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[2015] ZAFSHC 202
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Njoku v Minister of Home Affairs and Others (3233/2013) [2015] ZAFSHC 202 (23 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number 3233/2013
In
the matter between:
MBAKWE
IKECHUKWU
NJOKU
PLAINTIFF
and
MINISTER
OF HOME
AFFAIRS:
1
st
DEFENDANT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT:
2
ND
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS:
3
RD
DEFENDANT
MINISTER
OF
POLICE:
4
th
DEFENDANT
HEARD
ON:
17-20
FEBRUARY, 4-7 AUGUST, 28 AUGUST & 4 SEPTEMBER 2015
DELIVERED
ON:
23
OCTOBER 2015
MOCUMIE,
J
[1]
The plaintiff visited the Department of Home Affairs (the
department), Welkom, on 3 August 2012 to apply for an unabridged
birth certificate for his third child. This action emanates from such
visit and the subsequent arrest and detention of the plaintiff
by
employees of the defendant. The plaintiff subsequently issued
summons against the first, second and third defendant for:
‘
1.
Payment of the amount of R30 000 in respect of Claim A.
2.
Payment of the amount of R1 100 00 in respect of Claim B.
3.
Payment of R256 000 in respect of Claim C.
4.
Interest on the aforementioned amounts a
tempora
mora
.’
The
first defendant (the defendant) is sued in her capacity as the
official representative of the department under whom the employees,
who allegedly unlawfully assaulted, arrested and detained the
plaintiff. No relief is sought against second to fourth defendants.
[2]
The plaintiff instituted three claims against the defendant set out
in his particulars of claim as follows:
‘
CLAIM
A
3.1.
That during his arrest he was assaulted by officials of the Defendant
in the following manner:
3.1
hitting him on the face with open hands;
3.2
hitting him on the face with closed hands;
3.3
twisting his arms into an unnatural position, so as to place
handcuffs on him in such a manner as to cause him pain;
3.4
Shoving, pulling and generally manhandling the Plaintiff, so as to
cause him great discomfort.
He
alleged that as a result of the assault, he suffered a
dead/dysfunctional tooth as well as general loss of
contumelia,
temporary disability and loss of amenities of life.
CLAIM
B
[4]
The second claim was based upon damages suffered as a result of his
detention under the following headings:
(a)
Unlawful arrest;
(b)
Depravation of liberty and impairment of dignity;
(c)
Psychological and Psychiatric damage;
CLAIM
C
[5]
The third claim was based upon the instructions which the defendant
gave to the National Director of Public Prosecutions to
institute
criminal proceedings against the plaintiff without any reasonable and
probable cause. As a result therefore, the plaintiff
allegedly
suffered damages in respect of the following:
5.1
Incurred legal costs;
5.2
Loss of income;
5.3
General damages for
contumelia
and pain and suffering.’
[6]
In the plea, the defendant admitted that the plaintiff was arrested
by her officials during the course and scope of the performance
of
their duties but denied that the arrest was unlawful and/or
malicious. The defendant pleaded that the plaintiff was arrested
by
an immigration officer in terms of Section 41, read with Section 34
of the Immigration Act 13 of 2004 ( the Immigration Act).
The
defendant further pleaded that the officer effecting the arrest was
under a reasonable suspicion that the plaintiff was not
entitled to
be in the Republic of South Africa (South Africa) and such officer
took all reasonable steps to assist the plaintiff
in verifying his
identity and or status. The defendant pleaded further that although
the detention of the plaintiff was admitted,
the detention was
lawful. The defendant denied the balance of the allegations and put
plaintiff to the proof thereof.
[7]
During the Rule 37 conference, the parties agreed that the onus of
proof rested on the plaintiff and that the plaintiff had
the duty to
begin to adduce evidence. Although, Mr Masoka, on behalf of the
plaintiff attempted to go back on this agreement, however,
he
subsequently accepted that he had to lead evidence. The correct legal
position on the onus of proof in a claim of this nature
particularly
where the defendant admitted the arrest and detention of the claimant
is set out authoritatively, having considered
earlier decisions
[1]
and decisions of other jurisdictions , by the Supreme Court of Appeal
in
Minister
of Safety and Security v Sekhoto and Another
[2]
as follows:
‘
[49]
[
A] party
who alleges that a constitutional right has been infringed bears the
onus.
The
general rule is also that a party, who attacks the exercise
of discretion, where the jurisdictional facts are present,
bears
the onus of proof. This is the position whether or not the right to
freedom is compromised.
For instance, someone who wishes to attack an adverse parole decision
bears the onus of showing that the exercise of discretion
was
unlawful. The same would apply when the refusal of a presidential
pardon is in issue.
