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[2014] ZAGPPHC 341
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Hani and Others v Minister of Home Affairs and Others (29654/14, 27095B/14,29704A/14, 29705/14, 29655B/14) [2014] ZAGPPHC 341 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case numbers:
29654/14
27095B/14,
29704A/14, 29705/14, 29655B/14
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matters
between the applicants
M E A HANI
K IRSHAD
B C IHENACHO
A HUSSAN
H A HAYILE
and
THE MINISTER OF
HOME
AFFAIRS
............................................................................
First
Respondent
THE DIRECTOR
GENERAL OF HOME
AFFAIRS
.................................................
Second
Respondent
THE HEAD OF
LINDELA REPATRIATION
CENTRE
............................................
Third
Respondent
THE DIRECTOR OF
DEPORTATION
......................................................................
Fourth
Respondent
JUDGMENT
BAM J
1. In view of the
fact that the issues in the five matters are similar in fact and law,
! intend to deal with it simultaneously
in this judgment.
2. The applicants
were detained at the Lindela Repatriation Centre. The reasons for
their detention are not relevant in so far as
this judgment is
concerned. On 9 May 2014, the Court attending to urgent applications,
made orders, after the matters became settled,
including that the
applicants should immediately be released from detention. The
applicants were represented by Mr Makapan, their
attorney of record,
and the respondents by Mr Masakoameng of the State Attorneys'
offices.
The orders were
handed down at about 12hl5.
3. At 15h05, on the
same day, copies of the orders were Emailed to Mr Masekoameng, Ms B
Seboga, Deputy Director Legal Services of
the respondents, and
officers of the third and fourth respondents, MrGrundling, Mr
Jackson, Mr Maletswa, Ms Qaba, Ms Jongwana and
Ms Tenga. A copy was
also hand delivered to the State Attorney's offices. The Email
requested the recipients to advice the officials
at Lindela to
release the applicants in accordance with the Court order. It was
also indicated on the Email that the attorneys
wanted to have the
applicants released immediately.
4. At 15h59, Mr B
Seboga, the applicant's Deputy Director Legal Services, referred to
above, directed an Email to the Lindela officials,
with the following
request:
"Please
release these applicants as per the court order of today the 9
th
May 2014.
Please note that
we do not want to find the Department in trouble for non compliance
with the Court Order herein."
5. Mr Makapan's
personal attendance at Lindela, late afternoon, stretching to 21h30,
of 9 May, to have the applicants released,
was of no avail. All Mr
Makapan's endeavours were allegedly deliberately frustrated by the
officers at Lindela.
6. Despite the fact
that the respondents were aware of the court order in question, and
that the officials at Lindela were requested
by Mr Seboga to release
the applicants, and despite Mr Makapan's endeavours, the applicants
were not released in terms of the Court
order. Not surprisingly this
conduct of the respondents, in blatantly ignoring the Court order,
prompted Mr Makapan to lodge an
urgent application on Monday, 12 May
2014, at 12h00, seeking an order finding the respondents in contempt
of the order in question,
and to suspend any sentence on condition
that the respondents comply with that order.
7. The applications
were served by hand on the State Attorney at 9hl5 on 12 May and
Emailed to Mr Masakoameng and the officers of
Lindela.
8. On 12 May, at
12h00, the matters were duly called. They were not opposed, but were
stood down until 14h00 on 13 May 2014 to afford
the applicants the
opportunity to furnish the Court with the names of the respondents,
in order to render any contempt order effective.
9. When the matters
were called on 13 May 2014 at 14h00, Mr Makapan informed the Court
that the applicants have been released in
the meantime, and that he
would proceed to apply only for appropriate costs orders. Mr
Bofilatos SC, then appearing for the respondents,
indicated that the
costs order would be opposed. The matters were then stood down until
16 May 2014.
10.Mr Bofilatos'
arguments for opposing the costs orders, were as follows:
(a) The applicants'
attorney should have served the orders to release the applicants,
made on 9 May, on the respondents by Sheriff.
That was not done. The
respondents could therefore not have been expected to comply
therewith;
(b) The order that
the applicants should be released immediately should not be literally
interpreted. In view of the administrative
issues involved the State
should be allowed to attend to all those issues before releasing any
person.
(c) The urgent
applications for the contempt orders were also not served on any of
the respondents, but instead delivered to the
State Attorney. The
service on the State Attorney does not comply with the Rules;
(d) The applicants
were not entitled in law to bring applications for contempt orders in
the circumstances.
11.Ad the arguments
in 10(a) and (c):
It was common cause
that on 9 May 2014, both parties were represented; the respondents
were represented by Mr Masekoameng, from
the State Attorney's office,
that the matters were settled and that a draft order was handed up
and made an order of court.
It can be assumed
that Mr Masekoameng was instructed by the respondents in that regard.
The applicants'
attorney Emailed the order to all relevant officials, as alluded to
above, as well as Mr Masekoameng, and hand delivered
it to the
offices of the State Attorney.
The respondents were
therefore clearly aware of the order, to which their legal
representative have agreed, to release the applicants
immediately.
The contention that
service of the order on the State Attorney was insufficient in that
it should have been served on the respondents
by the Sheriff, is
without merit. Service by hand, or electronic mail, on the State
Attorney is provided for in Rule 4A.
Mr Bofilatos'
argument, in my view, is therefore ill founded and totally without
substance.
12. Ad argument in
10(c):
The
word
"immediate"
means
exactly what it says. It clearly implies that the court order in
question should have been complied with as soon as the contents
thereof became known to the respondents. I have already alluded to
the relevant circumstances. The submission that
"immediate"
should
be interpreted to mean
"within
a reasonable time",
apparently
even after several days, in order for the State to attend to the
administrative issues, is in my view, to say the least,
without merit
and even ridiculous.
The respondents,
more specifically the third and fourth respondents, elected to
blatantly disregard the Court order, even after
having been alerted
to the consequences by their own Deputy Director of Legal Services.
13. Ad argument
in 10(d):
In
submitting that the applicants were not in law entitled to a contempt
order against the respondents, Mr Bofilatos relied on
Fakie
NO v CCII Systems (Pty) Ltd
2006(4)
SA 326 SCA. A careful reading and appreciation of Fakie's case,
stating the law in regards to contempt applications, reveal
that the
applicants were undoubtly entitled to lodge a contempt application,
especially in view of the fact that, at the least,
the third and
fourth respondents, were,
prima
facie mala fide
in
not complying with the court order to release the applicants. In this
respect the onus rested on the repondents to prove that
they were not
mala fide.
Mr Bofilatos'
argument is therefore without substance.
14. It follows that
the applicants were indeed forced to bring the contempt applications
and that the respondents should therefore
be ordered to pay the
costs. However, in view of the fact that the first and second
respondents were not directly involved, in
my opinion only the third
and fourth respondents should be ordered to pay the costs. In the
circumstances I also agree with the
contention of Mr Makapan that a
punitive costs order would be justified. In view of the fact that the
third and fourth respondents
are intrinsically the same department,
there is no reason to order them to pay the costs jointly and
severally.
15. Accordingly I
make the following order in each of the above matters:
The third and fourth
respondents are ordered to pay the applicant's costs on the scale of
attorney and client.
A J BAM
JUDGE OF THE
HIGH COURT
19 May 2014