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[2014] ZAWCHC 99
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Khan v Minister of Home Affairs and Others (8231/2014) [2014] ZAWCHC 99 (27 June 2014)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: 8231/2014
DATE: 27 JUNE 2014
In the matter between:
FUNEKA
KHAN
.......................................................................................................................
APPLICANT
And
THE 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
Coram:
ROGERS J
Heard:
19 JUNE 2014
Delivered:
27 JUNE 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
The applicant alleges
that she is the wife of Murad Khan (‘Khan’), a Pakistani
national. On Friday 9 May 2014 she launched
an urgent application for
the issue of a rule nisi calling on the respondents (the Minister and
various officials in the Department
of Home Affairs) to show cause
why they should not be interdicted from causing Khan’s
deportation and why they should not
be directed to release him
forthwith, with the rule nisi to operate as an interim interdict. At
about noon Yekiso J granted the
order.
[2]
On the evening of the
same day, 9 May 2014, the respondents sought to anticipate the return
day. The matter came before Schippers
J. By agreement the matter was
postponed for hearing at 14h00 on Monday 12 May 2014. The rule nisi
was extended on the basis that
Khan would be released from the
Department’s custody subject to certain specified conditions.
Among these was that he was
to take up accommodation at a specified
hotel at Cape Town International Airport, that he was to report three
times daily to the
office of the South African Police (‘SAPS’)
at the airport, that he was to surrender his passport until the
matter
was finalised, and that he would not leave the premises of the
airport without informing a named official.
[3]
The duty judge was not
able to hear the matter on 12 May 2014. The case rolled over day by
day until Friday 16 May 2014 when Bozalek
J postponed it for hearing
on 5 June 2014 with a timetable for the filing of further papers, and
extended the rule nisi. By this
stage Khan had, with the agreement of
the respondents, been allowed to leave the airport for the Eastern
Cape, where he was to
report to SAPS at Mthatha each Wednesday until
finalisation of the case.
[4]
The respondents filed
their answering papers on 12 May 2014. The applicant filed a replying
affidavit dated 17 May 2014. On 24 May
2014 the respondents delivered
supplementary answering papers. When the matter came before me on 6
June 2014 (having been crowded
out the previous day), there was no
supplementary replying affidavit in the file. There was a duplicate
of the initial replying
affidavit at the place in the index where one
might have expected to find supplementary replying papers. After some
initial confusion,
Mr Uijs SC, who appeared for the applicant,
informed me that a supplementary replying affidavit existed but that
the initial replying
affidavit had mistakenly been filed instead of
the supplementary replying affidavit. Since the respondents,
represented by Messrs
G Papier and C Simons, had not received the
supplementary replying papers, the matter stood down. I was later
informed in chambers
that the respondents insisted on a substantive
application for condonation. By agreement I made an order postponing
the case to
19 June 2014 with a timetable for the filing of papers in
the condonation application.
[5]
In terms of my order of
6 June 2014, the applicant was required to file her condonation
application by 9 June 2014. She delivered
it on 17 June 2014. The
respondents filed an affidavit in opposition on 18 June 2014. The
matter served before me on 19 June 2014.
[6]
The Immigration Act and
the regulations promulgated thereunder were amended with effect from
26 May 2014. The present matter falls
to be determined with reference
to the law as it stood prior to these amendments.
Condonation
[7]
The respondents were
entitled to a postponement on 6 June 2014, given that they only
received the supplementary replying affidavit
(which ran to 34 pages)
on that day. I consider, though, that it was unnecessarily
formalistic for them to insist on a substantive
condonation
application. The postponement afforded them sufficient opportunity to
consider the supplementary replying affidavit
and adjust their
arguments.
[8]
Nevertheless, since the
parties agreed on a procedure for a substantive application for
condonation, the applicant should have observed
the time limits laid
down in my order of 5 June 2014. The applicant’s attorney, Ms
Nöckler, who made the affidavit in
support of condonation,
explained the error in the filing of the supplementary replying
affidavit without offering any explanation
for the delay in
delivering the condonation application.
[9]
Despite this
non-compliance, it would not be just to refuse to receive the
supplementary replying affidavit. Despite the respondents’
counsel’s written submissions to the contrary (not pressed in
oral argument), it is clear that what occurred here was an
honest
mistake, nothing more sinister. The applicant’s attorney was
undoubtedly at fault in effecting service and indexing
the court
papers without properly checking that what she was serving and filing
was the supplementary replying affidavit rather
than a repeat of the
initial replying affidavit. In the event, though, this error has led
to no further delay in the hearing of
the matter, which is the only
prejudice which the respondents might otherwise suffer.
[10]
I shall thus grant the
condonation application but direct the applicant to pay the wasted
costs of the postponement of 6 June 2014.
The parties shall bear
their own costs in respect of the condonation application. I shall
deal later with the question whether
Khan himself should be
responsible for any costs.
Approach
to disputes of fact
[11]
I was not addressed on
the approach to disputes of fact. In terms of the notice of motion,
the applicant on the extended return
day has sought final relief,
namely a final interdict against deportation and a final order of
unreserved release. The
Plascon-Evans
rule thus applies
to factual disputes insofar as that relief is concerned.
[12]
During the course of
argument Mr Uijs asked that, if I was not prepared to grant relief in
the form prayed because of the existence
of an internal remedy (as to
which, see below), I should grant an interdict against deportation
pending the outcome of the internal
remedy. That would probably
amount to an interim interdict, because my decision would then not
finally determine the rights of
the parties (see
LAWSA
2
nd
Ed Vol 11
Interdicts
para 401), even
though the final determination would be made not by the court but by
the Minister (to whom the internal review lies),
subject of course to
any judicial review of the Minister’s decision.
[1]
Mr Uijs’ fall-back position would in essence involve an
extension of the existing interim interdict, except that it would
now
operate pending the Minister’s decision rather than pending the
court’s final decision. In respect of such interim
relief, the
Plascon-Evans
rule
would not apply. The test would be whether the applicant has made out
a
prima facie
case,
though open to some doubt (
LAWSA
op cit
para 404).
The other requirements for an interim interdict would need to be met
(irreparable harm, balance of convenience and the
absence of another
adequate remedy).
The
facts
[13]
Khan, as I have said,
is a Pakistani national. He has a Pakistani passport valid until 17
October 2015. At a time prior to 2006
he married one Safia in
Pakistan and the marriage subsists. In terms of the laws of Pakistan,
Khan was entitled, subject to compliance
with certain conditions, to
contract further marriages. There are two children in Pakistan from
his marriage with Safia.
[14]
It appears that Khan
first came to South Africa on a temporary asylum seeker’s
permit dated 25 November 2005 issued in terms
of
s 22
of the
Refugees Act 130 of 1998
.
[15]
The applicant, who is a
lady from the Eastern Cape, and Khan allege that during 2006 they got
married in South Africa, first by
Xhosa tradition (including the
payment of lobola), then (after the applicant had converted to the
Muslim faith) by Muslim rites
and finally at a civil ceremony on 4
May 2006 at the Department of Home Affairs in Port Elizabeth. They
have a marriage certificate
dated 4 May 2006 in usual form
purportedly issued by the Department of Home Affairs. There are no
children from this marriage.
They say they have tried to start their
own family but that the applicant has suffered four miscarriages.
