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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO .: 2025 -040046
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 5 May 2025
E van der Schyff
In the matter between:
MABUSELE MZOXOLO Applicant
and
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR -GENERAL, DEPARTMENT
OF HOME AFFAIRS Second Respondent
JUDGMENT
Van der Schyff J
Introduction
[1] The applicant (Mr. Mzoxolo) approached the urgent court for an order directing his
release from the Lindela Deportation Center and preventing his imminent
deportation to his country of birth, the Democratic Republic of Congo. He first went
by the name of Saidi Amadu, but is reflected in the national population register as
Mabusela Mzoxolo with identity number 8[...].
[2] In the founding papers , Mr. Mzoxolo avers that he was born on 17 February 1986
in the Republic of the Congo. He came to South Africa around the year 2000
through the OR Tambo International Airport shortly after his father passed away.
On his arrival , he was adopted by Ms. Beth Mabusela, a South African citizen. She
assisted him during 2006 in applying for a South African identity document, which
was duly issued. He has since started his own family and is the father of two
children.
Urgency
[3] Mr/ Mzoxolo avers that the application is urgent because of his imminent
deportation. He has been detained at the Lindela Correctional Center (Lindela)
since 15 December 2024. In terms of section 34(1)(d) of the Immigration Act 13 of
2002 he cannot be detained for more than 120 days before being deported. Due to
financial constraints, he was only able to consult with his legal representatives on
28 February 2025. I pause to note at this point that Mr. Mzoxolo avers that he did
not have the necessary financi al resources because he is unemployed, was living
from hand to mouth , and had no funds in savings . He later averred that he did not
have access to his bank accounts because of the fact that his identity document
was blocked. This contradiction is significant.
[4] A supplementary founding affidavit and a replying affidavit were subsequently filed
by Mr. Mzoxolo. The filing of a supplementary affidavit was necessary to address
certain queries raised by the court when the application was first enrolled in the
urgent court in March 2025. A replying affidavit was filed after the respondents’
(the DHA) opposing papers were filed. The matter was again struck from the roll
and the court is said to have taken issue with the fact that a replying affidavit was
filed and not a supplementary founding affidavit. The supplementary founding
affidavit was subsequently filed , and Mr. Mzoxolo seeks the incorporation of the
replying affidavit to the supplementary founding affidavit. In order to facilitate the
hearing of the matter and to obtain as comprehensive a factual matrix as possible
due to the far -reaching effect that deportation will have, I will read the replying
affidavit as part of the founding papers. The respondents filed a subsequent
supplementary answering affidavit and will not be unduly prejudiced by such an
approach.
[5] It suffices to say that Mr. Mzoxolo’s imminent deportation renders the matter
sufficiently urgent to consider.
The parties’ respective cases
[6] Mr. Mzoxolo applied for and was issued a passport in 2014. When he approached
the offices of the Department of Home Affairs to renew his passport , he was
informed that his ID had been blocked. His identity document was confiscated. He
avers that he was not provided with prior notice regarding an investigation
regarding his ID , and no reasons were provided to him prior to blocking his ID. I
pause to note that the court is not informed of the date on which Mr. Mzoxolo’s
identity document was confiscated or th e specific office of the DHA where it
transpired.
[7] Mr. Mzoxolo says he was informed that he would be contacted by the Department
of Home Affairs in due course. Mr. Mzoxolo was taken into custody on 4 November
2024 and transferred to Lindela on 15 December 2024. Once again, the lack of
detail is significant. Mr. Mzoxolo fails to inform the court why he was arrested and
what events transpired after his arrest. A judicial review application was issued
prior to this urgent court application under case number 2025 -035637 for reviewing
the decision to block and confiscate his identity document.
[8] I pause to note that Mr. Mzo xolo did not append the founding affidavit to the review
application to his urgent court application. It was, however, appended to the
respondent’s answering affidavit. The following facts contained in the founding
affidavit need to be noted :
a) He entered the Republic in 2005 through the OR Tambo International
Airport;
b) Shortly after his arrival , he was adopted by Ms. Bathabile Mabusela. The
adoption was not registered as they both are laypersons.
[9] In the supplementary founding affidavit, Mr. Mzoxolo avers that he did not have
access to personal funds as a result of his detention and the blocking of his South
African identity number. He was then financially assisted by friends who assisted
him ‘out of goodwill and concern for the injustice [he is] suffering.’ As for his
adoption, he avers that Ms. Mabusela took him in as a minor when he was
abandoned after the death of his biological father and the disappearance of his
biological mother. The adoption was an informal adoption. Because Ms. Mabusela
lives in rural KwaZulu -Natal Natal a confirmatory affidavit could not have been
obtained from her.
[10] In the replying affidavit that is now incorporated in the founding papers, Mr.
Mzoxolo informs the court again that he has been in South Africa since 2000. He
avers that any reference to the year 2005 is a typing error. However, he now states
that he arrived in South Africa with his biological parents and that his father passed
away shortly after arriving in the country. He also clarified that he attempted to
renew his passport in 2024, which led to him realising his identity document was
blocked.
[11] Mr. Mzoxolo avers that the prima facie right entitling him to interim relief is the fact
that he is a South African citizen with a South African passport and South African
identity number issued by DHA. His identity number has been blocked by the DHA.