[50] Onus in the
context of civil law depends on considerations of policy, practice
and fairness; and, if a rule relating to onus
is rationally based, it
is difficult to appreciate why it should be unconstitutional. Hefer
JA also raised the issue of litigation-fairness
and sensibility. It
cannot be expected of a defendant, he said, to deal effectively, in a
plea or in evidence, with unsubstantiated
averments of mala
fides and the like, without the specific facts on which they are
based being stated. So much the more can it
not be expected of a
defendant to deal effectively with a claim — as in this case —
in which
no
averment is made, save a general one that the arrest was
'unreasonable'. Were it otherwise, the defendant would in effect be
compelled
to cover the whole field of every conceivable ground
for review, in the knowledge that, should he fail to do so, a
finding,
that the onus has not been discharged, may ensue. Such a
state of affairs is quite untenable.’
(My
emphasis)
[8]
The plaintiff testified alone on the alleged unlawful assault, arrest
and detention. He testified that on 31 July 2012, he visited
the
office of the defendant in Welkom to obtain an unabridged birth
certificate for his daughter born on 22 July 2012. The officer,
who
was attending to him, Mr Leonard Modisenyana Ramakau (Ramakau),
refused to register the child but did not give him any reason.
He
left the Welkom office and went to Bultfontein to register the child
there. Bultfontein referred him back to Welkom as the child
was born
in Welkom. Upon arrival, he was informed by the same officer, Ramakau
that the Immigration Unit had been looking for him.
Ramakau also
instructed a security officer to arrest him. The security officer
there and there took him to the first floor of the
same building
where they found another official of the defendant, Mohau. The latter
enquired from him whether his names were Njoku.
When he replied in
the affirmative, Mohau said ‘we have been looking for you, you
criminal…We’ve got you’.
Mohau thereafter took him
to a certain Mr Breedt (Breedt) who was apparently a senior officer
of the defendant, in the Inspectorate
unit. He enquired from Breedt
why the unit had been looking for him. Instead Mohau gave him a big
blow on the mouth, everything
became black and he fell down on the
floor. As he put it ‘I was seriously impaired’. When he
came to his senses Ramakau
was also there. As he stood up his
cellphone rang. Mohau grabbed it from him and told him that he wil
not receive any calls while
he was in his office. Only four people
were in the room: him, Ramakau, Mohau and Breedt.
[9]
Breedt interviewed him in the presence of Mohau and told him that he
was illegal in the republic, showing him a print out from
the
computer. He denied that and explained how he came into South Africa
in 1999 as an asylum seeker, fleeing from his country
of
origin, Nigeria through Zimbabwe; he was granted his first permit as
such in 1999 which was renewed every month but expired
in 2005;in May
2005 he married a South African woman called Ms Donna Rakhavha
(Donna) from Venda; arising from his marriage he
obtained a permit
under s26(b)(i) of the Immigration Act 13,2002 (the Immigration Act)
which had to renewed every two years; he
separated from Donna due to
lack of financial means to support her (as Donna testified later or
undisclosed reasons as he maintained
during his testimony) and he
went to stay at a church in Pretoria where he continued his
relationship with Donna who visited him
from time to time. Later he
started another relationship with another woman, Ms Simphiwe Kronci
(Kronci) who he later married.
He has a child with Kronci as Donna
refused to have children with him, apparently, due to his mental
illness or psychiatric condition
which Donna believed may be passed
on to the child; which he said he suffered from since he was
diagnosed in 2002,long before his
arrest. But Donna gave her
blessings and consent to such arrangement. His relationship with
Simphiwe bore him a child, Hesina Joy
Njoku, who is 9 years old. This
relationship entitled him to the s27 (g) permit which the defendant
granted to him in 2009. There
was no condition attached to this
category of permanent residence.
[10]
He stated that on the day in question, when he visited the
defendant’s office in July 2012 to obtain the unabridged birth
certificate for his third child he had his identity document only. He
was told by one of the defendant’s employees that in
the
circumstances it was not necessary to use a s26 (b) permit as he was
a relative of a citizen of the republic of South Africa
within the
first line i.e arising from being a father to his 9 year old South
African born daughter. He did not have nor did he
ever apply for s26
(b) permit as the defendant’s officials insisted. Breedt there
and then endorsed his identity document
as a s26 (b) (i) which had
lapsed in 2010;which made him to be regarded as illegal in the
republic from that moment.
[11]
He testified further that after the defendant’s employees
arrested him, he was kept in detention for further police
investigation until he was taken to court on 8 August 2012. He was
released on bail of R1000. His wife arranged a lawyer for him.
He
appeared on 29 August 2012, 18 September and 11 October 2012 when his
case was struck from the roll by the magistrate when no
formal
charges were preferred against him.
[3]
He testified further that on the day of the alleged assault, he did
not get any medical assistance from the concerned officials.
As a
result, upon his release on bail, he consulted a dentist. The dentist
told him that one tooth in his mouth had changed colour
and was dead
.The dentist, however, did not remove the tooth. He testified that
the responsible officials did not give him any
assistance including
to take him to his home to fetch the documents he referred, his s27
(g) permit which he was not carrying with
him when he was arrested.
