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[2009] ZAGPPHC 57
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Lawyers for Human Rights v Minister of Safety and Security and Others (5824/2009) [2009] ZAGPPHC 57 (15 May 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH AND SOUTH
GAUTENG HIGH COURT, PRETORIA)
DATE: 15/05/2009
CASE NO: 5824/2009
REPORTABLE
In
the matter between:
LAWYERS
FOR HUMAN RIGHTS APPLICANT
And
THE
MINISTER OF SAFETY
AND
SECURITY + 17 RESPONDENTS
JUDGMENT
RAULINGA, J
1.
Introduction
This is an urgent
application concerning the lawfulness of the detention centre for
persons said to be “
illegal
foreigners
”,
which is operated by the South African Police Service under the
command of the station commissioner of the Musina Police
Station in
the Limpopo Province.
The detention facility
is located on the Soutpansberg Military Grounds approximately 5
kilometres from Musina and is commonly referred
to as “
SMG
”.
Apparently SMG is an extension of the Musina Police Station.
The applicant seeks the
following orders:
“
1. Dispensing,
so far as need be, with the forms and service provided for in the
Uniform Rules of Court and disposing of this application
at such time
and place and in such manner and according to such procedure as this
Court deems meet in terms of rule 6(12) of the
rules of this Court;
2. Declaring that:
2.1 the use of the
Soutpansberg Military Grounds (SMG) detention facility for detention
and/or deportation under the
Immigration Act 13 of 2002
is unlawful;
2.2 the conditions of
detention at the SMG detention facility are unlawful and
unconstitutional; and
2.3 the conditions of
detention and practices with regard to children at the SMG detention
facility are unlawful and unconstitutional.
3. Directing the first
to eight respondents to forthwith comply with their obligations in
relation to children at the SMG detention
facility arising from the
Constitution, the Child Care Act 74 of 1983, the Children’s Act
38 of 2005 and the
Immigration Act 13 of 2002
, including but not
limited to:
3.1 dispatching social
workers to assist unaccompanied children;
3.2 halting the
deportation of unaccompanied children;
3.3 halting the
detention of unaccompanied children; and
3.4 halting the
detention of all children in conditions and circumstances that breach
the aforesaid legal provisions.
4. Directing the sixth
respondent to decide, within two weeks of the date of this order,
whether the SMG detention facility is a
designated place of detention
in terms of
section 34(1)
of the
Immigration Act 13 of 2002
, and to
advise this Court and the Applicant accordingly on affidavit within
two court days of such decision.
4.1 In the event of
the sixth respondent deciding that SMG detention facility is
not
a designated place of detention in terms of
section 34(1)
of the
Immigration Act 13 of 2002
, directing the first to eight respondents
to close the SMG detention facility within one month of the sixth
respondent’s
decision.
4.2 In the event of
the sixth respondent deciding that SMG detention facility
is
a designated place of detention in terms of
section 34(1)
of the
Immigration Act 13 of 2002
, directing the first to eight respondents
to ensure that the conditions of detention at the SMG detention
facility comply with
all legal obligations in relation to the
conditions of detention within one month of the sixth respondent’s
decision.
5. Directing:
5.1 the first to
eighth Respondents to file with this Court and the Applicant reports
on affidavit setting out all steps taken pursuant
to the orders in
paragraphs3, 4.1 and 4.2 above, within one month of the sixth
respondent’s decision.
5.2 that the Applicant
and/or any of the Respondents may re enroll this matter for
hearing at any stage, if necessary on duly
supplemented papers, to
deal with any need for further orders arising out of the orders set
out in paragraphs 3, 4.1 and 4.2 above.
6. Directing that the
Applicant’s costs be paid, jointly and severally, by any and
all Respondents opposing any part of the
relief sought.
”
Three primary issues
were raised by the applicant.
