Jeebhai and Others v Minister of Home Affairs and Another (139/08) [2009] ZASCA 35; [2009] 3 All SA 103 (SCA) ; 2009 (5) SA 54 (SCA) (31 March 2009)

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Jeebhai and Others v Minister of Home Affairs and Another (139/08) [2009] ZASCA 35; [2009] 3 All SA 103 (SCA) ; 2009 (5) SA 54 (SCA) (31 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 139/08
In the matter between:
ISMAIL
EBRAHIM
JEEBHAI
FIRST APPELLANT
YASMIN
NAIDOO
SECOND APPELLANT
ZEHIR OMAR
THIRD APPELLANT
v
MINISTER OF
HOME AFFAIRS
FIRST RESPONDENT
MICHAEL
SIRELA
SECOND
RESPONDENT
Neutral
citation:
Jeebhai
v Minister of Home Affairs
(139/2008)
[2009] ZASCA 35
(31 March 2009).
Coram:
Mpati
P, Streicher, Ponnan, Cachalia JJA et Hurt AJA
Heard: 16
February 2009
Delivered: 31
March 2009
Summary:
Immigration
Act 13 of 2002
read with Immigration Regulations - lawfulness of
arrest, detention and deportation of illegal foreigner.
__________________________________________________
____________
ORDER
______________________________________________________________
On appeal
from:
Pretoria High Court (Ngoepe JP, Pretorius J, Snijman AJ).
The following order is made:
1
The
appeal is upheld with costs;
2
The
convictions and sentences of the appellants for contempt of court are
set aside;
3
The
respondents are to pay the costs occasioned by their opposition to
the application for the admission of the
amicus
curiae
;
4
The
order of the court below is set aside and in its place the following
is substituted:
‘
a
the
detention of Khalid Mahmood Rashid at Cullinan Police Station and his
subsequent removal and deportation are declared to have
been
unlawful;
b
The
respondents are to pay the costs of the application;
c
The
counter-application is dismissed with costs.’
_________________________
_____________________________________
JUDGMENT
______________________________________________________________
CACHALIA JA
( Mpati P concurring)
[
1] This
is an appeal from the Full Court, Pretoria (Ngoepe JP, Pretorius J
and Snijman AJ sitting as a court of first instance)
in which it
dismissed with costs an application to declare unlawful the arrest,
detention and subsequent removal from the country
of one Khalid
Mahmood Rashid (including certain ancillary relief) and granted a
counter-application by the respondents declaring
the appellants to
have been in contempt of court.
1
The full court refused the appellants leave to appeal against its
judgment but this court granted the necessary leave to them.
[2] The first
appellant is Mr Ismail Ebrahim Jeebhai who is a businessman from
Lenasia. Rashid was arrested in Estcourt at the home
of Jeebhai’s
brother, Mr Mohamed Ali, in circumstances that are described in
greater detail below. As Rashid was unable to instruct
attorneys or
depose to an affidavit, Jeebhai, the first appellant, instituted
proceedings on his behalf. Mr Zehir Omar, who is
the attorney of
record in these proceedings and his professional assistant Ms Yasmin
Naidoo were found guilty of having been
in contempt of court by the
full court, along with Jeebhai. Jeebhai was cautioned and discharged
but Omar and Naidoo were each
sentenced to a fine of R2 000 or six
months’ imprisonment suspended for a period of three years on
condition that they are not
convicted of contempt of court committed
during the period of suspension – hence their interest in the
present proceedings (as
the third and second appellants
respectively). The first respondent is the Minister of Home Affairs
and the second respondent a
senior immigration officer in the
Department of Home Affairs. They are cited in their official
capacities.
[3] The events
surrounding this appeal span more than three years. I set them out in
some detail so that the issues that arose from
them are understood in
their proper context.
[4] On the
evening of 31 October 2005, at about 22h00, a senior immigration
officer, Mr Anthony de Freitas, and several members
of the South
African Police Service descended on Mohamed Ali Jeebhai’s home in
Fordeville, Estcourt in the Province of KwaZulu
Natal. The police
were armed and clad in protective bullet-proof vests. The police
first gained entry to the house and, having
established that it was
safe to enter, De Freitas also entered. They found Mohamed Ali
and Rashid, a Pakistani national, on
the premises. De Freitas asked
them for their identification papers. Rashid was not able to produce
any permit authorizing his
stay in the country. De Freitas arrested
both as illegal foreigners and accompanied them with the police to
the Cullinan Police
Station in Pretoria where they were detained. De
Freitas played no further role in the events that unfolded.
[5] On 2
November 2005, Mr Joseph Swartland, a Chief Immigration Officer,
interviewed Rashid. Rashid, Swartland says, admitted to
being an
illegal foreigner and also that he had fraudulently obtained
documents purporting to authorize his presence in the country.

Swartland handed him a ‘Notice of Deportation’ as contemplated in
regulation 28(2) of the Immigration Regulations.
2
The notice states that as the person is an illegal foreigner he is
notified that he is to be deported to his country of origin
– in
this case Pakistan. The cryptic reason given for the deportation was
that he is ‘illegal’. The notice then states:
‘
In
terms of section 34(1)(a) and (b) of the Act, you have the right to
–
appeal the decision to the
Director-General in terms of section 8(4) of the Act within 10
working days from the date of receipt
of this notice; and
at any time request any officer
attending to you to have your detention for the purpose of
deportation confirmed by a warrant
of the court.
NB:
Should you choose not to exercise the rights mentioned above, you
shall be detained pending your deportation. Should you however
choose
to exercise the rights mentioned above, you shall remain in custody
and may not be deported pending the outcome of the appeal
or the
confirmation of the warrant of detention by the court.
. . .
ACKNOWLEDGMENT OF RECEIPT OF
NOTIFICATION OF DEPORTATION
I hereby acknowledge receipt of
the original notification of deportation in which my rights in terms
of section 34(1)(a) and (b)
of the Act were explained to me.
After due consideration, I have
decided to –
Await my deportation at the
first reasonable opportunity, whilst
Remaining in custody.
Yes
No
Appeal the decision to
deport me.
Yes
No
Have my detention confirmed
by a warrant of the court.
Yes
No
……………………………………………………
..………………….
Signature of Detainee
Date
.
. .
’
Swartland
states that
after
handing this form to Rashid he informed him of his right to appeal
against the decision to deport him and to have his detention

confirmed by a warrant of the court. Rashid, he says, read the form
and placed a tick in the ‘yes’ column, indicating his wish
to be
deported at the first reasonable opportunity, whilst remaining in
custody. He also signified that he did not wish to appeal
the
decision or have his detention confirmed by a warrant of the court by
placing a cross in the relevant ‘no’ column. Swartland
avers that
Rashid signed the document in the space provided for the detainee’s
signature and said that he consented to being
sent back to Pakistan
immediately so that he could receive treatment for a skin problem.
[6] On 6
November 2005 Rashid was handed over to five Pakistani law
enforcement officials at Waterkloof Military Air Base in Pretoria

from where he was flown to Islamabad Airport in Pakistan and held in
custody.
3
His removal from the country was apparently effected secretly –
without his relatives or friends having been apprised of what
had
happened to him. In the meantime Mohamed Ali was transferred to
Lindela Repatriation Centre – a facility that the Department
of
Home Affairs uses to detain illegal immigrants pending their
deportation. It appears that he contacted his family from Lindela.

