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[2016] ZAGPPHC 45
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Lawyers for Human Rights v Minister of Home Affairs and Others (39171/2014) [2016] ZAGPPHC 45; [2016] 2 All SA 168 (GP); 2016 (4) SA 207 (GP) (3 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: 39171/2014
3/2/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
LAWYERS
FOR HUMAN
RIGHTS Applicant
And
MINISTER
OF HOME
AFFAIRS First
Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF HOME AFFAIRS Second
Respondent
MINISTER
OF
POLICE Third
Respondent
MINISTER
OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT Fourth
Respondent
BOBASA
(PTY) LTD t/a LEADING PROSPECTS TRADING Fifth
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant, acting
inter alia
on behalf of persons detained
under the Immigration Act and the Refugees Act, in essence seeks an
order declaring section 34(1)(b)
and (d) of the Immigration Act 13 of
2002 ("the
Immigration Act"
;) unconstitutional and invalid.
[2]
Initially the first to fourth respondents opposed the relief claimed
by the applicant. On 16 September 2015 the fourth respondent,
however, filed a notice to abide by the decision of the court.
[3]
Although the third respondent expressed its intention to oppose the
relief claimed by the applicant, the third respondent failed
to file
an answering affidavit.
[4]
In the premises, the only parties opposing the relief claimed by the
applicant is the first and second respondents, who will
collectively
be referred to herein as "Home Affairs".
PRELIMINARY
ISSUE
[5]
Home Affairs brought an application to strike out certain portions of
the applicant's founding affidavit. The application is
opposed by the
applicant. By agreement between the parties, the application was
heard as part and parcel of the main application
and will be dealt
with
infra.
IMMIGRATION
ACT, 13 OF 2002
[6] Section 34(1) of the
Immigration Act falls under the Enforcement and Monitoring provisions
of the Act and reads as follows:
"34 Deportation and detention
of illegal foreigners
(1) Without the need for a warrant,
an immigration officer may arrest an illegal foreigner or cause him
or her to be arrested, and
shall, irrespective of whether such
foreigner is arrested, deport him or her or cause him or her to be
deported and may, pending
his or her deportation, detain him or her
or cause him or her to be detained in a
manner and at a place
determined by the Director-Genera/, provided that the foreigner
concerned-
(a)
shall be notified in writing of the decision to deport him or her
and of his or her right to appeal such decision in terms of this
Act;
(b)
may at any time request any officer attending to him or her that
his or her detention for the purpose of deportation be confirmed
by
warrant of a Court, which, if not issued within 48 hours of such
request, shall cause the immediate release of such foreigner;
(c)
shall be informed upon arrest or immediately thereafter of the
rights set out in the preceding two paragraphs, when possible,
practicable
and available in a language that he or she understands;
(d)
may not be held in detention for longer than 30 calendar days
without a warrant of a Court which on good and reasonable grounds may
extend such detention for an adequate period not exceeding 90
calendar days, and
(e)
shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human rights.
"
[7]
The detention and deportation of illegal foreigners is further
regulated by regulation 33 of the Immigration Regulations enacted
on
22 May 2014. The relevant sub-regulations read as follows:
"Arrest, detention and
deportation of illegal foreigners
33(1) if the arrest, detention and
deportation of an illegal foreigner in terms of
section 34(1) of
the Act is effected by means of a warrant, such warrant shall be
issued by an immigration officer to such illegal
foreigner, which
warrant shall be in the form of Form 28 illustrated in Annexure A.
(2)
The notification of the
deportation of an illegal foreigner contemplated in section 34 (1)
(a) of the Act shall be on Form 29 illustrated
in Annexure A.
(3)
The confirmation of detention
for purposes of deportation contemplated in section 34 (1) (b) of the
Act shall be on Form 30 illustrated
in Annexure A.
(4)
An immigration officer
intending to apply for the extension of the detention period in terms
of section 34 (1) (d) of the Act Shall-
(a)
within 20 days following the arrest on the detainee, serve on that
detainee a notification of his or her aforesaid intention on Form
31
illustrated in Annexure A.
(b)
afford the detainee the opportunity to make written
representations in this regard within three days of the notification
contemplated
in paragraph (a) having been served on him or her; and
(c)
within 25 days following the arrest of the detainee, submit with
the clerk of the court an application for the extension of the period
of detention of Form 32 illustrated in Annexure A, together with any
written representations that may have been submitted by the
detainee
in terms of paragraph (b).
