Houd v Minister of Home Affairs and Others (1344/06) [2006] ZAWCHC 38 (25 August 2006)

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[2006] ZAWCHC 38
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Houd v Minister of Home Affairs and Others (1344/06) [2006] ZAWCHC 38 (25 August 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO. 1344/2006
REPORTABLE
In
the matter between:
MOHAMED
ABDELNASER HOUD APPLICANT
and
MINISTER
OF HOME AFFAIRS 1
ST
RESPONDENT
GIDEON
CHRISTIANS 2
ND
RESPONDENT
THE
STATION COMMANDER: S.A. POLICE
SERVICES,
RAVENSMEAD CHARGE OFFICE 3
RD
RESPONDENT
JUDGMENT
DELIVERED ON 25 AUGUST 2006
DLODLO,
J
(1) The Applicant was
apprehended by the Second respondent at Cape Town airport when he
attempted to board a flight to Cairo on 8
th
February 2006.
He was questioned by the Second Respondent and after the Second
Respondent had also questioned the Applicant’s spouse
and obtained
a statement from her, the Second Respondent determined that the
Applicant was an illegal foreigner and arrested him
and set a date
for his deportation. On 11 February 2006, the Applicant approached
this Court on an urgent basis seeking
inter alia
, to prevent
his deportation from the Republic of South Africa for as long as he
remains lawfully married to Zaynap Cassiem (“
Cassiem
”). On
that day the Applicant obtained a
Rule Nisi
calling upon the
Respondents to show cause why an order interdicting and restraining
the First and Second Respondents from deporting
him from the Republic
of South Africa (“
the Republic
”) pending the determination
of an application for permanent residence in the Republic, should not
be granted. On 3 April 2006,
the applicant filed a Notice in terms of
Rule 28 in which he substitutes the main relief sought in the Notice
of Motion with the
following relief:
(i) “
Interdicting and
restraining the First and Second Respondents from deporting the
Applicant from the Republic of South Africa pending
the determination
of his application for permanent residence in the Republic of South
Africa; and
(ii)
Declaring Second
Respondent’s purported cancellation of the Applicant’s temporary
residence permit to be null and void, and of
no force and effect.”
This is therefore the return
date and the confirmation of the provisional order is resisted by the
First and Second Respondents.
(2) The Applicant’s
contentions for remaining in the Republic are four-fold:
firstly, that he is by
virtue of his marriage to Ms Cassiem entitled to remain in the
Republic of South Africa;
secondly, that the asylum
seeker temporary permit issued to him in terms of section 22 of the
Refugees Act No. 130 of 1998 (“
the
Refugees Act
>”) has
been extended to 30 June 2006;
thirdly, a temporary
residence permit issued to him in terms of
section 18
of the
immigration Act, 13 of 2002 (“
the Act
”) permits him to
remain in the Republic of South Africa until 2007; and
fourthly, that he had
submitted an application for permanent residence in the Republic,
which had not yet been determined.
Mr. W. Fisher appeared for
the Applicant whilst Mr. E.A. De Villiers-Jansen, assisted by Ms N.
Mangcu appeared for the Respondents.
HISTORICAL BACKGROUND
(3) The Applicant is an
Egyptian National. The First Respondent is the Minister of Home
Affairs, sued in her capacity as the Ministry
in charge of refugees
and asylum seekers in terms of the laws of this country. The Second
Respondent is employed as Senior Immigration
Officer by the First
Respondent and is cited herein by virtue of his employment. The Third
Respondent is infact the Station Commissioner
in the South African
Police Services apparently sued in his/her capacity as the person in
charge at the police station where the
Applicant was detained upon
being arrested at the airport. The Applicant applied for a business
visa at the South African Embassy
in Cairo and entered the Republic
allegedly under the pretext of conducting business here. Upon his
arrival on 19 February 2003,
the Applicant was issued with a business
permit valid until 18 May 2003. Once in the Republic, the Applicant
applied for asylum on
5 March 2003 and was issued with an asylum
seeker temporary permit. It is a requirement that an asylum seeker
discloses to a refugee
reception officer whether he is in possession
of a passport. The reason for this is that a refugee reception
officer must satisfy
himself fully as to the reasons for the
applicant’s entry into South Africa. The Applicant is alleged to
have failed to disclose
to the refugee reception officer that he was
in possession of a passport. Had he done so, it is contended in
papers, the refugee
reception officer would have seen that a business
visa had been issued to the Applicant in Cairo.
(4) The Applicant approached
Ms Cassiem and asked her to marry him so that he could stay in the
Republic. On 19 April 2005, the Applicant
married Ms Cassiem
whereupon he applied for a change in his status, allowing him to stay
in the Republic with Ms Cassiem as his spouse.
Once married, the
Applicant and Ms Cassiem, allegedly misrepresented to the Department
of Home Affairs that they lived together as
husband and wife. The
Application to remain in the Republic and to reside with Ms Cassiem
was approved on 19 May 2005 and in order
to do so, the Applicant was
issued with a relative’s permit. The Applicant applied for
permanent residence on 7 July 2005.
(5) On 8 February 2006,
whilst on his way to Cairo, the applicant was stopped at Cape Town
International Airport. It was apparent
from his passport that the
Applicant was a foreign national and that he had entered South Africa
on a business visa. When questioned
about his business dealings in
South Africa, the Applicant was unable to give any explanation at
all. Ms Cassiem, who accompanied
the Applicant to the airport,
willingly accompanied the Second Respondent, who explained to her
that he would interview her about
her marriage to the Applicant.