[12]
He also testified that some time in December, between the 31 December
and 1 January, on New Year’s Eve, he met Mohau
at a
recreational park in Welkom. Mohau threatened to assault him but he
walked away from Mohau to avoid a fight. He went to the
police
station to open a case of assault against Mohau. Instead a charge of
crimen
injuria
was already opened against him by Mohau. He appeared in court twice
and the second occasion the case was withdrawn by the State.
From
that time he alleged the police and defendant’s employees
harassed him through phone calls. But he reported to a certain
police
Commander and the harassment stopped. After some time he instituted
this action against the department. On one particular
day a Mrs
Erasmus, one of the defendant’s employees called him and asked
him to come and see her. On his arrival, she asked
him why is he
suing the department when his identity document had been corrected
.He maintained that he was going ahead with the
law suit and left.
Mrs Erasmus called him for the second time and told him that amongst
other things to investigate, Breedt had
gone to Cape Town to trace
and interview the mother of his child, Ms Simphiwe Kronci.
[13]
Ramakau also met him after he had instituted this action. He told him
that he did not want to arrest him on the day in issue
in 2012. He,
Ramakau, was instructed by Breedt to arrest him. He did that although
he did not believe that the plaintiff was wrong
simply because he was
afraid of Breedt who was responsible for one of his colleagues losing
his job over a similar matter.
[14]
During cross examination he stuck to his version that the defendant’s
employee, Mohau, assaulted him by hitting him as
he described in
court: ‘struck on the mouth with an open hand’ as a
result of which he fell and lost consciousness.
He denied that he was
illegal in the republic. He denied that he had forged any document
presented to him by the defence including
a s26 (b)(i) permit which
he purportedly signed; that at the time he applied for an extension
of his permanent residence under
s26 (b)(i) (category of a spouse) he
did so fraudulently as he was no longer in a good spousal
relationship with Donna. He also
denied that information to the
effect that he was in the republic under s26 (b)(i) but no longer in
a good spousal relationship
with Donna was in the national computer
despite Breedt telling him so. He denied that he married Donna in May
2005 for the sole
purpose of obtaining the spousal permit. He
maintained, without saying how it was done, that Breedt put false
information into
the system in Welkom on the day he had him arrested.
That is why such information was not on the national data system as
Mayekiso
said. He denied that he married Donna in July but left her
in November/December of the same year; meaning if that were the case
then his spousal permit would have lapsed automatically if brought ot
he attention of the department.
[15]
The plaintiff then called his first witness, his wife, Ms Alice
Nyathi (Alice) who testified that she stayed with the plaintiff
as
husband and wife during 2009 after they met in Johannesburg. The two
of them then moved to Masemong, Welkom. She has two children
with the
plaintiff. She testified further that a day after the plaintiff was
arrested by the defendant’s employees; she went
to visit the
plaintiff in the holding cells. When she saw him, he did not look
like when he left home the previous day. So, she
asked him what had
happened and he told her that he had been assaulted at the offices of
a certain Mr Breedt that she did not know.
But she saw bruises on his
mouth, on the lips.
[16]
The plaintiff called his second witness, Mr Bonakele Shadrack
Mayekiso (Mayekiso), the Provincial Manager of the defendant
in the
Free State Province. His responsibility amongst others is to receive
complaints from the public whenever aggrieved by the
department. He
testified that sometime in 2012 the plaintiff came to his office and
complained that the Welkom office had endorsed
his permit as a s26
(b) permit whereas his was a s27 (g) permit. This caused a problem
because he could be arrested at any given
moment as it appeared that
he was illegal in the republic. As the head of the defendant in the
province, he launched an investigation
in that regard. He contacted
Ms Erasmus in the Welkom office to investigate the matter. When the
plaintiff returned to him he did
not have the answer. He then sought
the assistance of Mr Hednick, the provincial co-ordinator, it was
found that the plaintiff’s
permit was a s27 (g) permit and not
a s26 (b).Consequently, he instructed Welkom office to correct this
error by removing the s26
(b) endorsement from the plaintiff’s
permit on the system. This was done by endorsing the identity
document with the words
to the effect that s26 (b) was erroneously
endorsed on the plaintiff’s identity.
[17]
He testified further that although he was not working directly with
applications of immigration permits/permanent residence,
when he had
a suspicion that a permit had been obtained fraudulently, as in this
case, if he were the officer faced with the same
situation, he would
rather investigate the matter first before he arrested the suspect.
In other words, ordinarily, he would satisfy
his suspicion first by
gathering information from the data base readily available across the
country and other means than arrest
first and then investigate. But
this depended on the varying circumstances of each case when
presented to the relevant officer(s).
But he could not make any
comment as he did not have all the necessary information before him
or the facts presented to the officers
in question at the time they
decided to arrest the plaintiff. Neither could he comment on whether
they had acted unreasonably.
He was however of the view that that
there was a lot that was being done in terms of upgrading and
improving the systems in place
with regard to picking up fraudulent
applications made for permanent residence even through all the stages
including upon verification.
In many towns the systems were not
talking to each other. In closure, he said ,once he had assisted the
plaintiff as he did ie
instructing Welkom office to remove the s26
(b) endorsement from his permit he did not take the matter any
further.
