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[2017] ZAGPPHC 86
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ERG Management (South Africa) Pty Ltd and Another v Minister of Home Affairs and Another (87740/16) [2017] ZAGPPHC 86 (2 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
2/2/2017
CASE
NUMBER: 87740/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ERG
MANAGEMENT (SOUTH AFRICA) PTY LTD
FIRST
APPLICANT
(previously
registered as ENRC MANAGEMENT
(SOUTH
AFRICA) (PTY) LTD)
DR
SEBASTIAN FRANZ
BUTCHE
SECOND
APPLICANT
and
MINISTER
OF HOME
AFFAIRS
FIRST
RESPONDENT
DIRECTOR
GENERAL: HOME
AFFAIRS
SECOND
RESPONDENT
JUDGMENT
TLHAPI
J
INTRODUCTION
[1]
The first applicant, Eurasian Resources Management Group (South
Africa) (Pty) Ltd previously registered as ENRC Management (South
Africa) (Pty) Ltd) is a wholly owned subsidiary of ERG, based in
Luxembourg. The second applicant ("Dr Buchte") is the
Chief
Executive Officer of the African Division known as ERG Africa, which
has its offices situated in Kempton Park, Republic of
South Africa ("
the Republic'). He is also a director of the first applicant which
'renders administrative and logistical
support' to all the subsidiary
companies based in Africa. Such services 'include everything from
budget management and financial
planning to the purchasing and
supplying of all the logistical requirements of the ERG Africa group.
Furthermore, the first applicant
conducts mining projects in several
African countries, the Republic of South Africa being one of them and
also has an aviation
company based in Johannesburg. The first
applicant has an annual turnover in Africa of about R10,5 billion
with between R1 - 1,5
billion thereof being spent in South Africa.
[2]
The applicants are challenging and seek to review the decisions of
the respondents which placed the Dr Buchte on a V-List as
an illegal
foreigner which has the effect of preventing him from entering the
Republic for life, thereby impacting upon his ability
to perform his
functions and responsibilities within the first applicant and also
impacting on the rights and interests of the
parent company ERG and
these are set out in the affidavit. The interim relief is sought to
avoid the irreparable harm that the
applicants will suffer occasioned
by, the inability of Dr Buchte to conduct his responsibilities which
require his presence in
the Republic; the inability to achieve the
corporate objectives within ERG, ERG Africa; and the inability of Dr
Buchte in his position
as CEO for ERG Africa to engage on a personal
level and within the Republic with staff and with business partners
on strategic
matters affecting the first applicant. Presently Dr
Buchte as the expert on mining affairs in the company intends
attending the
annual Mining indaba in Cape Town between 6 - 9
February 2017, which is the 'primary market event', to represent and
participate
in presentations on behalf of ERG and its subsidiaries in
Africa. This application concerns in particular his V Listing of
21 September 2016.
[3]
Therefore the applicants approached the court on urgency for the
following orders:
“
2.
Pending the outcome of Part B of the Notice of Motion, the First
Respondent ("the Minister'') and the Second Respondent
("the
Director General") are directed to take all steps necessary or
reasonably required to:
2.1 suspend the purported
decision to declare the Second Applicant as a person prohibited from
entering and working or qualifying
for a visa for such purpose in the
Republic of South Africa, and to include his name on the Department
of Home Affairs'V-List;
2.2 grant the Second
Applicant a visa in terms of section 11(2) and/or section 19 of the
Immigration Act, to travel to, enter, remain
in and work in the
Republic of South Africa, for such period as specified in the visa,
and subject to his compliance with the prescribed
requirements for
such visa;
2.3 extend and/or renew
such visa in favour of the Second Applicant as necessary from time to
time, subject to his compliance with
the prescribed requirements for
such visa;
2.4 allow the Second
Applicant to travel to the Republic of South Africa for purpose
permitted in terms of such visa(s);
2.5 ensure that the
Second Applicant is not unlawfully impeded in physically travelling
to, entering, working and residing in, and
exiting from, the Republic
pursuant to such visa(s);
3. Directing that costs
in respect of Part A of the Notice of Motion shall be costs in the
cause of Part B, alternatively shall
be reserved for determination
when Part B is decided."
[4]
Part B is about the review and setting aside of:
(a) decisions of the
first respondent whereby Dr Buchte was declared a prohibited person;
(b) the decisions taken
for refusing to consider or decide favourably his application for a
visa to allow him to travel and to work
in the Republic which
application was rejected at the South African Consulate in Munich on
30 September 2016;
(c) the refusal to decide
on the appeal lodged on 3 October 2016.
[5]
The application is opposed on grounds that it was not urgent and
should be struck from the roll and, on grounds that it was
not
competent for this court to grant interim relief when considering the
application on the doctrine of separation of powers.
Furthermore,
that as against other foreign nationals Dr Buchte would be placed in
a more favourable position by the open ended
permission to enter the
country.
BACKGROUND
2007- 8 August
[6]
Prior to Dr Buchte taking up employment with the first applicant he
was a consultant for Boston Consulting Group (Dusseldorf)
('BCG'). He
was based in South Africa on an Intra Company Transfer visa ('ICTV').