During the interview, Ms Cassiem indicated to the Second Respondent
that her marriage to the Applicant
was not a genuine marriage and
deposed to an affidavit to that effect. Pursuant to the affidavit
made by Ms Cassiem, the Second Respondent
determined that the
Applicant is an illegal foreigner, informed him accordingly and
issued the Applicant with notification of deportation
and a warrant
for his detention. The Second Respondent explained to the Applicant
the reasons for his deportation, read all the documents
to the
Applicant and informed the Applicant that he could appeal to the
Director-General should he not agree with the Second Respondent’s
determination.
(6) The Applicant accepted
the Second Respondent’s determination and in fact indicated that he
wanted to return to Cairo. The Applicant
in any event had every
intention of returning to Cairo. Accordingly, flight arrangements
were made for the Applicant’s return to
Cairo on 11 February 2006.
The Applicant did not inform the Second Respondent that he was issued
with an asylum seeker temporary
permit. On 9 February 2006, the
Second Respondent informed the Applicant’s attorney of record of
the Applicant’s detention and
deportation and the reasons
therefore. The Applicant’s attorney informed the Second Respondent
that the Applicant is not contesting
his deportation, but that they
wanted the cellular phones which the Second Respondent had found in
the Applicant’s possession and
which the Second Respondent had
handed to the South African Police, returned to the Applicant’s
attorney. The Applicant’s attorney
was satisfied that the Applicant
was leaving the country. The applicant resided at 50 Olympic Avenue,
Grassy Park prior to his arrest.
According to the Applicant’s
application for permanent residence, his address is given as 2
Foxwold Avenue, Voorbrug, Delft. Ms
Cassiem, in her affidavit given
to the Second Respondent on 8 February 2006, states that she resides
at 103 Angela Street, Valhalla
Park. According to Ms Cassiem, she and
the Applicant have at no stage lived together as husband and wife. Ms
Cassiem’s intention
was to assist the Applicant, whom she says is
her friend, to remain in the Republic. She is the mother of three (3)
children and
is in a relationship with a South African citizen from
Lenteguer, Mitchell’s Plain. Moreover, Ms Cassiem and her South
African
companion have a daughter, Fatima.
THE FOUNDING AFFIDAVIT
(7) Mr. Mohamed Abdelnaser
Houd, the Applicant deposed to this Affidavit. He stated that on his
arrival in the republic during February
2003 he applied for asylum
and was granted temporary asylum in terms of section 22 of the
refugees Act, 130 of 1998. Mr. Houd averred
further that whilst
residing in the Republic by virtue of the aforementioned temporary
asylum he met and fell in love with a South
African National, Zaynap
Cassiem. The two got married in March 2005. Mr. Houd also remarked
that he verily believes that by virtue
of his marriage to Ms Cassiem,
he is entitled to remain in the Republic for as long as the marriage
endures. On a Wednesday, 8 February
2006, Mr. Houd prepared for
departure to “my motherland”, as he stated, his plan being to
visit his family.
(8) According to Mr. Houd,
when he was about to board a flight at Cape Town International
Airport to depart for Qatar from where he
would fly to Cairo, he was,
in his words, “accosted by members of the Department of Home
Affairs”, who, after perusing his documents,
including the marriage
certificate, asked where his wife was. The wife had escorted Mr. Houd
to the Airport and was taken to a separate
room and questioned by the
said officials. The latter were under the auspices and command of the
First Respondent. It is at this
stage after Ms Cassiem had been
interviewed, that Mr. Houd was accused of having entered into a sham
marriage in order to remain
in the Republic and he was arrested. Mr.
Houd claimed that he was sworn at by the officials and he, however,
did not understand most
of what was said to him because his English
is extremely poor. He further explained that at some point he was
asked by the Second
Respondent to sign a document and in his
understanding this document was either a declaration of his rights or
was a confirmation
of his rights.
(9) What he fully understood
(which was made “plainly clear” to him) was that he would be
deported to Egypt on Saturday, 11 February
2006 at 07h00. He
understood the reasons for his deportation to be that he had entered
into a marriage of convenience in order to
merely stay in South
Africa. His further understanding was that the Second Respondent had
formed the view that the marriage was a
sham and that the former
violated immigration laws by entering into such a marriage.
(10) Mr. Houd averred that
insofar as he knows, he is entitled to just administrative action in
terms of section 33 of the Constitution
of South Africa. He submitted
that given the facts sketched in his Founding Affidavit, just
administrative action has not been applied
in his case. He
categorically denied that his marriage is that of convenience and
that he had transgressed the laws of the Republic,
thereby deserving
deportation. In Mr. Houd’s view, there were no basis for his
incarceration which he labelled as an unfair limitation
of his
freedom and he called for his immediate release. Mr. Houd reserved
his right to file supplementary affidavit setting out the
reasons
why.
SUPPLEMENTARY AFFIDAVIT
(11) In his Supplementary
Affidavit Mr. Houd set out what he called “additional factors”.
The first such factor is that he had
applied for permanent residence
in South Africa. In respect to this factor he annexed a copy of the
receipt of such application lodged
with the First Respondent, marked
“A”. The second additional factor mentioned by Mr. Houd is that
he applied for the extension
of his asylum seeker temporary permit
and that same had been extended to 30 June 2006. Annexure “B”
evidences such extended asylum
seeker temporary permit. Mr. Houd gave
as a further additional factor that he was also granted two (2) years
temporary residence
in terms of the regulations promulgated under the
Immigration Act 13 of 2002
, which would have expired somewhere in
2007.