[16]
Khan has from time to
time been the holder of a relative’s permit issued to him in
terms of
s 18
of the
Immigration Act 13 of 2002
. The first such
permit attached as part of the record was issued on 27 March 2009. On
14 April 2011, shortly before the expiry
of the latter permit, a
further such permit was issued to him. That permit expired on 13
April 2013. On 7 August 2013 a further
relative’s permit was
issued to him with an expiry date of 27 April 2015. This permit, like
the earlier ones, contained the
following condition: ‘To
continue residing with SAC [South African citizen] spouse ID 791230
0639 084’. This is the
applicant’s South African ID
number. The permit authorised multiple entries.
[17]
Khan has a cellphone
business in the Eastern Cape trading under the name of Khan’s
Cellular. He conducts this business jointly
with the applicant.
[18]
On 18 June 2009 Khan
received a work permit in terms of
s 19
of the Act. The work
permit expired on 3 June 2011. The conditions of the permit were
expressed thus: ‘Take up a voluntary
work permit at Khan cell
market + reside with SAC 791230 0639 084.’ It is probable that
this was not Khan’s first work
permit but it does appear to
have been his last.
[19]
On 6 July 2011 Khan
applied for permanent residence in terms of
s 26(b)
of the Act,
based on the fact that he had by then been the spouse of a South
African citizen for five years. In their initial answering
papers the
respondents denied knowledge of this application. However, in the
supplementary answering papers the respondents produced
various
documents relating to the application and the interview conducted
with Khan on that date. They allege that Khan made fraudulent
misrepresentations to the Department in the application for permanent
residence. In particular, he asserted in response to specific
questions that he had no children and that his marriage to the
applicant was his first marriage. In his ‘Declaration of
support regarding spousal relationship’, he declared that he
was married to the applicant and that ‘I never married
in my
country’ (he struck out the alternative wording ‘I was
married in my country to…’). In his disclosure
of
details of ‘family members’ remaining in his country of
origin (which were to include ‘spouse, children, parents,
sisters, brothers’), he listed six brothers but did not mention
Safia or his two children.
[20]
Khan in the
supplementary replying affidavit said that he assumed he was only
being asked about civil marriages in South Africa,
though I do not
see how that could be a satisfactory explanation for his answer to
the questions relating to whether he was married
in his own country
and whether he had a spouse or children remaining in his country of
origin.
[21]
For reasons which do
not appear from the papers, a permanent residence permit was not
issued to Khan. No decision at all seems to
have been made on the
application. Had such a permit been issued, he would have been
entitled to work in South Africa.
[22]
During February 2014
Khan went to Pakistan for about three months to visit Safia and his
children. He returned to Cape Town International
Airport on Emirates
Airline flight EK-772 on 8 May 2014. He was examined by officials of
the Department, including Mr Jack Goeieman,
an Immigration Officer,
and Mr Adrian Jackson, a Control Immigration Officer (see
s 9(3)(e)
,
which makes provision for an examination). Khan produced his marriage
certificate and relative’s permit. The officials ascertained
from their examination of Khan that he had a wife and children in
Pakistan and that he was conducting business in South Africa.
He was
refused entry. The notification issued to him in terms of
ss 34(8)
and
34
(9) of the
Immigration Act recorded
that in terms of
s 8(1)
Khan was an illegal foreigner for the following reasons (corrected
for typographical errors): ‘In contravention of the condition
of his permit. Marriage of convenience. Involved in bigamous
marriage. Subject V-listed.’
[23]
The alleged
contravention of the condition was that Khan was conducting business
in South Africa in violation of
s 18(2)
, which was applicable to
his relative’s permit.
Section 18(2)
states that the holder of
a relative’s permit ‘may not conduct work’.
Regulation 6
sets out the prescribed form of examination contemplated
in
s 9(3)(e).
In terms of
regulation 6(3)(a)(iv)
, one of the
things the immigration officer must do is satisfy himself or herself
that the foreigner is not in contravention of
the Act, which the
officer is to do by requiring the foreigner to produce ‘a
permit commensurate with the activities to be
undertaken by him or
her in the Republic’.
[24]
The alleged bigamy was
Khan’s marriage to the applicant at a time when he was already
married to Safia. (The question of an
alleged ‘marriage of
convenience’ was not pursued as a distinct matter in the
present proceedings.)
[25]
The meaning of
‘V-listed’ is unexplained in the papers. The applicant
did not advert to it.
[26]
The Department’s
officials determined that Khan should be placed back onto the
aircraft. They say they handed Khan to Emirates
staff for this
purpose. This was at about 12h30 on 8 May 2009. Emirates informed
Goeieman at about 13h00 that there was no space
on the flight. The
respondents say that Khan was then kept in an Emirates facility in
the pre-entry area of the airport until the
next available flight.
This was initially scheduled to leave at 11h00 on 9 May 2014,
subsequently altered to 13h00.
[27]
Jackson and Goeieman
allege that Khan was duly informed of his right to ask the Minister
to review the officials’ decision
in terms of
s 8(1)
of
the
Immigration Act
(‘the ministerial appeal’) and that
he chose not to lodge a ministerial appeal. Khan says that he was
browbeaten into
signing documents and that his grasp of English is
not very good. He claims that he was not allowed to contact anyone
and only
succeeded in getting a message through to his family when a
friendly security guard allowed him to use his mobile phone for a
short
while. Jackson alleges, by contrast, that he was present when
Khan used his own mobile phone to inform the applicant that he had
been refused entry. (The respondents alleged that Khan spoke English
‘very well’. In his application of 6 July 2011
for
permanent residence status, he stated that his proficiency in
speaking English was ‘good’ and his proficiency in
writing and reading it was ‘fair’. In his supplementary
replying affidavit Khan denied that he could speak English
‘very
well’ but said he was ‘sufficiently fluent in English to
conduct a simple conversation’.)
[28]
An attorney, Ms
Nöckler, was contacted by Khan’s cousin about the refusal
of entry. Nöckler arrived at the airport
at 07h00 on 9 May 2014.
She says in her affidavit that Jackson refused to allow her to
consult with Khan and told her that Khan
was to be put on a flight to
Pakistan that morning. Jackson says he told Nöckler of Khan’s
right to a ministerial appeal
in terms of
s 8(1)
, a fact which
Nöckler admits. (The way she puts it is that Jackson told her to
make representations to the Minister in terms
of
s 8
if she
wished to prevent Khan’s deportation to Pakistan.) While she
was talking with Jackson, the applicant, who had travelled
down from
the Eastern Cape overnight, arrived at the airport. Jackson took the
applicant into a security area and interviewed her
in Nöckler’s
absence. A little while later Goeieman came back with the applicant
and confirmed that Khan was to be sent
back to Pakistan on the first
available Emirates flight.
[29]
Nöckler prepared
an urgent application and, as noted, an urgent order was granted by
Yekiso J, effectively
ex
parte
. This was at
about noon. Nöckler managed to find a staff member of Emirates
at the airport, to whom she communicated the order.
Khan had already
been placed on the aircraft and had to be brought back into the
holding room as a result of the order.
[30]
The respondents, upon
learning of the order, wanted to anticipate the return day.
Negotiations between the legal representatives,
which carried on into
the evening, resulted in the amended order made by Schippers J. The
respondents were not, however, willing
for the revised arrangement to
extend beyond Monday 12 May 2014, which was thus the date to which
the matter was postponed. I have
already summarised the further
procedural history.
[31]
In the initial
answering papers filed on 12 May 2014, the respondents provided
further information relating to the grounds on which
entry had been
refused. They also said that Khan had failed to date to exercise his
right, in terms of
s 8(1)
of the act, to ask the Minister to
review or appeal the refusal of entry.
