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[2016] ZAGPPHC 1233
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Malinga and Others v Director-General of Home Affairs and Another (73595/2016) [2016] ZAGPPHC 1233 (16 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 73595/2016
Date:
16/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
KS
L
MALINGA
First
Applicant
M
E
MATLAPENG
Second
Applicant
S
O
MATLAPENG
Third
Applicant
J
M M
MALINGA
Fourth
Applicant
M
L
LEPHOGOLE
Fifth
Applicant
A
K
LEPHOGOLE
Sixth
Applicant
And
THE
DIRECTOR-GENERAL OF HOME
AFFAIRS
First
Respondent
MINISTER
OF HOME
AFFAIRS
Second
Respondent
REASONS
D
S FOURIE, J:
1.
On 20 September 2016 I granted the following order in the
Urgent Court:
1.
The application in terms of Part A of the notice of
motion is dismissed with costs.
2.
The application in terms of Part B of the notice of
motion is postponed sine die.
3.
Pending the finalisation of the application in terms
of Part B of the notice of motion the first applicant shall not be
deported."
On
6 October 2016 a written request for reasons in terms of Rule
49(1)(c) was filed. These are my reasons for the order granted.
CASE
FOR THE APPLICANTS
2.
The applicants filed an urgent application in which they
applied for the following relief:
•
Pending finalisation of the
relief sought in Part B of the application, that the first applicant
be released with immediate effect
from detention at the Sunnyside
Police Station where he is being detained; and
•
That the first applicant be
permitted to remain in the Republic of South Africa with the second
to fourth applicants, subject to
reasonable terms and conditions.
Part
B of the application consists of a notification in terms whereof the
first applicant indicates that he intends to apply, on
a date
determined by the Registrar, for an order that any decision which has
been made (or about to be made) to deport him from
South Africa, is
reviewed and set aside.
3.
In his founding
affidavit the first applicant avers that he is a South African
citizen and the holder of a valid South African identity
document. He
further states that he was born in South Africa and has been living
here for over 20 years as a South African citizen.
According to him
his birth was registered by his father (who is now deceased) when he
was still a teenager. He and his parents
fled South Africa during the
apartheid years and lived in Swaziland "until I returned to
South Africa on or about 1994 when
I acquired my South African
citizenship". A copy of his identity document indicating that he
is a South African citizen, is
attached to the application.
4.
During August 2016 the Department of Home Affairs started to
investigate him. On 15 September 2016 he was interviewed by a certain
Ms Zulu, an Immigration Officer of the Department of Home Affairs.
According to him her attitude was hostile, antagonistic and
threatening. He then makes the following statement in his founding
affidavit:
"She coerced me to tell the
truth despite my protestations. She ordered me to write
a
statement and sign certain documents that I do not know what they
were for. Fearing the real prospects of arrest and subsequent
Deportation, I wrote
a
statement against my will having been
threatened by Ms Zulu to either make an admission or face arrest and
deportation. When making
this statement I was of the belief that I
would be released."
5.
He was thereafter arrested for being an illegal foreigner and was
also advised that he will be deported. According to him he
is a South
African citizen, has a right to be in South Africa and should be
released from detention pending finalisation of a review
application.
He also points out that he is entitled to an interim interdict as
"there are no internal remedies in terms of
the Act".
CASE
FOR THE RESPONDENTS
6.
The deponent on behalf
of the respondents is Ms Zulu, an Immigration Officer: Special
Investigation and Joint Operations employed
by the Department of Home
Affairs. According to her the first applicant is not the holder of a
valid South African identity document
as it has been fraudulently
obtained.
7.
She refers to the
Movement Control System, maintained by the Department of Home
Affairs, which indicates that during the period
1996 and 1997 the
first applicant used a Swaziland passport to enter into the Republic
of South Africa on various occasions at
the Oshoek border gate.
Copies of printouts indicating these movements are attached to the
answering affidavit. She also explains
that the first applicant is a
national of Swaziland who is the holder of an identity document that
was issued in Swaziland on 14
August 2013. A copy of this document is
also attached to the answering affidavit.
8.
According to the first
applicant he obtained his South African citizenship in 1994.
According to Ms Zulu this "is contrary
to the fact that he is
currently issued with the identity card by the Kingdom of Swaziland
and the fact that he travelled from
Swaziland into South Africa,
using the Swaziland passport during 1996 and 1997". According to
her the applicant is presently
an illegal foreigner.
9.