[18]
During cross examination he indicated that mistakes do come to the
fore from time to time within the department. In clarification
at the
request of the court, he said if there was an error on the part of
the department, the department had to take responsibility
and could
not blame or accuse the applicant. He testified that because he was
not privy to all the issues of the arrest of the
plaintiff it would
be unfair of him to say whether it was fair or not for Breedt to have
arrested the plaintiff when he did. He
said, in the event that there
was an error upon application for permits under discussion, the
department took responsibility without
apportioning any blame on the
applicant in the particular application. He also testified that after
the arrest, pending investigations,
persons detained under the
Immigration Act are kept in holding cells with other suspects where
they no longer fall under the auspices
of the Immigration office.
They are taken by the South African Police Services to the respective
courts with all other suspects.
The Immigration Office does not have
its own holding cells despite the request having being made to the
department responsible.
[19]
The defendant called several witnesses, Mr Nyakallo Samuel Mohau
(Mohau), Mr Modisenyana Leonard Ramakau (Ramakau), Mr Nicolas
Gerhardus Jakobus Breedt (Breedt), Mrs Adriana Johanna Erasmus
(Erasmus) and Ms Donna Ravhela (Donna).
[20]
Donna testified that she met the plaintiff early 2005 and in
June/July they were married in Springs, Gauteng. They stayed as
husband and wife in Yeoville. In less than six months, around
November the same year, when the plaintiff could not pay rent as
he
was unemployed, they both moved out. She went to stay in Soweto and
the plaintiff went to stay in Pretoria at a church. During
2008, when
they were not staying together, the plaintiff phoned her because his
permit required to be extended and she went him
to Springs to apply
for an extension of his permit. Although they were not staying
together as husband and wife such fact was not
reported or brought to
the attention of the officer who was assisting them. In 2013 or so
she divorced the plaintiff as they were
no longer staying together as
husband and wife and she had met another man who she wanted to be in
a relationship with.
[21]
Ramakau testified that on the day in question, he was on duty when
Breedt instructed him to arrest the plaintiff on allegations
of
contravening s26(b).The plaintiff had been there earlier on that day
but had left. Upon his return, he took him to Mohau and
all went to
Breedt’s office. After an interview by Breedt, the latter
instructed him to put the plaintiff under arrest and
he did that by
instructing a security officer on duty to help him put the plaintiff
him in a police van outside the building.
[22]
Mohau testified that on the day in question he took the plaintiff to
Breedt as the plaintiff testified. He denied that he assaulted
the
plaintiff as alleged. He testified further that during December
festive period, contrary to what the plaintiff said, the plaintiff
is
the one who confronted him in the presence of his wife and child and
wanted to start a fight. The fight did not continue.
[23]
During cross examination, Mohau denied having assaulted the plaintiff
.He did not know the plaintiff before the day in issue.
There would
therefore be no reason for him to accuse the plaintiff of being a
criminal and assaulting him.
[24]
Erasmus testified that she was an employee at the office of the
defendant in Welkom where she occupied the position of Operations
Officer since 1986 until her elevation to Director in May 2010. All
officers who serve as Control Managers such as Breedt and Mohau
reported directly to her and she in turn reported to Mayekiso. She
testified that she met the plaintiff at the end of 2012 when
he was
referred to her by Mayekiso to attend to his complaint. She informed
the plaintiff that the original documents were at Head
Office in
Pretoria and thus she had to wait for some time to adress his problem
as instructed by Mayekiso. This was going to take
some time. But
informed him about what the preliminary investigations had revealed
that he was not supposed to be in the republic
but for the South
African born child he had. The plaintiff at some point became
impatient and started to show signs of impatience
and
unreasonableness. When she met the plaintiff for the first she was
not aware that he had instituted a claim against the department
until
sometime in 2013. She and others were thereafter advised not to
pursue investigations any further until the matter was finalised
in
[25]
Under cross examination she maintained that because the plaintiff’s
permit was endorsed under s26 (b) he was no longer
legal in the
republic. Her evidence did not change to course of the action either
way, except to corroborate Breedt on the legal
frame work which they
operated under. That, with the information before him, Breedt was
expected to arrest the plaintiff. She denied
that she harassed and or
threatened the plaintiff in any manner including deporting him and
confiscating his belongings as the
plaintiff alleged. She maintained
that she was not aware when the plaintiff came to her office the
first time that he had instituted
an action against the department.
She had no reason to jeopardise the department’s case by
hurling threats. She denied that
the plaintiff asked to be taken home
to get his identity document and or s27 (g) permit. She maintained
that there was no other
obligation to take further steps after the
plaintiff was arrested. As she put it, if the plaintiff indeed had a
s27 (g) permit
at, he could just as well have asked his wife to bring
it to him whilst he was detained and produce same in court. Instead
the
plaintiff had said he had an identity document. In her view
Breedt acted as he ought to have acted otherwise he would have been
charged in the event that the plaintiff did not return after he had
released him on warning as s49(5) of the Immigration provided.
