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[2014] ZAWCHC 89
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Mahlekwa v Minister of Home Affairs and Others (9798/14) [2014] ZAWCHC 89 (10 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO: 9798/14
DATE: 10 JUNE
2014
IN THE MATTER
BETWEEN
THANDEKA SYLVIA
MAHLEKWA
...................................................................
First
Applicant
And
MiNISTER OF HOME
AFFAIRS
..................................................................
First
Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
HOME AFFAIRS -
WESTERN
CAPE
.......................................................
Second
Respondent
MR JACKSON:
IMMIGRATION OFFICER,
CAPE TOWN
International
airport
............................................................
Third
Respondent
EMIRATES
AIRLINES
.................................................................................
Fourth
Respondent
MUHAMMAD ASIF
KHAN
.............................................................................
Intervening
Party
Heard: 9 June
2014
JUDGMENT
DELIVERED on 10
JUNE 2014
SAVAGE AJ
Introduction
[1]
The applicant, Ms Thandeka Sylvia Mahlekwa,
and the intervening party, Mr Muhammad Asif Khan (‘Mr Khan’),
seek an urgent
order interdicting and restraining the respondents
from causing the deportation of, or assisting in or cooperating in
the deportation
of Mr Khan from the Republic of South Africa to
Pakistan, or any other foreign state. In addition, an order is sought
directing
the respondents and/or any official of the Department of
Home Affairs to release Mr Khan from the custody in which he is
presently
detained or is being caused to be detained by any of the
respondents or at the instance of the Department of Home Affairs
and/or
any other department of state, together associated relief and
costs.
[2]
Mr
Khan, a Pakistani national, is in possession of a temporary residence
permit issued under s11(6) of the Immigration Act 13 of
2002 (‘the
Act’)
[1]
by the Department
of Home Affairs on 31 October 2013 and expiring on 28 October 2016.
The permit provides for multiple entries
into South Africa with the
condition that Mr Khan does not become a ‘prohibited or
undesirable person’ and that he
resides with the applicant
‘whilst conducting business – MH Khan only’.
The permit was issued to Mr Khan
on the basis that he is the spouse
as defined in s 1(1) of the Act of the applicant, a South African
citizen, with whom he has
been living in a permanent heterosexual
relationship akin to husband and wife for the last three years.
[3]
Mr Khan left South Africa to visit Pakistan
four months ago and returned to Cape Town International Airport on
Emirates Airline
flight EK 772 from Dubai on 27 May 2014. On his
return to South Africa he was interviewed by immigration officers at
Cape Town
International Airport. During the course of his interview
he indicated that he had a wife and children in Pakistan, a fact the
applicant confirmed during her interview with immigration officials.
At the culmination of the interviews conducted, Mr Khan was
provided
with
Form 37: Notification to a Person
at a Port of Entry that he or she is an Illegal Foreigner and is
Refused Admission
in which he was
stated to be an illegal foreigner on the following basis:
Contravene
permit conditions. Made a misrepresentative to (sic) on application
of section 11(6) permit. Applicant married in country
of origin
.
[4]
Mr Khan was informed further in Form 37
that:
Should
you have reason to submit that the refusal of your admission into the
Republic was procedurally unfair, unreasonable or unlawful,
you may,
within three days from date of this notice, request the Minister to
review this decision.
However,
if the conveyance you arrived on is on the point of departing, your
request for review must be lodged immediately and if
the set request
has not been finalised prior to the departure of the conveyance, you
shall depart on such conveyance and await
the outcome of the request
outside the Republic.
In
terms of section 35 (10) of the Act, the conveyor responsible for
your conveyance to the Republic, namely Emirate Airlines, shall
be
responsible for the detention and removal of the person conveyed and
any costs related to such detention and removal incurred
by the
Department.
[5]
Following his entry into South Africa being
refused, a declaration to the person in charge of Emirates Flight
EK772 was issued by
the Department of Home Affairs indicating that Mr
Khan was ‘
an illegal foreigner
’
and that he ‘
shall be detained and
removed – …(b) in the case of a person in charge of a
conveyance, in terms of s 35(10) of the
Act
’.
S35(10) came into operation on 26 May 2014 under the terms of the
Immigration Amendment Act 13 of 2011 and provides that
the person in
charge of a conveyance shall be responsible for the detention and
removal of a person conveyed if such person is
refused admission, and
for any costs related to such detention and removal incurred by the
Department. It appears that by the time
this declaration was issued
to Emirates Airlines, the aircraft that had transported Mr Khan had
left South Africa but that the
declaration was in any event served on
Emirates Airlines which has a permanent office located at Cape Town
International Airport.