[32]
In the supplementary
answering papers filed on 24 May 2014, the respondents made
allegations concerning the alleged misrepresentations
made by Khan
when applying for permanent residence on 6 July 2011. It was clear,
they said, that Khan had obtained his current
relative’s permit
(and presumably earlier ones) by fraudulently failing to disclose his
marriage to Safia. The respondents
also now challenged whether a
civil marriage had ever occurred, alleging that the Department had no
record on its database of the
alleged marriage of 4 May 2006 and that
the official who had purported to issue the marriage certificate was
based in Mpumalanga
and was under investigation.
[33]
The respondents also
said, in their supplementary papers, that there was no proof that
Khan had been permitted by Pakistani law
to conclude a second
marriage, having regard to the requirements of the applicable
Pakistani legislation, the Muslim Family Laws
Ordinance of 1961.
Section 6 of the latter Ordinance allegedly requires a man who is
party to an existing marriage to obtain permission
from the
Arbitration Council before contracting a second marriage. The
respondents submitted that the applicant and Khan had failed
to
allege compliance with this requirement. It is doubtful, to my mind,
whether the content of Pakistani law on the point was properly
proved
in the present proceedings and it is in any event doubtful whether a
foreign restriction of that kind is an impediment to
a civil marriage
in South Africa.
[34]
In the supplementary
answering papers the respondents pointed out that Khan had still not
exercised the remedy afforded to him by
s 8(1)
of the
Immigration Act.
Khan
’s
‘release’ after 12 May 2014
[35]
As noted, at some stage
after 12 May 2014 the parties reached agreement that, instead of
being detained at a facility at the airport,
Khan could return to the
Eastern Cape subject to certain conditions. Counsel were agreed that
this interim arrangement did not
affect the legal position. In other
words, the applicant and Khan are legally in no better position than
if Khan were still being
detained in the pre-entry facility at the
airport.
Exhausting
internal remedy
[36]
Sections
8(1)
and (2) provide as follows:
‘
(1) An
immigration officer who refuses entry to any person or finds any
person to be an illegal foreigner shall inform
the person on the
prescribed form that he or she may in writing request the Minister to
review that decision and –
(a) 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
(b) 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.
(2) A person who was
refused entry or was found to be an illegal foreigner and who has
requested a review of such a decision
–
(a) in a case contemplated
in subsection (1)(a), and who has not received an answer to his or
her request by the time the relevant
conveyance departs, shall depart
on that conveyance and shall await the outcome of the review outside
the Republic; or
(b) in a case contemplated
in subsection (1)(b), shall not be removed from the Republic before
the Minister has confirmed the
relevant decision.’
[37]
I shall refer to the
review contemplated in
s 8(1)
as the ministerial appeal.
[38]
Initially Khan’s
case fell within
s 8(1)(a)
, because he was refused entry at a
time when the aircraft by which he had arrived was still at the
airport and the officials intended
that he should return to Pakistan
on that same aircraft. Because there was no space for him on the
aircraft, it seems to me that
s 8(1)(b)
became applicable; by
the time it became apparent that Khan could not return on the same
aircraft (about 13h00 on 8 May 2014),
Khan had not yet made a
ministerial appeal and the Minister had thus not yet considered any
such appeal. I think Khan would thus
have had three days from 8 May
2014 within which to make the appeal.
[39]
The decision of the
officials to refuse Khan entry and to find him to be an illegal
foreigner constituted ‘administrative
action’ as defined
in s 1 of the Promotion of Administrative Justice Act 3 of 2000
(‘PAJA’). In terms of
s 7(2) of PAJA a court is not
entitled to review administrative action ‘unless any internal
remedy provided for in any
other law has first been exhausted’.
If the court is not satisfied that an internal remedy has been
exhausted, the court
must direct the person concerned first to
exhaust the remedy. These requirements are subject to the
qualification that a court
may ‘in exceptional circumstances’
and on application by the affected person exempt him from the
obligation to exhaust
an internal remedy if the court deems it ‘in
the interest of justice’.
[40]
Section 8(1)
of the
Immigration Act is
an internal remedy as contemplated in
s 7(2)
of PAJA. In
Koyabe &
Others v Minister for Home Affairs & Others (Lawyers for Human
Rights as Amicus Curiae)
2010
(4) SA 327
(CC) the Constitutional Court emphasised the general
principle that internal remedies should be exhausted (paras 34-49).
With reference
specifically to the internal remedies afforded by
ss 8(1)
and (4) of the
Immigration Act (paras
50-55), the court
said that the remedies ‘illustrate the value and importance of
a tailored remedial structure designed to
cure a specific
administrative irregularity’ (para 54). On the one hand, a
finding that a person is an illegal foreigner
‘has a material
and adversely effect on that person’ and it is thus in his or
her interest that the decision be reviewed
speedily to ensure its
correctness and fairness. The State, on the other hand, ‘has a
legitimate interest in the security
of its borders and the integrity
of its immigration systems’ and must thus ‘take
reasonably speedy, yet constitutionally
compliant steps, to resolve
questions about the legality of the presence of foreign nationals in
its territory’.
[41]
In
Koyabe
the factual
position was that the Director-General had withdrawn the permanent
residence permits and status of the applicants. They
were already in
South Africa. They were thus not persons who had been refused entry
but they had been declared illegal foreigners
as contemplated in
s 8(1).
The Director-General’s decision to withdraw the
applicants’ permits was taken on 9 January 2007 and by 7
February 2007
their attorneys had been provided with adequate reasons
for the decision. Without pursuing a ministerial appeal, the
applicants
launched high court proceedings to review and set aside
the Director-General’s decision and also claimed interim
relief.
It appears from the unreported judgment in the court of first
instance ([2008] ZAGPHC 9) that the applicants launched their
application
on 8 February 2007, that interim relief was granted on 16
February 2007 but that the application was dismissed on 18 December
2007.
The basis of the dismissal was that the applicants had failed
to exhaust their
s 8(1)
remedy. This decision was upheld by the
Constitutional Court. Mokgoro J, who wrote the unanimous decision of
the court, held that
the applicants had shown no exceptional
circumstances exempting them from the duty to exhaust the internal
remedy (paras 72-74;
see also
Road
Accident Fund v Duma & Other Cases
2013
(6) SA 9
(SCA) para 25).
[42]
By the time the high
court in
Koyabe
dismissed the
application, the three-day limit for a ministerial appeal as laid
down in
s 8(1)(b)
had long-since expired. It is clear from the
confirmation of this decision by the Constitutional Court that the
duty to exhaust
an internal remedy does not disappear just because
the time-limit for invoking the internal remedy has passed (see also
Hoexter
Administrative
Law in South Africa
2
nd
Ed at 542). It nevertheless appears from the Constitutional Court’s
judgment that the three-day limit may not be immutable.
In para 55
Mokgoro J observed that the constitutionality of
s 8(1)
and the
time period stipulated therein were not before the court ‘and
this judgment remains silent on that issue’.
Although the order
of the Constitutional Court as recorded in para 88 of the judgment
was simply to dismiss the appeal, para 82
contained the following
direction:
‘
In
the light of this provision [
s 7(2)(b)
of PAJA
],
the applicants are directed to proceed within seven days of this
judgment with an application for a review of the decision withdrawing
their permanent residence status [
ie
in terms of
s 8(1)
of the
Immigration Act
],
before they embark on a judicial review, if necessary.’
[43]
This direction did not,
I assume, bind the Minister to consider the ministerial appeal on its
merits. The Minister may perhaps have
been entitled to refuse the
ministerial appeal on the basis that it was out of time.