[26]
Breedt was probably the defendant’s key witness as the
plaintiff alleged that he initiated the purported unlawful arrest
and
detention. Breedt testified that the plaintiff came to the Welkom
offices as he testified to apply for a permit under s 27(g).
The
officer who assisted him picked up an anomaly ie that the plaintiff
was in the republic under s26 (b) which had since expired
in 2010. He
checked the information on the computer and confirmed same. He
printed out a copy. The plaintiff later arrived to apply
again for
the registration of his child. He was confronted with the information
on the computer printout. He denied that. He was
brought to him in
his office by Mohau.He interviewed the plaintiff based on the
information he had on the computer printout that
he was in the
republic illegally at that stage. The plaintiff denied this and said
he was under s27 (g).He explained to the plaintiff
that he could not
be in the republic on that basis as his s26 (b) permit had lapsed.
[27]
The plaintiff, he testified, was arrested in terms of the Immigration
Act and handed over to the South African Police Service
for detention
at the local holding cells until his appearance in court. Subsequent
to his arrest and detention he continued with
his investigation in
the matter. He interviewed the two woman the plaintiff had been in
relationships with: Donna and Simphiwe.
The information he gathered
from them confirmed his suspicions that when the plaintiff applied
for an extension of his spousal
permit in July 2008 he was no longer
staying with Donna. That Simphiwe was also not even with him when
such extension was sought,
yet her names were inserted in the
application form. An insertion which a busy officer would not have
picked up easily.
[28]
During cross examination he denied that the plaintiff was assaulted
in his presence. He stated that the plaintiff did not complain
to him
that Mohau had assaulted him. He did not see any visible injuries on
the plaintiff. He maintained that the plaintiff was
not was in the
republic under s26 (b) (i) on the condition that he was in a good
spousal relationship with Donna. The permanent
residence permit was
depended on that condition. Once he separated from Donna he was no
longer legal in the republic. The fact
that he called Donna from
where she was to sign for an extension of his permanent residence was
done fraudulently and confirmed
that he had not complied with the
prescripts of the Immigration Act. Thus the extension should not have
been granted in the first
place.
[29]
On the issue of an assault and injuries on the plaintiff ,Breedt was
adamant that he did not see any sign of injury on the
plaintiff’s
mouth shortly after Mohau had brought him to his office. Neither did
the plaintiff report any assault to him.
[30]
Section 41 of the Immigration Act provides:
‘
When
so requested by an immigration officer or a police officer; any
person shall identify himself or herself as a citizen, permanent
resident ot foreigner; and if on reasonable grounds such an
immigration officer or police is not satisfied that such person may
be interviewed by an immigration officer or police officer may take
such person into custody without a warrant and, shall take
reasonable
steps as may be presented 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.’
The
legislative framework regarding the granting of a permanent residence
permit.
[31]
Section 26 of the Immigration Act provides:
’
26
Direct residence
---Subject
to section 25, the director general may issue a permanent residence
permit to a foreigner who:
(a)…;
(b)
is the spouse of a citizen or resident, provided that
(i)
the Department is satisfied that a good faith spousal relationship
exists; and
(ii)
such permit is issued on condition that it shall lapse if any time
within three years form its application the good faith spousal
relationship no longer subsists, save for the case of daeth.’
[32]
Regulation
33(4) of the regulations published in terms of Section 7 of the
Immigration Act, defines ‘good faith spousal relationship’
as follows:
‘
(4)
A good faith spousal relationship shall be a relationship that was
not entered into primarily for the purpose of gaining benefits
under
the Act and shall be confined to a relationship of two persons
calling for cohabitation and intended to be permanent
.’
[4]
[33]
Regulation 33(5) allows for an investigation by the department to
verify if a good spousal relationships still exists. It provides:
‘
(5)
The Department may at any time satisfy itself as envisaged...
[34]
Section 27 of the Immigration Act provides:
‘
The
Director-General may, subject to any prescribed requirements, issue a
permanent residence permit to a foreigner of good and
sound character
who-
(a)-
(f)…;
(g)
is the relative of a citizen or permanent resident within the first
step of kinship.’
[35]
I deal with the issue of the unlawful assault first
.
The
plaintiff was the sole witness on the alleged assault. He was not an
impressive witness although not unsophisticated and communicating
well in English. He repeatedly deviated from what he alleged the
witnesses did to him including how Mohau allegedly assaulted him.
In
the Particulars of Claim he recorded that he was hit in the face with
open hands; hit in the face with closed hands; his arm
was twisted
into an unnatural position, so as to place handcuffs on him in such a
manner as to cause him pain; and he was shoved
at; pulled and
generally manhandled so as to cause him great discomfort.
[36]
No evidence was led on the use of handcuffs by the employees of the
defendant or even the members of the SANPS where the plaintiff
was
detained, or how he was manhandled to enter the vehicle which took
him to the police station. His evidence that his tooth was
dead or
black as a result of the alleged assault can likewise not be
accepted. No expert evidence was tendered that the tooth may
have
died as a result of an assault on the particular day nor was any
expert evidence tendered that he was struck on the mouth.
