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[2012] ZAGPPHC 163
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Li and Others v Senior Immigration Officer Pretoria and Others (42590/2012) [2012] ZAGPPHC 163 (10 August 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
DATE:10/08/2012
CASE
NO:42590/2012
In
the matter between:
JIANJUN
LI
...................................................................................................
1st
APPLICANT
YUNFEI
LI
......................................................................................................
2nd
APPLICANT
XIAODONG
SONG
.....................................................................................
3rd
APPLICANT
HAIQI
HAN
..................................................................................................
4th APPLICANT
JIANZHONG
CHENG
.................................................................................
5th
APPLICANT
LIANGSUO
TIAN
........................................................................................
6th
APPLICANT
YUTAO
CAO
…...........................................................................................
7th
APPLICANT
JIA
LI
..............................................................................................................
8th
APPLICANT
ZHONGYING
MA
..........................................................................................
9th
APPLICANT
ZHIGIANG
ZHANG
.......................................................................................
10th
APPLICANT
XIAMING
ZHAO
..........................................................................................
1 1th APPLICANT
and
THE
SENIOR IMMIGRATION
OFFICER
...................................................
1st
RESPONDENT
PRETORIA
THE
OFFICER IN CHARGE
LINDELA
....................................................
2nd
RESPONDENT
REPATRIATION FACILITY
THE
MINISTER OF HOME
AFFAIRS
.......................................................
3rd
RESPONDENT
JUDGMENT
MOTHLE
J:
Introduction
[1]
This is an application which came by way of urgency in terms of Rule
6(12) of the Uniform Rules of Court, wherein relief is
sought for the
immediate release of the applicants from a repatriation facility.
Background
[2]
The applicants are Chinese nationals who were issued with visitors
visa in December 2011 to enter and remain in South Africa
for ninety
(90) days on invitation by a company known as PMG, trading in the
mining industry. The third applicant, who is also
a Chinese national,
arrived in August 2011 under the same conditions and visa issued by
the South African Embassy in China ("the
embassy").
[3]
With regard to the third applicant, on the eve of the expiry of the
90 days visitors visa in November 2011, he applied for an
extension
of that visa. Similarly, the other 10 applicants applied for
extension of their visas in South Africa a day before their
expiry in
March 2012.
[4]
The Department of Home Affairs ("the department") declined
the applications for extension of visa on the 21st April
2012. The
applicants however remained in the country. In response to an email
inquiry by the Embassy concerning the whereabouts
of the applicants
as their duration of visit had expired, the Chief Executive Officer
("CEO") of PMG informed that the
mine was closed and the
applicants are loitering in South Africa. On further inquiry
regarding their location in South Africa,
the CEO by e-mail dated the
18th July 2012, advised that the applicants were based at a hotel
called Stay Easy on the East Gate
South Boulevard, Johannesburg.
[5]
On the 20th July 2012 the immigration officials raided the hotel but
could not gain entry into the hotel rooms, until the applicant's
legal representative came and on her advice, the applicants opened
the doors. The applicants did not have their passports or identity
documents with them, at that time. These were later produced by their
legal representative. They were then taken to the department's
offices in Pretoria for the purposes of establishing or verifying
their status in terms of
Section 41
of the
Immigration Act 2002
, Act
2002 ("the Act").
[6]
After verifying with the population register systems, it was then
established that the applicants did not have valid legal documents
or
permits to be in South Africa. The visas they had, had expired and no
extension was granted. The immigration officials aver
in the
respondent's answering affidavit that they then declared the
applicants illegal foreigners and as a result, the applicants
were
detained in terms of Section 34(1) of the Act, for purposes of
deportation.
[7]
The immigration officer further avers in the answering affidavit that
when they attempted to inform the applicants of their
rights, the
applicants refused to sign the acknowledgment of receipt of the
notices informing them of their rights. The legal representative
confirms that when they refused to sign, they were acting on her
advice. As they were found not in possession of their passports
or
any form of identification or legal permit, the immigration officials
considered them flight risks and they were detained at
Lindela
Holding Facility, pending their deportation. During this interaction,
the immigration officer avers that the third applicant
also acted as
interpreter.
[8]
The officials thereafter obtained warrants for the further detention
of the applicants while awaiting deportation. The applicants
then
brought this application presently before Court, by way of urgency,
demanding their release.
[9]
The respondents further alleges in the answering affidavit that prior
to the arrest and detention of the applicants, there was
communication between the Embassy and the CEO of PMG. This
communication concerned the whereabouts of the applicants, when it
became apparent that the ninety (90) days for which they were allowed
to visit South Africa had expired.