He settled in Johannesburg and purchased a home
where he settled with
his family, with his children attending the local German School.
During April 2014 he joined the first Applicant
"ERG" not
"ENRC" and since he was based in Luxembourg he cancelled
his ICTV for BCG. His family joined him
in Germany in July 2014.
[7]
After cancellation of his ICTV he had to obtain a section 11(2) visa
which would have enabled him to travel to South Africa
to fulfil his
employment and business responsibilities with the first applicant and
during that time he would be based at the offices
of ENRC in
Johannesburg. He was advised by one of his attorneys, Mr
Wieselhalter, in April 2014 that the section 11(2) visa could
be
obtained only through the first respondent's head office in Pretoria,
and later he was informed that the second respondent had
moved the
function to various Embassies. When the first applicant in Luxembourg
wished to send one of its Danish employees to the
Republic, the South
African Embassies in Luxembourg and Denmark informed them that a
section 11(2) visa was not necessary on a
business visit the
Republic.
[8]
'SFB15' was annexed to the papers which referred to a request on 4
October 2014 by Dr Buchte to Mr Hansen to forward communication
Mr
Hansen had with the South African Consulate in Copenhagen. Mr Hansen
had previously made enquiry to the Consulate to establish
and to
confirm that it was not necessary to have a visa for up to 90 days
for business purposes because it was not clear what the
distinction
was between 'business visit and working'. There was further enquiry
whether it would be necessary to change his status
to a work permit
in that he performed certain activities in the Republic, "provides
advice and work alongside the South African
Organisation, but I may
also take on more specific 'hands on' responsibilities, e.g managing
people and projects". Mr Fomsgaard
from the Consulate responded
on dated 19 August 2014 and stated the following::
"You are not
required to hold a Visa if you as a Danish citizen are going to South
Africa for business meeting and/or supervising.
Make sure you have an
invitation letter from the company you are visiting, stating just
that. Never mention the word work, as it
is a totally different
matter and a long process."
[9]
On 3 August 2014 he returned to South Africa on vacation and he was
accompanied by his family. They occupied their home in Johannesburg.
It was brought to his attention during this time that the ENRC's
computer system had been hacked and on 8 August 2014 he was visited
by officials of the respondent while he was at the ENRC offices to
investigate the problem and he stated that only the ENRC staff
knew
of his presence. The hacking had grave consequences and security
risks for ERG, ERG Africa and ENRC. It occurred at a time
during
negotiations regarding staff rationalization requirements with ERG.
[10]
While at these offices he was informed that there were people who had
come in to see him and he declined to see them and left.
He later got
a call from a Mr Adams who introduced himself as an official of the
first respondent. Mr Adams enquired about his
residence status and,
at about the same time his wife called to inform him that their home
had been searched without a search warrant
and, that her German
passport had been seized and that she was given a receipt therefore.
[11]
He was summoned back to the offices of ENRC by Mr Gilburt, the Human
Resources director where a meeting took place with Mr
Adams from the
respondents offices and other officials and Mr Behrens, ENRC's
attorney. He was questioned on his employment with
ENRC and he
confirmed that he was employed by the parent company ERG in
Luxembourg. He was not given prior notice of his constitutional
rights nor was there an attempt by Mr Adams to comply with the 'basic
requirements for procedurally and fair administrative action
in terms
of section 3 of the Promotion of Administrative Justice Act , since a
decision had already been taken to deport him.
[12]
Mr Adams was in possession of a document with an ENRC letterhead. He
was not informed of the contents thereof and he was denied
a copy.
Despite denying that he had broken the law and reiterating that that
he was employed by ERG, Luxembourg and not ENRC South
Africa, Mr
Adams advised that he had instructions to arrest and detain him at
the deportation facility known as Lindela in Krugersdorp.
He aware of
media reports on the alleged atrocities at such facility and he
averred that this filled with him with 'absolute terror'.;
He
informed Mr Adams that he was visiting with his family; that despite
the first respondent's system not reflecting that his ICTV
with BCG
had been cancelled, he retrieved another passport from his residence
which reflected the cancellation.
[13]
Dr Buchte averred that the passport he was carrying showed that he
had entered the country on 3 August 2014 on a visitor's
visa and it
bore the entry stamp. It is not clear where this visitors visa was
issued. On being questioned on why he had two passports
he explained
to Mr Adams that he was in possession of three passports issued by
the German Authorities, that he needed the passports
because of his
frequent travels mainly in Africa. It was legal in Germany to carry
more than one passport. They asked why he had
been travelling in and
out of the Republic since the beginning of April 2014 and he
explained that on his regular visits for the
parent company ERG to
the mines in the DRC, Zambia, Mozambique he was allowed to transit
South Africa and to enter South Africa
for business visits;
[14]
Instead of being detained and deported he was given the choice to
leave the country if he could secure a plane ticket to Germany
that
evening and he chose to leave voluntarily. At about 16h30 Mr Adams
together with other employees of the first respondent drove
him to OR
Tambo airport. He was given a notice of deportation document to sign.