Significantly, the warning statement which appears to be signed by
the plaintiff records that the plaintiff did not have any injuries,
nor was he assaulted or threatened.
[37]
During cross examination, the version of the plaintiff became muddled
and incoherent. At the end of the cross examination,
it was clear
that he was not assaulted as he pleaded in his particulars of claim.
That he did not sustain injuries as serious as
he attempted to
portray in his pleadings. There was no medical evidence to
substantiate his claims of assault to the extent of
the
quanta
claimed
under Claim A, B and C i.e apart from what he alleged was his
psychological trauma. In his own evidence he suffered from
post-traumatic stress as a result of his problems where he came from,
Nigeria long before his arrest by the defendant’s employees.
No
doctor examined him after his detention. Annexure FA12 which is dated
10 October 2002 did not substantiate his pleaded case
in any manner.
It is clear that the plaintiff did not sustain a dead or black tooth
as suggested in paragraph 3.3 of the plaintiff’s
Heads of
Argument. Instead Ms Nyathi, alone and different from what the
plaintiff stated, mentioned that one of the plaintiff’s
teeth
was shaking.
[38]
Alice did not assist the plaintiff’s case in any manner because
her evidence under cross- examination that the plaintiff
did not tell
her or at least remind her about what to say in court after the
incident happened three years ago and that she had
never consulted
with plaintiff’s legal representatives at all before taking the
witness stand is so improbable that her entire
evidence falls to be
rejected.
[39]
The question whether the employees of the defendant exercised their
discretion properly when they arrested the plaintiff, has
to be
answered in the following manner succinctly set out in
Shidiack
v Union Government
[5]
:
‘
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer, and where his discretion
has
been
bona
fide
exercised
or his judgment
bona
fide
expressed,
the Court will not interfere with the result. Not being a judicial
functionary no appeal or review in the ordinary sense
would be;
and if he has duly and honestly applied himself to the question which
has been left to his discretion, it is impossible
for a Court of Law
either to make him change his mind or to substitute its conclusion
for his own. This doctrine was recognised
in
Moll
v
Civil
Commissioner, Paarl
(
14
S.C., at p. 468
);
It was acted upon in
Judes
v Registrar of Mining Rights
(
1907,
T.S., p. 1046) ;
and it was expressly affirmed by this Court in
Nathalia
v
Immigration
Officer
(
1912
AD 23
).
There are circumstances in which interference would be possible and
right. If for instance such an officer had acted
mala
fide
or
from ulterior and improper motives, if he had not applied his mind to
the matter or exercised his discretion at all, or if he
had
disregarded the express provisions of a statute in such cases the
Court might grant relief. But it would be unable to interfere
with a
due and honest exercise of discretion, even if it considered the
decision inequitable or wrong. In regard to the conclusion
of the
Minister as to any question falling under subsections (a), (c) and
(f) of the statutory clause, therefore, it cannot be
admissible to
call evidence before a Court of law merely to show that the
conclusion was wrong. It would be different if the object
were to
show
mala
fides,
or
an ulterior motive, or a failure to consider the question at all;
But cases in which a decision is attacked upon those grounds
will be
of rare occurrence. With reference to disabilities falling under
subsections (b), (d) and (e), however, the position is
different.
None of those grounds depend upon the exercise of official
discretion; and the authorities who seek to rely upon
them must
establish them absolutely. In proceedings which challenge the action
of an Immigration Officer under any of those heads,
therefore, it
will be competent for a Court to inquire into and determine the whole
matter.’
[40]
Recently the Supreme Court of Appeal in
Minister
of Safety and Security v Katise
[6]
restated
the principle as follows:
‘
[17]
As to the question whether Marangule exercised his discretion
properly, all that is required is that he acted in good faith,
rationally and not arbitrarily. In
Minister
of Safety and Security v Sekhoto
2011
(5) SA 367
(SCA) para 39 Harms DP said peace officers are ‘entitled
to exercise their discretion as they see fit, provided that they
stay
within the bounds of rationality. The standard is not breached
because an officer exercises the discretion in a manner other
than
that deemed optimal by the court. A number of choices may be open to
him, all of which may fall within the range of rationality.
The
standard is not perfection or even the optimum, judged from the
vantage of hindsight – so long as the discretion is exercised
within this range, the standard is not breached
.’
(My
emphasis)
[41]
Its common cause that on 18 July 2008 the plaintiff requested that
his temporary residence permit (the spousal permit) be extended.
That
permit would have lapsed on 17 July 2010.The condition attached to
the permit was that the plaintiff had to reside with his
spouse,
Donna as identified by her identity number. But Donna testified that
she did not know how the plaintiff acquired the extension
on his
permit because at that time they were no longer living together as
husband and wife although not divorced yet. She told
this court that
she did not go with the plaintiff to renew his permit. It is only
correct to conclude that if Donna or Kronci were
not present when the
extension was sought, the plaintiff inserted Kronci’s names and
thus forged the names. i.e taking into
account that the plaintiff
admitted that he filled the form with all the details including his
adress in Yeoville and then signed
the document. His denial is simply
improbable.