[10]
In their affidavits before Court the applicants, through their legal
representative, a candidate attorney and deponent to the
founding as
well as replying affidavits, contended as follows:
10.1
In the founding affidavit, the deponent states that applicants are
about to be deported without being granted an opportunity
to have
their applications for extension of the visas properly considered and
if need be, to avail themselves of the appeal or
review of that
decision;
10.2
In the replying affidavit the deponent avers that the arrest of the
applicants was unlawful in that they were not advised
of their rights
in her presence.
[11]
At the hearing of this matter, Counsel for the applicants, Mr Muller
SC, argued extensively on the case made out in the replying
affidavit. His argument and submissions raised matters of law and for
that reason; I will first deal with this aspect of the applicants'
case.
The
case in the replying affidavit
[12]
In regard to the case pleaded in the replying affidavit, Mr Muller
SC, argued with reference to the recent Constitutional Court
decision
in the matter of Minister of Home Affairs and Others v Emmanuel Tsebe
and others, case CCT 110/11, dealing with the constitutional
rights
as applicable to illegal foreigners, that the applicants in this
case, whether legal or illegal in South Africa are entitled
to
protection in terms of the Constitution and the laws of the country.
The argument goes on further to state that the notice in
terms of
section 8(1) informing the applicants of their rights was defective
and as such, they were not informed of their constitutional
rights.
[13]
Section 8(1) of the Act provides that an immigration officer who
refuses entry to any person or finds any person to be an illegal
foreigner shall inform that person on the prescribed form that he or
she may in writing request the Minister to review that decision.
In
the case of a person found to be an illegal foreigner, the review
shall be instituted within three (3) days. The "Minister"
in this instance refers to the Minister of Home Affairs as defined in
Section 1 of the Act.
[14]
The Minister, acting in terms of Section 7 of the Act, and under
notice No. R616 of 27 June 2005, promulgated Immigration Regulations
in the Government Gazette No. 27725 of 27 June 2005. Attached to
these regulations are forms including the one referred to in Section
8(1) of the Act as the "prescribed form" to be used by the
immigration officials in exercising their various powers.
Regulation
5, consistent with the provisions of Section 8(1) of the Act,
attaches as annexure "A", Form 1, which deals
with the
exercise of powers contemplated is section 8(1) of the Act.
[15]
The notice in terms of the prescribed Form 1 is designed to inform
any person who has been declared an illegal foreigner, that
he or she
may challenge that decision by taking it on review by the Minister,
within 3 days. The relevant precise wording of the
promulgated Form 1
reads:
B:
In respect of a person found to be an illegal foreigner:
To:
................................................................................................
In
terms of Section 8(1) of the Act, you are hereby notified that you
may, within three days from date of this notice, request the
Minister
to review the decision to deport you, "
[16]
Form 1 then makes provision for the signature of the Immigration
Officer, his appointment number, place and date. Further,
it makes
provision for the person affected, to acknowledge receipt of the
original of the notice and to state that he or she understands
the
contents thereof. To simplify the process the Form ends by stating
the following:
"/**
intend/do not intend to request a review of this decision.
My
written request is * attached/will be submitted within three days. "
Signature
of affected person Date
*
Delete A or B, whichever is applicable **Delete whichever is not
applicable"
[17]
The essence of the applicants' attack on this Form 1 - notice, which
they refused to sign acknowledgement of receipt thereof,
is that the
Act in terms of section 8(1) makes provision that in the event the
immigration officer makes a decision that a person
is an illegal
foreigner, then he or she must advise the person affected that he has
a right to apply within 3 days to the Minister
to review such a
decision. The argument goes on to state that when one considers the
underlined words quoted text of Form 1 as
they appear in paragraph 15
above, the Form 1 refers at the ends to the "decision to deport
you", which is not the decision
taken in terms of, or envisaged
in Section 8(1) of the Act. For that reason, Counsel for the
applicant contends that the applicants
were wrongly advised as
section 8(1) of the Act does not make provision for review to the
Minister within 3 days, in regard to
deportation.
[18]
To support this argument further, Counsel referred me to Form 29,
another notice form in the regulations with a title "Notice
Of
Deportation". He argued that the declarations of a person as an
illegal foreigner on the one hand and the notice to deport
a person
on the other hand are two separate processes. According to him, the
decision to declare a person an illegal foreigner
is provided for in
terms of section 8(1) and the decision to deport falls under the
category of decisions that are described in
section 8(3) read with
section 34(1) of the Act. The section 34(1) process makes provision
for appeal (not review) to the Director-General
of the department.
[19]
Counsel for respondents Mr Bofilatos SC argues, that the deportation
is a direct consequence of declaring a person an illegal
foreigner.
The two processes, according to him, are both applicable with the
second being the consequence of the first because
the Act provides
that where a person is declared an illegal foreigner it is obligatory
on the part of the Minister to deport that
person. Consequently, the
import of this submission is that the reference to "decision to
deport you" in Form 1 reflects
the ultimate conclusion of the
process.