The first appellant then instructed his attorneys to commence legal
proceedings in the Pretoria High Court both for his and Rashid’s

release. (They were at this stage unaware of Rashid’s removal.) The
application was set down for hearing on 15 November 2005.
[7] On that day
the application was postponed after the respondents consented to an
order for Mohamed Ali’s immediate release
and to disclose where
Rashid was ‘upon such information being available’ by 6 December
2005. Mohamed Ali was released but the
respondents failed to provide
any information concerning Rashid. On 25 January 2006 the respondents
delivered a notice to the first
appellant’s attorneys that reads as
follows:
‘
Mr
Mahmood Rashid Khalid was deported to Pakistan, in terms of
s
34
of the
Immigration Act, no 13 of 2002
, on 6 November 2005. As Mr
Khalid is outside the Republic, the first and (second) respondents
are unable to say what his present
whereabouts are.’
[
8] On
14 February 2006 the matter again came before Legodi J. The
appellants contested whether Rashid had indeed been deported because

his family in Pakistan had not heard of his arrival in that country.
They also persisted in their claim that the respondents were
in
contempt of court for not having disclosed his ‘whereabouts’. The
judge postponed the application indefinitely to allow
the respondents
to file a further affidavit within 10 days dealing with both issues.
[9] The further
affidavit filed by Swartland provided no additional information about
Rashid’s location. It did, however, provide
confirmation from the
Pakistani Ministry of the Interior that he had indeed arrived in that
country. So, on 15 March 2006 the appellants
filed papers to amend
the original notice of motion directing the respondents to disclose
details of the Pakistani officials who
dealt with Rashid during his
deportation both in South Africa and in Pakistan, the flight
information of the aeroplane that transported
him to Pakistan and the
airport where he was deported from. The amended notice also included
a prayer that all South African officials
who had dealt with Rashid
appear in person to answer questions from the court concerning his
disappearance.
[10] The matter
was enrolled for hearing before Poswa J on the urgent roll on 10 May
2006. On 15 May 2006, having heard argument
on the amended
application, Poswa J granted an order in the following terms:
‘
The
respondents must with
in
10 days of this order:
Identify the persons/people
with whom arrangements were made at the Pakistani Embassy to have Mr
Rashid deported;
Identify the person in Pakistan
who received Mr Rashid, by making appropriate enquiries;
Name the airport where the
aeroplane, in which Mr Rashid was transported, landed in this
country;
Furnish the flight number of
the aeroplane in which Mr Rashid was transported at the time of his
being flown from this country.
.
. .
’
[
11] On
6 June 2006 the respondents furnished the following information:
‘
No
arrangements were made with the Pakistani High Commission in South
Africa. Mr Khalid was handed to a Pakistani official by the
name of
Habib Ullah, by Joseph Swartland, an official of the Department of
Home Affairs, at Waterkloof Air Base. Mr Ullah was accompanied
by
four Pakistani officials whose names appear on Annexure A2. Mr Ullah
signed as receiver as is apparent from Annexure A1.The
aircraft
departed from Waterkloof Air Base on 6 November 2006. The
Respondent
has no knowledge of the airport at which the aircraft landed in
Pakistan. The Respondent is not in possession of the
flight number.
However, the registration number of the aircraft appears on Annexure
A2. The respondent has no knowledge of the
time of landing.’
[
12] By
12 June 2006, more that seven months after his arrest, the first
appellant had still not been able to establish what had
happened to
Rashid. So he launched another urgent application in which he sought,
among other orders, a declaration that the arrest,
detention and
‘removal’ of Rashid from South Africa were unlawful, inconsistent
with the Constitution and constituted an ‘enforced
disappearance’
as envisaged in article 7(2)(i) of the Rome Statute of the
International Criminal Court. In their answering affidavit
filed in
response to the application the respondents applied for the
appellants to be committed for contempt of court. (I deal
more fully
with this issue later at paras 46-49.) On 19 June 2006 Legodi J
struck the matter from the roll for want of urgency
and ordered that
the matter be heard by a full court. (This is the application with
which we are concerned in this appeal – the
12 June 2006
application.)
[13] A few days
afterwards, on 22 June, yet another application was launched – this
time in the name of the ‘Society for the
Protection of Our
Constitution’. The notice of motion sought relief similar to that
claimed in the application that Legodi J
struck from the roll. The
matter came before Southwood J who also struck the matter from the
roll.
[
14] The
matter was duly enrolled before the full court, which directed that
the various applications be consolidated so as to be
heard together.
The appellants filed a consolidated record compromising 12 volumes in
compliance with the court’s directions.
The court heard argument on
25 August 2006 and delivered its judgment on 16 February 2007.
[
15] It
is apparent that in considering the relief sought by the first
appellant, the court below had regard only to the evidence
that
appeared from the papers in the 12 June 2006 application – not any
other evidence that was contained in the various applications
that
were part of the consolidated record. In this court the appellant
filed a consolidated record of all the applications that
were
consolidated before the full court. On 4 November 2008 the
matter was struck from the roll mainly for the reason that
the
appellants had failed to comply with the rules of this court relating
to the record on appeal. During the hearing it emerged
that only
three of the twelve volumes were relevant for the adjudication of the
appeal.
4
[
16] The
matter was re-enrolled for hearing in this court on 16 February 2009.
The application for the appeal to be reinstated, this
time with a
shortened record, was granted. However, as part of the reinstatement
application the first appellant applied for leave
to place further
documentary evidence, which had been part of the consolidated record
but not of the 12 June 2006 application,
before this court. (It
was contained in the application brought by the Society for the
Protection of Our Constitution). The evidence
was required to support
the contention that Rashid had been removed from the country because
he was being sought for his alleged
connection with international
terrorism. There were two pieces of evidence that they sought to have
admitted for this purpose:
first, the statement of the Pakistan High
Commission issued on 14 June 2006 which reads:
‘
Mr Khalid Mahmood, a
Pakistani national was arrested by South African Authorities on 31
October 2005. Mr Khalid Mahmood was wanted
in Pakistan for his
suspected links with terrorism and other anti state elements. The
suspect was handed over to Government of
Pakistan officials on 6
November 2005. Presently he is in custody of (the) Government of
Pakistan.’
The second item
of evidence was
a
letter apparently written by an Advocate Malik of the Pakistan High
Court. (The letter is addressed to Dr Mary Rayner outlining
their
efforts to secure Rashid’s release in the Lahore High Court
Rawalpindi).
[
17] The
difficulty for the first appellant was that his attorneys did not
bring a proper application, supported by a reasonably
sufficient
explanation for not having included the evidence in its founding
affidavit, or outline any special reason for the court
to grant this
relief.
5
In the circumstances the evidence could not be admitted and will be
disregarded for the purposes of deciding this appeal.
[
18] The
full court was asked to decide whether:
t
he
respondents ought first to have invoked the procedure provided for
in s 8 of the Act before arresting Rashid;
t
he
respondents’ failure to obtain a warrant for Rashid’s
deportation rendered the deportation unlawful;
t
he
respondents purportedly used a deportation procedure to achieve an
ulterior and unlawful purpose – the extradition of Rashid
as an
‘international terrorist’ under the guise that they were
deporting an illegal foreigner. (In other words the court
was asked
to decide whether the deportation constituted a ‘disguised
extradition’);
Rashid’s
disappearance after his arrest constituted an ‘enforced
disappearance of persons’ as contemplated in Article 7(1)(i)
of
the Rome Statute of the International Criminal Court – and thus a
‘crime against humanity’;
b
y
annexing a document to the first appellant’s founding affidavit,
apparently in violation of a court order, the appellants
were in
contempt of court.
[19] The court
decided these issues against the appellants, but did not deal with
the argument advanced by the
amicus
concerning
the respondents’ alleged failure to obtain a deportation warrant.
[20] Before I
deal with each issue I outline what the law requires when disputes
regarding deportations arise. Deportation is a
unilateral act of the
deporting state to remove a foreigner, who has no right or
entitlement to be in its territory. Its purpose
is achieved when the
foreigner leaves the deporting state’s territory. The authority of
and constraints on the state to deport
people is to be found in the
Immigration Act 13 of 2002
6
and the Immigration Regulations made by the Minister under s 7 of the
Act.
7
For a deportation to be carried out lawfully, the ‘action or
procedure’ used to facilitate an illegal foreigner’s removal
from
the country must be done in ‘terms of the Act’.
8
[21] A decision
to deport someone often carries far-reaching consequences – it
concerns that person’s livelihood, security,
freedom and,
sometimes, his or her very survival. This is why immigration laws,
often harsh and severe in their operation, contain
safeguards to
ensure that people who are alleged to fall within their reach are
dealt with properly and in a manner that protects
their human rights.
Our courts have thus stressed
‘
.
. . t
he
duty which lies on officials entrusted with the administration of the
immigration laws . . . of observing strictly and punctiliously
the
safeguards created by the Act.’
9
[22] An act of
deportation does not necessarily involve the loss of a deportee’s
liberty, but it usually does – as in this case,
where it is
preceded by arrest and detention. And because every deprivation of
liberty is presumptively unlawful the respondents
bear the onus to
adduce sufficient facts to justify their actions.
10
This is so also in motion proceedings – as an exception to the
general requirement that the applicant must disclose its entire
case
in the founding affidavit.
11
There is good reason for this approach, especially in the present
case where a person on whose behalf the application was launched
is
alleged to have disappeared and is himself unable to depose to an
affidavit. Moreover, the respondents alone know the true facts