In support of this
allegation she also refers to a questionnaire, completed by the first
applicant, in which he admits that his
status is that of an illegal
foreigner. A copy of this document is also attached to the answering
affidavit. On 15 October 2016
the applicant testified in another
affidavit that he was born in Mbabane, Swaziland on 11 April 1977. A
copy of this affidavit
is also attached. This is inconsistent with
his founding affidavit where it is stated that he was born in South
Africa.
10.
According to Ms Zulu she conducted an interview with the first
applicant in accordance with
section 41(1)
of the
Immigration Act, No
13 of 2002
, free from any undue pressure and improper conduct towards
the first applicant. He then freely and voluntarily made a sworn
statement
to which I have already referred to above. She also issued
the applicant with a Notice of Decision (Form 2) as well as a
Notification
of Deportation (Form 29), copies of which are also
attached to the answering affidavit. In terms of the notification of
deportation
it appears that the first applicant has decided to await
his deportation at the first reasonable opportunity, whilst remaining
in custody and that he has decided not to appeal the deportation
decision. This document purports to be signed by the first applicant
on 15 September 2016.
DISCUSSION
11.
An arrest or detention
is
prima facie
wrongful.
It is common cause that the first applicant has been arrested and is
being detained without a warrant. It is for the respondents
to prove
the lawfulness of the arrest and detention. Ms Zulu states that she
duly acted in accordance with the provisions of
section 41(1)
of the
Immigration Act. She
also refers to the Notification of Deportation
(Form 29) which was signed by the first applicant.
12.
Section 41(1)
of the Act
provides,
inter alia,
that
if on reasonable grounds an immigration officer or police officer is
not satisfied that the person concerned is entitled to
be in the
Republic, such person may be interviewed and the 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.
13.
Section 34
provides as follows:
"(1) Without the need for
a
warrant, an immigration officer
may
arrest an illegal
foreigner or cause him or her to be arrested, and shall, irrespective
of whether such foreigner is arrested, deport
him or her or cause him
or her to be deported and
may,
pending his or her deportation,
detain him or her or cause him or her to be detained in
a
manner
and at
a
place determined by the Director-General, provided
that the foreigner concerned
–
(a)
shall
be notified in writing of the decision to deport him or her and of
his or her right to appeal such decision in terms of this
Act;
(b)
may
at any time request an officer attending to him or her that his or
her detention for the purpose of deportation be confirmed
by
a
warrant of
a
Court, which, if not issued
within 48 hours of such request, shall cause the immediate release of
such foreigner;
(c)
shall
be informed upon arrest or immediately thereafter of the rights set
out in the preceding two paragraphs, when possible, practicable
and
available in
a
language
that he or she understands;
(d)
may
not be held in detention for longer than 30 calendar days without
a
warrant of
a
Court which on good and
reasonable grounds may extend such detention for an adequate period
not exceeding 90 calendar days; and
(e)
shall be held in detention in
compliance with minimum prescribed standards protecting his or her
dignity and relevant human rights."
14.
Having regard to the
answering affidavit and the annexures thereto, it appears that the
first applicant has acknowledged that he
is an illegal foreigner
(annexure "CPZ 3"), that he has been notified in writing of
the decision to deport him, his right
to appeal such decision and
that he may request that his detention for the purpose of deportation
be confirmed by a warrant of
the court (annexure "CPZ9").
According to this document he has decided not to appeal the decision
or to have his detention
confirmed by a warrant of court. In terms
thereof he has also decided to await his deportation at the first
reasonable opportunity,
"whilst
remaining in custody"
(annexure
"CPZ9").
15.
These documents are not
disputed in the replying affidavit. His answer is that no explanation
was given on what he was signing and
that "as a result of one
process and with no due diligence, I have in effect and entirely
against my will admitted that I
am not a South African citizen, being
incarcerated, awaiting deportation and waived my right to appeal
...". This appears
to be a bald, sketchy and flimsy explanation
for having signed a document in terms of which he has, on a proper
construction thereof,
consented to his deportation
"whilst
remaining in custody".
His
earlier explanation in the founding affidavit that he was of the
belief that he would be released is not supported by the contents
of
these documents. As a matter of fact they indicate the opposite to
which he has consented. This must also be seen against the
background
of him being a national of Swaziland, using a Swaziland passport,
which he failed to disclose in his founding affidavit.
16.
Taking into account these considerations, I was satisfied,
when granting the order, that the first applicant's detention is
lawful.
His decision not to lodge an internal appeal but rather to
bring a review application appears to be an afterthought and did not
affect the lawfulness of his detention on the day the order was
granted. I therefore concluded that the first applicant was not
entitled to an order releasing him from detention. For these reasons
I have exercised my discretion in favour of the respondents.
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
Date:
16 November 2016