(12) Mr. Houd re-iterated
that he believed and had been advised that the Second Respondent did
not have the authority and/or power
to cancel his temporary residence
permit. In the alternative, averred Mr. Houd, should the Second
Respondent be found to have been
possessed of the power to cancel the
temporary residence permit, then the cancellation was done without
any just reason or grounds
for doing so and that, in his view, the
cancellation is without force and effect. In summary Mr. Houd averred
that his right to remain
in the Republic rested upon the three-fold
foundation, namely, the temporary residence accorded to him in terms
of
section 18
of the
Immigration Act, the
right to apply for an
extension of his asylum seeker temporary permit and the pending
application for permanent residence.
THE ANSWERING AFFIDAVIT
(13) In opposition to the
confirmation of the provisional order granted in favour of the
Applicant, Mr. Gideon Christians deposed
to the aforementioned
Affidavit. Mr. Christians dealt at length with the background of this
matter. Most of what appeared under the
background category of Mr.
Christians constitutes common cause facts between the parties. The
Applicant hardly denied any of such
common cause facts. It would be a
plentiful waste of time to deal with the common cause facts under
this category. In any event such
facts have been summarized in this
judgment under the historical background.
(14) Importantly Mr.
Christians averred that before issuing the Applicant with asylum
seeker temporary permit, he would have had to
disclose whether he was
in possession of a passport. In this regard Mr. Christians referred
the Court to annexure “GC2” in which
it is clear that the
Applicant declared to the refugee reception officer that he was not
in possession of a passport. Mr. Christians
elucidated that the
reasons why an asylum seeker must disclose the existence of a
passport is so that a refugee reception officer
could satisfy himself
fully as to the reasons for an Applicant’s entry into the Republic.
(15) In Mr. Christians’
averment, the Applicant did not indeed disclose that he was in
possession of a passport. In his assertion,
had the applicant
disclosed that he was in possession of a passport, the refugee
reception officer would have seen that a business
visa had been
issued to the Applicant. The refugee reception officer would have
been able to make enquiries regarding the nature
of the business or
any meeting which the Applicant intended to attend. An enquiry of
this nature would assist the refugee reception
officer in determining
whether the Applicant is in fact a genuine asylum seeker.
(16) Mr. Christians also
annexed and marked annexure “
GC3
” a copy of the
Applicant’s application for a change in his status upon his
marriage with Ms Cassiem. The application referred
to in annexure
“
GC3
” was approved on 19 May 2005. The Court is referred
to annexure “
GC4
”; being the copy of the approval Mr.
Christians has alluded to. On 27 May 2005, according to Mr.
Christians and as it appears on
annexure “
GC5
”, the
Applicant was issued with a relative’s permit valid for two (2)
years allowing him effectively to reside with Ms Cassiem
as his
spouse.
(17) Mr. Christians
stipulated that as it can be seen in annexure “
GC6
” on 7
July 2005, the applicant applied to the Department of Home Affairs
for permanent residence. Mr. Christians admitted that
on 8 February
2006, during a routine inspection at Cape Town International Airport,
he did stop the Applicant who was on his way
to Cairo. The Applicant
was questioned regarding his sojourn in this country and a
substantial number of cellular phones were found
in the Applicant’s
possession. It is here that Mr. Christians noticed that the
Applicant’s passport contained a business visa
and a relative’s
permit. According to Mr. Christians, on being questioned about his
business visa and his business dealings in
South Africa, the
applicant could not give any explanation at all. Mr. Christians
became suspicious of the true reasons for the Applicant’s
entry
into the Republic. When it was confirmed that the Applicant was
married and that the spouse was present at the airport, Mr.
Christians took her to the office for an interview. The Applicant’s
spouse indicated to Mr. Christians that she had continued long
enough
in pretending that theirs was a genuine marriage. Ms Cassiem,
according to Mr. Christians, willingly made a statement in which
she
set out the reasons and the circumstances under which she and the
Applicant got married. The statement is annexed as annexure
“
GC8
”
to the Answering Affidavit.
(18) Mr. Christians then
confiscated the cellular phones from the Applicant and had same
handed over to the South African police Service.
According to Mr.
Christians, he thereafter informed the Applicant that he had
determined that he is an illegal foreigner, and he
issued him with a
notification of deportation, explaining the reasons for his
deportation and a warrant for his detention. Mr. Christians
pointed
out that he read all the documents to the Applicant to ensure that he
understood what had happened and explained to him that
he could
appeal to the Director-General if he was dissatisfied with the
determination.
(19) According to Mr.
Christians the Applicant did not object to his determination and he
in fact indicated that he wanted to return
to Cairo. Arrangements
were then made and the Applicant was booked on the next flight to
Cairo on 11 February 2006. Mr. Christians
emphasized that at no stage
during his interview with the Applicant did the latter bring it to
his attention that he was issued with
an asylum seeker temporary
permit. Mr. Christians mentioned that he saw this permit for the
first time as an annexure to the Founding
Affidavit given to him
during the week of 13 February 2006.
(20) According to Mr.
Christians, on 9 February 2006, he spoke to the Applicant’s
attorney, one Mr. Patel telephonically and he
informed him of the
applicant’s detention and deportation and the reasons therefore.
Mr. Patel allegedly informed Mr. Christians
that the Applicant was
not contesting his detention and deportation, but that they wanted
the cellular phones found in the possession
of the applicant
returned. Concluding on this aspect, Mr. Christians pointed out that
Mr. Patel was satisfied that his client was
leaving the country.
Responding on the contents of the Founding Affidavit read together
with the Supplementary Affidavit, Mr. Christians
mentioned that the
Applicant was no longer in detention and had been released pursuant
to an order of this Court on 11 February 2006.
Dealing with paragraph
6 of the Founding Affidavit, among other things, Mr. Christians
admitted that the Applicant had a temporary
asylum seeker permit but
hastened to add that same was issued because of the Applicant’s
misrepresentation. He added that on the
date of the Applicant’s
detention, the asylum seeker’s permit had expired.