The said document described him as an 'illegal
foreigner' which meant
that he was in principle in detention. This was done despite him
indicating and scribbling in his own handwriting
that he was
voluntarily leaving the country. Mr Adams failed to explain his right
to challenge such determination and legal consequences
that would
follow, despite knowledge that he was protesting the unlawfulness of
the detention. He was further misled into believing
that there was an
ongoing investigation regarding his presence in South Africa and
whether or not he should be allowed to return
to the country.
[15]
It was contended by the respondents that in terms of section 43 of
the Act Dr Buchte had breached the terms of his work permit
given
when he was in the employ of BCG. Upon termination of employment with
them on 31 March 2014 he failed to apply for a change
of status.
Furthermore, that he had left South Africa on 21 April 2014 and
re-entering on 3 August 2014 under the pretext of being
on vacation
when he was in fact employed in South African by the first applicant.
It was averred that Dr Buchte fled from his office
on 8 August 2014,
he was arrested, detained and thereafter deported.
8
August 2014-
February 2016
[16]
An application for information in terms of the Promotion of Access to
Information Act 2 of 2000 ("PAIA") was launched
on 14
August 2014 and a copy of the DHA1689 notice (Notification of
Deportation of an Illegal Foreigner) was availed. The decision
to
deport was appealed against by the lodgement to the second respondent
on 25 August 2014 by notice in terms of section 8(4) of
the Act. The
appeal consisted of 30 pages together with annexures. On 2 October
2014 Dr Buchte was advised that since he had not
exercised such right
to appeal his deportation when afforded an opportunity to do so, that
he could pursue the matter in terms
of section 29(2) of the Act.
According to the respondents this required an application for
rehabilitation in the prescribed manner
to be filed with the Director
General.
[17]
A 55 page joint appeal in terms of section 8(6) (appeal) and section
29(2) (prohibition upliftment representations) was lodged
with the
first Respondent on 22 October 2014. On 21 February 2015 the first
respondent advised that he considered the section 29(2)
representations and upheld the decisions of the Director General
contemplated in terms of section 29(1). Dr Buchte averred that
this
was done without considering his appeal. Between 25 August and 4
September 2015 letters were written to the first and second
respondents in order to secure extension of time to lodge a review
application. There was no response. The respondents averred
that they
had no obligation to respond because the said appeal and
representations were irregular in that they were not procedures
prescribed in the Act.
[18]
According to Dr Buchte he was advised to rather attempt to settle the
matter with the respondents and this was followed by
a request from
the first respondent for representations to be made in the form of a
memorandum and an inspection ERG Africa, ENRC
South Africa by the
Department of Trade and Industry ('DTI'), which investigation was
conducted. The DTI reported on 1 February
2016 that the businesses of
ERG Africa were legitimate and a report was given based on the
important role played by Dr Buchte within
the business followed by a
recommendation that he be allowed to return to South Africa.
[19]
In a letter dated 8 February 2016 by Mr Matthews from the
respondents' Inspectorate Inspectorate Directorate receipt of Mr
Watters letter of 28 January 2016 was acknowledged. Dr Buchte was
informed that he had exhausted all avenues within the Department,
that the matter relating to his prohibition could not be dealt with
any further. This decision did not seem to take into consideration
the report by the by the DTI. An appeal in terms of section 8(4) of
the Act was lodged with the Director General on 23 February
2016. The
respondents contended that this appeal was made in futility because
Mr Matthews' letter did not constitute administrative
action. Mr
Watters on behalf of Dr Buchte contended that Mr Matthews decision of
8 February 2016 was taken in terms of the Immigration
Act where the
Department had not considered evidence requested by the Minister as
stated in the report f rom the DTI.
March 2016 onwards
[20]
As a result of settlement negotiations engaged with the officials of
the first respondent Ms Moye and counsel for the second
applicant Mr
Sethene, Mr Watters was informed on 2 March 2016 by his counsel that
the second applicant's V-Listing had been lifted
and that he could
proceed to apply for a section 11(2) visa at the South African
Consulate in Munich. It was suggested that communication
from the
respondents confirming such upliftment may have gone astray and it
contended that Mr Sethene was precluded from filing
an affidavit.
The respondents denied
this version and contend that it was only the Chief Director,
inspectorate who was authorised to uplift the
status of a prohibited
person. Furthermore there was no proof that the prohibition had been
uplifted in terms of section 29(2)
of the Act.
[21]
Consequent upon the alleged settlement, applications for visas were
lodged on 15 March and 13 June 2016 respectively and section
11(2)
visas valid for 90 days were issued. The visa application forms are
annexed to the papers and in both Dr Buchte had disclosed
that he had
been V-listed on 8 August 2014 and furthermore, that the V-listing
had been lifted. The first visa that was issued
by the Consulate in
Munich expired on 5 June 2016 and it had a 'permission to work'
endorsement. Thereafter Mr Watters addressed
letters to the
respondents on 18 March 2016, 29 March 2016 and 10 April 2016. The
first letter was a notice of intended litigation.
Mr Watters sought
clarity on Dr Buchte's status and was seeking assurance that the visa
would be honoured and he further gave reasons
why it was necessary
for him to visit the Republic.
