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[2015] ZAECELLC 15
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Okonkwo v Minister of Home Affairs and Another (EL464/2012, ECD1164/2012) [2015] ZAECELLC 15 (1 December 2015)
NOT
REPORTABLE
N
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, EAST LONDON
Case
no: EL 464/2012
ECD1164/2012
Date
heard: 24.11.2015
Date
delivered: 1.12.2015
In
the matter between:
EMEKA
CHRISTIAN OKONKWO
Plaintiff
vs
MINISTER
OF HOME AFFAIRS
First
Defendant
THE
DIRECTOR GENERAL FOR THE
DEPARTMENT
OF HOME AFFAIRS
Second
Defendant
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TSHIKI
J:
[1]
In this application for leave to appeal, I will refer to the parties
as plaintiff and defendants respectively. The plaintiff
in this
action sued the defendants for damages which he suffered as a
consequence of wrongful and unlawful detention which occurred
in an
East London prison from the 3
rd
August 2012 for a period of seventy five days. For all the 75
days the plaintiff was kept in Fort Glamogan Prison in East
London.
His detention in prison was at the instance and instructions of the
defendants which continued from the 3
rd
August 2012 to the 19
th
October 2009 and which he endured for seventy five (75) days.
During his detention the plaintiff was never taken to court
the
reasons given by the respondents being that the plaintiff was
detained in terms of section 34 (1) read with section 41 (1)
of the
Immigration Act no 13 of 2002 (the Act).
[2]
It should be noted that when the defendants dealt with the plaintiff
in terms of section 34 of the Act they failed to strictly
comply with
sections 34 (1)(4) of the Act. The plaintiff was detained in
custody for the whole period of 75 days contrary
to the provisions of
section 34 (1)(d) of the Act which provides:
“
34
Deportation and detention of illegal foreigners
(1)
Without
the need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested, and shall,
irrespective
of whether such foreigner is arrested, deport him or her or cause him
or her to be deported and may, pending his or
her deportation, detain
him or her or cause him or her to be detained in a manner and at a
place determined by the Director-General,
provided that the foreigner
concerned-
(a)
shall
be notified in writing of the decision to deport him or her and of
his or her right to appeal such decision in terms of this
Act;
(b)
may
at any time request any officer attending to him or her that his or
her detention for the purpose of deportation be confirmed
by warrant
of a Court, which, if not issued within 48 hours of such request,
shall cause the immediate release of such foreigner
;
(c)
shall
be informed upon arrest or immediately thereafter of the rights set
out in the preceding two paragraphs, when possible, practicable
and
available in a language that he or she understands;
(d)
may
not be held in detention for longer than 30 calendar days without a
warrant of a Court which on good and reasonable grounds
may extend
such detention for an adequate period not exceeding 90 calendar days;
and
(e)
shall
be held in detention in compliance with minimum prescribed standards
protecting his or her dignity and relevant human rights.”
[3]
The Act also makes provision that the deportation of the illegal
foreigner shall not exceed 48 hours from his or her arrest
or the
time at which such person was taken into custody for examination or
other purposes, provided that if such period expires
on a non Court
day it shall be extended to four p.m. of the first following court
day. None of the provisions of the Act
were applied to the
plaintiff herein. Instead what, in my view, had happened to him
he was met with degrading and cruel treatment
at the hands of the
defendants’ officials
[4]
After the release of the plaintiff he sued the defendants jointly and
severally the one paying the other to be absolved.
Having sued
the defendants who conceded the merits of the claim and consequently
this Court made a global award of R750 000.00
in favour of the
plaintiff. The defendants did not give evidence to egainsay
what the plaintiff told the Court, which,
inter
alia
,
is that he was detained in custody from the 3
rd
August to the 19
th
October 2009 without having been taken to Court and contrary to the
provisions of section 34 of the Act.
[5]
The defendants have now filed an application for leave to appeal
against the plaintiff’s award on the grounds that when
the
Court awarded a globular amount of R750 000.00 this amounted to
lack on the part of the Court to properly exercise its
discretion.
In other words, the amount granted to the plaintiff is not reasonable
in the circumstances.
[6]
On the date of the argument of the application for leave to appeal,
Mrs
Mqobi
appeared for the defendants and
Ms
Da Silva
represented the plaintiff.
[7]
Ms
Mqobi
has argued that the Court awarded an all inclusive globular amount
and does not specify which amount is for
contumelia
.
According to her even if
contumelia
is
included in the damages it would be too much and excessive in the
circumstances. She argued further that the award of damages
should not be viewed as a deterrent factor.
[8]
Ms
Da Silva
’s
argument is based on the fact that the conduct of the defendants
against the plaintiff was cruel and malicious. Had
one of the
prison warders not showed concern about the plight of the plaintiff,
the latter would have taken a longer time to be
released from
custody. According to her when the Court awarded the amount of
R750 000.00 it did not commit an irregularity
or misdirection.
[9]
When I considered the plaintiff’s plight I was of the view that
he should never have been treated in the manner he was
treated by the
defendants. The provisions of section 34 of the Act speak for
themselves. The defendants failed to treat
the plaintiff as a
detained illegal foreigner in terms of section 34 of the Act.
They treated the plaintiff as if he was
not protected by the laws of
this country and that there is no existing bill of rights provided by
a constitution in our country.
[10]
When I granted the award, I made a globular amount notwithstanding
that the plaintiff had made separate claims for each of
the
following:
[10.1]
Contumelia
-
R400 000.00
[10.2] Deprivation
of liberty
-
R600 000.00
[10.3] Legal
expenses
- R
15 000.00
[10.4] Loss of
business income
- R
75 000.00
[11]
I agree with counsel for the defendant that a realistic approach was
to separate the plaintiff’s respective claims.
[12]
I am also of the view that in respect of the
quantum
another
Court may arrive to a different conclusion.
[13]
Both counsels also agreed that I should make an order that the costs
occasioned by the postponement of this case in Port Elizabeth
on the
7
th
September 2015 should be paid by the defendants.
[14]
In the result, I make the following order:
[14.1] The
application for leave to appeal is hereby granted to the Full Court
of the Eastern Cape Division.
[14.2] The costs
of the appeal shall be in the cause of the appeal.
[14.3]
The costs occasioned by the postponement of this matter in Port
Elizabeth on the 7
th
September 2015 are to be paid by the defendants jointly and severally
the one paying the other to be absolved.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the plaintiff / respondent
: Adv Da
Silva
Instructed
by
: Msesiwe
Vapi Inc
EAST
LONDON
Ref:
MV/M25/10
For
the defendants / applicants
: Adv
Mqobi
Instructed
by
: State
Attorney
EAST
LONDON
Ref:
481/12-P10