Nevertheless, the direction given by the Constitutional
Court appears
to assume that the Minister would at least have been entitled to
entertain the appeal on its merits and potentially
to uphold it –
this despite the fact that the judgment of the Constitutional Court
was given on 25 August 2009, about two
and a half years after the
expiry of the three-day limit.
[44]
A similar approach was
adopted in
Havard &
Another v Minister of Home Affairs & Others
[2011]
ZAGPJHC 128. This was a case where the applicant had been refused
entry at OR Tambo International Airport. The refusal of
entry
occurred on 26 September 2011. On the following day he launched an
urgent application to prevent his deportation pending
a review by the
court of the decision declaring him to be an illegal foreigner. An
interim order was granted the same day. The
matter was then argued
before Wepener J on the 30 September 2011 who dismissed the
application with costs, principally on the basis
that the applicant
had failed to exhaust his internal remedy of a ministerial appeal. In
para 46, however, he gave a similar direction
to the one contained in
para 82 of
Koyabe
.
[45]
The importance of
exhausting the internal remedy contained in
s 8(1)
was also
emphasised by Murphy J in
Patel
& Another v Chief Immigration Officer, OR Tambo International
Airport & Others
[2009]
4 All SA 278
(GNP) (see para 42). In that case the affected person
had already been deported to India. The learned judge did not deal
with the
question whether the applicant would still have been
entitled to lodge a ministerial appeal.
[46]
Although the
respondents alleged that Khan had ‘chosen’ not to
exercise his right of ministerial appeal, I reject any
notion that he
waived his right to do so. Khan clearly wished to be in South Africa.
Indeed, I entertain considerable doubt that,
at the time he was
handed over to Emirates with a view to being placed on the same
aircraft by which he had arrived, he had properly
been informed of
his right of appeal. The document annexed by the respondents as being
the notification of the right of ministerial
appeal
[2]
is not the document prescribed under
s 8(1)
, which is Form 1 of
Annexure A to the regulations. What the respondents annexed as the
purported
s 8(1)
notification was the notification to Khan in
terms of ss 34(8) and 35(8) of the Act, the prescribed form for
which is Form
37 of Annexure A. As will appear, even the latter
notification was not in the prescribed form.
[47]
The document relied
upon by the respondents as the notification to Khan contained the
abbreviated grounds of refusal previously
mentioned and concluded
with the following:
‘
I
*wish/do not wish to request a review of this decision. My written
request *is attached/will be submitted within three days.’
Khan signed the form immediately beneath the quoted
words. The form does not contain an election as envisaged by the use
of the
asterisk.
[48]
This notification
did not pertinently inform Khan that the review was an internal
administrative one rather than a judicial review;
it did not identify
the statutory provision providing for the review; and it did not say
to whom the review lay. The prescribed
Form 1 requires that a person
refused entry should be informed as follows:
‘
In
terms of section 8(1) of the Act, you are hereby notified that you
may request the Minister to review the decision. However,
if the
conveyance you arrived on is on the point of departing, you shall
lodge a request for review immediately and depart and
await the
outcome thereof outside the Republic.
The conveyor responsible for
your conveyance to the Republic, namely… is liable for the
costs of your detention, maintenance
and removal from the Republic.’
(The prescribed form may itself be criticised on the
ground that it assumes that in all cases falling under s 8(1)(a)
the affected
person must depart and await the outcome of the review
from abroad, whereas in terms of s 8(2)(b) that is the case only
if
the person has not received an answer to his review by the time
the relevant conveyance departs, which admittedly is likely
to
be the most common situation.)
[49]
The officials were
required to furnish Khan not only with Form 1 but also with Form 37.
Although a document purporting to be a Form
37 was handed to Khan and
contained the concluding paragraph quoted earlier, the concluding
part of the prescribed Form 37 reads
thus:
‘
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 the 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 said 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(8) of the
Act, the conveyor responsible for your conveyance into the Republic,
namely…, shall be responsible
for the detention and removal of
a person conveyed and any costs related to such detention and removal
incurred by the Department.’
[50]
Khan admitted that he
received and signed the document annexed by the respondents as being
the notification of his right to a ministerial
appeal. He denied,
however, that the document was explained to him, which may be
supported by the fact that the form did not reflect
an election. He
alleges that he did not know he could request a review of the
decision and says that, if he was told that, he did
not understand
it. At a factual level, I find it difficult to conceive that, if,
when he was handed over to Emirates to be placed
on the aircraft by
which he had arrived, Khan had been clearly informed that he had a
right to ask the Minister urgently to review
the officials’
decision in terms of s 8(1)(a), Khan would not immediately have
asserted that right. He wished to remain
in South Africa. I do not
accept that he would have declined to exercise a right which might
have held out some hope of his
being able to remain, at least
as a temporary respite.
[51]
Furthermore, by 13h00
on 8 May 2014 it had become apparent that Khan could not depart on
the conveyance which had brought him to
South Africa. Section 8(1)(b)
thus became applicable. Once again, it is impossible to suppose that
Khan, if he had been properly
informed, would have not exercised the
right to lodge an appeal within three days (with the concomitant
protection against removal
from the Republic until his ministerial
appeal had been determined). Yet one finds that by late morning of
the following day (9
May 2014) he had been placed on another flight
to Pakistan. I reject as far-fetched the notion (if it is advanced by
the respondents)
that at that stage Khan was aware of his right in
terms of s 8(1)(b) or that he had been given due notice of that
right.
[52]
I thus consider that,
despite the existence of an internal remedy, the applicant was
entitled to approach the court as a matter
of urgency to prevent
Khan’s removal from the Republic. Had it not been for the order
granted by Yekiso J, there may have
been a grave violation of Khan’s
rights.
[53]
This does not mean,
however, that the form in which the applicant sought relief was
appropriate. She applied for an interim interdict
pending a final
determination by the court itself as to whether Khan should be
deported or unreservedly released. The appropriate
relief, having
regard to ss 8(1)(b) and 8(2)(b), would have been an interim
interdict pending the determination of a ministerial
appeal to be
lodged within three days. If the applicant and Khan had sought that
relief, they would have been correctly asserting
Khan’s right
in terms of s 8(1)(b) to lodge a ministerial appeal and his
right in terms of s 8(2)(b) not to be
removed from the Republic
pending the determination of the ministerial appeal.
[54]
Since the applicant and
Nöckler were faced with a pressing emergency on the morning of
Friday 9 May 2014, it may be unfair
to criticise the applicant for
having failed, in the papers issued on that date, to appreciate the
correct legal position. However,
by Monday 12 May 2014 the
respondents had filed answering papers in which they squarely took
the point that Khan had failed to
exercise the s 8(1) remedy. By
then the applicant was assisted not only by Nöckler but by
counsel. Despite this fact,
the applicant has persisted in claiming
the final relief set out in the original notice of motion –
this in the face of clear
authority, most importantly
Koyabe
,
regarding the need to exhaust the s 8(1) remedy.
[55]
It was only during oral
argument that Mr Uijs mentioned, as a fall-back position, the
granting of an interim order pending a ministerial
appeal. He told me
from the bar, based on instructions from Nöckler, that a
ministerial appeal had as a fact been sent electronically
to the
Minister on Sunday 15 June 2015. Mr Papier for the respondents said
he knew nothing of that and urged me to adjudicate the
case on the
basis that no ministerial appeal has been lodged. He pointed out,
correctly, that Nöckler had not mentioned in
her affidavit of 17
June 2014, made in support of condonation, that a ministerial appeal
had now been lodged (though I do not suggest
that her instructions to
Mr Uijs were factually incorrect).