First, the status of the
SMG detention facility. Section 34 of the Immigration Act 13 of 2002
(“
the
Immigration Act
&rdquo
;)
requires that an immigration officer may detain an illegal foreigner
“in a manner and at a place determined by the Director General,
subject to certain further requirements. This therefore means that
illegal foreigners may only be detained by immigration officers
at
places determined by the Director General of Home Affairs. The
SMG detention facility has not been designated in this
manner by the
Director General, nor are immigration officers responsible for
running it. Police officers are dealing with
detention and
deportation of illegal foreigners at the facility. Accordingly, the
facility and the activities that take place
there are presently
unlawful.
Second, the conditions
of the detention at the SMG detention facility do not meet the
standards of detention set in the
Immigration Act, the
Immigration
Regulations, the Constitution and International Law. Due to the
extreme nature of these conditions and the devastating
impact on the
detainees, the facility should either abide by the abovementioned
standards and legal provisions or it should be
immediately closed.
Third, the detention of
minors, accompanied and unaccompanied, at the SMG detention facility
is manifestly unlawful. It contravenes
sections 28(1)(g) and 28(2)
of the Constitution, the Child Care Act 74 of 1983, Children’s
Act 38 of 2005, the
Immigration Act and
the Regulations.
2.
Urgency
After hearing submissions
by the three counsel on urgency, I found that urgency exists based on
the following reasons:
–
The matter
concerns the deprivation of liberty of a large number of illegal
foreigners whose continued and future unlawful detention
may cause
unwarranted danger to their lives.
–
There are serious
allegations that unaccompanied minors are also being arrested,
detained and deported to their countries of origin.
3.
Dispute
of Fact
The first to fourth
respondents (SAPS) deny applicant’s averments in question with
a statement or bald denial that fails
to deal in detail with the
founding affidavit. Because probabilities do not arise one will have
to examine whether the denials
are genuine real or
bona
fide
dispute of fact.
There are a number of
common cause facts which are clear from the papers. It is common
cause that the SMG facility is used to
detain and deport illegal
foreigners from South Africa to their respective countries. There
are unaccompanied children and male
and female adults kept at the
SMG. The SAPS acts as an agent of the Department of Home Affairs.
The word agent has been given
a meaning that suits an interpretation
as envisaged in terms of section 39 of the Constitution – See
below. The Department
of Home Affairs attaches a different meaning
to this word, but they agree that SAPS acts as their agent.
The SAPS respondents
dispute that the conditions at the SMG are appalling and that they do
not meet the requirements or standards
as stated in the Constitution
and other legislation and international covenants. They also dispute
that the conditions under which
the unaccompanied minors are detained
in the SMG do not meet the minimum standards.
In
Plascon
Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 3 SA 623
(A). The following dictum is relevant to this case:
“…
It is
correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the appellant’s affidavits which
have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact.
… Moreover, there may be
exceptions to this general rule, as for example, where the
allegations or denials of the respondent
are so farfetched or clearly
untenable that the court is justified in rejecting them merely on the
papers.
”
A real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed –
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
2008 3 371 (SCA) para 13.
The SAPS respondents do
not add meat to the bone they instead make a number of concessions.
The Home Affairs respondents make
a bare denial that they are not
responsible for the SMG.
I am not convinced that
the respondents dealt with the dispute seriously. I am of the view
that the matter can be decided on papers
with reliance on common
cause issues.
4.
Background
Since July 2008 the
representative of the applicant, until his access was denied in
October 2008, made regular daily visits to
SMG where he consulted
with detainees, SAPS officials and immigration officers before the
deportation of each day. He regularly
witnessed the detention and
deportation of unaccompanied minors, without reference to the sixth
and/ or seventh respondents or
their local agents. Illegal
foreigners were deported without reference to immigration officers or
the provisions regarding deportation
under the
Immigration Act.
People
seeking asylum or holding valid permits were also deported.
Some had their documents destroyed by the police or National Defence
Force members. About the beginning of November 2008 the sixth
respondent disclaimed oversight of SMG.
In the absence of
immigration officers at SMG, detainees are sometimes detained and
deported by SAPS without investigation or verification
of their
status by the Department of Home Affairs (DHA). He also witnessed
the beating of the detainees with a rubber hose as
a punitive measure
or mechanism of crowd control. After observing unaccompanied
children detained at SMG, he contacted the Department
of Social
Development (seventh and eighth respondents) but many a time no
social workers were dispatched.