[12] The respondents (DHA) oppose the application. The DHA informs the court that
Mr. Mzoxolo was convicted for being in contravention of section 49(1)(a) of the
Immigration Act, after he pleaded guilty to the charges. He was sentenced to pay a
fine of R4000 or to undergo 2 months' direct imprisonment. In the sworn statement
in terms of section 112(2) of the Criminal Procedure Act 51 of 1977, the applicant
states that he left his country of origin in September 2024 with a valid passport,
which got lost when he moved to a new place of residence.
[13] Upon his release from the Qalakabusha Maximum Correctional Facility, the
Magistrate signed a confirmation for his continued detention pending deportation.
The decision to detain and deport Mr. Mzoxolo was the outcome of a judicial
function. Judicial decisions are not reviewable under the Promotion of
Administrative Justice Act 3 of 2000.
[14] The DHA further informs the court that:
a) Mr. Mzoxolo’s identity document could not be verified and was identified
as having been fraudulently obtained;
b) Mr. Mzoxolo informed immigration officials that he entered the country
on land, not through the OR Tambo International Airport;
c) He alluded to having entered the country for the first time on 7 July 2018
through Zambia, Tanzania, and Zimbabwe;
d) He indicated that he had four kids;
e) The interview records were signed by Mr. Mzoxolo.
[15] The DHA submits that Mr. Mzoxolo is not a South African citizen, he was just found
with a South African identity document. He pleaded guilty to charges even before
he was in DHA’s custody. The court ordered his detention pending deportation. He
pleaded guilty and did not make the allegations he is currently making. The DHA
submits that because Mr. Mzoxolo is detained as a consequence of being found
guilty of contravening section 49(1)(a) of the Immigration Act and being detained
for deportation as a result of the conviction, his remedy would have been to appeal
the conviction.
[16] For unknown reasons, Mr. Mzoxolo chose not to deal with the allegations relating
to him pleading guilty in a court of law of contravening s 49(1)(a) of the Immigration
Act, the contents of his section 112(2) statement, or his interview with the
immigration officer in a replying affidavit filed in reply to DHA’s supplementary
answering affidavit. Mr. Mzoxolo’s affidavits are void of detail and contain, for the
most part , general , vague statements.
[17] Section 49(1)(a) of the Immigration Act provides that anyone who enters or
remains in or departs from the Republic in contravention of this Act, shall be guilty
of an offence.
[18] In the founding papers, no case is made out that Mr. Mzoxolo’s current
predicament is directly linked to his identity document being blocked. He was
arrested for contravening s 49(1)(a) of the Immigration Act, and pleaded guilty to
the offence. He even provided an explanation for being in the country without a
valid permit, in that he lost the valid passport with which he entered the country.
His detention and imminent deportation are the result of being found guilty in a
court of law. Mr. Mzoxolo does not indicate why he pleaded guilty to the charge ,
while the section 112 statement filed in the criminal case reflects that he was
represented by a legal representative. Mr. Mzoxolo did not play open cards with
this court in his initial founding affidavit. He refrained from informing the court that
his detention was the consequence of pleading guilty to a charge of contravening s
49(1)(a) of the Immigration Act. Additional shortcomings in Mr. Mzoxolo’s affidavit
include the total lack of detail regarding , among others, the time allegedly spent in
South Africa that preceded his informal adoption, and the complete lack of
information regarding the alleged Ms. Mabusele’s whereabouts.
[19] Mr. Mzoxolo’s reliance on his identity document being blocked as sustaining a
prima facie right to be granted the interim relief sought , is contradicted and
rendered invalid by the plea of guilty filed in relation to the charge of contravening s
49(1)(a) of the Immigration Act that led to his conviction. It is not the blocking of the
identity document that led to his detention and imminent deportation, but his
conviction, which has not been appealed . Mr. Mzoxolo failed to make out a prima
facie right, even if subject to some doubt, to the relief sought.
[20] It is trite that a court is bound to consider an application on the papers filed. In the
affidavits filed in support of this application a case is not made out for the relief
sought. Mr. Mzoxolo’s application stands to be dismissed.
[21] Given the consequence of the relief granted, and considering that Mr. Mzoxolo is
unemployed , no costs order is granted.
[22] I pause to note that I indicated during the hearing that the judgment in this
application would be handed down by Friday, 2 May 2025. Since the annexures
annexed to the DHA’s supplementary affidavit were not clearly legible, I requested
hard copies thereof to be delivered to me.1 I indicated that the judgment cannot be
finalised until I am provided with the hard copies. I only received those hard copies
today.
ORDER
In the result, the following order is granted:
1. The application is considered to be an urgent application and any non -
compliance with the Uniform Rules of Court is condoned.
2. The application is dismissed.
3. No order as to costs.
E van der Schyff
Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For the applicant : Adv. S. Shongwe
Instructed by: Ngobeni Mamabolo Inc.
For the respondent: Adv. L R Pasha
Instructed by: State Attorney, Pretoria
Date of the hearing: 29 April 2025
Date of judgment: 5 May 2025
1 An email was sent to both parties’ respective representatives.