[56]
Mr Uijs submitted that,
because the applicant had been entitled to come to court urgently,
this court could and should deal with
the matter on its merits. I
reject that contention. From the outset, the correct remedy was an
interim interdict pending the determination
of a ministerial appeal.
The applicant and Nöckler knew, when they approached the court
during the morning of 9 May 2014,
that Khan had been refused entry.
The case was thus objectively one falling, from the outset, within
s 8(1), even if this
was not appreciated in the rush of that
morning’s events.
[57]
Mr Uijs said that there
could not have been a meaningful ministerial appeal as at 8/9 May
2014 because the grounds on which Khan
was being sent back to
Pakistan were not known. That is incorrect. The applicant said in her
founding affidavit that she had been
told that Khan was to be sent
back to Pakistan because he had a wife and children there and because
Khan and she were supposedly
not really married given that they did
not have any children. This was a sufficient basis to lodge a
ministerial appeal. Khan himself
knew the grounds on which he was to
be deported. The applicant and Nöckler were not allowed to see
Khan, and the application
to court was thus made without the benefit
of consultation with him. However, if the respondents had continued
to refuse Khan access
to an attorney, appropriate relief in that
regard could have been obtained. Khan would have been entitled to
supplement his ministerial
appeal if additional reasons for refusal
of entry were supplied.
[58]
I do not think that
there are exceptional circumstances for exempting Khan from complying
with his internal remedy. There are various
disputed facts which are
more appropriately, at least at this stage, a matter for assessment
and possible investigation by the
Minister. To the extent that the
officials exercised a discretionary power, there may also be issues
of policy which are more properly
the province of the Minister than
the court.
[59]
However, it does not
follow from this that the present application should be dismissed
outright. If I were to give a direction of
the kind made in
Koyabe
and
Havard
,
it seems to me to be just to extend the interim relief pending the
determination of the ministerial appeal. The granting of an
interim
interdict was not considered and does not seem to have been necessary
in
Koyabe
because
the applicants had already been permitted entry into South Africa
when their permanent residence permits were withdrawn.
The Department
appears not to have threatened actual deportation until proceedings
were finalised. The Constitutional Court must
have taken it for
granted, I think, that the Department would not proceed to deport the
applicants pending the determination of
their ministerial appeal,
assuming such an appeal were made within the seven days mentioned in
para 82 of the judgment.
[60]
I think there is every
reason in the present case to make a direction of the kind made in
Koyabe
.
The notification to Khan of his right of appeal appears to have been
deficient. The applicant was entitled to approach the court
for
urgent relief on his behalf, even though she and Nöckler should
have tailored the relief sought with reference to
s 8(1)
of the
Immigration Act. The
initial failure to appreciate the correct
position should not be too harshly criticised, given the urgency of
the situation. The
applicant and Khan, it can safely be assumed, were
acting on legal advice in persisting with the form of relief
initially claimed.
It is now just over six weeks since Khan was
refused entry. But for the unavailability of an urgent judge during
the week of 12-16
May 2014, this case would have been dealt with more
promptly. The unavailability of a judge is not the fault of either of
the parties.
In
Koyabe
a direction to
pursue a ministerial appeal was given several years after the
decision declaring the affected persons to be illegal
foreigners.
[61]
Furthermore, I do not
think that this is a case where Khan’s position can be said to
be completely hopeless so that they would
be nothing for the Minister
seriously to consider in a
s 8(1)
appeal. I do not intend to
decide any of the issues which the Minister will need to consider but
I shall, under a separate heading,
briefly mention certain legal
questions which might warrant the Minister’s attention.
[62]
Since an appeal in
terms of
s 8(1)(b)
must be brought within three days of the
relevant decision, I see no reason to give Khan more than three days
from the date of
my order. Indeed, according to the instructions
given by Nöckler to Mr Uijs, the internal appeal has already
been lodged.
The timing of the determination of the appeal will then
be in the Minister’s hands. The direction I give will not
compel
the Minister to deal with the appeal on its merits. I prefer
to express no opinion on the question whether he could properly
refuse
the appeal on the basis that Khan has left it too late.
[63]
Insofar as the other
requirements for an interim interdict are concerned (in particular,
irreparable harm and balance of convenience),
I think at this stage
that the case tilts in favour of Khan and the applicant. In the
ordinary course, and save in the circumstances
contemplated in
s 8(1)(a)
of the
Immigration Act, an
aggrieved person who has
been refused entry is entitled as of right not to be removed from the
Republic pending a determination
of a ministerial appeal
(s 8(20(b)).
If I am entitled (as
Koyabe
indicates) to give a direction that a ministerial appeal now be
lodged, the balance of convenience is in favour of preserving that
state of affairs. If Khan were immediately required to return to
Pakistan to await a decision which might be made within a week
or two
(this is in the Minister’s hands), he would not only be
separated from his alleged South African wife and deprived
of the
advantages of direct consultation with his South African legal
representatives
,
;
he would also be liable for the costs of travelling to Pakistan and
then (if his ministerial appeal succeeds) flying back to South
Africa.
[64]
I was addressed on
questions relating to whether technically Khan had been ‘arrested’
or ‘detained’ and
whether at any given time he was in the
custody of the Department’s officials or of Emirates Airline.
Counsel were unable
to explain to me why the answers to those
questions mattered to the relief now at stake. I may say, though,
that, if Khan were
currently being held at the pre-entry facility at
the airport pending the determination of a ministerial appeal, he
would not in
my view be entitled to be released into South Africa
pending the Minister’s decision. In that regard, I agree with
what Savage
AJ said in
Mahlekwa
v Minister of Home Affairs & Others
[2014]
ZAWCHC 89
paras 18-24 (and see also
Ulde
v Minister of Home Affairs & Another
2008
(6) SA 483
(W) paras 30-35). As explained by Yacoob J, writing the
majority judgment in
Lawyers
for Human Rights & Another v Minister of Home Affairs &
Another
2004 (4) SA
125 (CC),
s 34(1)
of the
Immigration Act, which
authorises an
immigration officer to arrest an illegal foreigner without the need
for a warrant but which incorporates safeguards
for the arrested
foreigner, is concerned with an illegal foreigner ‘who has
already entered the country in the sense of being
beyond the
restricted area at a port of entry’ (para 8). ‘Detention’
prior to entry is governed by other provisions,
including
s 34(8))
and
35
(8).
[3]
Jeebhai v Minister
of Home Affairs & Another
2009
(5) SA 54
(SCA), to which I was referred, was a case of a
s 34(1)
arrest of a foreigner already in South Africa.
The
validity of the alleged South African marriage
[65]
Because of the
conclusion I have reached, I do not intend to determine the questions
which the Minister may be called upon to decide
in the ministerial
appeal. However, since I was addressed on the merits of the matter, I
do not think it out of place to mention
certain legal questions which
might warrant the Minister’s consideration in the ministerial
appeal. These concern the effect
of Khan’s Pakistani marriage
on the alleged marriage to the applicant.
[66]
The respondents’
contention is that the alleged marriage between Khan and the
applicant is one which the
Immigration Act does
not recognise, having
regard to the earlier marriage to Safia. The relevance of this is
that in terms of
s 18(1)
a relative’s permit, which is the
kind of permit on which Khan relied for entry in terms of
s 9(4)(b)
,
can only be issued to a foreigner who is a member of the ‘immediate
family’ of a South African citizen or permanent
resident. It is
common cause that the applicant is a South African citizen. The
phrase ‘immediate family’ is defined
in
s 1(1)
as
meaning ‘persons within the second step of kinship, where
marriage or a spousal relationship is counted as one of such
steps…’.
