About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 181
|
|
Chen and Another v Director-General Home Affairs and Others (18985/2014) [2014] ZAWCHC 181 (2 December 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No 18985/2014
DATE:
02 DECEMBER 2014
In the matter
between:
MEIZHU
CHEN
................................................................
First
Applicant
TONGXIANG
GAO
......................................................
Second
Applicant
And
DIRECTOR-GENERAL:
HOME AFFAIRS
...................
First
Respondent
MINISTER OF HOME
AFFAIRS
..............................
Second
Respondent
SINGAPORE
AIRLINES
............................................
Third
Respondent
Court: RILEY AJ
Heard: 3 November
2014
Delivered: 2
December 2014
REASONS
FOR ORDER
RILEY AJ:
[1] On 3 November
2014 I heard argument by the parties and on 4 November 2014, due to
the urgency of the matter, I made an order
that:
‘1. Pending
the final determination of the first applicant’s application
for the judicial review of the decision of
5 October 2014 to refuse
her entry into the Republic of South Africa, the first and second
respondents are to permit the first
applicant to enter and remain in
the Republic of South Africa, subject to reasonable terms and
conditions, as prescribed by the
first respondent.
2. If the
application for judicial review has not already been issued it must
be issued within 10 days of the granting of this order,
failing which
the relief in the preceding paragraph shall lapse.
3. The first and
second respondents are to pay the costs of this application.
4. Written reasons
for this order will be furnished in due course.’
These are my reasons
for the order.
[2] The applicants,
Meizhu Chen and Tongxiang Gao, are Chinese nationals who were married
in conformity with “The marriage
law of the People’s
Republic of China” on 13 April 1999. They seek an urgent order
directing that first and second
respondents permit the first
applicant to enter the Republic to allow her to continue working at
her existing place of employment
at Erf 3402 Hill Street,
Stutterheim, Eastern Cape, pending the outcome of the first
applicant’s internal review application
to the second
respondent, and directing that should the second respondent’s
decision in terms of the internal review be unfavourable
that first
applicant be permitted to remain in the Republic and work pending her
rights of judicial review of that decision.
[3] It is common
cause that first applicant has duly exhausted the internal review
process to request second respondent to review
the decision of an
immigration official, Unathi Mfebe (‘Mfebe’), in
accordance with
s 8(1)
of the
Immigration Act 13 of 2002
as amended
(‘the Act’) read with the Immigration Regulations 2014
(‘the Regulations’), that came into effect
on 26 May
2014. On 28 October 2014 second respondent informed first applicant
that the decision of Mfebe had been confirmed, but
gave no reasons.
First applicant now intends to apply for the judicial review of the
first and second respondents’ decisions
formally. At the time
of the hearing of this application no such review proceedings had
been brought.
THE FACTS
[4] First applicant
is the holder of a work visa issued to her on 18 January 2013 and
which expires on 17 January 2016. In terms
of the visa first
applicant is authorised to enter the Republic and be gainfully
employed by a specific employer in the Republic.
The first applicant
is employed at Meizhu Trading at 52 Lower Mount Street, King
William’s Town.
[5] On 5 October
2014 the first applicant together with the second applicant, her
husband, entered the country at Cape Town International
Airport.
First and second applicant had returned to China briefly to attend
first applicant’s father’s funeral. The
second applicant
was allowed through passport control, but the first applicant was
not.
[6] Upon entry she
was interviewed by Mfebe who recorded the incident in her
investigating diary. According to Mfebe she was attracted
to and
profiled the first applicant because there was ‘tempering’
(sic) with the permit in her passport. It is not
in dispute that this
permit is completed by hand by officials of the department and that a
‘1’ had been changed to
a ‘4’ on the portion
where the first applicant’s passport number was written.
[7] She took the
first applicant aside and commenced questioning her, initially
without an interpreter, and later with one over
the telephone. The
answers she received via the interpreter raised her suspicions and
she informed the first applicant that:
‘I am refusing
her entry in the country and that I am ‘sanding’ (sic)
her back with the same flight she came with.