concerning the detention and deportation. The appellants have, in
their founding affidavit, squarely placed the lawfulness of Rashid’s

arrest, detention and deportation in issue – the respondents must
therefore prove that they acted lawfully.
12
[
23] It
is convenient, at this stage, to outline the scheme of the relevant
provisions of the Act (and regulations) that bear on
this appeal. The
provisions of the Act are ss 1, 8, 32, 34 and 41 and they are
interrelated. Section 1 defines an ‘
illegal
foreigner
’
as:
‘
A
foreigner who is in the Republic in contravention of this Act.’
Unless an
illegal foreigner has the written authorization of the
Director-General to be in the country pending his application for
a
status he must be deported. (Section 32)
[24] Section
41(1) is concerned with the verification of the identity and status
of persons suspected of being illegal foreigners.
13
To this end an immigration officer or police officer who reasonably
suspects a person to be an illegal foreigner may interview
that
person about his identity and status and hold him in custody briefly
for this purpose. If necessary, the person may be detained
in terms
of s 34(2) for a period not exceeding 48 hours during the
verification exercise.
14
In performing this function the officer must gain access to relevant
documents; or contact persons who may be of assistance; and
access
departmental records.
15
The detention contemplated in s 34(2) must be by warrant addressed to
the station commissioner or head of a detention facility.
16
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.
17
[
25] However,
the s 41 process may only be used in cases involving persons who are
suspected of being illegal foreigners. Where an
immigration officer
has decided, as a fact, that the person concerned is an illegal
foreigner the officer must consider what to
do next. He may either
arrest the illegal foreigner without a warrant and then detain him in
terms of s 34(1) for deportation or,
in terms of s 8(1), inform the
foreigner concerned in the prescribed manner that he is entitled to
make representations to the
Minister within three days to review his
determination as an illegal foreigner.
18
The illegal foreigner may not be deported before the Minister’s
decision is made.
19
It must be emphasised that s 34(1) confers on an officer a discretion
whether or not to effect an arrest or detention of an illegal

foreigner. There is no obligation to do so. If the officer exercises
his discretion to arrest and detain a foreigner and it then

transpires that the foreigner concerned is in fact not illegally in
the country, the arrest and detention would have been unlawful
– as
it would have been if the officer had failed to exercise his
discretion properly or at all.
20
[26] Once an
illegal foreigner is arrested and detained in terms of s 34(1) the
Act and regulations contain safeguards to protect
that person’s
rights. He must upon arrest or immediately thereafter be notified in
writing of the decision to deport him; of
his right to appeal the
decision and also of his right to request that his detention be
confirmed by warrant issued by a court
within 48 hours. If the
warrant is not issued he must be released immediately.
21
In addition, and although not mentioned in the Act or regulations,
detained illegal foreigners are beneficiaries of rights under
s 12(1)
and s 35(2) of the Constitution.
22
The arrested person’s detention must be by means of a warrant
issued by an immigration officer authorizing the station commissioner

or head of the detention facility to detain him.
23
Where the authorities intend to detain an illegal foreigner for
longer than 30 days, they must obtain, from a court, a warrant
which
may on good and reasonable grounds be extended for a period not
exceeding 90 days.
24
The person must be held in compliance with minimum standards
protecting his dignity and human rights.
25
Once detained an illegal foreigner’s release may be effected only
by written authority of an immigration officer as contemplated
in s
34(7) of the Act or if a court so orders.
26
[27] Section 8
of the Act provides for review and appeal procedures and deals with
people who are refused entry into the country
and those who are found
to be illegal foreigners.
27
In this appeal we are concerned only with the latter category. I have
mentioned earlier that the effect of s 8(1) is that once
an
immigration officer finds that a person is an illegal foreigner, he
must inform the foreigner concerned of his right to make

representations to the Minister. In terms of s 8(3) any decision
other than one contemplated in s 8(1) (a finding by an immigration

officer that a person is an illegal foreigner), which adversely and
materially affects the rights of any person, must be communicated
in
writing to the person concerned. In my view, a decision to deport a
person falls within the purview of this sub-section. A decision
of
this nature, and the reasons for it, must be communicated in writing
to the affected person promptly. The notification must
also inform
the person that he may, within 10 working days, make representations
to the Director-General for a review or appeal
of the decision.
28
An aggrieved applicant who has made written representations to the
Director-General in terms of s 8(4), may, if still unhappy with
the
outcome, make further representations to the Minister.
29
[
28] It
is apparent that s 8 is concerned only with appeals and reviews and
s 34(1) with the arrest, detention and deportation
of illegal
foreigners. The review procedure contemplated in s 8(1) applies only
when an illegal foreigner has not been arrested
for deportation
purposes. A right of review or appeal of any other decision
contemplated in s 8(3), including the decision to deport
an illegal
foreigner, which adversely affects the rights of any person are
clearly applicable to all people, whether or not they
are in custody.
[
29] I
revert to the first issue. The appellants and
amicus
curiae
submitted
that the provisions of s 8 of the Act ought to have been invoked
before Rashid was arrested.
[
30] The
source of the contention that s 8 procedures providing for appeal and
review must be applied before an arrest is effected
under s 34(1)
is a trilogy of decisions of the Pretoria High Court. The first was
Arisukwu
& others v Minister of Home Affairs
30
where
De
Villiers J held that the s 9 of the Aliens Control Act 96 of 1991,
must be complied with before an illegal alien may be detained
in
terms of s 44(1)(a) of that Act. (These provisions are the
predecessors of s 8 and s 34 in the current Act.) This was followed