So a person who is married to a South African citizen or in a spousal
relationship with a South African citizen
is part of the citizen’s
‘immediate family’.
[67]
Section 1(1)
defines
the word ‘spouse’ as meaning a person who is a party to
‘(a) a marriage, or a customary union; or
(b) a
permanent homosexual or heterosexual relationship as prescribed’.
‘Prescribed’, which here applies
only to para (b) of the
definition of ‘spouse’, means ‘prescribed by
regulation’. The word ‘marriage’
is defined as
meaning ‘(a) a marriage concluded in terms of the
[Marriage Act 25 of 1961]; or (b) a legal marriage
under the
laws of a foreign country’. The phrase ‘customary union’
is defined as meaning ‘a customary union
recognised in terms of
the [Recognition of Customary Marriages Act 120 of 1998]’.
[68]
The Department’s
officials were of the view that, because Khan was already married to
a woman in Pakistan, he could not lawfully
have married the applicant
in South Africa. As I understood Mr Papier, he ended up submitting in
oral argument that this conclusion
flowed not from our general law of
marriage but from the definitions I have quoted from the
Immigration
Act. The
argument was that Khan’s marriage to Safia was a
‘legal marriage under the laws of a foreign country’ and
thus
a ‘marriage’ as defined in the
Immigration Act. From
this it followed, he contended, that, whatever our general law of
marriage might be, Khan was already married to Safia when he
purported to marry the applicant in South Africa and that the second
marriage was thus invalid.
[69]
Mr Papier also referred
to
regulation 3
, which contains the regulations prescribing the form
of ‘permanent homosexual or heterosexual relationship’
which will
qualify the parties to the relationship as ‘spouses’.
It appears from
regulation 3
that a foreigner seeking to be
recognised as a ‘spouse’ on this basis must submit an
affidavit signed by the foreigner
and the South African partner
attesting that their relationship is ‘to the exclusion of any
other person’ and that
neither of them is at the relevant time
‘a partner to a marriage’. In terms of the definitions in
regulation 1
, the word ‘marriage’ in the regulations has
the meaning assigned to it in the Act. Because Khan’s marriage
to
Safia is a ‘marriage’ as defined in the
Immigration
Act, Khan
could not, for as long as that foreign marriage subsists,
satisfy the prescribed requirements for a ‘permanent homosexual
or heterosexual relationship’ with a partner in South Africa.
[70]
It appears to me that
the officials’ view that Khan could in principle not qualify
for a
s 18
relative’s permit because of the pre-existing
foreign marriage is unsound. The question whether a foreigner is
married to
a South African citizen within the meaning of para (a) of
the definition of ‘marriage’ and para (a) of the
definition
of ‘spouse’ is determined by whether the
marriage between the foreigner and the South African is a marriage
concluded
in terms of the Marriage Act. Whether the union is such a
marriage is determined by the Marriage Act and the common law
governing
the validity of marriages. Likewise, the question whether a
foreigner is the ‘spouse’ of a South African by virtue of
being a party to a ‘customary union’ depends on whether
the union is recognised as a customary union in terms of the
Recognition of Customary Marriages Act. The answers to these
questions are not found in the
Immigration Act.
[71
]
Mr Papier’s
reliance on para (b) of the definition of ‘marriage’ in
the
Immigration Act seems
to me to be misplaced, because that part of
the definition is only relevant if a foreigner claims to be the
‘spouse’
of a South African citizen or South African
permanent resident by virtue of a legal foreign marriage between the
foreigner and
the South African. That is not the basis on which Khan
claims to be the applicant’s ‘spouse’. Khan claims
to
be the applicant’s ‘spouse’ because he has
concluded a marriage with her under the Marriage Act and because they
are also party to a ‘customary union’ recognised in terms
of the Recognition of Customary Marriages Act.
[72]
Similarly, Mr Papier’s
reliance on para (b) of the definition of ‘spouse’ seems
to me to be misconceived, because
that part of the definition is only
relevant if a foreigner claims to be the ‘spouse’ of a
South African citizen or
a South African permanent resident by virtue
of being a party to a ‘permanent homosexual or heterosexual
relationship as
prescribed’. That is not the basis on which
Khan claims to be the applicant’s ‘spouse’ (see the
preceding
paragraph). Regulation 15 sets out the requirements with
which an applicant for a relative’s permit must comply. In
regard
to proof of the relationship, regulation 15(1)(c) states that,
where the applicant for the relative’s permit is the ‘spouse’
of a citizen or permanent resident, such applicant must comply with
regulation 9(3)(a) and (b). In regard to regulation 9(3)(a),
it
suffices, for a person who claims to be a ‘spouse’ by
virtue of being civilly married to a South African citizen,
to
produce a marriage certificate. If the applicant, instead, relies on
being party to a ‘permanent homosexual or heterosexual
relationship’, regulation 9(3)(a) requires the applicant to
produce proof of the relationship as contemplated in regulation
3.
(The foreigner in
Mahlekwa
v Minister of Home Affairs & Others supra
claimed to be a spouse on this latter basis.) Regulation 9(3)(b)
requires an affidavit substantially in accordance with Form 12
to be
submitted. Form 12 is framed on the premise that the foreigner will
be attempting to establish that he or she is party to
a ‘permanent
homosexual or heterosexual relationship’; it is inapposite in
the case of persons to a civil marriage
in South Africa.
[73]
If these views are
correct, one would need to consider whether, under our general law of
marriage, a marriage under the Marriages
Act is precluded where one
of the parties is already married under the laws of a foreign
country. The Marriages Act does not contain
a definition of
‘marriage’ and does not determine whether one person may
lawfully marry another. That is determined
by the common law. A
subsisting marriage constitutes an absolute impediment to a valid
second marriage in South Africa (
LAWSA
2
nd
Ed Vol 16 para 24). But what is a subsisting marriage for purposes of
this rule? (Exactly the same question would now arise in
relation to
the conclusion of a valid South African civil union in terms of the
Civil Union Act 17 of 2006
– see
s 8(6)
of that Act.)
[74]
Since our law normally
recognises, as valid in this country, foreign marriages which are
valid under the foreign law, and since
our law of marriage is
conventionally based on monogamy, it is generally the case that a
person who is validly married under the
laws of a foreign country may
not conclude a valid civil marriage in South Africa. However, in
Seedat’s
Executors v The Master (Natal)
1917
AD 302
it was held that our law does not recognise a foreign
polygamous union as a valid marriage, even though it might be
recognised
as a valid marriage under the foreign law. Innes CJ, who
gave the judgment of the court, said that the marriage was polygamous
if it was one ‘the nature of which is consistent with the
husband marrying another wife during its continuance’ and
that
‘[w]hether he exercises his privilege or not is beside the
question’ (308; see also
Ebrahim
v Essop
1905 TS 59
at 61;
R v Sukina
1912 TS 1079
at
1083;
Esop v Union
Government (Minister of the Interior)
1913
CPD 133
at 135;
Ismail
v Ismail
1983 (1)
SA 1006
(A) at 1025G-1026B).