(5)
The minimum standards with
regard to detention as contemplated by section 34(1)(e) of the Act
are as set out in Annexure B.
(6)
A court may authorise the
extension contemplated in sub-regulation (4) on Form 32 illustrated
in Annexure A.
"
[8]
Section 34(1)(b) read with sub-regulation 33(3) does not afford a
detainee an automatic right to have the lawfulness of his/her
detention confirmed by a court nor does it provide for an appearance
in court.
[9]
Similarly, section 34(1)(d) read with sub-regulation 33(4) provides
for the extension of the period of detention of a detainee
without
affording the detainee a right to appear in court to challenge the
request for an extension.
CONSTITUTION
CHALLENGE
[10]
The applicant contends that the failure to afford detainees the
automatic right to appear in a court to have the lawfulness
of their
detention and/or extension thereof confirmed, limits their rights
contained in section 35(1)(d) and 35(2)(d)
alternatively
section
12(1) of the Constitution of the Republic of South Africa, 1996 ("the
Constitution").
Section
35
[11]
Section 35 encompasses the rights of arrested, detained and accused
persons. Section 35(1) (d) and 35(2) (d) reads respectively
as
follows:
"35. (1) Everyone who is
arrested for allegedly committing an offence has the right:-
(a)
.....;
(b)
......;
(c)
......;
(d)
to be brought before court a court as soon as reasonably possible,
but not later than-
(i) 48 hours after the arrest,·
or
(ii)
the end of the first
court day after the expiry of 48 hours, if the 48 hours expire
outside ordinary court hours or on a day which
is not an ordinary
court day;"
and
"35. (2)(d) Everyone who is
detained, including every sentenced prisoner, has the right-
(a)
....;
(b)
.........;
(c)
..................... .
(d)
to challenge the lawfulness of the detention in person before a court
and, if the detention is unlawful, to be released.
[12]
In respect of the right to be brought before a court subsequent to
one's arrest, Mr Bofilatos SC, counsel for Home Affairs,
submitted
that the arrest in terms of
section 34(1)
of the
Immigration Act is
for purposes of deportation and not because the arrested person has
"allegedly committed an offence•
as contemplated in
section 35(1).
I pause to mention, that the
Immigration Act does
contain a specific penal provision in
section 49.
Section 49(1)(a)
and (b) read as follows:
“
49 Offences
(1) (a) Anyone who enters or
remains in, or departs from the Republic in contravention of this
Act, shall beguilty of an offence
and liable on conviction to a fine
or to imprisonment not exceeding two years.
(b) Any illegal foreigner who fails
to depart when so ordered by the Director- General, shall be guilty
of an offence and liable
on conviction to a fine or to imprisonment
not exceeding four years.
[13]
Insofar as an arrest is only for the purpose of the deportation of an
arrested person and not due to a contravention of the
provisions of
section 49(1) of the Act, the argument advanced by Mr Bofilatos SC,
appears to be convincing.
[14]
However, even if Mr Bofilatos SC is correct in this regard, the right
of a detained person to challenge the lawfulness of his
or her
detention in person before a court contained in section 35(2) (d)
remains in issue.
[15]
Once an illegal foreigner is arrested and thereafter detained pending
his or her deportation, the provisions of section 35(2)(d)
applies.
The section does not exclude certain classes of detained persons and
specifically states that
"Everyone who is detained,....., has
the right..... ".
[16]
Mr Bofilatos SC conceded that the right contained in section 35(2)(d)
is applicable to illegal immigrants. He, however, contended
that
section 34(1)(b) does entitle an illegal immigrant to request that
his or her detention be confirmed by a warrant of
Court and that
section 34(1)(d) makes a warrant by Court a prerequisite to further
detention.
[17]
This proposition, however, has two difficulties:
i. firstly, the section does not
provide for an automatic right to appear in a court; and
ii. secondly, it does not specify that
such appearance should be in person.
[18]
The importance of judicial oversight over an administrative detention
was emphasised by the Constitutional Court in
De Lange v Smuts NO
and Others
[1998] ZACC 6
;
1998 (3) SA 785
CC at paragraph [26] to [28]:
[26] When viewed against its
historical background, the first and most egregious form of
deprivation of physical liberty which springs
to mind when
considering the construction of the expression 'detained without
trial' in s 12(1) (b) is the notorious administrative
detention
without trial for purposes of political control. This took place
during the constitutional dispensation under various
statutory
provisions which were effectively insulated against meaningful
judicial control. Effective judicial control was excluded
prior to
the commencement of the detention and throughout its duration. During
such detention, and facilitated by this exclusion
of judicial
control, the grossest violations of the life and the bodily, mental
and spiritual integrity of detainees occurred This
manifestation of
detention without trial was a virtual negation of the rule of law and
had serious negative consequences for the
credibility and status of
the judiciary in this country.