[42]
If it is not the plaintiff that inserted the names of Kronci who
would have? Surely it could not have any of the defendant’s
employees including Breedt. How would they have done that? How would
they have known about the names when they did not know Kronci
prior
to the further investigations which were launched after the
plaintiff’s arrest?
[43]
The plaintiff‘s allegations that his arrest and detention in
July 2012 were unlawful are not substantiated by any credible
evidence. My view is that, Breedt found information on the data base
that the plaintiff’s permanent residence permit was
fraudulently obtained by forging Kronci particulars. Thus by 2010 his
spousal permanent permit had lapsed. If I accept that
as a
fact, then axiomatically I must find that his s26 (b) lapsed in 2010
before he could apply for a permit under s27 (g). It
follows then
that the s27 (g) permit which he was granted, was granted on the
basis of false information. That on its own is an
offence under the
Immigration Act.
[44]
The question then becomes why did his wife not bring the s27(g)
permit which he claimed he had at his home when she visited
him the
very next day after his arrest so that he could be released. Where he
got it after his release is not relevant to these
proceedings. From
the facts , Breedt formulated a reasonable suspicion that the
plaintiff was illegal in the republic .Once he
had formulated that
suspicion he was bound to arrest the plaintiff. Section 41 of the
Immigration Act provides that
‘
[w]
hen
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.
(2)
Any person who assists a person contemplated in subsection (1) to
evade the processes contemplated in that subsection, or interferes
with such processes, shall be guilty of an offence.’
[45]
The plaintiff could hardly point at conduct on the part of Breedt
which could indicate that Breedt was spurred by some malicious
intent
to arrest him. He was unknown to and had no altercations prior to
this day with Breedt .Neither could he say how Breedt
could have
secretly fed wrong information into the system ;where would Breedt
have found such information even before interviewing
Donna. The long
story about the subsequent fall out with Mohau bears no mention.
Suffice to say that such near scuffle between
the two can in no way
establish malice or motive to abuse the Immigration process to the
disadvantage of the plaintiff. From the
evidence in its entirety, it
is clear that Breedt sourced information upon a query from the
immigration officers. He reacted on
that information and found that
the plaintiff was in the republic under s26(b)(i).Thus illegal in the
republic since 2010.The extension
of his permanent residence in the
republic was obviously sought and obtained on false information that
he was still in a good spousal
relationship with Donna; which Donna
refuted under oath. To see someone from time to time can never equate
to good spousal relationship
envisaged by s26(b)(i).
[46]
The
plaintiff
knew what a ‘good faith spousal relationship’ entailed:
‘staying permanently with his wife’. He
also understood
that when the first permit was granted to him the requirement was
simple, that he must stay with Donna and stay
married to her. He even
took it further to say he had to be faithful to her as well. From a
simple reading of regulation
33 (4) ‘good faith spousal
relationship’ does not only refer to cohabiting under one roof
as husband and wife and exchanging
conjugal rights but endeavors to
deal with the element of gaining benefits which those who are not
citizens of the republic may
seek such as permanent residence and or
citizenship from such relationships. The regulations anticipate
that the cohabiting
parties should truly stay together; not meet some
times or not upon the one party’s request only when the permit
must be
extended. Also not, as the plaintiff admitted, Donna staying
somewhere else and he staying at a church in Pretoria.
[47]
Mr Modise’ s submission on behalf of the plaintiff that
Breedt failed to use the arrest as a last resort pending
investigations to establish the true position and also not take the
plaintiff to his home to get his s27(g) permit is not supported
by
any evidence. Breedt and Mohau stated categorically that the
plaintiff did not tell Breedt that he had a s27 (g) permit at his
home. Assuming he did tell them and they ignored him, why did he not
tell the police where he was kept that he had such permit
at home.
Why did not ask his wife to bring it along on her numerous visit to
him before he was released on bail. Why was his attorney
not given
such instructions from the onset?
[48]
Instead Breedt continued with his investigations as s41 prescribes.
He interviewed the two women in the plaintiff’s life
in this
whole saga. He even travelled to Cape Town to interview Cronsey. Who
confirmed his suspicion more that the plaintiff obtained
an extension
of his s26 (b) permit fraudulently. Breedt maintained that at the
time he formulated the suspicion, he believed that
the plaintiff
might not return if he warned him to come back pending investigations
on the basis of the report on the data base.
Not to act in terms of
s41 would jeopardise his own job. He could be charged with aiding and
abetting an illegal immigrant which
is a summary dismissal offence in
the department. The Act and the regulations do not specify that the
officer concerned must investigate
before (s)he arrested a suspect.
Nor do they specify that further or independent investigations and
assistance to a suspect are
mandatory. Regulation 33(5) is not
mandatory. The regulation states:
‘
(5)
The Department may at any time satisfy itself as envisaged in section
26(b)(i) of the Act whether a good faith spousal relationship
exists
by (a) interviewing the applicant and spouse separately;(b) by
contacting family members and verifying other references;(c)
requesting proof of actual or intended cohabitation; and or (d)
inspection in loco of the applicant’s place of
residence.’