(21) Mr. Christians denied
that the Applicant could not understand his explanation of the
contents of the notification of deportation
form as well as the
warrant for his detention. Whilst Mr. Christians admitted that the
Applicant would have been deported to Egypt
on 11 February 2006, he
added that this was not as a result of his determination that he was
an illegal foreigner only, but the Applicant’s
own willingness to
go back to Egypt as well. Mr. Christians also pointed out that the
Applicant refused to avail himself of his right
to appeal to the
Director-General of the Department of Home Affairs. It will be
helpful to set out the contents
infra
of the statement of Ms
Cassiem made to the Second Respondent annexed to the Answering
Affidavit as annexure “
GC8
”.
ANNEXURE “GC8” –
STATEMENT BY MS CASSIEM:
(22)
“Ek ZANAP CASSIEM,
identiteits nommer 770219 0099 089 verklaar die volgende onder eed.
Ek is ‘n volwasse
Suid-Afrikaanse dame woonagtig te 103 Angela Straat, Valhalla Park.
Gedurende December 2004 het ek Mnr. Mohamed
Abdelnaser Mohamed Houd
ontmoet. Hy het by my woning Rakams kom verkoop en ons het mekaar
leer ken. Ons was bevriend vanaf December
2004 tot April maand 2005
to Mohammad na my toe kom en vra of ek nie vir hom kan uithelp om in
Suid Afrika te bly nie. Hy het my
gesê hy wou ‘n burger van Suid
Afrika word en het gevra of ek nie saam met hom kan trou nie sodat hy
die nodige dokumente kon
kry by binnelandse sake. Ek het toe saam
gestem om hom te help en hy het toe die nodige reeling getrek. Op 19
April 2005 het Mohamed
en sy vriend vir my by my huis kom optel en
ons is na ‘n woning in Mitchell’s Plain. Mohamed het ‘n
huweliks bevester geken
en ons is toe deur hierdie persoon, Rev.
A.J.C. Daames getrou. Gedurende Mei 2005 het Mohamed my gevra om saam
met hom Wynberg Home
Affairs toe te gaan sodat hy die nodige
dokumente kon kry om in Suid Afrika te bly. Ek het briewe en vorms
uitgevul om te bevestig
dat hy my man is en dat ons saam bly as man
en vrou. Mohamed het my belowe dat hy my elke maand R150.00 so gee as
ek hom help om
in Suid Afrika te bly. Op 07 Februarie 2006 het hy en
sy vriende my kom haal by my woning om saam met hom te gaan na
Kaapstad Lughawe
waar hy sou terug vlieg Egipteland toe. Op hierdie
dag het die Polisie en Immigrasie beampte my ondervra oor ons
verhouding en ek
het uit my eie vryewil besluit om die waarheid te
praat. Ek is ‘n moeder van 3 kinders en is in verhouding met ‘n
Suid Afrikaner
wat in Lenteguer, Mitchell’s Plain woonagtig is. Ons
het ‘n babatjie en haar naam is Fatiema. Ek wou net vir Mohamed
uithelp
omdat ons vriende was. Ek het nooit saam met hom gebly nie en
ons lewe nie soos man en vrou nie.”
THE REPLYING AFFIDAVIT
(23) In reply to the
Answering Affidavit, Mr. Houd expressed that he had no idea why the
Respondent contended that he should have
had to disclose that he was
in possession of a passport on applying for a temporary asylum seeker
permit. According to Mr. Houd,
he was simply never asked whether or
not he had a passport, neither was he ever advised by any person that
he needed to disclose
the fact that he was in possession of a
passport. If these are requirements whenever a person applies for a
temporary asylum seeker
permit, conclude Mr. Houd, then the officers
concerned had not properly executed their duties.
(24) Responding to paragraph
11 of the founding Affidavit, Mr. Houd admitted that he had fourteen
(14) cellular phones in his possession.
These were intended as gifts
for his family and friends in Egypt. In Mr. Houd’s submission, the
Second Respondent had no reason
to be suspicious. Given all the
circumstances of this case, in Mr. Houd’s view, the Second
Respondent is xenophobic, he enjoys
the power he has over foreigners
by virtue of his job and is over-zealous in applying this power. Mr.
Houd denied that he could give
the Second Respondent no answer at all
but merely averred that for the most part he did not understand the
Second Respondent because
of his limited use of the English language.
Mr. Houd stated that all that came to his mind was that he had
committed some crime or
other by merely being present in South
Africa, and being ignorant of the law he thought that it would be
better to leave the country
than be jailed. In Mr. Houd’s view, the
statement allegedly given by his wife, Ms Cassiem, annexed to the
Second Respondent’s
papers as Annexure “
GC8
” was
extorted from her. According to Mr. Houd the contents of such a
statement are difficult to reconcile with the fact that she
was
present at the Airport in order to see him off.
(25) According to Mr. Houd,
Ms Cassiem was not requested to go with the Second Respondent, but
she was ordered. He and his wife were
held under a state of siege at
the Airport and were treated like criminals. Mr. Houd averred that
the Second Respondent threatened
Ms Cassiem that she would be jailed
and that her children would be taken away from her. Mr. Houd opined
that the Second Respondent
had no basis for determining that he was
an illegal foreigner as such determination was based on “facts”
contained in Ms Cassiem’s
Affidavit which had been extorted from
her and which facts were untrue. According to Mr. Houd it remains
beyond his comprehension
that it is alleged he was informed of the
determination and his right to lodge an appeal. The right to appeal
within ten (10) days
viewed against the fact that he was due to be
deported within three (3) days evidences inconsistence on the Second
Respondent’s
version. Mr. Houd did admit that he did not tell the
Second Respondent that he was the holder of an asylum seeker
temporary permit
and the reason was because he was unable to
communicate with the Second respondent as a result of the language
bar.