[20]
It seems to me that the reference to two separate forms (Form 1 and
Form 29) in the regulations, support the contention by
the applicants
that these are two separate processes. However, the one is not
necessarily the consequence of the other, as contended
for the
respondents. The applicants' contention is supported by The Full
Court of the Transvaal Provincial Division (TPD) as it
was then
called, in the matter of Jeebhai v Minister of
Home
Affairs and Another
2007 (4) SA 294
(TPD) at 302 D. In its judgment,
the learned Ngoepe JP, writing for the full court stated thus:
"[19]
In Arif Muhamed v Minister of Home Affairs and Others
(TPD
case No 41182/05, unreported), Southwood J had to consider a similar
application. In particular, the Court had to deal with
the contention
that s 8(1) of the Act had not been complied with prior to detention
for deportation in terms of s 34. The Court
found that the procedure
in s 8(1) and (2) had to be followed before arrest and detention in
terms of s 34. In our view, however,
it is not that s 8 always
applies; that would depend on the procedure in terms of which the
person was brought into s 34. In the
present case Rashid came under s
34, at best for him, via s 41, and not via s 8. He admitted that he
was an illegal foreigner,
admitting all the material facts for that
conclusion; for example that he had paid for the documents from an
agent. The fact that
he was an illegal foreigner was not in dispute;
in fact, it was common cause. A decision was then taken to deal with
him in terms
of s 34(1). He was then advised of his rights, including
the appeal and review procedure to the Director-General (the
completed
form made no reference to appeal or review by the Minister;
presumably the person would be advised further after the
Director-General's
decision).
The
judgment of Southwood J does not therefore assist the applicant."
[21]
By rejecting the decision of Southwood J in Arif Muhamed v Minister
of Home Affairs and Others, decision, the Full Court accepts
that
there are two distinct processes between the provisions of section 8
on the one hand and Section 34 of the Act on the other
hand and that
the former does not necessarily precede the latter. Section 34 may
also be preceded directly by section 41 and not
necessarily section 8
of the Act. Section 41 provides for a process of interview by an
immigration officer or police to establish
a person's identity status
in the country. Such interview may ultimately result in the detention
of such person in terms of section
34 of the Act.
[22]
The language in the text of sections 8(1) is clear and unambiguous.
It refers only to the decision declaring a person an illegal
foreigner. However the prescribed form envisaged in section 8(1) of
the Act as promulgated and published in Forml, provides for
the words
"decision to deport you." The decision is made to declare a
person as an illegal foreigner in terms of this
section. No reference
is made in this section to the decision to deport as stated in form
1. The words that should have been stated
in the prescribed form in
my view are "the decision to declare you an illegal foreigner",
or word to that effect.
[23]
I therefore agree with the applicants' contention that the last four
words "decision to deport you" as they appear
in the
prescribed Form 1 are misplaced, particularly if read in isolation.
[24]
However, I do not agree with the submission by Counsel for the
applicants that the notice to deport would fall under the decisions
referred to in terms of section 8(3) of the Act. Those decisions are
subject to either review or appeal to the Director-General.
The
Notice of Deportation as stated in section 34(1) is also not
reviewable, but only subjected to an appeal process. Indeed this
is
evidenced by the contents of Form 29, which also provides for
acknowledgment of receipt of the notice similar to Form 1 of the
section 8(1) notice.
[25]
To avoid further ambiguity it will be prudent for the Minister to
issue a proclamation in terms of section 7 of the Act, to
amend Form
1 of the Immigration Regulations, by deleting the words "decision
to deport you" under *B, and substitute
them with "decision
to find you an illegal foreigner" or "decision to declare
you an illegal foreigner" or
words to that effect.
[26]
The applicant are thus correct in arguing that the words used in Form
las described above and read in isolation, can be misleading.
[27]
The question which now arises is whether on the facts, in casu, the
applicant's were not properly notified or advised of their
rights in
terms of, or as required by section 8(1) of the Act. In this regard,
the following are in my view relevant factors to
be considered in
dealing with this question, namely:
27.1
On advice of the legal representatives, the applicants refused to
sign acknowledgement of receipt of the notices. Consequently
whether
Form 1 is correct or not, they rejected the advice contained therein.
In the words of their own legal representative, with
reference to
Form 1 and Form 29 they "are not worth the paper it (sic) is
written on"
27.2
On proper construction, the promulgated Forml notice is not
necessarily misleading. The words "decision to deport you"
at the end are part of a long sentence with a heading. To establish a
true meaning of what is conveyed or the purpose sought to
be achieved
by the notice, one has to consider also the title and the text of the
notice, as well as its reference to section 8(1)
as a whole. As the
title states, the advice to review the decision within 3 days apply
"in respect of a person found to be
an illegal foreigner."