by judgments of Southwood J in
Muhammed
v Minister of Home Affairs & others
31
and Bertelsman J in
Khan
v Minister of Home Affairs.
32
In the latter case the learned judge held that:
‘
(O)nce
an official
ha(s)
decided that a foreigner was illegally in the country and the
foreigner ha(s) been informed of that fact, the foreigner must
be
informed of his rights in terms of the relevant section. The
foreigner is entitled, as a matter of law, not to be detained
immediately after his having been informed of the decision to deport
him, but to exercise his rights either to appeal to the Minister
or
to apply to the Director-General to review or appeal the decision to
deport him either in terms of s 8(1) and s 8(2) or
s 8(4)
without and before being incarcerated.’
[
31] A
contrary view was adopted by Mabuse AJ in
Abid
Ali & others v Minister of Home Affairs & others
33
who held that an illegal foreigner has no right not to be detained in
terms of s 34(1) while he is being dealt with under s 8.
The
full court approved of Mabuse AJ’s approach and disagreed with the
judgments that preceded it. In
Ulde
v Minister of Home Affairs
34
Sutherland AJ,
considered himself bound by the full court. His view captures the
essence of the difference between the approach
in these cases and
that of the earlier trilogy:
‘
Section
8 does not address an arrest. Section 34 does.
It
is a decision that a person is an illegal immigrant and in turn the
decision to deport that triggers s 8. The notion that a s
8 notice
must be given for an arrest to be valid is not warranted.’
35
[
32] The
first appellant’s contention that a person may not be arrested or
detained in terms of s 34(1) until he has been permitted
to exhaust
his right of appeal and review is, in my view, not only contrary to
the scheme of the Act but would, if upheld, effectively
render s
34(1) nugatory. This may be illustrated by a simple example, which
regrettably, is common place in this country. A person
enters the
country illegally and fraudulently obtains documents which appear to
authorize his presence here. An immigration officer
examines the
documents, realises that they are forgeries, and having failed to
obtain a satisfactory explanation for them decides
that the person is
an illegal foreigner who is liable for deportation. The officer
proceeds to arrest and detain him. The submission
that s 8 must be
invoked before such a person may be arrested and detained for the
purposes of deportation, effectively means that
the fraudster is
entitled not to be arrested and detained until he has exhausted his
right of appeal and review in terms of s 8.
If on the other hand a
person has been found to be an illegal foreigner and an officer
decides not to arrest him, it would rarely
be necessary to arrest him
after the appeal or review process is finalised. In the event that
his appeal or review fails, the foreigner
concerned is likely to
depart voluntarily, without the need for an arrest and detention.
[33] But there
is a more telling reason why this submission is unsustainable.
Section 41(1), as I have mentioned, read with s 34(2),
permits the
detention of a suspected illegal foreigner for a period not exceeding
48 hours while his status is being verified.
And s 34(1) permits the
arrest and detention of an illegal foreigner for deportation
purposes. The consequence of the submission
is that a suspected
illegal foreigner can be taken into custody – but not a person who
is found in fact to be an illegal foreigner
because, as it is
submitted, he may not to be arrested until he has exhausted his right
of appeal or review under s 8. This is
an absurdity that the
legislature could not have contemplated.
[
34] To
recapitulate, a decision that a person is an illegal foreigner
triggers his right to appeal or review that decision. It may
also
cause an arrest and detention for the purposes of deportation, but
need not.
36
The decision to arrest and detain an illegal foreigner for the
purposes of deportation is a discretionary one. It does not detract

from any of the alleged foreigner’s rights under s 8 and is not
contingent upon his decision whether or not to exercise them.
I
conclude that the judgment of the full court on this aspect is, with
respect, correct and the trilogy of cases which are relied
upon in
support of the contrary view not.
[
35] I
turn to the next issue. The first appellant and
amicus
curiae
contended that Rashid’s arrest, detention and deportation were
unlawful because of the failure of the respondents to comply with
the
peremptory requirements of the Act. Concerning the arrest, detention
and deportation the respondents were, at the very minimum,
required
to prove that:
the arresting officer arrested a person who is an
illegal foreigner as defined in s 1;
the detention was, as reg 28(1) prescribes, by means of
a warrant corresponding to Form 28;
the detainee
was informed promptly, in writing at the time or soon thereafter in
terms of s 34(1) read with reg 28(2), and on
a form corresponding to
Form 29, what the reason(s) for his intended deportation were; that
he may in terms of s 34(1)(a) appeal
against the decision to deport
him and also, in terms of s 34(1)(b) to request his detention to be
confirmed by a warrant of
a court. (If the warrant is not issued
within 48 hours of such request, he must be released); and
(iv)
the
detained illegal foreigner’s removal from custody for deportation
was effected in terms of s 34(7) read with reg 28(9) through
the
issue of a warrant, corresponding to Form 35, by an immigration
officer addressed to the person in charge of the detention
facility.
(As proof that the person removed from detention and deported through
a port of entry is in fact the person whose name
appears in the
warrant, the Form makes provision for a left and right thumb print of
the deportee to be taken and also the identification
of the port of
entry from which the deportation will be carried out. This is to
ensure that there is a proper record of the identity
of the illegal
foreigner and the place from where he was deported. Its purpose is
also to protect the Department from unwarranted
allegations.)
37
[36] De Freitas
arrested Rashid on 31 October 2005 to, in his words, ‘facilitate
his deportation under s 34 (and) it was decided
to detain him at the
Cullinan Police cells, pending further investigation and compliance
with the formalities prescribed in the
Act’.
[
37] At
the time of his arrest Rashid was an illegal foreigner and on that
basis, absent any attack on the exercise of the arresting
officer’s
discretion, his arrest was authorised by the section. In respect of
the other formalities prescribed by the Act the
facts show a
lamentable disregard for them. On the respondents’ own showing:
Rashid was detained without a warrant;
Form 29 was
given to him almost two days after his arrest – not promptly as s
34(1)I requires; and the respondents provide no
explanation for the
delay. (It was suggested in argument by counsel for the respondents
that there was in fact no delay as Rashid
was being dealt with under
s 41(1). De Freitas’s affidavit, however, makes clear that Rashid
was arrested immediately in terms
of s 34(1). He makes no reference
to s41(1)).
No warrant was
obtained for his removal from the Cullinan Police Station for the
purposes of his deportation; and
He was not
deported from a port of entry that the Minister had designated for
this purpose in terms of s 1 of the Act. I should
point out that the
full court accepted the respondents’ denial that Waterkloof Air
Base was not a designated port of entry.
But it erred in this
regard. The respondents were required to prove that the Airbase was
a designated port of entry as contemplated
in s 1 of the Act. They
failed to do so.
38
[38] In the
view I take it is not necessary to deal with what legal consequences,
if any, flow from the failure of the respondents
to warn Rashid of
his rights under s 34(1)(a) and s 34(1)(b) promptly after his arrest
or their failure to prove that he was deported
through a designated
port of entry. For present purposes, the fact that Rashid was
detained at the Cullinan Police Station without
a warrant and then
removed from this facility, also without a warrant, means that both
his detention there and his deportation
were unlawful.
[39] It is
true, as counsel for the respondents contended, that the failure of
the respondents to comply with the regulations, at
least in respect
of Rashid’s deportation, was not raised pertinently on the papers.
But, it does not follow, as counsel for the
respondents sought to
contend, that this failure precludes the point being raised before
this court as a point of law. As I have
mentioned, the respondents
bore the onus to prove that the detention and deportation were
lawful. And once the first appellant
had placed the lawfulness of the
detention and deportation in issue, the respondents were required, at
the very minimum, to adduce
sufficient facts to prove that every
procedural requirement, including the issue of the necessary
warrants, was complied with.
[40] The first
appellant and
amicus
raised another important challenge to Rashid’s deportation. They
contended that his deportation to Pakistan was the result of
a
request to the South African Government from the Government of
Pakistan or some other state, because of his alleged links with