[49]
In hindsight as Mayekiso testified, perhaps, Breedt could have done a
more perfect job as it can never be correct to abuse
anyone who uses
the Immigration Act processes. But as is now trite ‘
t
he
standard is not perfection or even the optimum, judged from the
vantage of hindsight …’
[7]
.
[50]
The fact that there could have been an error on the part of the
department did not help the plaintiff’s case at all because
s48
of the Immigration Act provides that no illegal foreigner shall be
exempt from the provisions of the Act or allowed to be in
Republic on
the grounds that he or she was not informed that he or she could not
enter or stay in the Republic through error or
misrepresentation or
because of his or her being an illegal foreigner was undiscovered. In
any event not to arrest the plaintiff
when he had a suspicion that he
was illegal in the country and it was found to be the case as it
happened in this case, would have
exposed Breedt to criminal charges
of aiding and abetting contravention of the Immigration Act. He may
lose his employment.
On
the basis of the evidence, it is clear that plaintiff came into the
republic as an asylum seeker in 1999 and fell extremely sick
physically and even mentally. For an asylum seeker he had to go the
department every month to seek an extension. This was burdensome
on
him. As he put it, as a sick person he could ot go to the department
like that. In less than the three months he had met Donna,
he married
her and fell under a more permanent residence permit, s26 (b). He was
married to Donna for six months during which he
impregnated Kronci
and they had a child together. He then, coincidentally, left the home
he was sharing with Donna to stay at a
church. On the other hand,
Kronci, coincidentally also moved to Cape Town leaving the child
behind. He raised the child on his
own and acquired a s27(g)
permanent residency permit by virtue of his relationship to a South
African born child. He thereafter
married another woman his own
national Ms Nyathi who he had two children with. They both now reside
in the republic on the basis
of their relationship to the children
born in the republic.
[51]
The
insinuation which the plaintiff seemingly wanted to bring in was
corruption on the part of the defendant’s employees;
which he
could not establish or manage to bring in. To the contrary, what came
out are employees of the defendant who suspected
fraud and
immediately reacted on it decisively and in terms of the prescripts:
arrest and bring before a court of law. Based on
the evidence led,
the plaintiff obtained the extension of his spousal permit based on
false information. From the time and before
the expiry of three years
his permanent residential permit lapsed. From that time he was
illegal in the republic. When he applied
for a permit in terms of s27
(f) it was on the basis of false information. Such permanent
residence permit should not have been
granted. In terms of s48 he
cannot get the benefit of such error on the part of the department.
Thus with effect from the date
of this judgment, the plaintiff will
be illegal in the republic.
[52]
Considering the evidence
as a whole, I find that the plaintiff’s arrest was not
wrongful. It was based on a reasonable suspicion
that he had
committed fraud when he was granted an extension on his permanent
residence permit in terms of s26 (b) (i) as at the
time he sought the
extension he was not in a good spousal relationship with Donna. It is
improbable and extremely far-fetched that
employees of the department
in Springs and or Welkom could have inserted what is clearly the name
Simphiwe Kronci on the application
for extension. The only
probability is as presented by the defendant that the plaintiff
forged the names of Kronci to get an extension
for his permit in the
republic. From that moment, after the s26 (b)(i) lapsed, onwards
whatever permit or extension the plaintiff
was granted was based on
false information. His claims under A,B and C stand to be dismissed.
[53]
In the result, the following order is granted.
ORDER
‘
1.
The combined action in dismissed;
2.
The plaintiff is directed to pay the costs of the action;
3.
The costs due to the defendant shall include the costs occasioned as
a result of the postponement occasioned at the instance
of the
plaintiff during November 2014.’
_________________
B.
C. MOCUMIE, J
On
behalf of the plaintiff:
Adv. M. B. Masoka
Instructed
by:
Modise Modise Attorneys
On
behalf of the respondent:
Adv. A. Williams
Instructed
by:
State Attorney
[1]
Cumming & Ors v Chief
Constable of Northumbria Police
[2003]
EWCA Civ 1844
para 26 and
Lyons v Chief Constable of
West Yorkshire
[1997]
EWCA Civ 1520
.
See
also
Minister of law and
Order & Others v Hurley & Another
1986
(3) SA 568
(A) at
589E-F.
[2]
2011 (5) SA 367
(SCA) para 49-50.
[3]
Page 13 of the Plaintiff’s
Bundle.
[4]
See also
Mahmood
v Director-General, Department of Home Affairs and Another
(22394/12)
[2013] ZAWCHC 75
(8 May 2013) para 8.
[5]
Shidiack v Union
Government
1912
AD 642
at 651-652.
[6]
Minister of Safety and Security v
Katise
2015 (1) SACR 181
(SCA) para 17.
[7]
Minister of Safety and Security v
Katise
above at para 17.