(26) According to Mr. Houd
his attorney was never satisfied that he would be deported. He had
merely decided not to fight the deportation
because he did not have
legal fees quoted for him in order to obtain an interdict preventing
deportation. He also wanted the cellular
phones returned. A
Confirmatory Affidavit by Ms Cassiem was attached to this Replying
Affidavit and she merely stated therein the
following:
“
I confirm that the
contents of the aforesaid affidavit are true and correct in all
respects in which it refers to me. I confirm that
the statement to
the second Respondent was false and was induced by the threats made
against me and my children.”
SUBMISSIONS
(27) Mr. Fisher summarising
the scenario in the instant case submitted that the Applicant is
possessed of a relative’s permit, his
asylum seeker temporary
permit having expired. In his view, the fact that the Second
Respondent after interviewing the applicant’s
spouse came to the
conclusion that the marriage between the Applicant and Ms Cassiem was
a marriage of convenience, did not entitle
the Second Respondent to
effectively revoke the Relative’s permit granted to the Applicant.
In Mr. Fisher’s submission the issues
that fall to be determined by
this court are in fact, three-fold, and can be expressed simply:
Does the Immigration Officer
(Second Respondent) in the given circumstances have the authority to:
revoke the Relative’s
Permit granted to the Applicant?
determine that the Applicant
is an illegal foreigner?
deport the Applicant?
In Mr. Fisher’s submission
the answer to the above is negative. According to Mr. Fisher the
“determination” made by the Second
Respondent amounted to an
effective revocation of the Relative’s Permit granted to the
Applicant. Mr. Fisher referred me to section
8(1) of the Act, prior
to its amendment and concluded that on a proper construction of the
said section 8(1) and (2) it is clear
that the Act contemplated that
prior to making a “determination” against a person, such a person
must be informed of the contemplated
decision and the reasons for the
contemplated decision and must be afforded ten (10) days in order to
make representations before
such decision is made and that after
receiving notice of such decision (after having received the affected
person’s representations)
that a person aggrieved by the relevant
decision may appeal within twenty (20) calendar days.
(28) Mr. Fisher opined that
within the framework of the facts in the instant matter, the Second
Respondent could not make a “determination”
based on a statement
taken from the spouse given the circumstances under which the
statement had been obtained. In Mr. Fisher’s
view, Section 33(1) of
the Constitution Act 108 of 1996 read with section 33(2) find
application in this matter. In Mr. Fisher’s
submission failure on
the part of the Second Respondent to provide the applicant with a
fair opportunity to respond to allegations
contained in an affidavit
made by Ms Cassiem regarding the parties’ marriage, offended the
rule of natural justice, namely, the
audi alteram partem
rule.
(29) Relying of
Sidorov
v Minister of Home Affairs
20014(4) SA 202 (T) at 209D-E, Mr.
Fisher submitted that to be lawful administrative action has to be
rational in respect of the
reasons advanced for its execution as well
as procedurally fair and objectively reasonable. I have no quarrel
with this last submission
and the authority on which it is founded.
It suffices at this stage to mention that, in my view, the submission
is misplaced. It
cannot, in my view, be sustained on the facts and
circumstances of this matter. I undertake to deal with Mr. Fisher’s
submissions
fully
infra
. I have merely attempted to set them
out
supra
without considering and subjecting them to
reasoning. Maybe it is time that I set out both constitutional and
statutory framework
to which I must give consideration as I travel
through the “path” leading to the decision of this matter.
THE CONSTITUTIONAL
PROVISIONS
(30) The starting point of
the constitutional and statutory frameworks is section 1 of the
constitution of the Republic of South Africa
108 of 1996 (“
the
Constitution
”), which provides
inter alia
that the
Republic of South Africa is one, sovereign, democratic State founded
on the values of the supremacy of the Constitution
and the Rule of
Law. These founding values inform the interpretation of the
Constitution and other law. See:
United Democratic Movement v
President of the Republic of South Africa and Others (and African
Christian Democratic Party and Others
intervening;
Institute for Democracy in South Africa and Others
as
amici curiae
) (No. 2)
2003(1) SA 495 (CC)
at 508 para (18-19). In keeping with the provisions of section 1 of
the constitution, section 2 provides that
the Constitution is the
supreme law; that law or conduct inconsistent with it is invalid; and
that the obligations imposed by it
must be fulfilled. (See:
Speaker
of the National Assembly v De Lille and Another
1999(4) SA
863 (SCA) at 868-869 para (14);
Pharmaceutical Manufacturers
Association of SA and Another
; in re
Ex Parte President
of the Republic of South Africa and Others
2000(2) SA 674
(CC) at 687 para (19). Section 33 of the Constitution provides that:
“
(1) Everyone has the
right to administrative action that is lawful,
reasonable and
procedurally fair.
Everyone whose rights
have been adversely affected by administrative action has the right
to be given written reasons.
National legislation must
be enacted to give effect to these rights, and must –
provide for the review
of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
impose a duty on the
State to give effect to the rights in ss (1) and (2); and
promote an efficient
administration.”
(32) The transitional
provisions of the constitution in schedule 6 required that the
legislation referred to in section 33(3) be passed
within three (3)
years of the Constitution coming into force (See: item 23 to Schedule
6 of the Constitution). Promotion of Administrative
Justice Act 3 of
2000 (PAJA) was assented to on 3 February 2000. The long title to
PAJA states that it is:
“
To give effect to
the right to administrative action that is lawful, reasonable and
procedurally fair and to the right to written
reasons for
administrative action as contemplated in section 33 of the
Constitution of the Republic of South Africa, 1996; and to
provide
for matters incidental thereto.”