[75]
Seedat
and
the other cases mentioned in the preceding paragraph were concerned
with the general question as to what is a ‘marriage’
for
purposes of our law. They did not relate specifically to the question
whether a person who was already party to a polygamous
union, valid
under the law of the country where it was concluded, could enter into
a valid marriage in South Africa. Nevertheless,
if the correct
question, in determining the validity of the second marriage, is
whether the first union constitutes one which our
law would recognise
as a marriage, it appears to me that
Seedat
and the other
authorities I have mentioned would dispose of that question; Khan was
not, when he allegedly married the applicant
in South Africa, party
to a union which our law would recognise as a ‘marriage’,
and the earlier union was thus not
an impediment to his marriage in
South Africa.
[76]
The cases cited in
LAWSA
where
later marriages were invalidated by earlier marriages (para 24
footnote 2) appear all to have been cases of earlier civil
marriages
or marriages under foreign monogamous legal systems. In
Daniels
v Campbell NO & Others
[2004] ZACC 14
;
2004
(5) SA 331
(CC) the court held that the word ‘spouse’ in
the
Intestate Succession Act 81 of 1987
included the widow of a
polygamous but
de
facto
monogamous
Muslim marriage but the decision was not founded on a conclusion that
the Muslim marriage was a valid marriage for purposes
of South
African law. In
Ryland
v Edros
1997 (2) SA
690
(C) Farlam J, as he then was, held, basing himself on
constitutional values, that it would not be contrary to public policy
to
enforce the proprietary aspects of a Muslim marriage agreement
between parties to a
de
facto
monogamous
union. He did not decide that the Muslim union was a valid ‘marriage’
for purposes of our law.
[77]
I simply add that there
would be a deep irony in an argument that, in a more enlightened era,
our law should recognise a polygamous
marriage, valid under the
foreign law, as a marriage in South Africa while simultaneously
contending that, because of that very
polygamous marriage, a civil
marriage in South Africa is void on the grounds of our law’s
disapproval of polygamy.
[78]
In regard to customary
marriages, s 22 of the Black Administration Act 38 of 1927 was
amended in 1988 by the Marriage and Matrimonial
Property Law
Amendment Act 3 of 1988. The effect of the amendment was that the
existence of a customary marriage, like a civil
marriage, became an
impediment to the conclusion of a civil marriage to a third party.
Prior to 1988 it appears that the existence
of a customary marriage
was not an impediment to a civil marriage with a third party
(Sinclair
The Law of
Marriage
Vol 1 1996
at 219)
[4]
.
Since the coming into force of the Recognition of Customary Marriages
Act, a customary marriage has been recognised as a marriage
for all
purposes (s 2(1)). This would not preclude a further customary
marriage, given that customary marriage is polygamous.
However, a
customary marriage would, by virtue of its statutory recognition,
preclude a civil marriage between one of the partners
and a third
party (see s 2(2); and see also s 10(1), which permits
partners to a customary marriage to conclude a civil
marriage only if
neither of them is a spouse in another subsisting customary
marriage).
[79]
It may be, however,
that the correct question is not whether the first union is
recognised as a ‘marriage’ for purposes
of our law but
whether, where such a union subsists, the parties to the second
marriage can truly be said to be undertaking the
pact of marriage. It
is conventionally said that ‘marriage’ in our law is the
‘voluntary union of one man and
one woman to the exclusion of
all others while it lasts’ (
LAWSA
op cit
para 12;
Minister of Home
Affairs & Another v Fourie & Another (Doctors for Life
International & Others, Amici Curiae); Lesbian
and Gay Equality
Project & Others v Minister of Home Affairs & Others
[2005] ZACC 19
;
2006
(1) SA 524
(CC) para 3). In the latter case, this common law
definition and the resultant form of the marital affirmation
specified in s 30
of the Marriage Act were found to be
constitutionally invalid to the extent that they were confined to
heterosexual unions. Sachs
J observed (para 3 footnote 2) that in
some formulations of the common law definition of ‘marriage’
it was said that
the union also needed to be entered into ‘for
life’. He remarked that this would seem to be a misnomer, given
the high
degree of divorce.
[80]
It will be seen that
the conventional common law definition requires the union to be ‘to
the exclusion of all others while
it lasts’. This aspect of the
common law definition is not expressly reflected in the marriage
formula specified in s 30(1)
of the Marriage Act though, having
regard to the common law, it may perhaps be said to be inherent in an
affirmation that the one
partner takes the other as his or her lawful
‘wife’/‘husband’/‘spouse’ (the
last of these three
is to be read into s 30(1) pursuant to the
order in
Lesbian and
Gay Equality Project
at 586G). It may thus be suggested that the true question to be
answered is whether Khan and the applicant undertook to be ‘husband’
and ‘wife’ under our law, having regard to the fact that
neither of them regarded their union as being to the exclusion
of
Khan’s union with Safia
.
(The applicant said
in her founding affidavit that it was a tenet of their religion and
of their respective cultures that a man
could have more than one
wife.)
[81]
I have not found any
authority dealing with that question. Although in the
Lesbian
and Gay Equality Project
case
a conventional common law definition of marriage was given as a
preface to the discussion, the only point under consideration
was the
heterosexual element of the definition. Sinclair points out that each
of the components of the common law definition of
marriage is open to
debate (
op
cit
pp 305-312;
see also by the same author in
Boberg’s
The Law of Persons and the Family
2
nd
Ed at 164-170), including the supposed requirement of exclusivity (at
p 310). Her statement that prior to 1988 a customary
marriage
was no impediment to a subsequent civil marriage to another person by
either of the parties (219) appears to be against
the notion that a
requirement of exclusivity would operate to preclude a civil
marriage.
[82]
Since it was not
argued, I prefer to express no opinion on the import and validity of
the conventional phrase ‘to the exclusion
of all others’
in the common law definition of marriage and whether a marriage is
void where the partners have a common understanding
that one or both
of them may continue with or conduct liaisons with a third party; but
they are questions on which the Minister
may need to form an opinion
in dealing with Khan’s ministerial appeal.
[83]
Whether Khan’s
alleged customary marriage to the applicant is valid (and thus a
separate basis for the alleged spousal relationship
between them)
turns on the Recognition of Customary Marriages Act and customary
law. The respondents’ counsel, in their heads
of argument,
submitted that ss 10(1) and (4) of the latter Act means that,
because of the marriage to Safia, there could not
be a valid
customary marriage. That submission, which I do not understand, seems
to have been linked to the contention that there
could not be a valid
civil marriage between them. The content of customary law was not
debated before me. All I would say is that
there is nothing in the
Recognition of Customary Marriages Act which appears to me to have
the effect of precluding a customary
union where one of the parties
is already party to a foreign polygamous marriage nor have I found
reference to such a prohibition
in the commentary on customary
marriage in
LAWSA
2
nd
Ed Vol 32.
[84]
I do not finally decide
these questions. However, they may require consideration by the
Minister in the course of the ministerial
appeal.
Other
matters
[85]
The other questions
which will or may arise in the ministerial appeal appear to me to be
primary factual, for example (but non-exhaustively):
(i) whether
Khan made misrepresentations to the Department when applying for his
relative’s permit (the evidence in
the present case concerns
alleged misrepresentations when Khan applied for permanent residence
status – different prescribed
forms are used when seeking
a relative’s permit); (ii) whether, if Khan had disclosed
his Pakistani marriage when applying
for his relative’s permit
(assuming he was obliged to disclose it and failed to do so), a
relative’s permit would and
could permissibly have been
refused; (iii) whether Khan as a fact concluded a marriage or
customary union with the applicant,
and whether the marriage
certificate he produced was genuine or bogus; (iv) whether Khan was
conducting work in South Africa in
violation of s 18(2) and
whether, assuming this were the only obstacle to his re-entry into
South Africa, he should still
have been refused entry (he may in good
faith have believed he was still entitled to work
[5]
;
and perhaps, if he had been told that his right to work had lapsed,
he would have undertaken not to work until he had obtained
the
necessary permit).