The SAPS respondents
contend that the Soutpansberg Military Ground (SMG) is an extension
of Musina Police Station Holding Cells.
As a result of overcrowding
at the Musina Police Station Holding Cells, as a result of the influx
of illegal foreigners into South
Africa, and in view of the fact that
the Department of Home Affairs does not have a facility where the
illegal foreigners should
be kept before deportation, the South
African Police Service (SAPS) as the organ responsible for the
overseeing and management
of the border post negotiated with SAMDF to
utilise the facility as an extension of the holding cells of Musina
Police Station.
They further content
that the SAPS is mandated by
section 41
of the
Immigration Act 13 of
2002
to take the illegal foreigners into custody and if necessary
detain them in terms of
section 34
of the aforesaid Act. The SAPS
respondents concede that children are detained at the SMG and are
also deported from there. They,
however, deny that the conditions at
the SMG do not meet the minimum standards required in terms of the
Immigration Act, because
this is not necessary since the facility is
not established and managed by the Department of Home Affairs.
The fifth and sixth
respondents (DHA) insist that the Minister of Home Affairs is in the
process of finalising a special dispensation
which will apply to all
Zimbabwean nationals. The dispensation will provide for temporary
exemption to all Zimbabwean nationals
in terms of the provisions of
section 31(2)
of the
Immigration Act 13 of 2002
. The Minister is
desirous of expediting the establishment of at least ten locations,
nationally, where Zimbabweans will be obliged
to apply for such a
special dispensation. SMG does not seem to be one of those sites.
This will therefore mean that all illegal
foreigners who are not
Zimbabwean nationals will be comfortably be detained at the SMG where
section 41 of the Act is implemented.
The seventh and eighth
respondents (Social Development) have elected to abide by the order
of the court.
5.
Interpretation
of Relevant Provisions of the
Immigration Act 13 of 2002
It is prudent to premise
the analysis of this application on the interpretation of relevant
provisions of the
Immigration Act 13 of 2002
.
Section 34(1):
“
W
ithout
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.
(2) …
(3) The
Director General may order a foreigner subject to deportation to
deposit a sum sufficient to cover in whole or in part
the expenses
related to his or her deportation, detention, maintenance and custody
and an officer may in the prescribed manner
enforce payment of such
deposit.
”
Section 41:
“
When so
requested by an immigration officer 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 office 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 office 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
.”
Regulation 28(1):
“
(1) The
detention and deportation of an illegal foreigner contemplated in
section 34(1) of the Act shall be by means of a warrant
issued by an
immigration officer, which warrant shall substantially correspond to
Form 28 contained in Annexure A.
(2) The notification
of the deportation of an illegal foreigner contemplated in section
34(1)(a) of the Act shall be in a form substantially
corresponding to
Form 29 contained in Annexure A.
(3) The confirmation
of deportation contemplated in section 34(1)(b) of the Act shall be
on a form substantially corresponding to
Form 30 contained in
Annexure A.
(4) An immigration
officer intending to apply for the extension of the detention period
in terms of section 34(1)(d) of the Act
shall –
(a) within 20 days
following the arrest of the detainee, serve on that detainee a
notification of his or her intention on a form
substantially
corresponding to Form 31 contained in Annexure A;
(b) afford the
detainee the opportunity to make representations in this regard
within three days of the notification contemplated
in paragraph (a)
having been served on him or her; and
(c) within 25 days
following the arrest of the detainee, submit with the clerk of the
court an application for the extension of
the period of detention on
a form substantially corresponding to Form 32 contained in Annexure
A.
(5) The minimum
standards with regard to detention as contemplated in section
34(1)(e) of the Act are as determined in Annexure
B
.”
Annexure B: Minimum
Standards of Detention:
“
(1) Accommodation
(a) Detainees shall be
provided accommodation with adequate space, lighting, ventilation,
sanitary installations and general health
conditions and access to
basic health facilities.
(b) Every detainee
shall be provided with a bed, mattress and at least one blanket.
(c) Male and female
detainees shall be kept separate from each other: Provided that this
does not apply to spouses.