[6]
Mr Khan currently remains in the transit
facility at Cape Town International Airport, refusing to leave the
facility for Pakistan,
or another country and seeks entry into South
Africa. He has in terms of s 8(1)applied for the review by the
Minister of Home Affairs
of the decision to refuse him entry into the
Republic, which review remains undetermined. Pending the decision on
review, given
that the aircraft on which he arrived had left South
Africa, s8(2)(b) prescribes that Mr Khan ‘
shall
not be removed from the Republic before the Minister has confirmed
the relevant decision
’.
Section
11 (6) permit
[7]
A visa to temporarily sojourn in the
Republic, previously a temporary residence permit, is issued in terms
of s 10(4) on condition
that the holder is not or does not become a
prohibited or an undesirable person. The temporary residence permit
held by Mr Khan
falls under the categorisation of a visitor’s
permit in s 11 (6). In terms of this provision –
…
a
visitor's permit may be issued to a foreigner who is the spouse of a
citizen or permanent resident and who does not qualify for
any of the
permits contemplated in sections 13 to 22: Provided that—
(a)
such permit shall only be valid while the good faith spousal
relationship
exists;
(b)
on application, the holder of such permit may be authorised to
perform
any of the activities provided for in the permits
contemplated in sections 13 to 22; and
the holder of
such permit shall apply for permanent residence contemplated in
section 26 (b) within three months from the
date upon which he
or she qualifies to be issued with that permit.
[8]
Section 11(2) provides that the holder of a
visitor’s permit may not work, unless authorised by the
Director-General in the
prescribed manner and subject to the
prescribed requirements and conditions.
[9]
In
terms of s 1(1), a ‘
spouse
’
is defined as a party to a marriage as defined in the Act, or a
‘
permanent
homosexual or heterosexual relationship as prescribed
’.
[2]
|In terms of the previous
Immigration Act regulation
3, applicable at
the time that Mr Khan’s permit was granted, to prove a
permanent homosexual or heterosexual relationship
an affidavit had to
be submitted confirming the exclusion of any other person to the
spousal relationship and that neither of the
parties was at the
relevant time a partner to a marriage. The new
regulation 3
, which
came into operation on 26 May 2014, requires a notarial agreement
attesting that the permanent homosexual or heterosexual
relationship
has existed for at least two years before the date of application and
that the relationship still exists to the exclusion
of any other
person; and that neither of the parties is a spouse in an existing
marriage or permanent homosexual or heterosexual
relationship.
Entry
into the Republic
[10]
Under
s 9(3)
‘(n)
o
person shall enter or depart from the Republic - …(d) unless
the entry or departure is recorded by an immigration officer;
and (e)
unless examined by an immigration officer as prescribed
’
.
Apparent from
s 8
is that an immigration
officer may make a decision to refuse entry to a person arriving at a
port of entry.
S 8(1)
states that –
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 …
[11]
Under
s 29(1)
‘(t)
he
following foreigners are prohibited persons and do not qualify for a
visa, admission into the Republic, a temporary or a permanent
residence permit: … (f) anyone found in possession of a
fraudulent residence permit, passport or identification document
’.
S 30
details categories of foreigners declared undesirable by the
Director-General who after such declaration do not qualify for a
visa,
admission into the Republic or a temporary or a permanent
residence permit. There is no suggestion that Mr Khan currently falls
into any category of undesirable person and the decision to refuse Mr
Khan entry relates rather to a determination made under
s 29(1)(f).
[12]
The consequence of the decision taken that
Mr Khan is a prohibited person is that the condition in
s 10(4)
that
his visa is issued conditionally upon him not becoming a prohibited
person is no longer met. This forms the basis upon which
his entry
into the Republic has been denied.
[13]
The decision to refuse Mr Khan entry into
the Republic constitutes administrative action insofar as it is
conduct which amounts
to the exercise of public power or the
performance of a public function by an organ of state in terms of s 1
of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’).
While s 3(1) requires that administrative action which materially and
adversely affects the rights or legitimate expectations of any person
must be procedurally fair, currently before this Court is
not a
review of the administrative action taken.
Deportation
[14]
The
applicant and Mr Khan seek an order interdicting and restraining the
respondents from causing the deportation of, or assisting
in or
cooperating in the deportation of Mr Khan from the Republic of South
Africa to Pakistan, or any other foreign state. In
Patel
and another v The Chief Immigration Officer, OR Tambo International
Airport and others
[3]
a distinction was drawn between a refusal of entry and a deportation,
with the Court finding that the latter is directed at persons
who are
in the Republic illegally while the former is directed at persons yet
to enter the Republic. For current purposes it seems
to me that the
distinction lies in the fact that pending the outcome of the review
application lodged with the Minister by Mr Kahn,
he may of his own
accord leave the transit facility and return to Pakistan, or another
country, although he is not obliged to do
so and by virtue of the
provisions of s8(2)(b) he may not be removed from the facility until
the decision has been confirmed.