[22]
The letter of 10 April 2016 was directed to the second respondent
because there was no response to the two previous ones despite
proper
delivery. The other concerns raised therein were that there had been
no response to the fresh notice of appeal in terms
of section 8(4)
submitted to the second respondent on 23 February 2016 and which had
cited additional/new grounds of appeal. When
no reply to the letters
came Dr Buchte undertook a trip to the Republic on 22 April 2016 and
subsequently five others followed.
The second visa expired on 9
September 2016 and in that regard he travelled to the Republic on
seven occasions.
[23]
On 20 September 2016 Dr Buchte travelled to Ndola, Zambia and he
transited at OR International Airport. On his return on 22
September
2016 he was prevented from travelling via South Africa on grounds
that he was on the V List. He had to make alternative
arrangements to
travel back to Zurich. He was telephonically advised on 26 September
2016 that he had been placed on the V List
and no reasons were given.
On 30 September 2016 he lodged another section 11(2) visa application
at the South African Consulate
in Munich and he was told that the
application would only be received on proof that the V-Listing had
been uplifted.
[24]
A request for reasons for the listing together with an appeal in
terms of section 8(1) of the Act followed. The second responded
was
requested to adjudicate over the appeal not later than 7 October
2016. In a letter of 10 October 2016 the first respondent
referred Dr
Buchte to the decisions of 2 October 2014 and 21 February 2015 and
confirmed the prohibition in terms of section 29(2)
of the Act. It
was alleged by the first respondent that Dr Buchte while knowing that
he was a prohibited person had misrepresented
himself at the South
African High Commission in Munich in order to obtain visas which he
used to travel in and out of the Republic.
Furthermore, he was
advised that his matter cannot be attended as he had had 'exhausted
all avenues within the department of Home
Affairs'.
[25]
However on 19 October 2016 Mr Nkhoma of the Immigration Management
Services at OR Tambo wrote to Mr Watters and posed certain
questions
relating to a special plea to the first respondent to reconsider Dr
Buchte's status. The information was given on 20
October 2016,
however, Mr Nkhoma's attention was drawn to the first respondent's
decision of 10 October 2016 and it was enquired
from him whether the
special plea was still under consideration. There was no further
communication with Mr Nkhoma after this date.
URGENCY
[26]
The grounds of urgency are articulated in paragraphs 186 -218 of the
founding affidavit and are summarised herein. According
to Dr Buchte
the businesses of ERG, ERG Africa and the first applicant are being
adversely affected by his continued absence from
the Republic despite
him having followed all the procedures in section 8(4) and 29(2) of
the Act to appeal his prohibition. ERG
Africa's Head Office is in
Johannesburg where its finance, procurement, IT, and other project
teams are located and where the CFO
and Technical Director's, who
report directly to him, have their offices. It was also not an
alternative to relocate himself and
his management team to Lubumbashi
or elsewhere in the DRC where they had been warned of possible
political instability
[27]
It was therefore part of the business model of the company that he be
based in Johannesburg for practical, administrative and
financial
reasons' and in order for him to drive the present and future
objectives of the company and its subsidiaries. Johannesburg
was the
business hub in Southern Africa where all the relevant engineering
service providers were situated. Furthermore there was
need for him
to have personal interaction with their BEE partners. Questions had
now been raised regarding his continued absence
which were bound to
affect his reputation and had potential of allowing competitors to
have advantage over them. He had planned
on behalf of ERG Africa and
the first applicant to play a significant role at the mining lndaba
which will be running in Cape Town
from 6- 9 February 2017 and he
needed to be in the Republic to work with staff on their
presentations. Lastly he had personal reasons
why he was planning to
return to the Republic.
[28]
The urgency was opposed on grounds that there were no justifiable
reasons why interim relief on an urgent basis ought to be
granted. It
was contended that there were no reason why the business activities
of the first applicant had to be affected due to
Dr Buchte's physical
absence from the Republic. He had failed to cite examples how the
first applicant was prejudiced during his
absence from August 2014 to
March 2016. In deciding that the matter was urgent I took into
account the fact that Dr Buchte alleged
that he had complied with the
all the procedures of appeal and of requesting an upliftment of the
prohibition and further that
he had advance reasons as to why his
presence in the Republic was required.
THE LAW
[29]
Before determining whether the requirements for an interim interdict
have been established and, in considering the doctrine
of
separation
of powers
whether the court is competent in the circumstances to
grant the relief sought, I need to examine the facts and the
applicability
of the relevant provisions of the Act. I was informed
by Mr Bofilatos that he was the third senior counsel instructed in
the matter,
the answering affidavit which was delivered a day before
the hearing makes no attempt to deal with the allegations against the
respondents and its officials especially in giving answers to the
allegations that the several appeals were not properly adjudicated
upon. It was lacking in details as to how the respondents dealt with
Dr Buchte . The respondents were given at least three weeks
to answer
and in my view failure to properly deal with the allegation in the
founding paper could be interpreted as a reluctance
on their part to
be of assistance to the court. Neverthess I am of the view that the
matter can be dealt with.
[30]
It is common cause that a foreigner is not a citizen of the Republic
and that an illegal foreigner would be a person who has
transgressed
the provisions of the Act. Dr Buchte's deportation on 8 August 2014
resulted in him being placed on the V-List as
a prohibited person. Dr
Buchte was not declared to be an undesirable person therefore the
provisions of section 30 of the Act are
not applicable to him. The
Act defines a Prohibited Person in section 29 and Dr Buchte is
affected by section 29(1)(c) which defines
such person as 'anyone
previously deported and not rehabilitated by the Director General in
the prescribed form'.