(d) Detained minors
shall be kept separate from adults and in accommodation appropriate
to their age: Provided that minors shall
not be kept separate from
their parents or guardians: Provided further that unaccompanied
minors shall not be detained.
(e) Detainees of a
specific age, or falling in separate health categories or security
risk categories, shall be kept separate.
(f) There may be a
deviation from the above standards if so approved by the
Director General at a particular detention centre:
Provided that
such a deviation is for purposes of support services or medical
treatment: Provided further that there shall not
be any deviation in
respect of sleeping accommodation.
2. Nutrition
(a) Each detainee
shall be provided with an adequate balanced diet.
(b) The diet shall
make provision for nutritional requirements of children, pregnant
women and any other category of detainees whose
physical condition
requires a special diet.
(c) The medical
officer may order a variation in the prescribed diet for a detainee
and the intervals at which the food is served,
when such variation is
required for medical reasons.
(d) Food shall be well
prepared and served at intervals not less than four and a half hours
and not more than 2/4 hours between
the evening meal and breakfast
during a 24 hour period.
(e) Clean drinking
water shall be available at all times to every detainee.
3. Hygiene
(a) Every detainee
shall keep his or her person, clothing, bedding and room clean and
tidy.
(b) The Department
shall provide the means to comply with item 3(a)
.”
The procedure in
section
34(1)
of the
Immigration Act is
invoked in order to detain and deport
the illegal foreigners from South Africa back to their respective
countries. “
The
immigration officer may without the need for a warrant arrest an
illegal foreigner or cause him or her to be arrested
.”
This means that the immigration office may himself arrest or seek
the assistance of the police to arrest on his behalf.
… “
and
shall, irrespective of whether such foreigner is arrested, deport him
or her or cause him or her to be deported
”
… Therefore the arrest is discretional, however, even if the
said illegal foreigner is not arrested the immigration
officer may
deport him or her or seek the assistance of the police to deport the
said person … “
and
may, pending his or her deportation, detain him or her or cause him
or her to be detained
”
… The immigration officer may himself detain or seek the
assistance of the police to detain the said person …
“
in
a manner and at a place determined by the Director General
”,
… The manner in which the illegal foreigners may be detained
and the place where the illegal foreigners are to
be detained must be
determined by the Director General of Home Affairs. I say
“
shall
”
because the last “
may
”
before “
pending
”
only refers to “
detain
him or her or cause him or her to be detained
”.
As already seen above deportation is peremptory because shall is
used before “
deport
”.
Therefore “
in
the manner and place determined by the Director General
”
would fall outside “
may
”
and it becomes peremptory as well. The “
may
”
before detain is discretionary in that the immigration office has a
choice to detain or not to detain.
The corresponding duty
by the police in terms of
section 41(1)
of this Act gives the police
the same powers as the immigration officer only in as far as
identification and taking the said person
into custody is concerned.
If necessary, the immigration officer or police officer may detain
the said person in terms of section
34. It therefore holds that the
illegal foreigners must be detained in the manner and at a place
determined by the Director General
of Home Affairs.
The following is of
paramount importance. Section 34(1) ends with “
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;
(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;
(e)
shall
be held in detention in compliance with minimum prescribed standards
protecting his or her dignity and relevant human rights
.
(My emphasis)
It is my view that these
subsections are peremptory.
Section 39(2) of the
final constitution comes to the assistance of the court when
interpreting any legislation and when developing
the common law or
customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.
The practical techniques
of interpretation as discussed by Du Plessis and Conder (1994)
Understanding
South Africa’s Transitional Bills of Rights
:
Juta 73 74 and Du Plessis (2002) Re interpretation of
Statutes 197 274 were accepted in
Minister
of Land Affairs v Slamdien
1999 (4) BCLR 413
(CC) 422 para 17.
Section 39(2) is a
peremptory provision, which means that all courts, tribunals or
forums must review the aim and purpose of legislation
in the light of
the Bill of Rights. Plain meanings and so called, unambiguous
texts are no longer sufficient – Christo
Botha – The new
“
Constitutional
”
Approach to statutory interpretation.