[15]
A deportation is defined in s1 as ‘
the
action or procedure aimed at causing an illegal foreigner to leave
the Republic in terms of the Act
’.
Deportation implies a compelled and compulsory departure from the
country on certain grounds.
[16]
There is nothing before this Court to
support a claim that the respondents are currently engaged in efforts
to deport Mr Khan, or
that they are cooperating in the efforts of
others to deport him. Immigration officials were entitled to
interview him and the
decision to refuse him entry is currently
subject to the review of the Minister. The respondents accept that Mr
Khan is entitled
to remain at the transit facility if he wishes to do
so pending the decision of the Minister and there is nothing before
this Court
to suggest that the respondents intend to act in a manner
contrary to the provisions of s8(2)(b).
[17]
In such circumstances, I am not persuaded
that the applicant or Mr Khan hold a
prima
facie
right to the relief sought,
namely to interdict and restrain the respondents from causing the
deportation of, or assisting in or
cooperating in the deportation of
Mr Khan.
Detention
[18]
The applicant and Mr Khan seek an order
directing the respondents and/or any official of the Department of
Home Affairs to release
Mr Khan from the custody in which he is
presently detained against his will or is being caused to be
detained. They claim that
his unlawful detention in unacceptable
conditions in the transit facility is without a warrant of detention
having been issued
and is a maximum period in terms of s34(2) of 48
hours.
[19]
An immigration officer may, without a
warrant, in terms of s34(1):
…
arrest
an illegal foreigner or cause him or her to be arrested and shall,
irrespective of whether such foreigner is arrested, deport
him or
cause him 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, provided that the
foreigner concerned -
(a)
shall be notified in writing of the
decision to deport him or her and of his or her right to appeal such
decision in terms of the
Act;
(b)
may at any time request any officer
attending to him or her that his or her detention for the purpose of
deportation be confirmed
by warrant of a Court, which, if not issued
within 48 hours of such request, shall cause the immediate release of
such foreigner;
(c)
shall be informed upon arrest or
immediately thereafter of the rights set out in the preceding two
paragraphs, where possible, practicable
and available in a language
that he or she understands;
(d)
may not to be held in detention for
longer than 30 calendar days without a warrant of a Court which on
good and reasonable grounds
may extend such detention for an adequate
period not exceeding 90 calendar days; and
(e)
shall be held in detention in
compliance with the minimum prescribed standards protecting his or
her dignity and relevant human
rights.
[20]
There is no dispute that at this time Mr
Khan has not been informed either that he has been arrested, or that
a decision has been
taken to deport him. Ms Pratt places reliance
rather on s 34(2), which provides that the detention of a person in
terms of this
Act for purposes other than his or her deportation
shall not exceed 48 hours from his or her arrest or the time at which
such person
was taken into custody for examination or other purposes.
S34(8) relates to the detention of an illegal foreigner by the master
of a ship and is not relevant for current purposes.
[21]
The respondents, in the opposing affidavit
of Mr Adrian Jackson, a control immigration officer at the Cape Town
International Airport,
deny that Mr Khan has been arrested or that he
has been placed in detention. Mr Jackson states that Mr Khan is ‘
in
the care of the fourth respondent, having been refused entry into
South Africa in terms of the
Immigration Act
’
and
it is denied that he is in the custody of the fourth respondent.
[22]
In
argument Ms Pratt conceded that Mr Khan was free to leave the transit
facility and return to Pakistan, or another country. Following
the
conclusion of argument, Ms Pratt furnished me with copies of the
decisions in
Lawyers
for Human Rights v Minister of Home Affairs
[4]
in
which the Constitutional Court considered
ss34(8)
and (2) and
Zealand
v Minister of Justice and Constitutional Development
[5]
.
In
Lawyers
for Human Rights
the Constitutional Court reiterated the importance of the right to
freedom and security of the person, including the right not
to
deprived of freedom arbitrarily or without just cause in terms of
s12(1) of the Constitution and that s35(2) extends to illegal
foreigners detained. In
Zealand
the Court emphasised that it was sufficient for the applicant in that
matter to plead that he was unlawfully detained and that
the
respondents then bore the burden to justify the deprivation of
liberty, whatever form it may have taken.
[6]
[23]
Detention implies that a person is held in
custody, restricted in their physical ability to leave such custody.
The refusal to permit
Mr Khan to enter the Republic does not, it
seems to me, lead to the necessary conclusion that he has been
detained by the respondents.