international terrorism. His deportation, so it is contended,
therefore constituted an unlawful disguised extradition.
39
A variation of this argument is that the deportation was
constitutionally offensive because the South African Government
failed
to secure an assurance from Pakistan that Rashid would not be
tortured or sentenced to death if put on trial. The challenge failed

before the full court on the ground that the respondents were not
shown, on the admissible evidence, to have been aware that Rashid
was
being sought because of his alleged connection with international
terrorism at the time of his deportation.
40
[41] Although
the circumstances of Rashid’s deportation from the country are
troubling, the first appellant did not make out a
case for a
disguised extradition in his founding papers. His case is that Rashid
is not an illegal foreigner (I have already found
that he was) and
that:
‘
The
real reason for the unlawful arrest, detention and deportation of Mr
Rashid, which was never frankly disclosed
. . . was the
request
by the British Authority /Intelligence following upon their
suspicion
that
Mr Rashid was suspected of having
links
to International Terrorist Networks.’
[42] Be that as
it may, the only evidence to support this allegation directly is the
first page of a document emanating from a file
of the respondents.
The document became a hotly contested issue after the appellants had
annexed it to the founding papers before
the full court, apparently
in violation of a court order of Poswa J issued on 14 May 2006.
The circumstances under which the
file containing the document was
placed before Poswa J are not explained in the papers before us. The
document linked Rashid to
international terrorism and appears to be
part of a report on Rashid’s arrest which, according to the
respondents, formed ‘a
part of the notes by an employee of the
first respondent for the purposes of briefing counsel’.
[4
3] In
summary the document reveals that a member of the South African
Police Service Crime Intelligence Unit, Captain Moses, contacted
De
Freitas to assist in arresting a suspected illegal foreigner. De
Freitas referred him to his supervisor, Mr Chembayan. Moses
then
contacted Chembayan and told him that he required De Freitas’s help
to track down the Pakistani national ‘who was suspected
of having
links with International Terrorist Networks abroad’. He also told
Chembayan that due to the ‘sensitive nature of
the case’ it was
being ‘handled at Ministerial level’. Chembayan authorized De
Freitas’s participation in the operation.
The following day, on 31
October, Moses collected De Freitas at the Durban Central Police
Station from where they proceeded to
Estcourt in search of the
suspected illegal foreigner. On route Moses indicated that the
suspect was ‘wanted by the British Authorities
for having links
with international terrorist Networks’, but made no mention of the
suspect’s nationality.
[
44] The
full court struck out the contents of the founding affidavit upon
which this report was based on the grounds that the appellants
had
published it in violation of Poswa J’s court order of 14 May 2006.
[
45] The
document is incomplete, unsigned and its author unknown.
Ex
facie
the statement the information it contains constitutes inadmissible
hearsay evidence. Moreover, it does not suggest that Rashid
was
wanted for questioning in Pakistan. In those circumstances there was
no basis for the suggestion, in argument, that the deportation
was
actually a disguised extradition. In my view, the contents of the
document are not only unreliable but do not advance the first

appellant’s case that he now seeks to make.
[
46] I
turn to deal with the next issue – whether the appellants were
properly convicted of contempt of court arising from their
use of the
controversial document in support of their application. On 15 May
2006, Poswa J prohibited publication of the file’s
contents
(mentioned earlier in connection with the disguised extradition
argument) and ordered its return to the Department. The
order read:
‘
1.
That there shall be no publication of the contents of the affidavit
for the intended application for intervention as
amicus
curiae
and annexures whatsoever.
That there shall be no
publication of the contents of the file of the Department of Home
Affairs.
That the file shall be restored
to the representative of the respondent.’
[
47] The
order, which was issued by the registrar, is clear in its terms.
Nevertheless, in the present proceedings the appellants
annexed the
document to the founding affidavit to support the allegation that
Rashid was deported because of his alleged involvement
with
international terrorism. The respondents, in addition to filing an
answering affidavit on the merits in the 12 June 2006 application,

lodged a counter-application for the appellants to be committed for
contempt of court because of their use of the document in apparent

disregard of the court order. However, in their answering affidavit
filed in response to the respondents’ counter-application,
Mr Omar
avers that Poswa J stated in court that the prohibition on
publication did not prevent him from using the contents
of the file
in any other proceedings. The respondents do not deny this averment
and for present purposes it must be accepted.
[48] Mr Omar,
however, took a further precaution by instituting proceedings before
Poswa J, before the full court heard the matter,
for his order to be
corrected so as to confirm the appellants’ understanding of it.
Having heard the party’s submissions the
judge upheld the
appellants’ contentions and amended the order on 8 August 2006. The
relevant amendment was contained in paragraph
4 of the amended order.
It reads as follows:
‘
4.
Orders
1 and 2 above shall not prohibit use of the file of the Department of
Home Affairs in the advancement of any other court
proceedings. The
orders in 1 and 2 above shall endure until judgment by this court in
these proceedings.’
[
49] The
full court took the view that the amended order had no bearing on the
original prohibition against the usage of the contents
of the file
before any other court.
41
But it seems that this is precisely what Poswa J intended. The
appellants’ use of the document before the full court, therefore,

did not violate his order. It follows that the appellants were
incorrectly convicted of contempt of court.
[
50] The
last issue to be decided is whether the manner of Rashid’s removal
from South Africa constituted a ‘crime against humanity’
under
Article 7(1)(i) of Part 2 of the Rome Statute of the International
Criminal Court because it was an ‘enforced disappearance’.
The
Rome Statute sets a threshold for a crime to be elevated to the level
of a ‘crime against humanity’. The criminal act must
be committed
with specific intent and be ‘part of a widespread or systematic
attack directed at a civilian population’.
42
Article (2)(i) defines ‘enforced disappearance of persons’ as
‘the arrest, detention, abduction, of persons by, or with the

authorization, support, or acquiescence of, a State or political
organization, followed by a refusal to acknowledge that deprivation

of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection
of
the law for a prolonged period of time’. For present purposes, even
if I were to accept that the circumstances of Rashid’s
removal
from South Africa does fall within this definition (which I do not
because the definition refers to ‘persons’, not
a person), there
can be no suggestion that removing a single person from a country
meets the threshold level for a ‘crime against
humanity’. This
contention must fail.
[51] I turn to
the question of costs. In the reinstatement application, Mr Omar
contended that the order of this court on 27
November 2008 that he
pay the wasted costs
de
bonis propiis
relating to the record on appeal which had been struck from the roll,
be reconsidered because it was interlocutory in nature. The

submission is without merit. An order striking a matter from the roll
with costs is final in effect and cannot be reconsidered.
[
52] The
amicus
contended
that the respondents ought to pay their costs for having unreasonably
opposed their application to be admitted as
amicus
curiae
in this court
.
In this matter the submissions of the
amicus
were
of considerable assistance to the court. There were no proper grounds
for opposing its application and I agree that it is appropriate
that
the respondents pay such costs.
[
53] To
conclude, Rashid’s arrest was lawful but his detention and
deportation were not because they were carried out without compliance

with the peremptory procedures prescribed by the Act. We were
informed from the bar that Rashid was released from the custody of