[31]
Another category of an illegal foreigner is any person refused entry
into the Republic by an immigration official. The refusal
could be on
any grounds and it is my view that it does not exclude persons
defined in section 29 of the Act. The distinction relates
only to the
fact that such determination at a port of entry is reviewable direct
to the Minister as provided in section 8(1) and
8(2) of the Act. This
category is not applicable to Dr Buchte because the refusal on 22
September 2016 to allow him to travel from
Ndola, Zambia via the
Republic presumably occurred at the airport in Ndola and it could not
have been by an immigration official
in that country in the employ of
the first respondent. The refusal could have been triggered by
information placed on the immigration
system at the airport giving
details of individuals who were on a V-List who were not allowed to
travel to the Republic, hence
the demand at that point for Dr Buchte
to furnish proof of the upliftment before being allowed to travel to
the Republic from Ndola.
I therefore do not share Mr Kennedy's view
that Dr Buchte was place of the V List for the second time. This
shall be dealt with
below when examining whether Dr Buchte was ever
removed from the V List of 8 August 2014.
[32]
It is common cause that Dr Buchte was detained on 8 August 2014
without a warrant. Section 34(1) of the Act provides that an
immigration officer may without warrant cause to be arrested or
arrest an illegal foreigner and irrespective of whether an arrest
has
occurred either deport or cause such person to be deported, and that
pending such deportation, may cause such person to be
detained at a
facility designated by the Director General. Section 34(1) is subject
to section 34 (1)(a) to (e). The immigration
officer who has arrested
the affected person without a warrant and who seeks to deport such
person must issue a notification in
writing which complies with,
section 34(1)(a), by notifying the person of his/her right to appeal
in terms of the Act; and with
section 34(1)(b), by informing the
person of his/her right to request that the detention be confirmed by
a warrant of Court and,
if such warrant is not issued within 48 hours
of such arrest the illegal foreigner shall be entitled to release.
[33]
Section 8 of the Act provides for the review and appeal procedure to
be engaged by aggrieved persons. Section 8(1) has been
dealt with
above. The following sections are applicable:
(a) section 8(3), any
decision in terms of the Act that 'materially and adversely' affects
the rights of any person shall be communicated
in the prescribed
manner and shall be accompanied by reasons for that decision'.
(b) the aggrieved person
may in terms of section 8(4) within 10 days of the notification apply
in the prescribed manner to the Director
General for the review or
appeal of the decision;
(c) the Director General
shall consider the section 8(4) application and may in terms of
section 8(5) confirm, reverse or modify
the decision;
(d) any person aggrieved
by the decision in section 8(5) may in terms of section 8(6) apply to
the Minister in the 'prescribed manner
for the review or appeal
within 10 days of such decision;
(e) in terms of section
8(7) the Minister shall consider the section 8(6) appeal or review
and either confirm, reverse or modify.
[34]
On 3 August 2014 Dr Buchte and his family arrived in the Republic on
vacation. As a German citizen he was in possession of
a visa exempt
passport which meant that as a visitor he was exempt from applying
for a visa to enter the country. He qualified
and was allowed to
enter the Republic by means of a visitor's visa as contemplated in
section 11 of the Act, and which visa is
normally issued upon arrival
at the port of entry. However it seems that this visa was issued by
the Consulate in Munich confirming
Dr Buchte's version that the
function had been moved to the Embassies. A visitor's visa is defined
as one contemplated in terms
of section 11(1) which may be issued for
any purpose other than those provided for in sections 13 to 24 and
subsection 11(2). Section
11 (2) provides that 'the holder of a
visitor's visa may not conduct work: Provided that the holder ...may
be authorised by the
Director General in the prescribed manner and
subject to the prescribed requirements and conditions to conduct
work'.
Work in the Act is
defined as including (a) 'conducting any activity normally associated
with the running of a specific business;
or (b) being employed or
conducting activities consistent with being employed or consistent
with the profession of the person,
with or without remuneration or
reward, within the Republic'
[35]
On the morning of 8 August 2014 while on vacation in the Republic, Dr
Buchte went to the offices of ERNC to investigate an
incident of
hacking which had grave consequences for ERG Africa and the first
applicant. He was not employed by ERNC but by ERG
Luxembourg and was
CEO for ERG Africa. The interrogation by officials of the respondent
at the offices of the first applicant occurred
in the presence of the
Human resources director, Mr Gilburt, Mr Behrens attorneys for ERNC.
It seems to me that as the events unfolded
Mr Adams and officials of
the respondent had taken decision to arrest and to detain Dr Buchte
because he was eventually arrested
without a warrant as allowed by
section 34(1). He alleged that no copies of the documents he signed
at OR were given to him as
well as a copy of a letter on the first
applicant's letter head in possession of Mr Adams. Dr Buchte has not
explained whether
he subsequently enquired from the first applicant
whether there had been prior communication with the respondent on his
status
and who the author might have been. The fact that Mr Adams was
in possession of the letter on his visit could only mean that there
was a possibility that the respondents had communicated with the
first applicant prior to his detention.