This is given that while he has been
refused entry into South Africa, he remains free to return to
Pakistan, or another country
he is permitted to enter. The
restriction of his access into South Africa may take the form that he
remains in a restricted facility
for practical reasons given his
location at Cape Town International Airport, yet with the freedom to
leave such facility to return
to Pakistan, or another country. It
follows therefore the effect of his conduct is that Mr Khan has
exercised an election, pending
his review, to remain in the transit
facility by virtue of his decision not to return to Pakistan. Given
the urgency of this application,
I have not been referred to any
authorities by the parties that persuade me differently. It does not
seem to me that the limitation
on detention for a period of no more
than 48 hours contemplated in s34(2) could have been intended to
extend to a situation in
which a person, such as Mr Khan, remained in
the transit facility pending the finalisation of his review. This
supports a conclusion
in my mind that Mr Khan has not been detained
within the meaning contemplated in s34(2).
[24]
Given my finding that Mr Khan is not
detained and remains free to leave the transit facility but not to
enter South Africa, while
his review is pending neither the applicant
nor Mr Khan hold a
prima facie
right to obtain an order directing the respondents and/or any
official of the Department of Home Affairs to release or cause the
release of Mr Khan from custody. Even if this is not so, I am not
persuaded that the balance of convenience warrants a different
conclusion given that the review application remains pending.
[25]
Ms Slingers in argument indicated that to
the extent required the respondents were prepared to undertake to
ensure that the review
application was determined on an expedited
basis. What is clear is that the respondents do not intend to unduly
delay finalisation
of the review which will have the effect of
resolving Mr Kahn’s status.
[26]
There exists a dispute between the parties
as to the conditions in which Mr Khan remains in the transit
facility. The transit facility,
according to the respondents, is
under the maintenance and control of the Airports Company of South
Africa. Such facility is one
established under international law,
given effect it would appear by Chapter 2 of the
Civil Aviation Act
13 of 2009
. No relief is sought by the applicant or Mr Khan regarding
these conditions and reference appears to be made to them in support
of the application for an order for Mr Khan’s release.
[27]
Issue
was taken with the interviews conducted with Mr Khan and the
applicant, which interviews Ms Pratt argued were unlawful and
ultra
vires
in that Mr Khan had produced a valid passport and visa or permit and
is not a prohibited person insofar as he has complied with
s 29 of
the Act. Furthermore, issue is taken with the fact that the requisite
form was not completed and that Mr Khan was not provided
with the
services of an interpreter. S 9(3) requires an immigration officer to
examine a person entering or departing from the
Republic. The
fairness or otherwise of the interview process is not a subject for
determination by this Court at the current time
given that the matter
is currently before the Minister for review. The review by the
Minister must be exhausted before the relevant
issues may be referred
to this Court for determination, and, as was cautioned by Mokgoro J
in
Koyabe
and others v Minister of Home Affairs and others
[7]
a court should not be approached prematurely in a manner which seeks
to usurp the executive role and function.
[28]
In
exercising a discretion with regards to costs, it is trite that
ordinarily
it is the party that is wholly successful in an action or application
that is awarded costs. In t
he
Trustees of the Time Being of the Biowatch Trust v Registrar
Genetic
Resources and Others
(Open
Democracy Advice Centre as Amicus Curiae)
[8]
it was stated that ‘…
the
judicial officer may not, as he or she pleases, deprive a successful
party of its costs. He or she must do so for reasons which
he or she
must set out or state. It similarly follows that, although ordinarily
a successful party will be awarded its costs, it
does not follow that
that will always be the case
.’
[29]
I am not inclined to grant costs against
the applicant or Mr Khan given the circumstances of this matter and
the issues raised in
this application. I consider it appropriate
therefore to make no order as to costs.
Order
[30]
In the result, an order is made in the
following terms:
1.
The application is dismissed.
2.
There is no order as to costs.
K
M SAVAGE
Acting
Judge of the High Court
Appearances
:
For
applicant and
Intervening
party: T-A Pratt
Instructed
by T N
ö
ckler Attorneys
For
first to third
respondents:
H
Slingers
Instructed
by the State Attorney
Fourth
respondent: No appearance
[1]
As amended by the Immigration Amendment Act 13 of 2011 which came
into operation on 26 May 2014.
[2]
The amendment to the definition of ‘spouse’ came into
operation on 26 May 2014 by virtue of s2(k) of the Immigration
Amendment Act 13 of 2011.
[3]
North Gauteng HC unreported case no 26953/09 at para 28
[4]
[2004] ZACC 12
;
2004 (4) SA 125
(CC)
[5]
2008 (40 SA 458
(CC)
[6]
At para 24
[7]
2010 (4) SA 327
(CC) at para 36
[8]
(A831/2005)
[2008] ZAGPHC 135
(13 May 2008) 2008 JDR 0442 (T) at
para 31