Omumato v Minister of Home Affairs and Others (3107/2004) [2004] ZAFSHC 111 (25 November 2004)

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[2004] ZAFSHC 111
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Omumato v Minister of Home Affairs and Others (3107/2004) [2004] ZAFSHC 111 (25 November 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 3107/2004
In
the matter between:
CHRISTIAN
BUCHUKWU OMUMATU
APPLICANT
and
THE
MINISTER OF HOME AFFAIRS
1
ST
RESPONDENT
THE
DIRECTOR GENERAL
2
ND
RESPONDENT
MAREE
BASSON N.O.
3
RD
RESPONDENT
_____________________________________________________
HEARD ON:
4
NOVEMBER 2004
JUDGMENT:
VAN
DER MERWE J
_____________________________________________________
DELIVERED
ON:
25
NOVEMBER 2004
_____________________________________________________
[1] On 10 September 2004,
as a result of an urgent application brought on that day, Beckley J
made the following order:
“
1. A
rule nisi is issued with return date
Thursday,
7
th
of October 2004
calling
upon the respondents so (sic) show cause;
Why the permit issued to the
applicant in terms of regulation 18(6)(b) on 2 September 2004 should
not be declared valid,
Why the 1
st
respondent should not be ordered to pay the cost of the application,
2. The order granted in prayer 1(a)
operate as an interim order.”
[2] On the extended
return date of the rule nisi dated 10 September 2004, the applicant
moved for the confirmation thereof whereas
the respondents argued
that the rule nisi should be discharged with costs. For the sake of
convenience, I will refer to the actions
and conduct of the
respondents and other employees of the Department of Home Affairs,
simply as that of “the department”. The
background facts that
follow, are admitted or not disputed.
[3] The applicant is a
citizen of Nigeria. During December 2000 the applicant entered the
Republic of South Africa. On 19 December
2000 the department at its
regional office in Port Elizabeth, issued to the applicant an Asylum
Seeker Temporary Permit in terms
of the provisions of section 22 of
the Refugees Act, No. 130/1998. During the following year the
applicant moved to Bloemfontein
where he got married to a South
African citizen by the name of Nkozasana Getrude Maloyi. The couple
has one child, namely a boy
of almost two years of age.
[4] During 2001 the
department advised or instructed the applicant to apply for a
temporary residence permit in terms of the now repealed
Aliens
Control Act, No. 96/1991. For this reason the applicant’s asylum
seeker permit had to be cancelled, which was in fact done
on 26 June
2001. The temporary residence permit applied for was issued by the
department at Bloemfontein on 18 July 2001. This
temporary residence
permit was thereafter renewed on more than one occasion. In the
meantime, at the offices of the department in
Bloemfontein, the
applicant applied for a permanent residence permit. The aforesaid
renewed temporary residence permit expired on
28 August 2004.
[5] During the week of 17
to 20 August 2004, the applicant had a telephonic conversation with
Mr. Mikael Moeketsi Moremoholo, a senior
administration clerk in the
employ of the department in Bloemfontein. The applicant enquired
from Mr. Moremoholo as to the status
of his application for a
permanent residence permit. Mr. Moremoholo advised the applicant to
attend the offices of the department
in Bloemfontein. This the
applicant did on 24 August 2004, where he was informed by Mr.
Moremoholo that his application for a permanent
residence permit was
not finalized yet and that therefore he had to renew his temporary
residence. This application, he was informed
by Mr. Moremoholo, he
should have made at least 30 days prior to the date of expiry of the
present permit. Nevertheless, he handed
in some forms for purposes
of renewal of his temporary residence permit. The applicant returned
to the offices of the department
in Bloemfontein on both Thursday 26
August 2004 and Friday 27 August 2004. He was informed by officials
of the department that in
the absence of a passport, they were unable
to assist him. (The applicant lost his Nigerian passport on 9 August
2004, but handed
in a letter by the South African Police Service,
confirming that the applicant reported the loss of the passport on 10
August 2004.)
He was also informed that his application for a
permanent residence permit had been rejected. It later transpired
that the reason
given for this rejection was failure by or on behalf
of the applicant to hand in medical reports. Applicant was told that
nothing
could be done and that he should leave. Nevertheless, the
applicant returned to the offices of the department in Bloemfontein
on
Monday 30 August 2004. By that time his temporary residence
permit had expired. Whilst at the offices of the department in
Bloemfontein,
he was arrested by an official in the employ of the
department and removed to a police station.
[6] As a result of the
efforts of his attorney, the applicant was released from custody on 1
September 2004. Thereafter he proceeded
with his attorney to the
offices of the department in Bloemfontein, where application for a
permit was made. On 2 September 2004
the department, represented by
Mr. Moremoholo, issued a permit to the applicant. For the sake of
convenience, this permit will herein
simply be referred to as “the
permit”. The relevant printed heading of the permit is: “EXTENTION
OF TEMPORARY RESIDENCE PERMIT”.
Immediately below, also in print,
reference is made to section 11 of the Immigration Act, No. 13/2002
(“the Act”) as well as
regulation 18 of the regulations made in
terms of section 52 of the Act under General Notice 487/2003,
published in the Government
Gazette of 21 February 2003 (“the
regulations”). Section 11 of the Act deals with the requirements
for a visitor’s permit
and regulation 18 deals with procedures
applicable to application for temporary residence permits in general.
In the body of the
permit it is stated that the temporary residence
permit No. BFN04/2 is extended until 1 March 2005 and that the permit
is approved
in terms of regulation 18(6)(b) of the regulations. The
issue of temporary residence permits was part of the normal duties of
Mr.
Moremoholo.
[7] On 10 September 2004
the applicant became aware of a letter dated 6 September 2004 and
addressed to his attorney on behalf of
the department. The gist of
the contents of this letter is that when the permit was issued, it
was unknown that the applicant had
previously been in possession of
an asylum seeker permit, that in terms of the policy or approach of
the department the permit,
being a temporary residence permit, should
not have been issued and that the permit is therefore not valid and
must be seen as null
and void. The present application was brought
in response to this letter.
[8] As is apparent from
what is stated above, the department formally issued the permit as a
temporary residence in terms of the Act.
Counsel for respondent
nevertheless submitted that the permit should be regarded as invalid
and null and void and that therefore
the rule nisi should be
discharged. This submission was based on three grounds with which I
will deal in turn below. In the first
place it was submitted that
the applicable legislation makes no provision for a permit such as
the one in question. Secondly, naturally
in the alternative, it was
submitted that the permit was invalid as result of defects in the
procedure that led to the issue of the
permit. In the third place,
counsel for respondents submitted that the permit is to regarded as
null and void in terms of the provisions
of regulation 50 of the
regulations.
[9] The first of these
arguments mentioned above, as I understand it, is based thereon that
in the permit is stated that the temporary
residence permit issued
previously to the applicant, is extended. For the reasons that
follow, I consider that this argument has
no merit. Temporary
residence in terms of the Act is defined as meaning any permit
referred to in section 10 of the Act. Section
10 of the Act provides
that anyone of the temporary residences set out in sections 11 to 23
may be issued to a foreigner. Section
11 of the Act deals with a
visitor’s permit. In terms of section 11(3) an illegal foreigner
receiving a visitor’s permit, shall
comply with any terms and
conditions which may be prescribed from time to time. Prescribed is
defined in the Act as provided for
by regulation. Section 53(2) of
the Act provides that a permit issued in terms of the previous Act
may only be renewed in terms
of the Act. Regulation 18(6)(b) of the
regulations provides as follows:
“
In
the case of an illegal foreigner, excluding a prohibited person, who
is the spouse or dependant, no older than 25 years of age,
of a
citizen or resident, who applies for a permit, a visitor’s permit
may be granted for a period not exceeding six months to
enable such
illegal foreigner to apply for any other temporary residence permit
or permanent residence permit, within such period.”
[10] It is clear that
after 28 August 2004, the applicant was an illegal foreigner as
defined in the Act, married to a citizen of
the RSA. The permit was
issued for exactly six months. In the founding affidavit the
applicant stated that he applied for and was
issued a permit in terms
of regulation 18(6)(b). This evidence was expressly admitted on
behalf of the department. In the answering
affidavits, as well as in
the aforesaid letter of 6 September 2004, it was stated that a
visitor’s permit in terms of regulation
18(6)(b) was issued to the
applicant. In all these circumstances, the words “APPROVED IN
TERMS OF REG 18(6)(b)” in the permit
can have no other meaning than
that a visitor’s permit was issued to the applicant in terms of
regulation 18(6)(b).
[11] The second aforesaid
line of argument is based thereon that the applicant should not have
applied for the permit at the offices
of the department in
Bloemfontein and that in any event he did not properly complete the
relevant forms. This argument can be quickly
disposed of. It is
true that regulation 2(8) provides that an application to be lodged
within the Republic shall be handed or mailed
to the regional
director of the department in the area in which the applicant intends
to work or study or, in respect of any permit
for purposes other than
study or work, where he or she sojourns. The department relies
thereon that in the forms that led to the
issue of the permit, it was
stated that the applicant is presently residing in Germiston.
According to the applicant, that is the
address of his wife, who is a
candidate attorney and is serving articles in Germiston. However,
the regulation relied upon, does
not refer to where the applicant
resides, but sojourns, that is where he stays temporarily. At best
for respondents, the applicant
stayed temporarily in Bloemfontein
from at least 24 August 2004. Therefore, in my view, he was entitled
to make application for
the permit at the offices of the department
in Bloemfontein. This conclusion renders it unnecessary to enquire
whether this provision
is in any event peremptory or merely
directory. The department was fully aware thereof that the relevant
forms, which are matters
of internal procedure and administration of
the department, were not completed in all respects. Nevertheless,
the permit was issued.
The result thereof is simply, in my view,
that the information to which the in-completed portions of the forms
relate, was not called
for or required by the department.
Accordingly, in these circumstances, the department cannot
subsequently rely on incomplete filling
in of forms to invalidate a
permit formally and deliberately issued in terms of the Act.
[12] Regulation
50(1) provides as follows:
“
(1) Any visa or temporary or
permanent residence permit issued on the basis of false material
information or an omission to provide
required or reasonably expected
material information shall be deemed to be null and void, provided
that the Department shall
notify the person concerned of its
findings and the related consequences including, if applicable, the
loss of status; and
give the person concerned a
reasonable opportunity to rectify the matter, if the matter can be
easily rectified and the Department
is satisfied that no fraud or
fraudulent intent was involved, failing which paragraph (a) shall
apply; or
declare such consequences as having
occurred and notify the person concerned of the rights set out in
section 6 of the Act.”
[13] It should firstly be
mentioned that I have grave doubts in respect of the validity and
constitutionality of regulation 50. It
will be noted that in terms
of regulation 50, a visa or temporary residence permit or even a
permanent residence permit, may by the
unilateral decision of the
department be deemed to be or declared null and void, without any
notice beforehand to the holder of such
visa or permit and without
affording such person any opportunity whatsoever to state his or her
case. This result, in my judgment,
appears to be inconsistent with
the provisions of section 33 of the Constitution, 1996. These
provisions of regulation 50 are also
in direct conflict with the
provisions of section 8 of the Act. Section 8 of the Act provides in
peremptory terms that before making
a determination adversely
affecting a person, the department shall notify the contemplated
decision and related motivation to such
effected person and give such
person at least 10 calendar days to make representations. However,
in view of the conclusion that
I have reached in this case, and
especially in view thereof that no argument had been addressed to me
in this regard, I refrain from
making a firm finding in this regard.
[14] It is clear that in
terms of regulation 50 an application of mind by or on behalf of the
department is required. If in the opinion
of the department the
particular matter can be easily rectified and the department is
satisfied that no fraud or fraudulent intent
was involved, the
department shall notify the person concerned of its findings and the
related consequences thereof and give the
person concerned a
reasonable opportunity to rectify the matter. Obviously, if this
option is decided upon after consideration of
the matter, the visa or
permit in question will only be deemed null and void in the event of
the person failing to rectify the matter.
No reference at all to
regulation 50 or its contents are to be found in the aforesaid letter
of 6 September 2004 nor, for that matter,
in the answering affidavit.
In this letter it is not stated that the permit was issued on the
basis of false material information
or on an omission to provide
required or reasonably expected material information nor is the
applicant notified therein of the rights
set out in section 8 of the
Act, as required by regulation 50(1)(c).
[15] The crux of this
letter is that the permit is null and void because of the policy or
approach of the department not to renew
a residence permit of an
asylum seeker whose asylum seeker permit has expired. It also
reflects the stance taken by the department
in more detail in the
answering affidavits. On the totality of the evidence, I have no
doubt that no relevant official in the department
had regulation 50
in mind in respect of the applicant and the permit before the matter
was argued on 4 November 2004.
[16] Finally, reliance on
regulation 50 is in any event without factual basis. This argument
was based thereon that the material
information that the applicant
omitted to provide, was the fact that he previously held an asylum
seeker permit. Apart from the
fact that the details of the original
permit issued to the applicant prior or on arrival in South Africa,
required in the relevant
forms of the department, were left open with
the apparent consent of the department, the evidence of Mr.
Moremoholo of the department
was that he issued the permit after he
familiarised himself with all the facts in relation to the
application of the applicant and
that he had full knowledge of the
fact that the applicant had been the holder of an asylum seeker
permit, which had been cancelled
on 26 June 2001, as was required by
the procedures of the department. According to the deponent these
facts were even reflected
on the outside of the file of the applicant
kept by the department. The respondents sought and obtained leave to
file a fourth affidavit.
The aforesaid evidence of Mr. Moremoholo
was not disputed in this affidavit.
[17] It follows that the
rule nisi must be confirmed. For the sake of completeness, I
consider it necessary to make reference in
the order to the
regulations. On behalf of respondents, it was submitted that even in
the event of this conclusion being reached,
the applicant should be
deprived of costs and that each party should pay its own costs. This
argument was primarily based on the
allegation that applicant’s own
conduct was the cause of his predicament. Even if this was true,
which I doubt in view of the
facts set out above, I do not, in
exercise of my discretion in respect of costs, consider this to be
sufficient basis or reason to
deprive the successful party of his
costs. Reference was also made in this regard to section 37 of the
Act that provides that magistrates’
courts are to operate as
immigration courts and that the applicant should have approached that
forum. At the time, however section
37 of the Act had not yet been
put into operation.
[18] I
make the following orders:
1. The permit issued to
the applicant on 2 September 2004 in terms of regulation 18(6)(b) of
the regulations made in terms of the
Immigration Act, No. 13/2002 and
published as General Notice 487/2003 in Government Gazette No. 24952
of 21 February 2003, is declared
valid.
2. First respondent is
ordered to pay the costs of the application.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of the
applicant: Mr. F. Botha
Vorster
& Botha Prokureurs
BLOEMFONTEIN
On behalf of the
respondents: Adv. M.H. Wessels S.C.
Assisted by:
Adv. X.H. Mabusela
Instructed
by:
State
Attorney
BLOEMFONTEIN
/spieterse