(33) Section 1 of PAJA
defines administrative action
inter alia
as any decision
taken, or any failure to take a decision, by an organ of state
exercising a public power or performing a public function
in terms of
any legislation. Section 6 of PAJA identifies the circumstances in
which the review of administrative action may take
place. (See:
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Others
2004(4) SA 490 (CC) at 505 para (24). The provisions
of section 6 divulge a clear purpose to codify the grounds of
judicial review
of administrative action as defined in PAJA. The
cause of action for the judicial review of administrative action now
ordinarily
arises from PAJA, not from the common law as in the past.
Moreover, the authority of PAJA to grant such causes of action rests
squarely
on the Constitution. As PAJA gives effect to section 33 of
the Constitution, matters relating to the interpretation and
application
of PAJA will of course be constitutional matters (See:
Bato Star Fishing (Pty) Ltd
(
supra
) at 506 para
(25);
National Education Health and Allied Workers’ Union v
University of Cape Town and Others
2003(3) SA 1 (CC) at paras
(14-15);
National Union of Metal Workers of South Africa and
Others v Bader Bop (Pty) Ltd and Another
2003(3) SA 513 (CC)
at para (15);
Alexkor Ltd and another v Richtersveld Community
and Others
2004(5) SA 460 (CC) at para (23). Section 7 of
PAJA provides
inter alia
that no court shall review an
administrative action in terms of this Act unless any internal remedy
provided for in any other law
has first been exhausted. Section 239
of the Constitution defines an organ of state as,
inter alia
,
any department of state in the national sphere of government, or any
other functionary exercising a public power or performing a
public
function in terms of any legislation.
THE STATUTORY PROVISIONS
(34) The Act has been amended
by the Immigration Amendment Act, 19 of 2004 (“
the Amendment
Act
”) with effect from 1 July 2005 (See: Proc R30 in GG 27725
of 27 June 2005). Section 8 in the Amendment Act (See GG No. 26901
Vol
472 dated 18/10/2004) provides as follows:
“
(1) 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 and –
if he or she arrived by
means of a conveyance which is on the point of departing and is not
to call at any other port of entry in
the Republic, that request
shall without delay be submitted to the Minister; or
in any other case than
the one provided for in paragraph (a), that request shall be
submitted to the Minister within three days
after that decision.
…………………………
Any decision in terms of
this Act, other than a decision contemplated in subsection (1), that
materially and adversely affects the
rights of any person, shall be
communicated to that person in the prescribed manner and shall be
accompanied by the reasons for
that decision.
An applicant aggrieved by
a decision of the Director-General contemplated in subsection (3)
may, within 10 working days from receipt
of the notification
contemplated in subsection (3), make an application in the
prescribed manner to the Director-General for the
review or appeal
of that decision.
The Director-General
shall consider the application contemplated in subsection (4),
where-after he or she shall either confirm,
reverse or modify that
decision.
An applicant aggrieved by
a decision of the Director-General contemplated in subsection (5)
may, within 10 working days of receipt
of that decision, make an
application in the prescribed manner to the Minister for the review
or appeal of that decision.
The Minister shall
consider the application contemplated in subsection (6), where-after
he or she shall either confirm, reverse
or modify that decision.”
(35) Section 10(1) in the
Amendment Act provides that 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.
Section 10(2) provides that subject
to the Act, upon application in the prescribed manner and on the
prescribed form, one of the
temporary residence permits contemplated
in sections 11-23 of the Act may be issued to a foreigner. Section 18
in the Amendment Act
provides,
inter alia
, that a relative’s
permit may be issued for the prescribed period by the
Director-General to a foreigner who is a member of the
immediate
family of a citizen or a permanent resident, provided that such
citizen or permanent resident provides the prescribed financial
assurance (See: In terms of Regulation 15(2) a relative’s permit
may be issued for a maximum period of two years. See
Regulation
Gazette No. 8256 Vol. 480
dated 27 June 2005.)
(36) Section 25(3) in the
Amendment Act provides that a permanent residence permit shall be
issued on condition that the holder is
not a prohibited or an
undesirable person, and subject to section 28. Section 26 in the
Amendment Act provides as follows:
“
26. Subject to section
25, the Director-General may issue a permanent residence permit to a
foreigner who:
…………………
Has been the spouse of a
citizen or permanent resident for five years and the
Director-General is satisfied that a good faith spousal
relationship
exists: Provided that such permit shall lapse if at any time within
two years from the issuing of that permit the
good faith spousal
relationship no longer subsists, save for the case of death…”
(37) Section 32 of the
Amendment Act provides that any illegal foreigner shall depart,
unless authorized by the Director-General in
the prescribed manner to
remain in the Republic pending his or her application for a status.
In terms of section 34 of the Amendment
Act, an immigration officer
may without the need for a warrant, 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.
(38) Finally, section 41 in
the Amendment Act provides that when so requested by an immigration
officer or 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 officer is not
satisfied that such person is entitled to be in the Republic, such
person may be interviewed by an immigration
officer or police officer
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.
APPLICATION OF THE ABOVE
LEGAL PRINCIPLES TO THE FACTS OF THIS MATTER
(39) The Applicant contends
that he is in terms of Section 33 of the Constitution entitled to
fair administrative action, and submits
that he has by virtue of the
steps taken by the Second Respondent, not been afforded fair
administrative action. As can be gathered
from the above in terms of
section 41 in the amendment Act, if an immigration officer, on
reasonable grounds is not satisfied a foreigner
is entitled to be in
the Republic, such immigration officer may take such a foreigner into
custody without a warrant and shall take
reasonable steps to assist
the person in verifying his status, and thereafter, if necessary,
detain him in terms of section 34. In
terms of section 34(1) in the
Amendment Act, an immigration officer may arrest an illegal foreigner
or cause him to be arrested,
without the need for a warrant, and
shall deport him or cause him to be deported and may, pending his
deportation, detain him or
cause him to be detained. In terms of
section 34(1) (a) of the Act a foreigner shall be notified in writing
of the decision to deport
him and his right to appeal such decision
in terms of the Act. Section 8 of the Amendment Act clearly sets out
the procedures which
a foreigner is entitled to follow once a
decision has been taken to deport him.
