ obligation when regard is had to
s 32
of the
Immigration
Act.
(Emphasis
added)
. . .
8.1 I should also respectfully
point out that the decision to detain the applicant is based solely
upon the seriousness of the allegations
levelled against the
applicant regarding the applicant’s fraudulent conduct, as well as
the nature and extent of such fraudulent
conduct.
8.2 I verily believe that the
applicant, should he be released, and regard being had to the extent
to which the applicant is prepared
to defraud or,
alternately
be party to a fraudulent scheme, that in the event the applicant
would simply have, as is usually the case, “
gone
under the radar
” of
the officials of the Department of Home Affairs and simply
disappeared . . .
8.3 My motivation to detain the
applicant was based upon the premise that, regard being had to the
content of the affidavit of Vorster
which I had at my disposal on
6 February 2008, the applicant’s chances of succeeding in
regularising his stay in the Republic
of South Africa, are highly
improbable.’
[6] In
Jeebhai
this court confirmed that an officer who decides that an illegal
immigrant is liable to be deported has a discretion whether or
not to
arrest and detain the person pending his deportation. There is no
obligation to do so.
3
In
Lawyers for Human Rights v Minister of Home
Affairs
4
Du Plessis J described the discretion that an immigration officer has
not to arrest a person as ‘limited’ having regard to
the fact
that
s 34(1)
applies only to foreigners who are by definition in the
country illegally. He went on to state:
‘
As such the Act renders their
personal freedom subject to restriction . . . The immigration
officer’s limited discretion therefore
amounts to no more than not
to arrest persons who are by reason of their transgression of the law
liable to arrest. In its effect
the immigration officer’s limited
discretion operates in favour of the individual concerned. The
absence of guidelines where
the discretion is so limited does not in
my view violate the rule of law. The section merely allows an
immigration officer to be
humane’.
5
[7] What the learned judge said about the nature of an
immigration officer’s discretion concerning an arrest of an illegal
foreigner
is clearly also applicable to the discretion to detain the
foreigner concerned. But his description of the discretion not to
arrest
(or detain) as being ‘limited’ in that it allows the
immigration officer to merely be humane is, however, misleading
because
this may be read to mean that the illegal foreigner ought
presumptively to be arrested (or detained) unless the immigration
officer
decides not to do so for humane reasons. Bearing in mind that
we are dealing here with the deprivation of a person’s liberty
(albeit of an illegal foreigner’s), the immigration officer must
still construe the exercise of his discretion
in
favorem libertatis
when deciding whether or
not to arrest or detain a person under
s 34(1)
– and be guided by
certain minimum standards in making the decision.
6
Our courts have over the years stated these standards as imposing an
obligation on the repository of a discretionary power to demonstrate

that he has ‘applied his mind to the matter’ – in the
celebrated formulation of Colman J in
Northwest
Townships
(Pty) Ltd v
The Administrator of the Transvaal
7
‘
(A) failure by the person
vested with the discretion to apply his mind to the matter (includes)
capriciousness, a failure on the
part of the person enjoined to make
the decision, to appreciate the nature and limits of the discretion
to be exercised, a failure
to direct his thoughts to the relevant
data or the relevant principles, reliance on irrelevant
considerations, an arbitrary approach,
and the application of wrong
principles.’
[8] The approach I have outlined is now subsumed under s
12(1)(a) of the Constitution which provides that freedom may not be
deprived
‘arbitrarily or without just cause’. Simply put a person
may not be deprived of his freedom for unacceptable reasons.
8
However, once the decision-maker has demonstrated that the discretion
has been properly exercised, a court will not interfere,
even if it
appears that the wrong decision was made.
[9] Before examining whether, or how, Madia exercised
his discretion to detain the appellant I must point out that the
appellant
did not in terms raise this as a ground of review in his
founding affidavit. He asserted merely that his detention was
unlawful
because it arises from the very complaint for which the
magistrate had ordered his release. In
Northwest
Townships
parlance this complaint relates, in
my view, to ‘a failure to direct [the immigration officer’s]
thoughts to the relevant data’.
The appellant has therefore put in
issue Madia’s exercise of his discretion, albeit somewhat
obliquely.
[10] The
amicus
submitted
that the appellant’s detention was unlawful because it was carried
out pursuant to a blanket policy to detain all persons
found to be
illegal foreigners. There is merit in the submission. It is clear
from the extract from Madia’s affidavit quoted
above that he
believed that he had an obligation to detain the appellant ‘when
regard is had to s 32 of the Immigration Act’.
But s 32 imposes an
obligation on an immigration officer to ‘deport’ an illegal
foreigner – it is not concerned with the
power to detain.
9
By assuming that he had an obligation to detain the appellant, Madia
was not exercising any discretion – he was carrying out
what he
believed to be a ‘blanket policy’ which by definition precludes
the exercise of a discretion.
[11] However, to the extent that Madia may be said to
have exercised a discretion this also was not done properly. The
factors he
says he took into account (and contradict his assertion
that he had an obligation to detain the appellant) when deciding to
detain
the appellant were ‘the seriousness of the allegations’
against him; that he would simply have ‘gone under the radar’ and