[36]
It is evident from page 157 of the papers that Dr Buchte confirmed by
appending his signature to the receipt of notification
of
deportation, that he was in detention; that he was served with a
Notification of Deportation; that his rights in terms of
sections34(1)(a)
and (b) were explained to him and that he could
appeal to the Director in terms of section 8(4) within 10 days of
receipt of the
notice. He elected not to exercise such rights but to
await his deportation at the first reasonable opportunity, which
occurred
on the same day after he had secured a plane ticket and was
escorted and handed over to the immigration officials for deportation
at OR Tambe. The notification of deportation does inform Dr Buchte
that he shall not be allowed to return to the Republic unless
he has
obtained the necessary lawful authority and in my view this could be
interpreted to mean authority as provided for in section
29(2). It is
my view that as soon as Mr Watters obtained these forms as a result
of the PAIA request he should have realized that
the only course to
follow was the section 29(2) application dealt with below.
[37]
The requirement to provide reasons as contemplated in section 8(3) of
the Act is peremptory. The regulations provide for such
reasons in
accordance with Form 2 of 'DHA- 1714A. It is evident from the conduct
of Mr Adams that the interrogation of Dr Buchte
must have been
preceded by some investigation which was considered when the decision
to arrest and deport was taken. Mr Adams failed
to comply with
section 8(3) in that Dr Buchte was not given any written reasons for
such decision to arrest and deport him. This
is confirmed in the
respondents letter of 16 May 2015 in response to Mr Watters PAIA
request.
[38]
It was denied in such letter that Dr Buchte was ever arrested or that
documents were ever seized from his workplace or his
home. The denial
is contradicted by the notification of deportation duly signed by Mr
Adams and his supervisor Mr Gwala on 8 August
2014 and; proof of
receipt by Mr Adams of documents seized from Dr Buchte's wife.
[39]
Everyone, citizen of the Republic or foreigner has a right to
procedurally fair and just administrative action as provided
for in
section 33 of our Constitution and from section 3
of
the Promotion of Administrative Justice Act 3 Of 2000 ("PAJA").
It is therefore no excuse and not acceptable that such
reasons were
not made available due to the fact that Dr Buchte elected to leave
the Republic voluntarily. The election to leave
was preceded by an
investigation and the decision to arrest and deport. In my view the
absence of reasons, had the potential to
adversely affect the
prosecution by Dr Buchte of any envisaged appeal or review or
representations to be made to the respondents
in terms of the Act.
[40]
On 2 October 2014 the Director General who considered Dr Buchte's
appeal in terms of section 8(4) advised him to pursue his
matter in
terms of section 29(2) of the Act. The acknowledgement of receipt of
the deportation notification is self explanatory.
It is recorded that
Dr Buchte elected not to exercise his rights on deportation and that
he was leaving voluntarily. The other
documents reveal that he was
finger printed and handed over to the immigration officials at OR
Tambo as a detained person. This
in my view would accord with his
explanation that he did not wish to be detained at Lindela.
[41]
On 3 October 2014 an appeal in terms of section 8(4) and 30(2) which
is attached to the papers was lodged with the respondents.
It seems
that on 22 October 2014 another appeal in terms of sections 8(6) and
representations in terms of section 29(2) were made
after Mr Matthews
letter of 8 February 2016 which advised that Dr Buchte had exhausted
all avenues within the Department therefore
his matter could not be
attended was followed by another appeal in terms of section 8(4). It
is my view that the appeals in terms
of section 8(4) to 8(6) were not
appropriate in the circumstance because the prohibition occasioned by
the deportation on 8 August
2014 had not been lifted.
[42]
A section 29(2) is not a review or appeal as contemplated section 8
of the Act but a procedure where Dr Buchte had to show
good cause why
a declaration should be made by the Director General to remove the
prohibited person status and there had to be
compliance with the
procedure in the regulations. It is unfortunate in my view that
anyone of the officials of the respondents
would suggest that Dr
Buchte had exhausted all avenues within the Department and this goes
to a similar letter allegedly sent on
10 October 2016. While the
Director General advised that he apply in terms of section 29(2)
there is no indication that Dr Buchte
complied or that the Director
General considered any application in that regard and as prescribed
by law or that he had communicated
his reasons for declining the
application in writing to Dr Buchte.
[43]
In order for a prohibition to be uplifted in terms of section 29(2) a
prohibited person contemplated in 29(1)(c) has to be
rehabilitated
and has in terms of this regulation to:
26(4)
(a) depose to an
affidavit to the satisfaction of the Director General that he shall
comply with the provisions of the Act,
(b) has been absent from
the Republic for a minimum of 4 years
(c) has provided a police
clearance.
26 (5)
a rehabilitated person
shall not be exempt from the visa requirements at a port of entry.
26(6)
The Director General
shall consider the following:
(a) reasons for
prohibition;
(b) the seriousness of
the offence committed;
(c) representations made
by the prohibited person, which should include a police clearance
certificate;
26 (7)
the Director General
shall provide written reasons for his decision as contemplated in
section 29(2)
[44]
In a letter of 21 February 2015 the first respondent refers to the
section 29(2) representation made to the Director General.