Not a person considered for deportation. The use of the words
"decision to deport you" in
the Form 1 notice should thus
not, in my view, be read and interpreted in isolation. The words may
not only be ascribed their ordinary
meaning, but must also be
interpreted within the context used.
27.3
The applicants were offered both Form 1 and Form
29. Form 29
refers
to the decision to deport and there is no ambiguity there. It advises
of the right to appeal to the Director-General. Consequently,
both
Forms could not have addressed the same subject matter, that is, they
could not have introduced two processes, one of review
and another of
appeal directed to two different officials (the Minister and the
Director-General) concerning the decision to deport.
[28]
The applicants were offered two separate and different notices. It is
my view that had they accepted the notices, which they
declined to
sign acknowledgement thereof, the notices could not have been so
vague as to confuse the applicants and their legal
representative.
The applicants were always under advice of their legal representative
even before their arrest and could not have
been (if they had
accepted the notices) misled by the text of Form 1. In any event, as
I have stated, the applicants refused to
sign acknowledgment of
receipt of the notices and consequently they did not receive the
advice in the notice. I therefore find
that the arrest and detention
as executed by the immigration officials on the applicants was
lawful.
The
case in the founding affidavit
[29]
The reasons advanced by the applicants in the founding affidavit for
being in South Africa without valid permit are that their
applications for extension of the visas were still pending and no
decision had been communicated to them. They were also not afforded
the right to appeal any decision that could have been taken.
[30]
The applicants made their applications for extension of the visas a
day before the visas expired, that was on the 13 March
2012. This is
common course. A decision was taken and communicated to the company
officials in April 2012. The respondents attached
to the answering
affidavit, as proof, a copy of the decision taken to decline the
application for extension of the visas. This
letter was addressed to
PMG. Further copies of e-mails indicating communication between PMG
and the Embassy, concerning the status
of the applicants, were also
attached. The applicants' legal representative in her replying
affidavit replied thus: "/ cannot
comment on the contents of the
letter Annexure BC or D (the e-mail correspondence between the
embassy and PMG). What I can do is
to deny that PMG mining failed to
inform the applicants (through an interpreter) of the contents of
Annexure A." This is the
letter declining the application for
extension. It would be far fetched to hold the respondents
responsible for the breakdown of
communication between the applicants
and their hosts, if what is stated in the replying affidavit is
correct.
[31]
The applicants' further state that the purpose of visiting South
Africa was to have a meeting with the shareholders of PMG.
The
extension of the visa was sought for that purpose. However the CEO
has this to say in his e-mail. "Please see attached
letter of
invitation datedl6 April 2012. Please be advised that PMG's Bishop
Mine is currently closed indefinably (sic) due to
non-compliance by
some of our Chinese partners. In my capacity as CEO, I would like to
know if it is at all possible for these
individuals to be requested
by the Embassy to return to China as soon as possible as they are
just loitering around SA due to the
mine being closed"
[32]
The PMG, who invited the applicants, no longer support the need for
them to be in South Africa. In fact, according to the e-mail
text
above, their return to China is recommended. After the applicants
applied for extension of their visas on the 13th of March
2012,
according to their version, they enquired about the extension
application only on the 13th of July 2012, approximately 4
months
later. The applicants thus had ample opportunity during that period
while in South Africa, to arrange a meeting with the
shareholders, if
indeed they were still waiting for the decision on their application.
It is also significant that they made enquires
from the department
concerning their application 7 days before the raid in their hotel.
[33]
In the replying affidavit, the legal representative makes an
unfortunate remark concerning the section 8(1) and 34(1) of the
Act,
prescribed forms annexed to the answering affidavit, when she says:
"The documentation referred to in annexure "Fl-Fll
"
and "Gl-Gll " are not worth the paper it is written on. "
The annexures she referred to are the notices in
the form of the
prescribed Forms promulgated in the Government Gazette in terms of
section 7 of the Act. This remark made by an
official of court is
inappropriate, considering the facts that the documents as Gazetted,
have a legal status. She further denies
that the applicants were
informed of their rights "in my presence". This is not the
requirement of the law. Nowhere in
the Act is it provided that the
arrestees must be notified of their rights in the presence of their
legal representative.
[34]
Considering the conspectus of the evidence in this matter, I conclude
that this application was merely launched as an attempt
to prolong
the stay of the applicants in the country. The reasons advanced to
justify their illegal presence in South Africa were
nothing more than
a ruse to achieve this object.
[35]
Consequently, I am of the view that this application should fail. In
the premises I make the following order:
1.
The application is dismissed with costs.
S.P.
MOTHLE
JUDGE
OF THE HIGH COURT
For
the Applicants Adv GC Muller SC
Instructed
by Van Zyl Smith &Associates Attorneys Pretoria