She now understood
English and asked me why I am sending her back. I informed her that
she is not giving me the satisfaction to
be in the Country because
she can not (sic) provide me with any information I am requesting
from her’.
After having
communicated the decision to the first applicant, first applicant
gave Mfebe what Mfebe says was the first applicant’s
‘boss’s’
telephone number. Mfebe telephoned the number and the first
applicant’s brother-in-law, who had
also arrived at Cape Town
International Airport on the same flight with first applicant,
answered. The first applicant told Mfebe
that her brother-in-law
would have second applicant’s number and that he would have the
‘boss’s’ number.
It is clear that there was
miscommunication between first applicant and Mfebe, due to the
language difficulties and the failure
to use an interpreter, as to
who Mfebe believed she was calling. Mfebe clearly believed she was
speaking to first applicant’s
brother. Mfebe says she called
the second applicant, but that:
‘another
Chinese lady answered the phone. I asked for the number but he was
not known to this lady. I redialled the number,
now a guy answered
and claimed to be Ms Chen’s husband and I asked her for a name
and he gave me a total different name of
Ms Li. I have asked brother
to leave the office after I checked his permit too.’
According to Mfebe,
first applicant then took money from her bag and begged her not to
return her to China, because she wants to
work in South Africa.
[8] According to the
first applicant she was taken aside and asked questions concerning
her work permit when she walked up to the
immigration desk with
second applicant and two others. Due to her lack of English she
attempted to guess what the immigration officer
was asking her, but
could not answer the questions regardless.
[9] First applicant
can hardly speak English and when Mfebe asked if she needed an
interpreter she said yes. Mfebe then called a
certain Gang Dong
(‘Dong’), an admitted advocate and sworn translator, to
assist with the translation telephonically.
[10] According to
first applicant Dong asked her where she was going, the name of her
husband, her ‘boss’s’ telephone
number and where
she married her husband. She told Dong that she was going to Durban,
but he (Dong) misinterpreted what she had
said and that he told Mfebe
that first applicant was going to Johannesburg. According to first
applicant the words “Durban”
and “Johannesburg”
sound similar in Chinese and that it is therefore easy to make a
mistake or to be confused. She
gave Dong her brother-in-law’s
telephone number as she did not know her ‘boss’s’
telephone number off hand.
She did this as she knew that her
brother-in-law was outside the interrogating room and hoped that if
he was called, he could assist.
[11] It appears
that, due to miscommunication, Mfebe was unable to speak to first
applicant’s ‘boss’. First applicant
was then told
by Mfebe that she would be sent back to China and she would need to
buy a ticket. According to first applicant she
could understand by
the demeanour of and certain of the words used by Mfebe what was
going on and she therefore took cash from
her wallet to show how
little money she had in cash for an airline ticket. She denied
attempting to bribe Mfebe. Thereafter Dong
was telephoned again and
he and Mfebe spoke, whereafter Dong spoke to her telephonically and
advised her that -
1. She was going to
be kept in a transit lounge as her answers did not satisfy Home
Affairs officials;
2. That she had two
options, the first was to get a lawyer and the second was to go back
to China immediately; and
3. That she could
get a lawyer, but that regardless, she would still be sent back to
China.
[12] Considering the
contents of Mfebe’s investigation diary and her version, it is
not quite clear what exactly attracted
her attention to the first
applicant. On the one hand she avers that she saw first applicant
tampering with her passport and then
asked to look at it, and on the
other hand she avers that she saw that the passport had been tampered
with and that she then questioned
first applicant.