(40) The Applicant does not
dispute the constitutional validity of any of the sections in the Act
or the Amendment Act. Moreover,
the applicant does not dispute that
annexures
“GC 11”
and
“GC 12”
had been read and
explained to him. In addition, the Applicant does not dispute that
the Second Respondent informed him of his right
of appeal to the
Director-General should he be dissatisfied with the decision to
deport him. In my view, the aforementioned provisions
clearly furnish
the Applicant with administrative action which is lawful, reasonable
and procedurally fair. Moreover, the Applicant
provides no
explanation for his failure to exhaust the procedures contained in
section 8 in the Amendment Act. Accordingly, I would
think that as a
result of the applicant’s failure to make use of the aforementioned
procedure, he cannot complain of unfair administrative
action. In my
view, the Second Respondent simply complied with the provisions in
the Act and the Amendment Act. On this aspect and
in the
circumstances of the instant matter this Court inescapably arrives at
the conclusion that the Second Respondent’s action
constituted
lawful, reasonable and procedurally fair administrative action.
FAILURE TO COMPLY WITH
SECTION 7 OF PAJA
(41) As can be seen above
section 7 of PAJA precludes a court from reviewing administrative
action unless any internal remedy provided
for in any other law has
first been exhausted. The Applicant seeks in terms of the Rule 28
Notice a declaration that the cancellation
of his temporary residence
permit is null and void and of no force and effect. What the
Applicant in effect seeks, is a review of
the Second Respondent’s
determination that he is an illegal foreigner. Inasmuch as the
consequence of such determination is that
the temporary residence
permit which the applicant obtained fraudulently, cannot continue to
exist. Accordingly, in my judgment,
the Applicant is not entitled to
a declaration of invalidity as this would clearly enable him and
future litigants to avoid compliance
with the procedure set out in
Section 8 in the Amendment Act. In any event, the Applicant must be
precluded from bringing a review
application disguised in character.
The application in the instant matter seeks to have an interim
interdict granted in favour of
the Applicant as a relief. In the
nature of things, I must canvass the requirements for an interim
interdict. I must do so in order
to satisfy myself that such
requirements have infact been met. It is trite law that even if the
requirements have been met, I remain
entrusted with a discretion
whether or not to grant the relief sought. The discretion must at all
times be exercised judiciously
and not capriciously. I deal infra
with these requirements.
THE REQUIREMENT FOR AN
INTERIM INTERDICT
(42) These are infact
four-fold, namely:
a
prima facie
right;
well-grounded apprehension
of irreparable harm if the relief is not granted;
that the balance of
convenience favours the grant of an interim interdict; and
that the Applicant has no
other satisfactory remedy.
I have alluded
supra
that the grant of the remedy is discretionary. The Court therefore
has a wide discretion in this regard. See:
Hix Networking
Technologies v System Publishers (Pty) Ltd and Another
1997(1) SA 391 (A) at 398I-399A;
Ward v Cape Peninsula Ice
Skating Club
1998(2) SA 487 (C) at 497B-D.
(43) The approach to matters
of this nature has been the subject of discussion in our courts and
there are many decisions dealing
with this aspect of our law. For
purposes of this judgment I deem it necessary to quote from
Webster
v Mitchell
1947 WLD 1186
at 1189, where the following helpful
exposition appears:
“
In the grant of a
temporary interdict, apart from prejudice involved, the first
question for the Court in my view is whether, if interim
protection
is given, the applicant could ever obtain the rights he seeks to
protect….. The proper manner of approach I consider
is to take the
facts as set out by the applicant, together with any facts set out by
the respondent which the applicant cannot dispute,
and to consider
whether, having regard to the inherent probabilities, the applicant
could on those facts obtain final relief at the
trial. The facts set
up in contradiction by the respondent should then be considered. If
serious doubt is thrown on the case of the
applicant, he could not
succeed in obtaining temporary relief, for his right, prima facie
established may only be open to ‘some
doubt.’”
I now proceed to consider the
said requirements individually in the context of the instant case.
Prima Facie Right
(44) It is the Applicant’s
first contention that he is entitled to remain in the Republic for as
long as he is married to Ms Cassiem.
It is not disputed that Ms
Cassiem gave the Second Respondent a statement in which she explains
that her marriage to the Applicant
is not a genuine marriage. That
the marriage is one of convenience and as such was entered into for
the primary purpose of evading
the immigration laws seems abundantly
clear (See:
Hambly v Chief Immigration Officer and Another
1999(9) BCLR (ZS) at 9681). It is also not disputed that prior to his
arrest on 8 February 2006, the Applicant resided at 50 Olympic
Avenue, grassy Park, whilst Ms Cassiem, at 8 February 2006, resided
at 103 Angela Street, Valhalla Park. It is furthermore not disputed
that the applicant and Ms Cassiem do not live together as husband and
wife. The Constitutional Court in
Dawood and Another v Minister
of Home Affairs and Others Shalabi and another v Minister of Home
Affairs and Others; Thomas and another
v Minister of Home Affairs and
Others
2000(3) SA 936 (CC) at p 963 para (37) held that the
decision to enter into a marriage relationship and to sustain such a
relationship
is a matter of defining significance for many, if not
most, people and to prohibit the establishment of such a relationship
impairs
the ability of the individual to achieve personal fulfilment
in an aspect of life that is of central significance. A central
aspect
of marriage is cohabitation, the right (and duty) to live
together, and legislation that significantly impairs the ability of
spouses
to honour that obligation would also constitute a limitation
of the right to dignity.
(45) As stated above, the
Applicant does not challenge the constitutional validity of any of
the provisions of the Act. I hasten to
mention that what the
constitutional Court intended is a bona fide marriage and not the
kind of marriage concluded by the Applicant
and Ms Cassiem. See:
Hambly v Chief Immigration Officer and Another
(
supra
)
at 9681; Answering Affidavit Annexure
“GC 8”
. The
Applicant was, by virtue of the affidavit of Ms Cassiem, determined
to be an illegal foreigner. Accordingly, in my view, the
Applicant
has no entitlement to remain in the Republic, despite his marriage to
Ms Cassiem.
(46) The second contention
raised by the Applicant is that inasmuch as the asylum seeker
temporary permit issued to him has been extended
to 30 June 2006, he
is entitled to remain in the Republic. It is clear that the Applicant
is not a genuine asylum seeker. The Applicant
arrived in South Africa
on a business visa, under the pretext of doing business in the
Republic. The business permit issued to the
Applicant upon his
arrival in the Republic on 19 February 2003 was valid for a very
short period until 18 May 2003. On 5 March 2003,
shortly after his
arrival, the Applicant applied for asylum. He was issued with an
asylum seeker temporary permit on 5 March 2003,
which had been
renewed from time to time. The Applicant’s asylum seeker temporary
permit was extended until 30 June 2006. Despite
this extension, the
Applicant sought to leave the Republic and return to Cairo. In any
event, this matter was argued before me on
15 August 2006 long after
the temporary permit had infact expired. To talk about it now is
merely academic at this stage.
(47)
Section 22(5)
of the
Refugees Act provides
that an asylum seeker temporary permit shall
lapse if the holder departs from the Republic without the consent of
the Department
of Home Affairs. The Applicant does not allege that he
obtained the Department’s consent to return to Cairo to ensure the
continued
validity of his asylum seeker temporary permit. In my view,
the Applicant’s reliance on his asylum seeker temporary permit is a
mere afterthought. It is irrelevant for purposes of the relief sought
by the Applicant.
(48) The Applicant’s third
contention is that the temporary residence permit, i.e. his
relative’s permit, has been extended to
2007, thereby entitling him
to remain in the Republic. The Applicant obtained his relative’s
permit when he applied on 25 April
2005 for a change in his status
after he married Ms Cassiem. It is abundantly clear that this
application was approved on the basis
of the representations made by
the Applicant and Ms Cassiem. (See:
“GC 8”
annexed to the
Answering Affidavit). In view of the affidavit deposed to by Ms
Cassiem, the Applicant obtained the relative’s permit
through
fraudulent means and as such was not entitled thereto. The relative’s
permit therefore terminated by operation of law.
In the
circumstances, in my view, the Applicant’s reliance on this
contention is similarly misplaced.
(49) The fourth contention
raised by the Applicant is that he had submitted an application for
permanent residence and as such is
entitled to remain in the
Republic.
Section 26
in the Amendment Act provides
inter alia
that the Director-General may issue a permanent residence permit to a
foreigner who has been the spouse of a citizen for five years
and the
Director-General is satisfied that a good faith spousal relationship
exists. The Applicant and Ms Cassiem have been “married”
for
approximately one year. Furthermore, by virtue of Ms Cassiem’s
affidavit, no good faith spousal relationship exists between
the
Applicant and Ms Cassiem as contemplated in section 26 in the
Amendment Act. In the circumstances, the Applicant does not, and
cannot comply with the provisions of section 26 in the Amendment Act
any time soon. As such, the Applicant does not qualify for a
permanent residence permit.
Irreparable Harm
(50) The Applicant must
demonstrate a well-grounded apprehension of irreparable harm if the
relief sought is not granted. In view
of the fact that the marriage
between the Applicant and Ms Cassiem is not a bona fide marriage, but
one entered into purely to evade
the immigration laws of the
Republic, the Applicant cannot suffer any harm should the relief not
be granted. In any event, in my
view, granting the relief sought will
have the effect of the Applicant benefiting from his fraudulent
actions.
Balance of Convenience
(51) The Applicant cannot in
the circumstances complain of any prejudice he might suffer should
the relief sought not be granted.
The application for a permanent
residence permit cannot succeed because the Applicant and Ms Cassiem
have been married for approximately
one year and the marriage is one
of convenience. Moreover, it is not insignificant to note that the
applicant wished to return to
Egypt, the very country in respect of
which he sought asylum from persecution. (See:
Minister of Home
Affairs and Others v Watchenuka and Another
2004(4) SA 326
(SCA) at 334 paras (1-2). Moreover, it is not disputed that the
Applicant did not inform the Second Respondent on
the day of his
arrest that he was issued an asylum seeker temporary permit. It is
also not disputed that the Applicant was willing
to return to Cairo
and that arrangements were made for his return on 11 February 2006.
The application therefore lacks merits to
the extreme and falls to be
dismissed. I cannot, in the circumstances attendant to this matter,
exercise my discretion in favour
of the Applicant.
COSTS
(51) The general rule is that
the successful party is entitled to its costs. There is no
justification in the instant matter that
the general rule should be
departed from.
ORDER
The
Rule Nisi
granted
on 11 February 2006 is hereby discharged. The application is
dismissed with costs, including costs occasioned by employment
of two
(2) Counsels.
_____________________
DLODLO, J