[27] Even where a derogation from a
s 12(1) (b) right has validly taken place 2 s in consequence of a
state of emergency duly declared
under the provisions of the 1996
Constitution, 29 and such derogation has excluded a trial prior to
detention, detailed and stringent
provisions are made for the
protection of the detainee and in particular for subsequent judicial
control by the courts over the
detention. 30 it is difficult to
imagine that
any form of detention without trial which takes
place for purposes of political control and is not constitutionally
sanctioned under
the state of emergency provisions of s 37 could
properly be justified under s 36. It is, however, unnecessary to
decide that issue
in the present case. History nevertheless
emphasises how important the right not to be detained without trial
is and how important
proper judicial control is in order to prevent
the abuses which must almost inevitably now from such judicially
uncontrolled detention.
"
[19]
The judgment was concerned with
section 66(3)
of the
Insolvency Act,
24 of 1936
, which section confers upon a presiding officer at an
insolvency enquiry the right to commit unco-operative witnesses to
prison.
[20]
Although the Court dealt with detention without a trial, the
underlying principle that any detention should be subject to judicial
oversight, remains the same.
[21]
The court emphasised the separation of powers between the Judiciary
and the Executive and held that the power to commit a person
to
prison falls squarely within the sphere of judicial power and can,
therefore, not be exercised by non-judicial officers.
[22]
The importance of the separation of powers was further discussed at
paragraph [63], to wit:
"The principle articulated in
Brimson and implicit in the jurisprudence of other democracies is
clear: only judicial officers
may, consistent with the proper
separation of government powers, commit recalcitrant witnesses to
prison. Judicial officers enjoy
complete independence form the
prosecutorial arm of the State and are therefore well-placed to curb
possible abuse of prosecutorial
power. However, were executive branch
officials to be invested with the power to compel, upon pain of
imprisonment, co-operation
with their investigative demands, this
necessary check on the prosecutorial power
would vanish
because it would allow the executive to pass judgment on the
lawfulness of its own prosecutorial decisions.
"
[23]
The fact that a similar right to judicial oversight is contained in
section 35(2)(d)
was recognised in
De Lange v Smuts NO and Others,
supra.
[See:
De Lange v Smuts NO and Others, supra
at para
[64]].
[24]
The power to detain an illegal immigrant is exercised by the
Executive through an immigration officer who is a non-judicial
officer. As alluded to earlier,
section 34(1)
(b) and (d) does not
provide for judicial oversight in respect of each and every person
that is detained in terms of the section
nor does it provide for an
appearance in court.
[25]
On face value
section 34(1)
(b) and (d) therefore limits the rights
contained in
section 35(2)(d).
[26]
Faced with the aforesaid difficulty, Mr Bofilatos SC argued that,
even if all detentions in terms of the
Immigration Act should
be
subject to judicial scrutiny, an illegal immigrant need not appear in
person in court. He contended that the words
"in person"
in
section 35(2)
(d) does not envisage a physical presence in
court.
[27]
The importance of a detained person appearing in court in person is
obvious and has been summarised by Mr Budlender, counsel
for the
applicant, in his heads of argument as follows:
"55. 1. The magistrate is able
to explain to the detainee how the process works and to inform him of
his rights and status.
55.2. The detainee is given the
opportunity to seek legal representation. Legal representatives, in
turn, are able to access and
communicate with clients.
55.3
The magistrate is able to ask
questions to elicit information from the detainee and to interrogate
answers to obtain a more detailed
account This ensures that all
relevant information is put before the court. This is not possible
with a single, final written submission.
55.4
Detainees who are illiterate
are able to describe verbally why their detention should not be
extended.
55.5
The magistrate will be able to
detect and correct obvious oversights
such as instances where
–
55.5.1
individuals have valid legal documents but have been unable to
retrieve them, or
55.5.2
individuals meet the legal requirements for refugee or asylum
status but have been unable to obtain the correct documents due to
bureaucratic issues at the Home Affairs offices, or
55.5.3
Unaccompanied children have been recorded as adults but are clearly
younger than 18years old.