[13] It is clear
that part of the whole process between Mfebe and the first applicant
included the completion and handing over of
certain official forms
which are crucial to this matter in so far as they have a direct
impact on the process and procedure followed
by Mfebe, the decisions
she made, and the consequences thereof on the first applicant. In
this regard I refer to the following:
• A Form 5
which is a declaration by a foreigner seeking admission to the
Republic of South Africa;
• A Form 6
which is a form completed by Mfebe headed ‘Interview by
Immigration officer of person not having satisfied
Immigration
Officer that he or she is not an illegal foreigner’;
• A Section 41
‘Immigration Interview Questionnaire’ completed by Mfebe
with reference to the investigation diary;
• A Form 1,
otherwise known as a ‘Notification regarding right to request
review by Minister’, in terms of which
the first applicant had
been refused admission into the Republic of South Africa and notified
that she had the right in terms of
the Act to request the Minister to
review the decision.
• A Form 37
which is a ‘Notification to a person at a port of entry that he
or she is an illegal foreigner and is refused
admission’; and
• A form headed
‘Declaration to the Master of Ship or person in charge of the
conveyance that person conveyed, is illegal
foreigner’ and a
notice to the master of ship or person in charge of conveyance
regarding his or her obligations where the
person conveyed is refused
admission. In short a notice to the third respondent to remove first
applicant from the country.
[14] I am satisfied
that no translator or interpreter was used to explain the forms to
first applicant, nor are the forms signed
by an interpreter.
[15] Within the
process as herein before set out it appears that the first applicant
was essentially –
1. Refused entry in
terms of section 8(1) as an inadmissible person; and
2. Found to be an
illegal foreigner in terms of section 8(1); and
3. Determined to be
a suspected illegal foreigner as envisaged in terms of section 41 of
the Act as amended.
[16] As the first
respondent was unable to state whether she would not be placed on the
next plane back to China, the first applicant’s
attorney Craig
Smith launched an urgent application in this court on her behalf to
prevent that from occurring.
[17] When the matter
was brought before Van Staden AJ he did not hear the application, but
required that the application be served
on the third respondent and
encouraged the parties to attempt to find a resolution to the matter.
[18] An agreement
was then reached between the applicants and respondents in terms of
which first applicant’s attorney would
complete the necessary
form indicating that first applicant intended launching a review of
first respondent’s decision and
that the Department of Home
Affairs would inform the third respondent that first applicant could
not be forced to return to her
country of origin pending the outcome
of the review application.
[19] On 7 October
2014 an email written by Gideon Christians of the second respondent
was forwarded to the third respondent, the
contents of which reads as
follows:
‘1. that first
applicant has launched a review of the decision declining her entry
into the Republic of South Africa;
2. that in terms of
s 8(2)(b) of the Act first applicant cannot be forced to return to
her country of origin pending the outcome
of her review application;
3. that first
applicant remains the responsibility of third respondent and that
first applicant will remain in the “inadmissible
facility”
as she cannot be admitted in the Republic of South Africa.’
[20] At the time of
the hearing of the matter first applicant had been in the transit
lounge of third respondent at Cape Town International
Airport since 5
October 2014. The original “conveyance” that she arrived
with had long since left.
[21] Considering the
issues in dispute in this matter it is necessary at the outset to
emphasize that the Bill of Rights is the
cornerstone of democracy in
South Africa. It enshrines the rights of all people in our country
and affirms the democratic values
of human dignity, equality and
freedom. It is accepted in our law that our Constitution and the
rights contained therein apply
equally to foreign nationals as well
as citizens of our country unless the contrary emerges from the
Constitution.
[22] The Act
provides for the regulation of admission of persons to, their
residence in, and their departure from the Republic;
and for matters
connected therewith.
[23] According to
the preamble of the Act, it aims at putting in place a new system of
immigration control that ensures inter alia
that the security
considerations are fully satisfied; the State retains control over
the immigration of foreigners to the Republic;
that immigration laws
are efficiently and effectively enforced; that immigration control
is performed within the highest applicable
standards of human rights
protection; xenophobia is prevented and countered; and importantly
that a human rights based culture
of enforcement of the provisions of
the Act is promised. (My underlining).