Interpretation of
statutes starts with the Constitution, and not with the legislative
text. NGCOBO J said the following in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism
2004 (7) BCLR (CC) at paras 72, 80 and 90:
“
The starting
point in interpreting any legislation is the Constitution …
first, the interpretation that is placed upon a
statute must where
possible be one that would advance at least an identifiable value
enshrined in the Bill of Rights; and second
the statute must be
capable of such interpretation … (legislation) must be
interpreted purposively to promote the spirit,
purport and objects of
the Bill of Rights … the emerging trend in statutory
construction is to have regard to the context
in which words occur,
even where the words to be construed are clear and unambiguous.
”
The constitution is not
a symbolic document. It is also a transformative document, a
commitment to positive action that includes
socio economic
rights in the Bill of Rights. It is for that reason that when
interpreting any statute that involves socio economic
rights,
the approach must be value laden. The aim must be to develop
jurisprudence that promotes and protects human rights.
The
Immigration Act 13
of 2002
aims at setting in place a new system of immigration control
which ensures
inter
alia
,
that –
–
interdepartmental
coordination and public consultations enrich the functions of
immigration control.
–
immigration
control is performed within the highest applicable standards of human
rights protection.
–
a human rights
based culture of enforcement is promoted.
–
the international
obligations of the Republic are complied with; etcetera.
The interpretation of
the provisions of the
Immigration Act should
therefore be given a
meaning that is less onerous and ensures that vested rights will not
be affected. The interpretation must
grant a benefit to those who
live in the country.
6.
Interpretation
of Socio Economic Rights
In interpreting the
provisions of Act 13 of 2002 (the
Immigration Act) one
must be
mindful of the fact that the Constitution (Act 108 of 1996) places an
overarching obligation on the state to respect, protect,
promote and
fulfil the rights in the Bill of Rights. Section 7 establishes that
the rights in the Bill of Rights impose a combination
of negative and
positive duties on the state. I may summarise some of the aspects
as: The duty to respect requires the state to
refrain from law or
conduct that directly or indirectly interferes with people’s
enjoyment of socio economic rights.
The duty to promote is
sometimes regarded as a dimension of the duty to fulfil
socio economic rights. Sandra Liebenberg
– Constitutional
Law of South Africa 2
nd
edition volume 2 – 33-6.
In
casu
the category of rights entrenched are “
everyone
to have access to adequate housing, health care services, sufficient
food and water and social security
”.
The next rung of these entrenched rights is children’s
socio economic rights and including the socio economic
rights of detained persons. The third category covers rights in
terms of section 26(3) and 27(3) of the final Constitution.
Although socio economic
rights are not universally accepted fundamental rights, the
Constitutional Court held that the Constitutional
Principle II did
not require them to be incorporated in the Bill of Rights as
justiciable rights. It observed that socio economic
rights are
at least to some extent justiciable. The fact that socio economic
rights will almost inevitable give rise to budgetary
implications is
not a bar to their justiciability. At a minimum, socio economic
rights can be negatively protected from improper
invasion –
Ex
Parte
Chairperson
of the Constitutional Assembly: In Re Certification of the
Constitution of the Republic of South Africa
1996 4 SA 744
(CC) at 800 paras 76-78.
The justiciability of
socio economic rights was further discussed in
Grootboom
and Others v Government of the Republic of South Africa and Others
2001 1 SA 46
(CC) and
Soobramoney
v Minister of Health, Kwazulu-Natal
1998 1 SA 765
(CC). In
Minister
of Health and others v Treatment Action Campaign and others
[2002] ZACC 15
;
2002 5 SA 721
(CC) paras 29-30 the court affirmed that the negative
duty to refrain from preventing or impairing the relevant
socio economic
rights, recognised in
Grootboom
supra
applied equally to section 27(1).
The court then
reaffirmed that section 27(2) defines and limits the full extent of
the positive obligation imposed by section 27(1).