the Pakistani authorities in December 2007. The appellants have
accordingly abandoned the relief sought for an order declaring
that
the government conduct an investigation while Rashid’s fate was not
clarified. The appellants have, in the main, been successful
in this
appeal and it follows that they are entitled to their costs.
[
54] I
must express our gratitude to the
amicus
curiae
for
its assistance to us.
[
55] The
following order is made:
1.
The
appeal is upheld with costs;
2.
The
convictions and sentences of the appellants for contempt of court are
set aside;
3.
The
respondents are to pay the costs occasioned by their opposition to
the application for the admission of the
amicus
curiae
;
4.
The
order of the court below is set aside and in its place the following
is substituted:
‘
a.
the
detention of Khalid Mahmood Rashid at Cullinan Police Station and his
subsequent removal and deportation are declared to have
been
unlawful;
b.
The
respondents are to pay the costs of the application;
c.
The
counter-application is dismissed with costs.’
_________________
A CACHALIA
JUDGE OF APPEAL
PONNAN JA
(Streicher JA et Hurt AJA concurring
)
[56
] I
have read the judgment of my colleague Cachalia. I take a far
narrower approach to the matter. Although there had been a
proliferation
of applications and counter-applications involving
essentially the same issues, the matter ultimately came to be
decided, at the
direction of the learned Judge President, by a
specially constituted court consisting of three judges (Ngoepe JP,
Pretorius J and
Snijmann AJ), on the basis of just one of the many
applications that served before them. It is noteworthy that the
founding and
answering affidavits in the matter comprise a single
volume of less than 120 pages. That matter serves before us on appeal
on the
basis of leave having been granted by this court. We are thus
constrained by that record, which I may add, does not contain a
replying
affidavit.
[57
] A
useful starting point is the allegations made in the affidavits filed
of record in the matter. To my mind, the crux of the first

appellant’s case is to be found in paragraph 24 of the founding
affidavit, which reads:
'NOTEWORTHY
is that Mr. De Freitas, who at all material times worked in the
course and scope of his employment with the First Respondent

immediately arrested, detained and later deported Mr. Rashid
following upon the said Mr. De Freitas having declared Mr. Rashid
an
"illegal foreigner". Mr. Rashid was not afforded the rights
contemplated in Section 8(1) and (2) of Act 13 of 2002,
more
specifically to appeal/ make representations challenging the decision
to
declare
him (Mr. Rashid) an 'illegal foreigner". The adverse consequence
of being declared "an illegal foreigner" is that
an
"illegal foreigner" may be arrested, detained and deported.
I respectfully say that the "legislature" intended
that the
procedure in Section 8(1) and (2) of Act 13 of 2002
must
be followed
before
arrest and detention in terms of Section 34 of Act 13 of 2002. The
arrest and detention of Mr. Rashid on the 31
st
October 2005 is / was therefore unlawful.
. . . .
The response it elicited was:
‘
In the light of the facts
before court, the affidavits of De Freitas and Swartland I do not
understand on what basis the deponent
makes the allegations in this
paragraph. He has no personal knowledge of what happened to Khalid
after his arrest. The rest of
the contents of this paragraph are
argumentative, speculative and incapable of traverse. Questions of
interpretation of the Act
will be dealt with at the hearing of this
matter.’
[58
] Earlier
in the answering affidavit filed on behalf of the respondents, the
following appears:
‘
Khalid's arrest and detention
were effected pursuant to information that the Department had
received that he was an illegal foreigner,
residing in Estcourt. On
31 October 2005, Anthony de Freitas, who is employed by the
Department as a Senior Immigration Officer
at its offices in Durban,
arrested Khalid in the following circumstances. He went to Khalid's
place of residence, namely, 12 Canna
Avenue, Fordville, Estcourt. As
is often the practice when Department officials effect arrests under
their statutory powers, De
Freitas was accompanied by a number [of]
policemen. On this occasion, the policemen were under the command of
Inspector Arumugan
Munsamy. They were armed and clad in bullet proof
vests, which is the practice employed in such operations. After they
had pronounced
the premises safe to enter, De Freitas went in. There
he found Khalid and Mohamed Ali Ebrahim Moosa Jeebhai ("Jeebhai"),

the deponent to the founding affidavit.
. . .
When De Freitas entered the
premises in which Jeebhai and Khalid were to be found, he asked for
their identification and travel
documents. Khalid said he did not
have any identification papers. He said his passport was in
Johannesburg. But he produced a copy
of the passport. However, no
permit of any nature appeared on the page where his personal
particulars were reflected. It was clear
to De Freitas that Khalid
was an illegal foreigner, as contemplated in the Act. As such, he was
subject to arrest and deportation.
De Freitas informed Khalid that
he was being placed under arrest. The purpose of his arrest was to
facilitate his deportation under
s34 of the Act. In order to
facilitate his deportation, it was decided to detain him at the
Cullinan Police cells, pending further
investigations and compliance
with the formalities prescribed in the Act. Khalid was then
transported to the Cullinan Police cells.
De Freitas accompanied the
police who were responsible for such transportation. After Khalid was
placed in the police cells at
Cullinan, De Freitas returned to
Durban. While at the Cullinan police cells, Khalid was in the custody
of the police members there.
I annex hereto as "JS1" a
confirmatory affidavit of De Freitas.
Swartland, an employee of first
respondent, conducted an investigation into the residence status in
South Africa of Khalid. In his
capacity as the Department's Tshwane
Chief Immigration Officer, he has access to all [the] Department's
records on foreign nationals
in South Africa.
He interviewed Khalid at the
Cullinan Police Station on 2 November 2005. Khalid admitted to
Swartland that he had entered the country
illegally. He then advised
him that, because he was in the country illegally, he was liable to
be deported. As he is required to
do under the Act, he gave Khalid
written notification of his decision to deport him to his country of
origin, namely Pakistan.
He further informed Khalid of his right to
appeal against that decision and to have his detention confirmed by a
warrant of the
Court. These averments are confirmed by the written
notification that he then handed to Khalid, on 2 November 2005. A
copy of that
notification is annexed hereto marked "JS2".
. . .
I may mention
that Khalid's decision in respect of the three matters
43
are entirely consistent with the following. In response to
Swartland's enquiries as to how he had entered the Republic and
secured
a "work permit", Khalid told Swartland the
following: That he had entered the country without a visa, and had
paid an
agent $600 "to get me through the immigration". He
had thereafter paid R7 000.00 to the agent for "a fake work
permit".
Khalid later confirmed the aforegoing in an affidavit.
A copy of the affidavit is annexed hereto, marked "JS3".'
[59
]
Significantly, those allegations are not disputed by or on behalf of
the appellants. Nor, given the nature of the allegations,
could they
be. Absent a referral to oral evidence and there was none here, it
follows that the matter falls to be determined on
the version of the
respondent. On that version they were dealing with a self-confessed
illegal foreigner in Mr Khalid Rashid, who
had by virtue of that fact
rendered himself liable to arrest in terms of s 34(1) of the Act for
the purposes of deportation. I
pause to record that, in my view as
well, the cases, in which it was held that the procedure outlined in
s 8(1) and (2) must be
followed before a person may be arrested in
terms of s 34, were wrongly decided. If a person is an illegal
foreigner he may be
arrested in terms of s 34. An illegal foreigner
is, in terms of s 1, by definition a foreigner who is in the Republic
in contravention
of the Act and not a person who is confirmed to be
an illegal foreigner by the Minister upon review in terms of s 8(2).
Mr Khalid
Rashid, by his own admission, fell within this definition
of ‘illegal foreigner’. Moreover, also on his own version, he had