[24] The Act
essentially seeks to regulate the entry and residence of foreign
nationals within its borders and it has the power
to deal with
illegal immigrants who are in the country.
[25] It is accepted
that citizens who are in South Africa are either in the country
lawfully in terms of the necessary permits or
valid documents
allowing them to remain in the country, or they are in the country
without valid papers and hence unlawfully.
[26] I will now deal
with the sections of the Act which have an impact on illegal
foreigners.
Section 8 of the
Act, which deals with review and appeal procedures, provides that -
‘(1) 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 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 and 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.’
Section 8(3)
provides that any decision in terms of the Act other than a decision
contemplated in subsection (1) that materially
and adversely affects
the rights of any person shall be communicated to that person in the
prescribed manner and shall be accompanied
by the reasons for that
decision.
Section 8(4)
provides for review and appeal of that decision within 10 working
days of notification to the Director-General.
Section 8(5)
provides that the Director-General shall consider the application
contemplated in sub-section(4) whereafter he or she
shall confirm,
reverse or modify that decision.
Section 8(6)
provides for the right of the aggrieved person to review or appeal
the Minister’s decision within a prescribed
time period.
Section 8(7)
provides that the Minister shall consider the application
contemplated in sub-section (6), whereafter he or she shall
either
confirm, reverse or modify that decision.
In terms of Section
9(3) no person shall enter or depart from the Republic -
‘(a) unless he
or she is in possession of a valid passport; . . .
(b) except at a port
of entry, unless exempted in the prescribed manner by the Minister, .
. .
(c) unless the entry
or departure is recorded by an immigration officer in the prescribed
manner; and
(d) unless his or
her relevant admission documents have been examined in the prescribed
manner and he or she has been interviewed
in the prescribed manner by
an immigration officer; . . . .’
Section 34 deals
with the deportation and detention of illegal foreigners.
In terms of Section
34(1)(d) a foreigner ‘may not 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 . . . .’
Section 34(8) and
(9) of the Act provides that -
‘34(8) A
person at a port of entry who has been notified by an immigration
officer that he or she is an illegal foreigner
or in respect of whom
the immigration officer has made a declaration to the master of the
ship on which such foreigner arrived
that such person is an illegal
foreigner shall be detained by the master on such ship and, unless
such master is informed by an
immigration officer that such person
has been found not to be an illegal foreigner, such master shall
remove such person from the
Republic, provided that an immigration
officer may cause such person to be detained elsewhere than on such
ship, or be removed
in custody from such ship and detain him or her
or cause him or her to be detained in the manner and at a place
determined by the
Director-General.
34(9) The person
referred to in the preceding subsection shall, pending removal and
while detained as contemplated in that subsection,
be deemed to be in
the custody of the master of such ship and not of the immigration
officer or the Director-General, . . . .’
In terms of section
35(9) a person in charge of a conveyance shall ensure that any
foreigner conveyed to a port of entry, for purposes
of travelling to
a foreign country, holds a valid passport and a transit or port of
entry visa, if required. Section 35 (10) provides
that -
‘a person in
charge of a conveyance shall be responsible for the detention and
removal of a person conveyed if such person
is refused admission in
the prescribed manner, as well as for any costs related to such
detention and removal incurred by the Department.’
[27] In Lawyers for
Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004
(4) SA 125
(CC), Yacoob J writing for the majority of the court on
the constitutionality of certain subsections of s 34 of the Act
stated
that:
‘[4] The Act
distinguishes between ‘foreigners’ and ‘illegal
foreigners’. A foreigner ‘means
an individual who is
neither a citizen nor a resident, but is not an illegal foreigner’.
An illegal foreigner ‘means
a foreigner which is in the
Republic in contravention of this Act and includes a prohibited
person’ … Illegal foreigners
therefore constitute a
limited category of people. An illegal foreigner is either a
prohibited person or a person who comes into
the country or tries to
enter without any permit at all or any consent or authorisation. . .