There is no
separate positive right under section 27(1). This means that
all positive obligations on the state from the
most basic to more
extensive levels of fulfilment will be subject to the qualifications
in the second subsections of sections 26
and 27. The state is
therefore expected to act reasonably to provide access to the
socio economic rights identified in sections
26 and 27 on a
progressive basis. Further that courts are not institutionally
equipped to make the wide ranging factual and political
enquiries
necessary for determining what the minimum core standards should be.
The state’s obligation in that regard requires
it to take
reasonable legislative and other measures within its available
resources to achieve the progressive realisation of the
right.
The respondents may
succeed if they raise a defence to a claim alleging that their
progress in realising the rights is unreasonable
in that there are no
available resources – Section 26(2) and 27(2) of the final
constitution. However, the budgetary constrains
will not succeed in
all cases – the Constitutional Court outlined the requirements
in the TAC case
supra
.
Section 36(1)
establishes that the rights in the Bill of Rights may be limited.
Any limitation to a right must be in terms of
general application and
is only permissible to the extent that the limitation is reasonable
and justiciable in an open and democratic
society based on human
dignity, equality and freedom. However, the extent of the limit to
obligations in respect of socio economic
rights must be publicly
defined –
Sandra
Liebenberg supra
33-54.
There is a duty imposed
on the state to ensure that all children are provided with basic
necessities of life – particularly
unaccompanied children.
This is justified on the basis that children living in poverty are
particularly vulnerable and not in
a position to meet their own
socio economic needs.
Sandra
Liebenberg supra
33 49 and section 28(1)(c) of the Constitution.
7.
Application
of socio economic rights to sections 34 and 41 and the relevant
regulations of the
Immigration Act no 13 of 2002
.
The SAPS respondents do
not give a list of practical difficulties which they claim the
country faces. They only say that the country
faces an influx of
Zimbabwean citizens and that as a result the conditions of detention
at the SMG detention facility constitute
a justiciable limitation of
the constitutional rights of the detainees. This explanation does
not meet the reasonableness required
in terms of
section 36
of the
final Constitution.
In casu
there is no law of general application. The respondents did not give
any detail of the unavailability of resources. Instead they
conceded
that the fact that the facility does not meet the standards is merely
because it is an extension of the police station
cells – this
concession was made by the SAPS. The accommodation limitation may
only be implemented if there is compliance
with annexure “B”
– (1)(f) – Minimum standards of detention. The
provisions under annexure “B”
are peremptory. The
respondents on behalf of the state are obliged to provide
accommodation, nutrition and hygiene to all the
detainees according
to the minimum standards of detention. The requirements of section
36 of the Constitution do not come to their
rescue.
The interpretation of
socio economic rights in the Constitution applies to the
Immigration Act. There
is a duty upon all the respondents, to
respect, protect, promote and fulfil these rights. There is no law
of general application.
There is no reasonable limitation that is
justifiable in a free, open and democratic society. Annexure “B”
(1)(f)
of the Regulations to the Act operates against any argument
that section 36 of the final constitution may advance the cause of
SAPS respondents.
On their own version the
SAPS respondents say that the diet fed to the detainees is as stated
by the applicant. This simply means
that the minimum dietary
standards are not met – this
mutatis
mutandis
applies to children. The behaviour of the respondents is nothing
else but dereliction of duty. This flies in the face of
international
human rights instruments almost all of which were
ratified by South Africa as a member of the global world.
There is evidence that
unaccompanied children are deported by the first to fourth
respondents to their respective countries. There
is also evidence
that these children are not adequately accommodated and fed at the
SMG facility. There are allegations that these
children share
sleeping accommodation together with adults. This startling evidence
found no justification by the SAPS. The issue
of reasonableness does
not even arise.
The seventh and eighth
(Social Development and Health) respondents have a duty to assess and
monitor the situation of all children
at the SMG facility. There is
evidence that no social workers attend to children at the facility.
Equally, the eight respondent
has a duty to ensure that the minimum
standards of hygiene are maintained.
In
Centre
for Child Law and Another v Minister of Home Affairs
2005 6 SA 80
at para 22 at 58, the court held:
“
It seems to me
that there can be no doubt that the respondents’ behaviour as
set out above is a serious infringement of the
children’s
fundamental rights protected in terms of ss28(2), 28(1)(c), 28(1)(g),
33, 34, 12, and 35 of the constitution,
whilst it also infringes
their statutory rights contained in ss 12 and 14 of the Child Care
Act.