55.6
The magistrate will be able to
observe the physical wellbeing of the detainee and determine the need
for medical treatment if any.
"
[28]
In the premises, the contention that a detained person need not be
physically in court is without merit. An appearance in open
court
bestows legitimacy on the detention and provides a certain measure of
security and comfort to the detainee.
Section 34(1)
(b) and
34
(1)
(d), therefore, limits the
section 35(2)(d)
rights of a detained
illegal immigrant.
[29]
In view of the aforesaid finding, it is not necessary to consider the
alternative
argument based on the right not to be detained
without a trial provided for in section 12(1) (b) of the
Constitution.
JUSTIFICATION OF
LIMITATION
[30]
Once a limitation of a fundamental right has been established, the
burden to justify the limitation under section 36(1) of
the
Constitution rests on the party asserting that the limitation is
justifiable.
[31]
The manner in which a limitation should be justified has been the
subject of judicial scrutiny. In
Moise v Greater Germiston
Transitional Local Council: Minister of Justice and Constitutional
Development intervening (Women's Legal
Centre as Amicus Curiae)
[2001] ZACC 21
;
2001
(4) SA 491
(CC) at para 19, the Constitutional Court held as follows:
[32]
Home Affairs failed dismally in satisfying the clear requisites cited
aforesaid.
[33]
The deponent to the answering affidavit filed on behalf of Home
Affairs, Modiri Matthews, is the Chief Director, Inspectorate
at Home
Affairs. Mr Matthews relied on statistical data in respect of the
number of persons that were deported in the 201312014
financial hear
without attaching the source of the information in confirmation
thereof, to his affidavit. Be that as it may, Mr
Matthews then enters
the realm of the judiciary and submits that at least 500 more people
per working day will need to appear in
court. According to Mr
Matthews this will overburden the already strained resources of the
State and more specifically will increase
the work load of the
already overburdened magistrates' courts.
[34]
No facts underlying this bold statement are contained in the
answering affidavit. Even if one attempts to consider this ground
of
justification, the correct Government Department to raise this point
is the Fourth Respondent. As alluded to earlier, the Fourth
Respondent does not oppose the relief claimed by the applicant and
has to the contrary, filed a notice to abide by the decision
of this
court.
[35]
In the premises, Home Affairs has not provided any justification for
the limitation of the fundamental right contained in section
35(2)(d).
APPROPRIATE
REMEDY
[36]
In view of the aforesaid finding, the applicant is, in terms of
section 172(1)(a) of the Constitution, entitled to a declaration
that:
i.
section 34(1)(b)
of the
Immigration
Act, 13 of 2002
is unconstitutional and invalid to the extent that it
requires a detainee to request that his or her detention be confirmed
by
a Court rather than granting an automatic right that such
detention be confirmed by appearing in person in Court; and
ii.
section 34(1)(d)
of the
Immigration Act, 13 of 2002
is unconstitutional and invalid to the
extent that it provides for an extension of the period of detention
without affording the
detainee the right to appear in court in person
at the time the request is made.
[37]
The issue then arise whether further relief should be granted to
regulate the impact of the declaration of invalidity. Several
remedial techniques have been considered by the Constitutional Court
and in
South African National Defence Union v Minister of Defence
2001
(5) SA 400
CC, O'Regan J referred to the following
techniques at paragraph [94]:
'The unconstitutionality can be
rectified by the remedial techniques of severance and reading-in.
...."
[38]
In
Shinga v The State
2001
(4) SA 611
CC, Yacoob J considered
the technique of severance and reading-in at para [56]:
"Similar considerations apply
to the finding of unconstitutionality based on the fact that ss (5)
(a) is objectionable. The
setting-aside of whole of
s 309C
(5) w171
create a void in the petition procedure which would then become
unworkable. The defect can be remedied only by adjusting
the
provision so
as to increase the number of judges required to
consider petitions for leave to
appeal. The remedies of
severance and reading-in can effectively be used to
craft this
provision so that it is consistent with the Constitution. This is
because the guidelines set out in the cases of this Court for this
kind of
recrafting have been met….”
[39]
The present wording of section 34(1)(b) does provide that the
detention of a detainee may be confirmed by a warrant of court.
In
order to tailor the section to comply with the constitutional rights
of detainees, is, however, not a simple matter of severance
and
reading-in as envisaged in
Shinga v The State, supra.