. .
. . . .
[6] As I have
mentioned, s 34 is concerned only with illegal foreigners and their
treatment. The distinction between ss (1) and
ss (8) is that the
former applies to illegal foreigners inside the country while the
latter is confined to illegal foreigners who
have not yet formally
entered South Africa, but are still at “ports of entry”.
[7] There are two
kinds of ports of entry through which people can enter South Africa.
We have airports and seaports on the one
hand, and border posts on
the other . . . .
. . . .
[9] Sections 34(8)
and (9), concerned with illegal foreigners at ports of entry, are
different. The immigration officer at the port
of entry must notify
the people concerned or declare to the master of the ship on which
they arrive that they are illegal foreigners.
The master of the ship
is then obliged to detain those people on the ship and remove them
from the country unless the master is
informed by the immigration
officer that the people have been found not to be illegal foreigners.
The immigration officer may,
as an alternative to detention on the
ship, cause the people to be detained elsewhere than on a ship.
Subsection (9) provides that
people detained in terms of ss (8) are
deemed to be have been detained by the master.
. . . .
[11] …
Secondly, s 8(1) and (2) of the Act require the Department of Home
Affairs to inform people of any determination adverse
to them and of
the ‘related motivation’. That person then has a right to
‘make representations’ against
that determination before
it is finally made and, if finally made, to appeal against it to the
Director-General and, ultimately,
to the Minister of Home Affairs.
Subsection (4) provides that a person may not be deported until the
relevant decision is final.
However, although ss (5) expressly
preserves the ss (2) right of appeal, it renders the decision of an
immigration officer refusing
a foreigner entry into the country (at a
port of entry and therefore in terms of s 34(8)) final for purposes
of deportation.’
[28] The
Constitutional Court ascribed a wide definition to the word “ship”
that includes all modes of transport by
means of which persons arrive
at ports of entry. This definition of a “ship” has long
since been removed by the
Immigration Amendment Act 19 of 2004
. The
amending Act removed the definition of the word “ship”
entirely. The effect of the amendment is that a ship is
simply a ship
and not an aeroplane or any other conveyance.
[29] In Koyabe and
others v Minister of Home Affairs and others (Lawyers for Human
Rights as Amicus Curiae) 2010(4) SA 327(CC) at
para 61 Mokgoro J
writing for the majority of the court noted that the declaration that
a person is an illegal foreigner has an
adverse impact on that
individual. She therefore suggested that such a person will
understandably want to know the basis for the
declaration,
particularly in circumstances where it might be based on a
misunderstanding or incorrect information. Therefore the
reasons for
the findings are important in seeking a meaningful review and in
enhancing the chances of getting the decision overturned.
The
provision of such reasons the learned judge suggests is an imperative
of South Africa’s constitutional democracy as it
will often be
important in providing fairness, accountability and transparency. See
Koyabe v Minister of Home Affairs supra at
para 62.
[30] The reasons
must be sufficient but need not be specified in minute detail. The
affected complainant must be in a position to
make a reasonably
substantial case for review or an appeal. See Koyabe v Minister of
Home Affairs supra at para 63.
[31] According to
the authorities cited hereinbefore the process envisaged in terms of
the Act is clearly of an inquisitorial nature.
The immigration
officer is allowed to request from the person any information or
clarification that he or she deems necessary to
allow the immigration
officer to come to a conclusion and reach a decision based on the
information. It is therefore paramount
that the information required
is elicited in a proper manner so that there is no uncertainty or
misunderstanding about what the
correct facts are. The immigration
officer should accordingly exercise extreme caution in the manner in
which the information is
obtained. Considering the grave consequences
for the affected person there can be no room for error.
[32] It is clear
that
section 8
of the Act requires the Department of Home Affairs and
the immigration officer on duty on behalf of the department at the
port
of entry, to inform the person of the determination that a
person is an illegal foreigner and the reasons for doing so.