”
As already discussed
above the interpretation of the relevant provisions of the
Immigration Act should
be contextualised within the final
Constitution. The interpretation should be such that the
Immigration
Act alleviate
hardships rather than worsen them. It is for that
reason that the designation of any facility used for the purpose of
deportation
of illegal foreigners must be determined by the
Director General of Home Affairs before it is used for that
purpose. It therefore
means that although the police officers are in
terms of
section 41(1)
of the
Immigration Act, also
vested with the
power to arrest and detain illegal foreigners, they are, however,
tasked to do so in terms of section 34 of the
Act. The SAPS concedes
that it detains and deports illegal foreigners from the SMG.
Detention and deportation of illegal foreigners
can only be done in a
manner and at a place determined by the Director General.
The “
manner
”
would refer to what should be done in terms of the Regulation 28 to
the Act and the place would be a facility determined
by the
Director General of Home Affairs. The Director General
cannot abdicate this responsibility, nor can state departments
collude in order to ride roughshod on processes. It is said that the
SAPS admits that it is an agent of the DHA and that the SMG
is an
extension of Musina Police Station. One cannot help but be oblivious
of such tendencies. I am of the view that the two
departments –
the SAPS and Home Affairs are equally responsible for the quagmire
caused at the SMG. The Home Affairs Department
was at a certain
stage directly involved in the running of SMG in that they had their
officers stationed and working from there.
These officers were
pulled out apparently because of misunderstandings between the two
departments. Home Affairs also concedes
that the SAPS is its agent.
Agent must be understood to mean that the one is acting on behalf of
the other. The SAPS admits that
it is an agent of Home Affairs. The
SAPS confirms that it deports illegal immigrants from SMG, fulfilling
its mandate as an agent
of Home Affairs.
Although the seventh and
eighth respondents (Social Development and Health) have opted to
abide by the order of the court, this
does not exonerate them from
the responsibility of attending to children kept at the SMG. They
too have a duty to comply with
Regulation 28 to the Act and annexure
“B” of the Regulations. However, they could only act as
and when requested by
the SAPS and DHA respondents.
When making submissions,
Counsel for the DHA respondents referred me to the full bench
judgment of this division in
Jeebhai
v Minister of Home Affairs and Another
2007 (4) All SA 779
(T). It behoves me to mention that this judgment
has since been overturned by the Supreme Court of Appeal in
Jeebhai
v Minister of Home Affairs
(139/2008) ZASCA 35 (31 March 2009). In the minority
judgment of CACHALIA JA (Mpati P concurring) the following was
stated:
“…
Deportation
is a unilateral act of the deporting state to remove a foreigner who
has no right or entitlement to be in its territory.
Its purpose is
achieved when the foreigner leaves the deporting state’s
territory. The authority of and constraints on
the state to deport
people is to be found in the
Immigration Act 13 of 2002
and the
Immigration Regulations made by the Minister under section 7 of the
Act. For deportation to be carried out lawfully, the
‘action
or procedure’ used to facilitate an illegal foreigner’s
removal from the country must be done in terms
of the Act.
Para 21 – page
11: ‘A decision to deport someone often carries far –
reaching consequences – it concerns
that person’s
livelihood, security, freedom and, sometimes, his or her very
survival. This is why immigration laws, often
harsh and severe in
their operation, contain safeguards to ensure that people who are
alleged to fall within their reach are dealt
with properly and in a
manner that protects their human rights. ‘… –
There is nothing in the judgment that suggests
that the majority
judgment of PONNAN JA (STREICHER JA and HURT AJA concurring) does not
support this dictum. It can only be mentioned
that the court in its
judgment uses the word ‘must’ several times e.g. –
at para 26 page 14: – …’
The arrested person’s
detention must be by means of a warrant issued by an immigration
officer authorising the station commissioner
or head of the detention
facility to detain him …’
”
Section 41(1), read with
section 34(2), permits the detention of a suspected illegal foreigner
for a period not exceeding 48 hours
while his status is being
verified and section 34(1) permits the arrest and detention of an
illegal foreigner for deportation purposes.