perpetrated a fraud in order to facilitate his entry into and sojourn
in the Republic. In those circumstances, like Cachalia JA,
I too am
of the view that his arrest was authorised by the Act.
[60
] The
same does not hold true for Mr Rashid’s detention at the Cullinan
Police Station and his subsequent deportation. The receipt
and
subsequent retention of an individual in custody is an exercise of
public power. Any such exercise is constrained by the principle
of
legality.
44
It may thus only occur in terms of lawful authority.
[61] Regulation 28 (1) of the
Immigration Regulations
45
provides:
‘
The detention and deportation
of an illegal foreigner contemplated in section 34(1) of the Act
shall be by means of a warrant issued
by an immigration officer,
which warrant shall substantially correspond to Form 28 contained in
Annexure A.’
Form 28 is headed ‘WARRANT OF DETENTION OF ILLEGAL
FOREIGNER’, and must be addressed to the relevant ‘Station
Commissioner/Head
of Prison or Detention facility’. It reads:
‘
As ………….. (first
name(s) and surname of illegal foreigner) has made *himself/herself
liable to *deportation/removal from
the Republic and for detention
pending such *deportation/removal in terms of section
*34(1)/34(5)/34(8) of the Act, you are hereby
ordered to detain him
or her until such time as *he/she is *deported/removed from the
Republic.’
There then follows designated spaces on the Form for the
‘Signature of [the relevant] immigration officer, ‘Date’ and
‘Official
stamp’.
[62
] Regulation
28(9)(a) provides that the warrants contemplated in s 34(7) of the
Act shall ‘in respect of the removal of an illegal
foreigner, be in
a form substantially corresponding to Form 35’. Form 35 reads:
DEPARTMENT OF HOME AFFAIRS
REPUBLIC OF SOUTH AFRICA
WARRANT FOR REMOVAL OF
DETAINED ILLEGAL FOREIGNER
[Section
7(1)
(g)
read with section 34(7); Regulation 28(9)
(a)
]
TO:
Person
in charge of prison or detention facility
As
............................................................................................................(first
name(s) and
surname), whose fingerprints appear on the reverse side
of this Form, has made *himself/herself liable to removal from the
Republic,
you are hereby requested to deliver *him/her into my
custody.
Removal from the Republic shall
be affected via ........................................... (port of
entry) and the responsible
immigration officer or police officer at
that port of entry shall, before the removal of the detainee, impress
the left and right
thumb prints of the detainee in the space provided
hereunder and certify that the prints were taken by him or her.
....................................................... ..............................................
Signature of immigration
officer Date
Appointment no.:
...................................................
Place:
......................................................................
Reference no.:
.......................................................
CERTIFICATE BY IMMIGRATION
OFFICER
I hereby confirm that the
abovementioned person was removed from the republic on
....................................(date) to
.................................... (country)
via
......................................................(port of
entry).
I also confirm that *his/her
left and right thumb prints were taken by me.
LEFT
THUMB PRINT RIGHT THUMB PRINT
Immigration officer:
........................................................................................
Appointment number:
....................................................................................
Date:
..............................................................................................................
Port of entry:
..................................................................................................
Departure Stamp
[63
] Given
that the deprivation of Mr Rashid’s liberty was prima facie
unlawful, it was for the respondents to justify such deprivation.
46
In this instance, one would have thought that, as a bare minimum, the
respondents would have sought to show compliance with Regulation
28.
It would to my mind have been a relatively simple matter to have
adduced duly completed Forms 28 and 35 as proof of compliance
with
Regulation 28. That the respondents failed to do. After all, it seems
to me that the Regulation 28 safeguards exist, not just
for the
benefit of the illegal foreigner, but also to protect the respondents
against unjustified and unwarranted claims flowing
from detention or
deportation or both. Accordingly, on the view that I take of the
matter, from the time that Mr Rashid was handed
over by De Freitas to
the officials at the Cullinan Police cells until he came to leave the
Republic, the conduct of the state
officials in whose charge he found
himself, was unlawful. It follows that Mr Rashid’s detention and
subsequent deportation was
unlawful.
[64
]
That, ordinarily at any rate, ought to be the end of the matter
certainly insofar as the main issue is concerned. There remains
the
contention ─ which was not pressed with any vigour before us ─
that Mr Rashid’s deportation constituted a disguised extradition.

Although I am by no means persuaded that this is still a live issue
in the current appeal, it may nonetheless be prudent for me
to deal
with it, albeit briefly. Once again the starting point has to be the
founding affidavit. In this regard, the closest that
the founding
affidavit comes to advancing that rather speculative hypothesis is as
follows:
‘
The real
reason for the unlawful arrest, detention and deportation of Mr.
Rashid, which was never frankly disclosed to this Honourable
Court
was the
request
by the British Authority / Intelligence following upon their
suspicion
that Mr. Rashid was suspected of having
links
to International Terrorist Networks. Ironically, the former British
Prime Minister Margaret Thatcher labelled our former president
Madiba
(Nelson Mandela) a terrorist. Madiba, was conferred the status of
"Icon" approximately three years ago. British
Authority and
particularly the British Prime Minister were clearly wrong in
labelling Madiba a terrorist, particularly because
not too long ago
the same Madiba was awarded an International Nobel Peace Prize. Mr.
Rashid was not linked to any International
Terrorist Network nor was
Mr. Rashid suspected of having committed a crime anywhere in the
world including South Africa.'
The response, unsurprisingly was:
I deny that the real reason for
the arrest of Khalid was not disclosed. Khalid was an illegal
foreigner who had entered the country
through illegal means including
fraud and corruption in that he paid money to buy both a visa and a
permit. The Act referred to
above empowers first respondent to
arrest, detain and deport an illegal foreigner. That is the basis on
which Khalid was deported
from South Africa. The rest of the contents
of this paragraph are polemic, vague, irrelevant and incapable of
traverse.'
[65
] Without
more and given the nature of the factual dispute, had those
juxtaposed paragraphs stood in isolation, the issue of the
alleged
disguised extradition would have been resolved against the first
appellant. But, in the paragraph of the founding affidavit

immediately preceding that under consideration, the following
appears:
‘
"MV9"
47
hereto is the first page of a report supplied to the First respondent
about the "arrest" of Mr. Rashid by the SAPS Crime

Intelligence Unit Durban. Noteworthy is the concluding paragraph on
"MV9" more specifically:-
" ... That the suspected
illegal foreigner to be arrested in Estcourt (referring to Mr.
Rashid) was wanted by the British Authority
for having links to
International Terrorist Networks abroad ..." ‘.
The response it elicited was:
‘
The report referred to in
this paragraph is also part of the notes by an employee of first
respondent drawn for the purposes of
briefing counsel. The notes are
privileged and inadmissible and should have never have been used or
annexed to this application.
The use of all these documents in
contempt of a court order shows how desperate deponent is to buy
publicity.’
It is thus necessary to subject MV9 to greater scrutiny
to ascertain whether it materially advances the first appellant’s
case
in this regard.
[66
]
For the reasons that follow, I am of the view that no evidential
weight can be attached to MV9. First, on the first appellant’s
own
showing, it is only the first page of a report. Second, the statement
is unsworn and unsigned and there is, moreover, no evidence
as to the
identity of its author. Third, ex facie the statement, the
information it contains constitutes inadmissible hearsay evidence.