The first
respondent also upheld Dr Buchte's prohibition in terms of section
29(1). This letter without detailed particularity
mentioned an
investigation that had been engaged and gave reasons for deportation,
' Mr Buchte had contravened the terms and conditions
of his visitor's
visa, namely that he was prohibited from conducting any work whilst
visiting the Republic of South Africa'. As
already indicated what is
lacking are the written reasons by the Director General as prescribed
by regulation 26(7). In my view
Dr Buchte has not shown that his
section 29(2) appeal representations complied with the provisions of
regulation 26 (1) to (7)
copies of the 55 page appeal /
representations were not annexed to the founding affidavit.
[45]
The settlement negotiations that were allegedly engaged from December
201'5 between Dr Buchte's legal team represented by Mr
Sethene and
with special adviser to the Minister, Ms Moyo are not supported by
confirmation in writing as to what the terms of
such settlement were
and definitely did not follow the procedures prescribed in the Act
and regulations. Dr Buchte applied for
a visitor's visa on 29
February 2016 and one was issued on 16 March 2016 and endorsed with
permission to perform his work. It is
doubtful to me that any
settlement of upliftment was reached. Firstly, the Act requires that
reasons of an upliftment or not to
be in writing. Secondly
uncertainty as to Dr Buchte's status remained as expressed by Mr
Watters in the letters to the Minister
and Director General dated 18
March 2016, 29 March 2016 and 10 April 2016 where he was still
pursuing the appeals on behalf of
Dr Buchte and before he embarked on
his first visit to the Republic in 2016 after being absent from the
country since 8 August
2014. I must mention that these letters dispel
any suggestion as argued by Mr Bofilatos for the respondents, that
the visas were
obtained by giving incorrect details. Except for the
fact that different passports were used Dr Buchte has not misspelt
his surname
in the application forms. Any misspelling of his surname
in the visa can be attributed to the person issuing such visa. There
was
a further responsibility placed on the official at the Consulate
who granted the visa to have investigated and confirm that the
prohibition had been removed. The issue of the visa does not in my
view mean that the prohibition had been removed as indicated
it has
to be done in writing by giving reasons and this is evidenced by the
content of the letter discussed below..
[46]
In the letter of 18 March 2016 to the Minister, Mr Watters confirms
that a section 11(2) visa to travel has been issued and
states while
his client was still intent on challenging the prohibition
"our
client is mindful of the fact that he was previously declared
a
prohibited person and there may still be
a
risk, despite
the visa, that he may face detention, deportation or
prosecution"...our client does not wish to take the risk
of
violating South African Law'
and the following assurances were
sought
"to allow Dr Buchter to enter SA and to attend work
described below without interference......and while is SA neither DHA
nor
anyone on its behalf, will arrest, detain and or seek to remove
Dr Buchter from the RSAfor any reason relating to or emanating from
his removal from SA on 8 August 2014".
REQUIREMENTS FOR INTERIM
RELIEF
[47]
It is trite that the requirements for an interim interdict are (a)
prima facie
right to the relief sought even if such relief is
open to doubt; (b) a well-grounded apprehension of irreparable harm
if the interim
relief is not granted (c) the balance of convenience
must favour the grant of the interdict, and (d) the absence of a
satisfactory
remedy to the applicant. The court must ensure that when
applying these principles in deciding whether or not to grant interim
relief' it must do so in a way that promotes the objects, spirit and
purport of the Constitution;
National Treasury v Opposition to
Urban Tolling Alliance
2012 (6) SA223
(CC),
("Outa").
[48]
Mr Bofilatos argued that the grant of the interim relief would
interfere with the function of government which vests with the
statutory duty to deal with Dr Buchte's application for a visa. In
Outa
supra
Moseneke DCJ stated at paragraph 47:
"The balance of
convenience enquiry must now carefully probe whether and to which
extent the restraining order will probably
intrude into the exclusive
terrain of another branch of government. The enquiry must, alongside
other relevant harm have proper
regard to what may be called
separation of powers harm. A court must keep in mind that a temporary
restraint against statutory
power well ahead of the final
adjudication of a claimant's case may be granted only in the clearest
of cases and after careful
consideration of separation of powers"
While the Court did not
deem it necessary to define 'clearest of case' I would venture to
suggest that it could include in exceptional
circumstances. The
difficulty however would be that an applicant for a visa would still
be required to comply with the prescribed
requirements for a visa.
[49]
Mr Kennedy argued that in dealing with the balance of convenience Dr
Buchte would suffer irreparable harm if the interim order
is not
granted. He argued that the decision in
South African Informal
Traders Forum and Others v City Council of Johannesburg and Others;
South African National Traders Retail
Association v City of
Johannesburg
2014(4) SA 371(CC) was applicable where Moseneke DCJ
stated at paragraph [22]
"The order sought by
the applicants before this Court would not anticipate any part of the
main proceedings to be determined
before the High Court in Part B.
Nor would it prejudice such proceedings. On the contrary, without an
order from this Court, the
damage in the interim would be so severe
that the applicants ability to obtained relief from the High Court in
Part B would substantially
be rendered nugatory. The order sought now
is this no more that a "status quo order" granted in the
interests of justice
to prevent what might otherwise be substantial
prejudice".