There is evidence by the
applicant that certain detainees are detained for more than 48 hours
without their situation being reviewed
or evaluated.
Regulation 28(1) of the
Act, puts the matter in proper context:
“
The detention
and deportation of an illegal foreigner contemplated in section 34(1)
of the Act shall be by means of a warrant issued
by an immigration
officer, which warrant shall substantially correspond to Form 28
contained in Annexure A
.”
This power is vested on the Department of Home Affairs. It
therefore follows that no facility can be used for detention
and
deportation of foreigners without the necessary designation by the
Director General of Home Affairs.
Although section 35 of
the constitution is applicable to all detained persons, in this
instance it cannot be used to the exclusion
of the operation of
section 34(1)
of the
Immigration Act, Regulations
28 and 29 and
annexure “B” of the Regulations.
It is my view that the
operation of the provisions of the
Immigration Act must
be subsumed
under the Bill of Rights of the final Constitution.
8.
Conclusion
No sooner had I finished
writing this judgment, than the applicant informed me by letter that
the Minister of Home Affairs had
since implemented the much talked
about special dispensation. I then requested that all the parties to
this matter should submit
supplementary heads of argument on this
issue. It appears that no foreign nationals are being detained at
the SMG at the moment.
In view of this special dispensation, the
applicant brought a separate urgent interim application solely
dealing with unlawful
detention of Zimbabwean foreign nationals
beyond 48 hours. Ultimately an order was granted by consent, on
21 April 2009,
by LOUW J, that Zimbabweans could only be
detained at the SMG in terms of section 34(2) of the Act for up to 48
hours. That order
does not affect the issues presently before me, in
particular, the lawfulness of the facility, the detention of
non Zimbabweans
and the issues regarding children in detention.
Flowing from these events the applicant has as a result abandoned
prayers 3, 4
and 5. What would remain are prayers 2 and 6 which I
must necessarily, determine. This therefore dispenses with the need
for
a structural interdict.
I disagree with the SAPS
respondents that this judgment is now academic in view of the
Minister’s special dispensation.
In the same vein, I
disagree with the DHA (fifth and sixth respondents) that the matter
has since become moot. Only two reasons
will suffice:
(1) The special
dispension applies only to Zimbabweans for a limited period of (90)
ninety days. It does not apply to foreign nationals
from other
countries.
(2) There is no
explanation advanced as to what will happen to the non Zimbabwean
nationals, in the absence of any legal instrument
that may protect
their rights – moreover this involves and affects children as
well.
Although the SAPS acts
as an agent for the Department of Home Affairs, the Director General
of Home Affairs has indicated
that he has no intention to designate
the SMG as a facility where illegal foreigners can be detained and
deported from.
The SAPS respondents
have conceded that they are in control of the SMG and that they
detain and deport illegal foreigners from
the facility. The DHA
respondents have a direct duty to detain and deport illegal
foreigners. They too must bare the consequences
of the appalling and
deplorable conditions at the SMG.
Although the seventh and
eighth respondents (Social Development and Health) had a duty to look
after the children kept at the facility,
an order against them may be
academic if the facility is to be closed.
8.
Order
In the circumstances the
following order is made; it is hereby declared that:
1. The use of the
Soutpansberg Military Grounds (SMG) detention facility for detention
and/or deportation under the
Immigration Act 13 of 2002
is unlawful;
2. The conditions of
detention at the SMG detention facility are unlawful and
unconstitutional; and
3. The conditions of
detention and practices with regard to children at the SMG detention
facility are unlawful and unconstitutional;
4. The first to sixth
respondents are jointly and severally ordered to pay the costs of
this application, the one paying and the
others to be absolved.
T J RAULINGA
JUDGE OF THE NORTH
GAUTENG HIGH COURT
5824/2009
Heard on
:
For
the Applicant
:
Adv
Instructed
by
:
Messrs
For
the Respondent
:
Adv
Instructed
by
:
Messrs
Date
of Judgment
: