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[2008] ZANCHC 41
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Khan v Immigration officer: Kimberly Region, Department of Home Affairs (1226/2008) [2008] ZANCHC 41 (19 September 2008)
Reportable: Yes / No
Circulate to Judges:
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Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 1226/2008
Date
heard: 2008-09-12
Date
delivered: 2008-09-19
In
the matter of
:
MUHAMMAD
IMRAN KHAN
APPLICANT
versus
THE IMMIGRATION
OFFICER:
KIMBERLEY
REGION,
DEPARTMENT
OF HOME AFFAIRS RESPONDENT
Coram:
MAJIEDT
J
JUDG
MENT
MAJIEDT
J:
The
Applicant, a
Pakistani
National, who is presently in detention in terms of
s34(1)
of the
Immigration Act, 13 of 2002
(“
the
Act”
)
as an illegal foreigner, seeks the following final relief on an
urgent basis:
1.1 “that the Applicant be
released from detention and be allowed a proper opportunity of at
least 30 days to meet any legal
requirements for his further stay in
South Africa, inter alia by means of the procedure prescribed in
s8
of Act 113 of 2002 (sic: it should be Act 13 of 2002);
alternatively
the Applicant be allowed to depart voluntarily from South Africa,
without any endorsement on his passport.
1.2 Further and alternative relief.
1.3 Costs.
”
The
Respondent opposes the application and has raised a number of points
in
limine
.
Although, as will shortly appear, there is sufficient merit in the
points
in
limine
to uphold same and to dismiss the application on those grounds
alone, I intend dealing fully with the application, including
its
merits, particularly since this matter involves the liberty of an
individual.
Most
of the facts are common cause in this application and I briefly set
out the common cause facts, together with the Respondent’s
averments on the facts in issue (based on the approach in
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 620 (A)
)
as follows:
3.1 The Applicant
was arrested by immigration officers and members of the South African
Police Services (“
SAPS
”)
on 5 August 2008. He was arrested outside the Transvaal Road
Police Station in Kimberley, while he was enquiring
about the arrest
of certain of his relatives by the immigration officers.
3.2 His papers
were examined by an immigration officer, Mr. Mohamed, who is the
deponent to the Respondent’s opposing affidavit
herein. Upon
examining the Applicant’s papers, Mr. Mohamed noticed that the
Applicant was the holder of a temporary residence
permit with the
condition stipulated therein that he should continue residing with
his South African citizen spouse.
3.3 Upon
questioning the Applicant, Mr. Mohamed was informed that the
Applicant’s spouse resides in Cape Town, that he was
en
route
from Cape Town to Johannesburg and that he would be visiting a friend
in Kimberley for two days before continuing his journey to
Cape Town.
3.4 In Mr. Mohamed’s presence
the Applicant telephoned his wife and handed the phone to Mr.
Steenkamp, a colleague of Mr.
Mohamed. Mr. Steenkamp thereafter
informed Mr. Mohamed that the Applicant’s spouse had informed
him that she was not aware
of the fact that the Applicant was in
Kimberley and that they had not been living together as husband and
wife from December 2007
(i.e. for some eight months). Mr. Steenkamp
confirmed this in a confirmatory affidavit attached to the
Respondent’s opposing
affidavit.
3.5 As a
consequence of the aforementioned information gleaned from the
Applicant’s spouse, the Applicant was arrested because
he was
prima
facie
in
contravention of the conditions of his temporary residence permit.
3.6 Mr. Mohamed
contacted the Applicant’s spouse again on the following day (6
August 2008) and she confirmed the contents
of her conversation which
she had had the previous day with Mr. Steenkamp and which the latter
had conveyed to Mr. Mohamed. She
indicated her preparedness to
depose to an affidavit in this regard, which she did. This affidavit
of the Applicant’s spouse
confirmed that they had been
separated since December 2007. She also indicated that the Applicant
had visited her some two or
three weeks previously to ask for a
letter for the extension of his temporary residence permit and that
the Applicant had not supported
her for the past eight to ten months.
3.7 On the 7
th
August 2008 the Applicant’s spouse travelled from Cape Town to
Kimberley to collect her computer laptop and she spoke to
Mr.
Mohamed. Mr. Mohamed explained to her the circumstances surrounding
the Applicant’s arrest and that he was going to
be deported
from the country. She was satisfied and left Mr. Mohamed’s
office.
3.8 On the 11
th
August 2008 Mr. Mohamed received a letter from the Applicant’s
spouse in which she explained that the first affidavit which
she had
sent to him had been a mistake and in which she recanted therefrom.
3.9 However, on
the 14
th
August 2008, Mr. Mohamed received another letter from her stating
that she was withdrawing from the Applicant’s case and
that she
felt that he had to be deported. A second letter received on the
same day indicated that the Applicant’s spouse
is also
withdrawing her application for an attorney from Legal Wise to
represent the Applicant.
3.10 On 7
th
August 2008 the Applicant was served with a notification of
deportation and a notification regarding his rights to request a
review
by the Minister. The Applicant refused to sign these forms as
acknowledgement of receipt thereof. A member of the SAPS was then
requested by Mr. Mohamed to sign as a witness that the forms had
indeed been handed and explained to the Applicant and that he
had
refused to sign them.
3.11 As requested
by the Applicant’s attorneys, his detention was confirmed by a
court warrant on 18
th
August 2008 and this detention was extended to 30
th
November 2008 by order of a Magistrate dated 1 September 2008.
It is
the Applicant’s contention that he is being detained
unlawfully, that he has complied with the conditions of his
temporary residence permit and that he should be released forthwith.
The
Respondent, on the other hand, apart from the points
in
limine
raised,
contends that the Applicant is in lawful detention in terms of the
provisions of the Act, that he is an illegal foreigner
and ought
therefore to be deported, since he has failed to comply with the
conditions of his temporary residence permit. I discuss
firstly the
points
in
limine
before
I deal with the merits of the matter.
The
first point
in
limine
raised
by the Respondent is that the application is not urgent. From the
facts set out above, it is plain that the Applicant
has been in
detention since 5
th
August 2008 and a notice of deportation has been served on him on
7
th
August 2008. A warrant of detention was issued on 18
th
August 2008 confirming his detention. There is considerable merit
in the contention advanced by Ms Chabedi on behalf of the
Respondent
that, since the Applicant had been aware since at least 18
th
August 2008 that his detention is lawful and since he has failed to
exercise his rights to either appeal or review (an aspect
which I
will refer to again later), the application can no longer be said to
be urgent. Ms Chabedi is correct when she submits
that the relief
that the Applicant seeks now in this urgent application has already
been afforded to him in terms of s8 of the
Act and which had been
explained to him at the time of his arrest and detention. Section
8(1) provides that a person who is
found to be an illegal foreigner
can in writing request the Minister to review that decision.
Furthermore, s8(4) read with s8(3)
makes provision for a review or
appeal to the Director General if such a person is aggrieved by any
other decision taken against
him or her. It is common cause that
the Applicant was informed of this at the time of his arrest and
detention, yet he has failed
to exercise these rights which had been
explained to him. He in fact refused to sign the relevant
notifications when asked to
do so by Mr. Mohamed. In the premises,
I am of the view that the Applicant has been mostly the author of
his own misfortune.
Be that as it may, I was prepared to consider
the matter on an urgent basis, given the fact that it involves the
liberty of
a person.
The
next point
in
limine
raised
by the Respondent is that the decisions to find the Applicant to be
an illegal foreigner and to detain him are administrative
actions as
defined in the Promotion of Administrative Justice Act, 3 of 2000
(“
PAJA”
),
which are subject to review in terms of s8 of the Act, to which I
have already alluded. Ms Chabedi contends that the
Applicant’s
failure to have the decisions reviewed in terms of s8, has the
effect that he has not exhausted his internal
remedies. Section
7(2)(a) of PAJA provides that no court or tribunal shall review any
administrative action in terms of PAJA,
unless any internal remedies
provided for has been exhausted. I agree with Ms Chabedi that the
Applicant cannot approach this
Court until he has exhausted these
internal remedies. On this ground alone the application should be
dismissed. The provisions
contained in s8 will, for the reasons that
follow later, also provide an insurmountable obstacle to the
Applicant on the merits.
The
third point
in
limine
raised
is that the Minister and the Director General, given the powers
conferred upon them by the Act,
inter
alia
to consider appeals or reviews by an applicant who has been declared
an illegal foreigner and who stands to be deported, have
direct and
substantial interest in the matter and should have been joined as
co-respondents. In the same vein, Ms Chabedi also
pointed out that
the Respondent has been incorrectly cited. These points also have
substantial merit and I am of the view that
for this reason also the
application should be dismissed. I now turn to consider the merits
of the matter.
Section 11(6) of the Act
provides as follows:
(6)
“…
a visitor's permit may be issued to a foreigner who is the spouse of
a citizen or permanent resident and who does
not qualify for any of
the permits contemplated in sections 13 to 22: Provided that-
(a) such permit
shall only be valid while the
good
faith spousal relationship exists
;”
(emphasis supplied)
This provision must be
read in conjunction with s10 of the Act which reads as follows:
“
10 Temporary
residence permits
(1) Upon
admission, a foreigner, who is not the holder of a permanent
residence permit, may enter and sojourn in the Republic only
if in
possession of a temporary residence permit issued by the
Director-General.
(2) Subject to this Act, upon
application in the prescribed manner and on the prescribed form, one
of the temporary residence permits
contemplated in sections 11 to 23
may be issued to a foreigner.
(3) …..
(4 …..
(5)
The
Director-General may for good cause attach reasonable individual
terms and conditions as may be prescribed to a temporary residence
permit.”
In the
present matter, the condition attached to the Applicant’s
temporary residence permit is of course that he must reside
with
his
spouse and the permit only remains valid while the good faith spousal
relationship exists.
9.
Section
43, which deals with the obligations of foreigners, provides as
follows:
“
A foreigner shall-
(a) abide by the terms and
conditions of his or her status, including any terms and conditions
attached to the relevant permit by
the Director-General upon its
issuance, extension or renewal, and that status shall expire upon the
violation of those conditions;
(b) depart upon expiry of his or
her status.
10.
The
procedure adopted by the Respondent in the present case, in
particular by Mr. Mohamed, complies fully with the procedures set
forth in the Act. Firstly, Mr. Mohamed was in my view fully entitled
to take the Applicant into custody without a warrant, once
it
appeared
prima
facie,
according
to the information gleaned from the Applicant’s spouse, that
the Applicant was not complying with the conditions
of his temporary
residence permit and that his status required further verification.
Section 41 of the Act empowers an immigration
officer, such as Mr.
Mohamed, to detain a person without a warrant in such circumstances.
Likewise
,
once an affidavit was obtained from the Applicant’s spouse,
confirming what had been conveyed verbally to Mr. Steenkamp,
Mr.
Mohamed was entitled to detain the Applicant in terms of s34 of the
Act. That section provides that an immigration officer
may arrest
and detain without a warrant an illegal foreigner, pending his/her
deportation. It provides further that:
a)
such
an illegal foreigner shall be notified in writing of the decision to
deport him/her and of his/her right to appeal such a decision;
b) the
illegal foreigner may at any time request
from
an immigration officer that his/her detention for the purpose of the
deportation be confirmed by a warrant of a court and such
warrant is
to be issued within 48 hours of such a request, failing which the
illegal foreigner must be released forthwith;
c) the illegal foreigner
must be informed upon arrest or immediately thereafter of the rights
set out in (a) and (b) above in a
language that he/she understands as
far as is practicable;
d) An
illegal foreigner may not be held in detention for longer than 30
calendar days without a warrant of the court and such a
warrant may
on good and reasonable grounds extend the detention for a period not
exceeding 90 calendar days; and
e) The
illegal foreigner must be held in detention in compliance with
minimum prescribed standards protecting his/her dignity and
human
rights.
All
the aforementioned
prescripts
were complied with fully by Mr. Mohamed and there is no
bona
fide
dispute
on this aspect (the Applicant’s averments to the contrary can
be summarily rejected as untenable, since it is controverted
by the
documents attached to the Applicant’s and Respondent’s
affidavits).
On
behalf of the Applicant, Mr. Schreuder has submitted, on the
authority of the judgment in
Eveleth
v Minister of Home Affairs 2004(3) All SA 322 (T)
at
331 e, that the Respondent has failed to comply with the procedures
in terms of s8 of the Act. This submission is without
substance.
As indicated above, Mr. Mohamed had fully explained to the Applicant
all his rights including the rights of appeal
and review as
contemplated in s8. There has in fact been full compliance with the
provisions of s34, which are couched in peremptory
terms. In the
Eveleth
matter,
supra
,
there has been clear non-compliance with that particular section,
which makes that case distinguishable on the facts and on
the law
from the present one.
The
final nail in the coffin of this application is the fact that, as Ms
Chabedi
has correctly pointed out, the Applicant seeks the relief in his
Notice of Motion which had been afforded to him in any
event shortly
after his arrest and detention, when Mr. Mohamed explained to him
his rights. The Applicant failed to have the
decisions reviewed
and/or to appeal against them, as was explained to him.
Consequently, he cannot now approach this Court and
ask for the very
same relief which he had earlier declined to take up. On the merits
therefore, the Applicant cannot succeed
in his application.
It
seems to me that nothing precludes the Applicant, even at this late
stage, from requesting in writing the Minister to review
the
decision that he is an illegal foreigner, as contemplated in s8(1)
of the Act. In such a request, the Applicant could possibly
explain
the reasons for his failure to
timeously
lodge a request for a review. What is plain, however, is that the
Applicant cannot be released as he is
prima
facie
an illegal foreigner, subject to deportation in terms of the Act set
out above.
In the premises
therefore the application must fail for the following reasons:
a) The
Applicant failed to exhaust his internal remedies as set out in s8 of
the Act and can therefore not approach this Court for
relief
(s7(2)(a) of PAJA);
b) The
Applicant’s failure to join the Minister and the Director
General is fatal, since both these parties have direct and
substantial interest in the matter by virtue of the powers conferred
upon them by the provisions of the Act;
c) On the merits, the
Respondent has made out a case for the lawful arrest, detention and
deportation steps taken against the Applicant;
d) The
relief which the Applicant now seeks in his Notice of Motion, has
already been offered to him but he has elected to decline
same.
With
regard to costs, I am of the view that
,
in the exercise of my discretion, it would be inequitable to mulct
the Applicant in costs, given his present precarious situation.
In
the premises I take the view that, notwithstanding the fact that Ms
Chabedi is probably correct in her submission that this
application
was ill-conceived and stillborn, I should make no order as to costs.
I issue the following
order:
The application is
dismissed.
___________
__
SA MAJIEDT
JUDGE
FOR
THE
APPLICANT : ADV
J SCHREUDER
INSTRUCTED
BY
: JOOSTE
ATTORNEYS
FOR
THE RESPONDENT : ADV CHABEDI
INSTRUCTED
BY
: STATE
ATTORNEY