Fourth, even if it be shown to have been made by an official in
another arm of state, MV9 could hardly be binding on the first

respondent, absent an admission by her of the truth of its contents.
Fifth, if agents of the South African state were acting at
the behest
of British Authorities in securing Mr Rashid’s arrest ─ as the
document asserts – it is incomprehensible and indeed
would appear
to be inconceivable, that they would have simply handed him over to
the Pakistani authorities. I thus remain unpersuaded
that such
evidence as there is (namely the reliance on MV9) – which to my
mind is neither reliable nor credible and stands to
be disregarded in
its entirety - supports the inference sought to be advanced by the
first appellant.
[67
] I
agree with Cachalia JA that the contempt of court conviction cannot
stand and that the respondents’ counter-application in
that regard
should accordingly have been dismissed with costs by the court below.
I likewise agree with his approach to costs.
In the result, I agree
with the order proposed by my learned Colleague.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
COUNSEL
FOR APPELLANT: Z Omar (Attorney)
Amicus
Curiae: A Katz; M du Plessis
INSTRUCTED
BY: Zehir Omar Attorneys; Springs
Amicus
Curiae: WITS Law Clinic, Johannesburg
CORRESPONDENT: Goodrick
& Franklin; Bloemfontein
Amicus
Curiae: Matsepes Inc., Bloemfontein
COUNSEL FOR
RESPONDENT: P M Mtshaulana SC; G Bofilatos
INSTRUCTED
BY:
The
State Attorneys; Pretoria
CORRESPONDENT:
The
State Attorneys; Bloemfontein
1
The judgment of the full court is reported as
Jeebhai v Minister
of Home Affairs & another
2007 (4) SA 294
(T).
2
‘Immigration Regulations, GN R616,
GG
27725, 27 June 2005.’
The notice complies with Form 29.
3
See judgment of the full court below cited above at n1 para 11.
4
Jeebhai v Minister of Home Affairs
(139/08)
[2008] ZASCA 160
(27 November 2008).
5
Section 22 of the Supreme Court Act 59 of 1959; P B J Farlam & D
E Van Loggenberg
Erasmus-Superior Court Practice
30 ed
A1-55-56.
6
As amended by the
Immigration Amendment Act 19 of 2004
.
7
‘Immigration Regulations, GN R616,
GG
27725 of 27 June
2005.’
8
Section 1 defines ‘deport or deportation’ to mean ‘the action
or procedure aimed at causing an illegal foreigner to leave
the
Republic in terms of the Act’.
9
See Blackwell J in
Kazee v Principal Immigration Officer
1954
(3) SA 759
(W) p 763A.
10
Minister of Law and Order v Hurley
1986 (3) SA 568
(A) p
589E-F;
Zealand v Minister of Justice and Constitutional
Development & another
2008 (2) SACR 1
(CC);
[2008] ZACC 3
para [25].
11
Minister Van Wet en Orde v Matshoba
1990 (1) SA 280
(A) p
294B-D.
12
See
Matshoba
above at p 296B-D
.
13
Section 41(1) provides: ‘Identification –
When so requested by an
immigration officer or a police officer, any person shall identify
himself or herself as a citizen, permanent
resident or foreigner,
and if on reasonable grounds such immigration officer or police
officer is not satisfied that such person
is entitled to be in the
Republic, such person may be interviewed by an immigration officer
or a police officer about his or
her identity or status, and such
immigration officer or police officer may take such person into
custody without a warrant, and
shall take reasonable steps, as may
be prescribed, to assist the person in verifying his or her identity
or status, and thereafter,
if necessary detain him or her in terms
of section 34.’
14
Section 34(2) provides: ‘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 p.m.
of the first
following court day.’
15
Regulation 32.
16
Regulation 28(7) read with a form substantially complying with Form
33.
17
Section 34(1) provides: ‘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 her or she understands;
. . .’
18
Section 8(1)(b) read with reg 5(1). The request is submitted on a
form substantially corresponding to Form 1.
19
Section 8(2)(b).
20
Lawyers for Human Rights v Minister of Home Affairs
2003 (8)
BCLR 891
(T) p 896.
21
Section 34(1)(a), (b) and (c). In terms of reg 28(2) the
notification of the deportation of an illegal foreigner contemplated

in s 34(1)(a) shall be in a form substantially corresponding to Form
29. The form does not make provision for the detainee to
be informed
of his constitutional rights under s 35(2) of the Constitution.
22
Lawyers for Human Rights & another v Minister of Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC) para 27.
23
Regulation 28(1) read with Form 28.
24
Section 34(1)(d).
25
Section 34(1((e).
26
Section 34(7) provides: ‘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.’
27
Section 8 provides: ‘
Review
and appeal procedures
(1) An
immigration officer who refuses entry to any person or finds any
person to be an illegal foreigner shall inform that person
on the
prescribed form that he or she may in writing request the Minister
to review that decision and-
(a)
if
he or she arrived by means of a conveyance which is on the point of
departing and is not to call at any
other port of entry in the
Republic, that request shall without delay be submitted to the
Minister; or
(b)
in
any other case than the one provided for in paragraph
(a)
, that request shall
be submitted to the Minister within three days after that decision.
(2) A
person who was refused entry or was found to be an illegal foreigner
and who has requested a review of such a decision-
(a)
in
a case contemplated in subsection (1)
(a)
, and who has not
received an answer to his or her request by the time the relevant
conveyance departs, shall depart on that conveyance
and shall await
the outcome of the review outside the Republic; or
(b)
in
a case contemplated in subsection (1)
(b)
, shall not be removed
from the Republic before the Minister has confirmed the relevant
decision.
(3) Any
decision in terms of this Act, other than a decision contemplated in
subsection (1), that materially and adversely affects
the rights of
any person, shall be communicated to that person in the prescribed
manner and shall be accompanied by the reasons
for that decision.
(4) An
applicant aggrieved by a decision contemplated in subsection (3)
may, within 10 working days from receipt of the notification

contemplated in subsection (3), make an application in the
prescribed manner to the Director-General for the review or appeal

of that decision.
(5) The
Director-General shall consider the application contemplated in
subsection (4), whereafter he or she shall either confirm,
reverse
or modify that decision.
(6) An
applicant aggrieved by a decision of the Director-General
contemplated in subsection (5) may, within 10 working days of

receipt of that decision, make an application in the prescribed
manner to the Minister for the review or appeal of that decision.
(7) The Minister shall consider the application
contemplated in subsection (6), whereafter he or she shall either
confirm, reverse
or modify that decision.’
28
Read with reg 5(2) and Form
2. Form 2
makes reference only to a
review and has erroneously omitted the reference to an appeal.
29
Section 8(6).
30
2003 (6) SA 599
(T).
31
[2007] JOL 18935
(T).
32
[2007] JOL 18958
(T) at p 18.
33
TPD case No. 36405/06 (Unreported). It appears that the cases
mentioned earlier dealing with this point were not brought to the

learned judge’s attention, as he made no mention of them in his
judgment. This is troubling because he would have been bound
to
follow those judgments unless satisfied that they were clearly
wrong.
34
2008 (6) SA 483
(W) paras 33-34.
35
See
Ulde
quoted above at para 29.
36
Lawyers for Human Rights & another v Minister of Home Affairs
2003 (8) BCLR 891
(T) p 896.
37
Section 34(7) provides: ‘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.’
38
The Government’s website,
http://www.home-affairs.gov.za/airports.asp
lists 11 airports as ports of entry. Waterkloof Air Base is not one
of them.
39
See generally J Dugard.
International Law – A South African
Perspective
3 ed (2005) p 229-231.
40
See judgment of the full court above at n1 para 37.
41
See the judgment of the full court above at n1 para 45.
42
Dugard
International Law - A South African Perspective
3 ed
(2005) p 182-185.
43
In terms of JS2, Khalid chose: (i) To await his deportation at the
first reasonable opportunity, whilst remaining in custody;
(ii) Not
to appeal the decision to deport him; and (iii) Not to have his
detention confirmed by a warrant of court.
44
Minister of Justice and Constitutional Development and Another v
Zealand
2007 (2) SA 401
(SCA);
[2007] ZASCA 92
;
Zealand v
Minister for Justice and Constitutional Development and Another
2008
(4) SA 458 (CC); [2008] ZACC 3.
45
See footnote 7.
46
Zealand
(CC)
para 24.
47
Summarised in para 43 of Cachalia JA’s judgment.