In my view the matters
are distinguishable in many respects. Most of the applicants in this
matter did not transgress any law. Most
of the traders were lawfully
engaged in legitimate trading approved by the City Council. The
respondents had indiscriminately evicted
the traders without first
distinguishing between those who were legally trading from those who
were not. Furthermore, the scheme
to relocate the traders to another
place had been found to be unlawful and the traders had not been
consulted before the evictions
were effected.
PRIMA FACIE RIGHT
[50]
Mr Kennedy submitted that the failure by the respondents to properly
consider the various appeals lodged on behalf of Dr Buchte
and
dismissing them without reasons amounted to permanently excluding him
from the country. The right to procedurally fair administrative
action extends to everyone including a foreigner who wishes to gain
entry into the country. In this instance fair administrative
action
commenced with the right to be heard and to be given written reasons
for the deportation even if the election to voluntarily
leave the
country was seemingly influenced by a fear to be locked up in a
facility which has the bad reputation such as that of
the designated
facility at Lindela. This right extends to giving reasons why the
application to uplift the prohibition was refused.
Communication that
he had exhausted all avenues in the Act incorrectly interpreted the
processes envisaged in the Act and, could
be interpreted that he is
permanently excluded from being admitted to the Republic. In my view
this does demonstrate the existence
a prima facie right.
IRREPARABLE HARM AND
BALANCE OF CONVENIENCE
[51]
On his version Dr Buchte admitted to have been in contravention of
his visitor's visa.
He
has not disclosed as to how many days during his vacation he had been
at the offices of the first applicant to resolve the hacking
problem.
On his version alone I find it to be improbable that he could have
been at the offices of the first applicant for the
morning of the 8
August 2014 and officials would arrive there in order to effect a
deportation. His visitor's visa unlike the one
issued in March 2016
was not endorsed for work.
[52]
The first relief that is sought is for the Director General to
suspend the decision to declare Dr Buchte a prohibited person,
to
suspend placing his name on the V List, allowing him to work or
qualifying him for a visa in the Republic, subject to his compliance
with the prescribed requirements of the visa'. In this regard the
Court should be placed in the same position which the Director
General should have been placed in order to evaluate and consider the
upliftment. Having regard to the requirements in regulations
26(6),
this court is not in a position to direct an interim upliftment.
[53]
The second, third ,fourth and fifth reliefs sought are for the Court
to direct the grant of a section 11(2) visitor' s and/
or a section
19 work visa; extending and or renewing such visa from time to time;
allowing him to travel to the Republic for purposes
as permitted in
the visa; that the Director General ensure that he is not unlawfully
impeded in physically travelling, entering,
working residing and
exiting from the Republic. This too the Court cannot do. As correctly
stated in the orders that are sought
this must be subject to Dr
Buchte's compliance with the prescribed visa requirements. If one
looks at the reasons for urgency there
is a plethora of reasons why
Dr Buchte requires to be in the Republic. In terms of the Act all
these reasons and purposes to be
allowed entry into the Republic
require scrutiny by the respondents.
[54]
What would the purpose be of granting interim relief if at every turn
he still has to comply with visa requirements and a decision
has to
be made. What happens if the order is granted and he is found not to
be in compliance, would this not amount to order granted
in futility.
In as far as the relief in section 2.2 is concerned my understanding
of the provisions of the Act is that it is not
possible to grant an
individual a visitors and work visa at the same time. In my view this
stems from Dr Buchte's view of what
he thinks is the anomaly
pertaining to the application of the authorisation pertaining to
'business and/or work visits.
[55]
A section 11(2) visa must be endorsed by the Director General for the
nature of work to be conducted during such visit and
this would have
been required also for the purpose of his visit to attend the mining
lndaba. What is given in this application
are general reasons, there
is no invite, there is no indication as to the role he will play and
regarding his expertise, the subject
of his contribution and
presentation at such lndaba.
[56]
How does the Court evaluate that in this special instance that a Visa
is required. The question is, has the Court been placed
in the
position the Director General would have been in order to consider
the application. I come to the conclusion that applicant
has failed
to show that irreparable harm would be suffered if the interim relief
is not granted and the balance of convenience
does not favour the
grant of an open ended relief if there is still an obligation upon
him nevertheless to comply with the provisions
of the Act and the
possibility that his application might be declined.
ABSENCE OF A SATISFACORY
REMEDY
[57]
In view of what has been said above it seems to me that this
requirement too has not been satisfied.
ORDER
[58]
In the result the following order is given:
1.The application in Part
A is dismissed.
2. Costs are costs in the
cause of Part B.
-------------------------
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
COUNSEL
FOR THE APPLICANT: ADVOCATE P KENNEDY SC
ADVOCATE
A.M VAN DEN HEEVER
ATTORNEYS
FOR THE APPLICANT: CHRIS WATTERS ATTORNEYS
COUNSEL
FOR THE RESPONDENTS: ADVOCATE BOFILATOS SC
ATTORNEYS
FOR THE RESPONDENTS: STATE ATTORNEYS
JUDGMENT
RESERVED 30 NOVEMBER 2016
For
the Respondent: