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[2015] ZALCJHB 401
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Radebe v General Public Services Sectoral Bargaining Council and Others (JR1190/13) [2015] ZALCJHB 401 (13 November 2015)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 1190/13
In
the matter between:
THEMBA
EPHRAIM
RADEBE First
Applicant
and
GENERAL
PUBLIC SERVICES
SECTORAL
First Respondent
BARGAINING
COUNCIL
MARTIN
SAMBO
(N.O.) Second
Respondent
DEPARTMENT
OF HOME
AFFAIRS Third
Respondent
Heard
:
12 November 2015
Delivered
:
13 November 2015
Summary:
(Review-Procedure for verifying immigrant status –
sufficient basis for concluding requirements of Immigration Act not
met
before releasing detained immigrants)
Reasons
for judgment
LAGRANGE
J
Introduction
[1]
The order in this matter was handed down on
13 November 2015. Brief reasons for dismissing the review application
are set out below.
[2]
In the award, the arbitrator found that the
dismissal of the applicant was substantively and procedurally fair.
The applicant had
been dismissed after being found guilty of two
counts of unlawfully releasing illegal foreigners on 24 May 2006
without following
the necessary immigration procedures.
[3]
Evidence of the procedure to be followed
before releasing illegal immigrants was given by the applicant’s
supervisor but he
could not produce the training manual and which he
said the procedure was reduced to writing. Evidence was also given by
an SAPS
captain dealt with illegal immigrants, who did not know the
Department of Home Affairs policy on releasing immigrants held in
custody,
but testified that the normal practice was to obtain
documents from the detained immigrants in question and after
investigation
would indicate who could be released.
[4]
The applicant had issued warrants of
release in respect of two detained foreigners, one on the basis that
he had a valid visitor’s
permit and the other on the basis that
he was an asylum seeker, though he later claimed that he had made a
mistake in recording
that one of them had a valid work permit.
[5]
The central issue in review was that the
applicant claims that it was irrational of the arbitrator to find on
balance of probabilities
that there was a rule that he had
transgressed in releasing them or that he knew of the rule. The
applicant did not seek to attack
the arbitrator’s findings that
his dismissal was procedurally fair. Essentially, the applicant
relied on the fact that the
applicant’s supervisor did not
provide the training manual in which he claimed the detailed
procedures to be followed were
contained.
[6]
The applicant had contended that all that
he needed to do was to interview the immigrants in question and if he
was satisfied that
they were in the country legally he could order
their release at his discretion. In this instance, he claimed that
both of them
were registered asylum seekers and therefore could not
be detained. The respondent agreed that if persons’ names
appeared
on a list of registered asylum seekers that was the case.
[7]
The evidence of the SAPS Captain amongst
other things was that when he had asked the applicant why he was
sitting with the two immigrants
in his car outside the police
station, the applicant told him that he had booked them out for
investigation, a procedure he had
never heard of in his 18 years of
service. He also said that the applicant had made no mention of the
two individuals being on
a list of registered asylum seekers. However
he discovered that the applicant had in fact issued warrants of
release for both of
them, nor did he make any reference to any
document. He had then instructed his colleagues to re-arrest the two
individuals. After
the two foreigners had been re- detained, the
applicant was supposed to return to the police station after parking
his car but
never did.
[8]
The applicant’s own version on the
last mentioned matters was that he had returned to the police station
and had argued with
the police about their re-detention of the
immigrants. Although it was put to the respondent’s witnesses
that the applicant
had returned after parking his car, no mention was
made of the alleged altercation with the police. The applicant said
that he
released them on the basis that they appeared on a list of
refugees waiting interviews for asylum at the Rosettenville refugee
Centre. He denied that there was any procedure to be followed and
instead relied on what is stated in the Immigration Act. It was
apparent from his evidence that he never claimed to have verified
whether the two individuals were registered with the Rosettenville
Refugee Centre as asylum seekers, but having established from their
accents that they were from Zimbabwe and having been told that
they
were on the list of asylum seekers he used his discretion to let them
go. He did concede somewhat reluctantly that normal
procedure
required him to open a file in each case. The list on which the names
of the two immigrants appear was a list bearing
a date stamp more
than a fortnight after the individuals were released, and which the
applicant’s supervisor dismissed as
not being a valid document.
At no stage during his evidence in chief that he had verified the
status of the two immigrants against
the records of the Refugee
Centre. Later, he claimed to have forgotten that he had phoned
someone from the Rosettenville centre
to verify that they were on the
list, but even on his own version that appears to have been after he
had ordered their release.
[9]
The arbitrator concluded that the case was
not the one in which a rule did not exist but simply that the rule
was not clear. The
arbitrator expressed it thus:
“
It
seems to me there should be a rule for asylum seekers and other
immigrants and for cases where the immigrants has documents and
where
they do not possess documents. What is clear from the evidence of
both parties is that before an immigrant is released, they
must first
be interviewed to verify their legal status. Section 41 of the
Immigration Act states that the immigrants are detained
until their
prime at facie status is ascertained. I therefore find on a balance
of probabilities that this rule exist.”
(
sic
).
[10]
S 41
of the
Immigration Act, 13 of
2002
, states:
“
41.
Identification
(1)
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 a 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.
(2)
Any person who assists a person
contemplated in subsection (1) to evade the processes contemplated in
that subsection, or interferes
with such processes, shall be
guilty of an offence.”
[11]
In essence, the applicant had ordered the
release of the two individuals without attempting any independent
verification of their
claims, whereas he was required to take
reasonable steps to verify their status. The arbitrator concluded
that he has not done
what the act required him to, quite apart from
not following any detailed regulations or procedure. At the crux of
the arbitrator’s
reasoning on the evidence reads:
“
The
applicant’s version is that he is satisfied himself that
although the two immigrants did not have documents they were
on
listed on Rosettenville Refugee Reception Office list and therefore
should be released as asylum seekers. The evidence brought
by the
applicant is a list that he claims is from the Refugee Reception
Office and that it must have been included in his bundle
by the
police or the respondent.
What
I find strange is that the list is dated 12 June 2006 where is the
incident occurred on 24 May 2006. Further the applicant
does not who
brought the list in his bundle. It is strange then as to how the
applicant on the second day established the prima
facie status of the
immigrants that he decided to release them if he did not have a list.
It is further strange that he did not
inform the police that
re-arrest at the immigrants, that went with him, that the reason of
releasing them is that they are appearing
on the list of the Refugee
Reception Office. The respondent’s second witness testified
that he was not told of the list and
that evidence was not disputed
by the applicant. What is further strange is that the last page of
the list is date stamped 12 June
2006 with the Braamfontein stamp and
the handwriting there does not look the same as that on the first two
pages. It is clear that
the last page has been added to the first to
as also the table fonts are not the same.
On
the release warrants the applicant has written through his hand that
one of the immigrants was an asylum seeker and other’s
permit
was valid. When asked about the discrepancy he said that he made a
mistake of forgetting to cancel the permit was valid.
When asked him
at the end how he verified with Rosettenville that the immigrants on
their list he said he forgot he called another
person at
Rosettenville to verify. For the above reasons the applicant did not
come across as a credible person. One does not forget
important
testimony that would prove his innocence especially when the matter
was postponed on several occasions. That should have
been used to
bring witnesses to dispute any version brought against party.
I
therefore find on the balance of probabilities that the applicant has
contravened the rule.”
[12]
The arbitrator’s finding on the
credibility of the applicant is borne out by a reading of the
transcript. In the course of
his testimony he is evasive and made
allegations never put to the respondent’s witnesses.
[13]
In light of the above, the fact that the
respondent failed to establish the detailed regulations or procedures
to be followed by
an immigration officer did not detract from the
applicant’s obvious dereliction of his duty to take reasonable
steps to verify
the status of the detained foreigners in question
before releasing them as required by the
Immigration Act. There
was
more than sufficient basis for the arbitrator to find him guilty on
the charges he faced and the outcome was not one no reasonable
arbitrator could have reached.
[14]
In consequence the following order was
made.
Order
[15]
The review application is dismissed.
[16]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
For the Applicant:
M Magoshi of Majang Inc.
For the Third Respondent:
A Platt instructed by the State
Attorney