In order
to retain the clear intention of the Legislator and still comply with
the requirement that the remedy provided herein must
be just and
equitable, the applicant proposed that the section provides as
follows:
"(b) must be brought before a
court in person within 48 hours of his or her detention, in order for
the Court to determine
whether to confirm the detention, failing
which the foreigner shall immediately be released.
"
[40]
In my view, the suggestion
supra
will prevent an unduly
strained application of the severance and reading-in techniques. The
gist of the section is saved through
a reshuffling of the words in
order to ensure compliance with the Constitution.
[41]
Section 34(1)(d) is somewhat different, the section can be saved by
severing the words
"a warrant of Court which"
and
reading-in the following words
"appearing in Court in person,
which Court
''.
[42]
The applicant succeeded in its application and the normal cost order
should follow.
APPLICATION TO STRIKE OUT
[43]
Home Affairs pray that certain paragraphs and an annexure attached to
the applicant's founding affidavit be strike.
[44]
The annexure "LLB" consists of a list of urgent
applications brought in the Gauteng High Court, Pretoria and
Johannesburg
on behalf of detainees for their immediate realise form
detention. One hundred and fifteen cases brought from 2009 to 2013
appear
on the list. I pause to mention that Home Affairs was the
respondent in each of these matters.
[45]
On 14 September 2015 Home Affairs served a rule 35(12) notice on the
applicant, calling on the applicant to produce for inspection
all
documents in all the cases referred to in annexure "LLB".
[46]
In response to the notice, the applicant addressed a letter to Home
Affairs on 7 October 2015. In the letter the applicant
contends that
the notice is impermissible and an abuse of process. Two grounds were
relied upon for the aforesaid conclusion, to
wit:
i. Home Affairs had, prior to the
service of the notice in terms of rule 35(12), filed an answering
affidavit dealing with the relevant
allegations made in reliance on
annexure "LLB";
ii. all of the applications were
served on the State Attorney and therefore Home Affairs is in
possession thereof.
[47]
In view of the stance taken by the applicant, Home Affairs lodged the
application to strike the paragraphs dealing with annexure
"LLB"
and the annexure itself.
[48]
Should a party fail to respond to a notice in terms of rule 35(12),
such party may not, save with the leave of the court, rely
on the
documents requested in the notice.
[49]
Uniform rule 6(15) provides for an application to strike out from any
affidavit matter which is
"scandalous, vexatious or
irrelevant''.
In
Erasmus Superior Court Practice,
Van
Loggerenberg, second edition at D1-B9, the aforesaid terms are
defined as follows:
(a)
Scandalous matter
-
allegations which may or may not be relevant but
which are
so worded as to be abusive or defamatory.
(b)
Vexatious matter
-
a/legations which may or may not be relevant but are so worded as
to convey an intention to harass or annoy.
(c)
Irrelevant matter
-
a/legations which do not apply to the matter in hand and do not
contribute in one way or the other to a decision of such matter."
[50]
Home Affairs did not rely on any of the aforesaid grounds in their
affidavit in support of the striking out application.
[51]
In the premises, Home Affairs failed to make out a case for the
relief sought in the application to strike out and consequently
the
application is dismissed with costs.
ORDER
The
following order is made:
1. It is declared that:
i.
section 34(1)(b)
of the
Immigration Act, 13 of 2002
is
unconstitutional and invalid to the extent that it requires a
detainee to request that his or her detention be confirmed by
a Court
rather than granting an automatic right that such detention be
confirmed by appearing in person in Court; and
ii.
section 34(1)(d)
of the
Immigration Act, 13 of 2002
is
unconstitutional and invalid to the extent that it provides for an
extension of the period of detention without affording the
detainee
the right to appear in court in person at the time the request is
made.
2.
Section 34(1)(b)
is to be read as
though it provides as follows:
"(b)
must be brought before a court in person within 48 hours of his or
her detention, in order for the Court to determine
whether to confirm
the detention, failing which the foreigner shall immediately be
released.
"
3. The words “
a warrant of
Court which"
in
section 34(1)
(d) is severed from the
section and the words
"appearing in Court in person, which
Court
•are to be read into the section.
4. The first and second respondents
are ordered to pay the costs of the application.
5. The application to strike out is
dismissed with costs.
___________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
Counsel
for the Applicant: Advocate Budlender
Advocate
Ferreira
Instructed
by: Lawyers for Human Rights, Pretoria
Counsel
for the Respondent: Advocate Bofilatos SC
Advocate
Mboweni
Instructed
by: State Attorney Pretoria