that ‘the chances of succeeding in regularizing his stay in the
Republic of South Africa, are highly improbable’. These are
the
very considerations that the magistrate was asked to consider in the
bail application. It seems to me that once the respondents
had
elected to charge the appellant, and the magistrate then decided to
release him on bail, this should have been taken into account
as a
relevant and material factor in any further decision to detain him.
Madia makes no mention, in his affidavit, that he considered
the fact
that the appellant was released on bail. He must have known of this
fact because, on his own version, he had sight of
Vorster’s
affidavit made to support opposition to bail being granted to the
appellant and would therefore have been aware that
the appellant had
been granted bail despite Vorster’s opposition. The magistrate’s
order could not simply be ignored – which
is what happened. The
appellant was therefore detained for unacceptable reasons – thus
rendering his detention unlawful.
[12] I wish to express our gratitude to the
amicus
curiae
for its most helpful submissions.
[13] In its order dismissing the application for the
appellant’s release from detention, the learned judge in his order
also referred
to the Law Society of the Northern Provinces, Mr Omar’s
conduct in failing to inform the court of authority adverse to the
appellant’s
case and directed the Society to report the outcome of
the referral to the Deputy-Judge President of the Johannesburg High
Court.
Mr Omar seeks to appeal that part of the order. However,
while an order may be appealed against, a referral of an attorney’s

conduct to the Law Society may not – it is not a judgment or order
as contemplated in s 21A(1) of Supreme Court Act 59 of 1959.
The following order is made:
(1) The appeal is upheld and the respondents are ordered
to pay the appellant’s costs;
(2) The appeal against the referral of Mr Zehir Omar to
the Law Society of the Northern Provinces is dismissed;
(3) Paragraphs (1) and (2) of the order of the court
below are set aside and in their place the following order is made:
‘
(a) It is declared that the detention of the
applicant is invalid and is set aside.
(b) The respondents are to pay the costs of the
application.’
____________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANT: Z Omar (Attorney)
Amicus
Curiae: A Katz; M du Plessis
;
J van Garderen
INSTRUCTED BY: Zehir Omar Attorneys; Springs
CORRESPONDENT: E
G Cooper & Sons Inc; Bloemfontein
COUNSEL FOR RESPONDENT: P M Mtshaulana SC; G
Bofilatos
INSTRUCTED BY: The State Attorney; Pretoria
CORRESPONDENT: The State Attorney; Bloemfontein
1
Ulde v Minister of Home
Affairs
[2008] ZAGPHC 88
;
2008 (6) SA 451
(W).
2
Jeebhai v Minister of Home Affairs
(139/2008)
[2009] ZASCA 35
(31 March 2009) in citation.
3
At para 29.
4
2003 (8) BCLR 891
(T).
5
See
Lawyers for Human Rights
above
at
896
G-H.
6
Cf s 41(1). Section 41(1) read with s 34(2) confers on
an immigration officer a discretion to detain a suspected illegal
foreigner
for a period not exceeding 48 hours for the purposes of
conducting an investigation into his status – but only if the
detention
is
necessary
.
The requirement of necessity (and the concomitant element of
proportionality) connotes that an immigration officer must consider

whether there are sufficient grounds for the detention and also
whether there are other less coercive measures to achieve the

objective (
Saadi v United Kingdom
13229/03
[2008] ECHR 80
(29 January 2008)). However, the
prerequisite for the detention to be necessary in s 41(1) is omitted
from s 34(1) thus relieving
the immigration officer of this more
onerous justificatory requirement in the latter instance. The
constitutionality of this
omission is not before us.
7
1975 (4) SA 1
(T) p 8F-G.
8
S
v Coetzee
[1997] ZACC 2
;
1997 (3) SA 527
(CC) para 159, quoted in
De
Langa v Smuts
[1998] ZACC 6
;
1998
(3) SA 785
(CC) para 18.
9
Section 32: ‘Illegal foreigners
(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 a status.
(2)
Any illegal foreigner shall be deported.’