Conclusion
and costs
[86]
For reasons I have
explained, I intend to make a direction of the kind made in
Koyabe
and to incorporate
it in my order. I must emphasise that Khan is being afforded an
indulgence, since the ministerial appeal should
have been brought
shortly after 8/9 May 2014. Despite the circumstances of this case,
the ministerial appeal retains its character
as an expeditious review
by the Minister of his officials’ decision. It will be for the
Minister to decide what process he
follows.
[87]
I intend to extend the
interim arrangements reflected in the order of Bozalek J, pending the
determination of the ministerial appeal.
However, and because those
arrangements were reached at a time when the respondents expected
Kahn’s fate to be determined
one way or the other pursuant to a
court hearing on 6 June 2014, I shall make provision for the
respondents to apply, on the same
papers supplemented as needs be and
on notice to the applicant, for an amendment of the interim
arrangements pending the determination
of the ministerial appeal. The
respondents might, for example, wish to persuade the court that Khan
should await the outcome of
the ministerial appeal at the pre-entry
facility at the airport or that he should be required to take up
accommodation at an hotel
at the airport (which was the temporary
arrangement reflected in the order of Schippers J).
[88]
As to costs, I think
the applicant was entitled to seek urgent relief on 9 May 2014 but
she misconceived the form of interdict to
which she and Khan were
entitled. The fact that the matter was not heard during the week of
12 May 2014 was due to the unavailability
of an urgent judge. Neither
side is to blame for that. I thus think that the fairest course is to
require the parties to bear their
own costs in respect of the
appearances on 9 May 2014 and 12-16 May 2014.
[89]
The application was
intended to serve before me on 5 June 2014 as the duty urgent judge,
but owing to more pressing matters I was
unable to deal with the case
until the following day. Again, therefore, the parties will need to
bear their own costs in respect
of 5 June 2014.
[90]
In regard to the
appearance on 6 June 2014, I have already said that the applicant
should bear those costs, since the postponement
was attributable to
the applicant’s failure to file the correct supplementary
replying papers.
[91]
In regard to the
appearance on 19 June 2014, when the matter was finally argued, the
respondents have been vindicated in their contention
that Khan should
have exhausted his s 8(1) remedy. I have decided, in the
interests of justice, to afford Khan the opportunity
now to exhaust
that remedy, but in my view the applicant, who brought the
application for Khan’s benefit, must bear the costs
of the
hearing on 19 June 2014, including those associated with the
preparation of heads of argument. She will also need to bear
the
costs of the application generally (ie those relating to the
respondents’ consideration of the application and the
preparation
of their answering and supplementary answering papers).
[92]
Mr Papier submitted
that the applicant was acting for the benefit of Khan and that Khan
effectively made himself a party to the
application when he made the
replying affidavit and the supplementary replying affidavit. Mr Uijs
did not oppose the submission
that Khan could be held liable for any
costs properly awarded against the applicant. I thus intend to direct
that the applicant
and Khan shall be jointly and severally liable for
the costs in question.
[93]
Although the case was
not without its difficulties, I do not think it was of sufficient
complexity or importance as to warrant burdening
the applicant and
Khan with the costs of two counsel.
[94]
I make the following
order:
[a] Condonation
is granted to the applicant for the late filing of the supplementary
replying affidavit. The parties
shall bear their own costs in respect
of the condonation application.
[b] In
terms of
s 7(2)(b)
of the
Promotion of Administrative Justice
Act 3 of 2000
, Murad Khan (holder of Pakistani passport VY4117561)
(‘Khan’) is directed to exhaust the remedy afforded to
him by
s 8(1)
of the
Immigration Act 13 of 2002
, namely his
right to request the first respondent (the Minister of Home Affairs)
to review the decision taken on 8 May 2014 by
one or more officials
of the Department of Home Affairs to refuse him entry into South
Africa.
[c] If
the said request has not already been lodged with the first
respondent, Khan shall, if he intends to avail himself
of the said
internal remedy, deliver the request to the first respondent within
three calendar days from the date of this order.
[d] Pending
the determination by the first respondent of Khan’s request as
aforesaid, the interim arrangements
contained in the order of this
court dated 16 May 2014 shall, subject to [e] below, continue to
apply.
[e] The
respondents are granted leave to apply on the same papers, duly
supplemented as needs be and on notice to the
applicant and Khan care
of the applicant’s attorneys of record, for an order to amend
the said interim arrangements.
[f] The
interim arrangements shall lapse if the first respondent dismisses
Khan’s request or if Khan (if he has
not already filed a
request) fails to deliver the request within three calendar days from
the date of this order. This direction
is without prejudice to Khan’s
right to apply, in fresh proceedings, for interim relief if the first
respondent should dismiss
his request.
[g] Save
as aforesaid, the application is dismissed.
[h] The
applicant and Khan shall jointly and severally be liable for the
respondents’ costs of the application,
including the costs of
the appearances on 6 and 19 June 2014 but excluding the costs of any
earlier appearances. Save as aforesaid,
the parties shall bear their
own costs.
ROGERS
J
APPEARANCES
For Applicant: Mr D Uijs SC
Instructed by:
Tanya Nöckler Attorneys
3
rd
Floor, Piazza on Church Square
39 Adderley Street
Cape Town
For Respondents: Mr GR Papier and Mr C Simon
Instructed
by: State Attorney
Cape Town
[1]
See
Fedsure Life
Assurance Co Ltd v Worldwide Africa Investment Holdings (Pty) Ltd &
Others
2003 (3) SA 268
(W) where an
interim interdict was granted pending a final determination by an
arbitrator.
[2]
Para 16 at record 16 read with the form at record
42-43.
[3]
The Constitutional Court in
Lawyers
for Human Rights
was dealing with the
Immigration Act as
it read prior to the amendments effected by the
Immigration Amendment Act 19 of 2004
. The latter Act, among other
things, jettisoned the wide definition of 'ship' referred to by
Yacoob J in para 11 (a definition
which extended the ordinary
meaning of the word so as to include aircraft and other prescribed
conveyances) and introduced the
term 'conveyance'. The word 'ship'
nevertheless remains in s 34(8). The latter provision must thus
now apply only to a 'ship'
in the conventional sense. Section 35(8)
now covers detention and removal in the case of illegal foreigners
who arrive at ports
of entry on conveyances in general.
[4]
The position may have been different in the
former Southern Rhodesia (see
R v
Tarasanwa
1948 (2) SA 29
(SR) where
Thomas J said that the conclusion of a civil marriage by a person
who was already married to someone else by customary
law constituted
the crime of bigamy). I have found no similar authority in South
Africa (and cf Snyman
Criminal Law
5
th
Ed at 401-402).
[5]
Khan says in the replying affidavit that he was
told by a Home Affairs official that he did not need to renew his
work permit
because he qualified for permanent residence and would
be receiving a permanent residence permit in due course. He named
this
official as ‘M’Jacky’. In his supplementary
replying affidavit he points out that it appears from the documents
annexed by the respondents to their supplementary answering papers
that the official who signed Khan’s permanent residence
documentation had the surname ‘Majiki’. There may be
merit in Khan's explanation that this was the person whose name
he
had earlier given to his lawyers and which they had rendered,
phonetically, as ‘M’Jacky’. As noted, it does
not
appear from the papers why no decision was apparently made on Khan’s
application for permanent residence status dated
6 July 2011.