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[2015] ZAFSHC 256
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Njoku v Minister of Home Affairs and Others (3233/2013) [2015] ZAFSHC 256 (23 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Case
number 3233/2013
DATE:
23 OCTOBER 2015
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 ail 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 Sekhoto and Another
1
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-faimess
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
l
l
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.
[2]
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 plaintiffs 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 officers). 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 ceils
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.’
[3]
[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]
1 dea! 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 plaintiffs 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 plaintiffs 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
[4]
:
‘
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 Moli v Civil
Commissioner, Paari (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
[5]
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 plaintiffs arrest?
[43]
The plaintiffs 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 plaintiffs 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 tel! 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 ‘the standard is not perfection or even the
optimum, judged from
the vantage of hindsight
1
Minister of Safety and Security v Katise above at para 17.
[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]
Page 13 of the Plaintiffs Bundle.
[3]
See also
Mahmood
v Director-General, Department of Home Affairs and Another
(22394/12)
[2013] ZAWCHC 75
(8 May 2013) para 8.
[4]
Shidiack
v Union Government
1912 AD 642
at 651-652.
[5]
Minister
of Safety and Security v Katise
2015 (1) SACR 181
(SCA) para 17.