[33] It is necessary
that the ‘applicant’ is afforded a fair opportunity to
properly explain his/her position and the
immigration officer should
ensure that the person fully understands the process that is taking
place and what his/her rights and
responsibilities are. The process
involving the first applicant had far reaching and grave consequences
and it was incumbent on
the immigration officer to ensure that all
the processes and procedures were conducted in a proper and fair
manner considering
the constitutional protections afforded to the
first applicant in terms of the Constitution.
[34] In the present
matter it is clear that the first applicant is Chinese. She clearly
does not understand and/or speak English
properly. The possibility of
mistakes and misunderstanding about the process and/or what was being
said or what was taking place
was real and very likely to occur.
There is no doubt in my mind that the first applicant must have been
nervous and traumatised
by the events as they unfolded.
[35] In my view
there was accordingly a duty and more so a constitutional obligation
on the immigration officer to ensure that an
interpreter/translator
was present from the outset and throughout the process until she made
her final decision. In S v Saidi 2007(2)
SACR 637, following the
approach in S v Mponda 2007(2), SACR (C)
[2004] 4 All SA 229
(C),
Yekiso J dealt at para [14] with the duty of magistrates to ensure
that a competent interpreter is used in criminal proceedings
and the
right of an accused person in terms of s 35(3)(i) of the Constitution
to be tried in a language that he or she understood
or, if that was
not practicable, to have the proceedings interpreted in that
language. Although this is not a criminal trial the
judgment dealt
with the fundamental right of an accused person to competent
interpretation.
[36] In Katsshingu v
Chairperson of the Standing Committee for Refugee Affairs 19726/2010)
ZAWCHC 480 (2 November 2011) Bozalek
J, quite emphatically, held that
where language is an issue, the failure to provide an interpreter
competent in English and the
applicant’s mother tongue renders
the Refugee Status Determination Officer’s decision invalid on
the basis that no
fair hearing or process could have taken place. See
Fatima Khan and Tal Schreier (Ed) Refugee Law in South Africa p160
para 9.3.3.
In my view the sound principles as set out in the
judgments referred to in paragraphs 35 and 36 hereinbefore are
equally applicable
in this matter.
[37] It has been
alleged that first applicant attempted to bribe Mfebe. The allegation
is very serious and constitutes a criminal
offence in our law. If
there was any merit to the allegation then one would have expected
that Mfebe as a public official would
have had the first applicant
arrested and charged. It is surprising that to date the first
applicant has not been arrested and/or
charged for the alleged
attempted bribery.
[38] What I have
said above relating to my concerns about the
interpretation/translation and about the alleged attempted bribery
is
crucial as it impacts directly on the decision Mfebe made when she
decided to deny the first applicant entry into the Republic.
[39] It is common
cause and not disputed that Mfebe was entitled to interview first
applicant by virtue of the provisions of s 9(3)(d)
of the Act. The
manner in which the interview is to be conducted is dealt with in
regulations 6(3)(a) to (e) of the regulations
to the Act. Mr Brink,
on behalf of the applicants, contended that all the first applicant
was required to do in terms of the Act
was to satisfy Mfebe that:
1. she is not an
illegal foreigner by producing a valid passport and port of entry
visa, if applicable;
2. she is not a
prohibited person by proving that she complies with the provisions of
s 29 of the Act;
3. if previously
declared an undesirable person, has complied with s 30(2) of the Act;
4. is not in
contravention of the Act by producing a visa commensurate with the
activities to be undertaken by her in the Republic.
[40] He further
contended that first applicant did not fall foul of any of the above
requirements as the first applicant had the
necessary port of entry
visa and she produced a valid passport. He argued further that no
reliance could be placed on s 29 of the
Act (as was done by counsel
for first and second respondents) as it was not applicable and that
Mfebe in any event did not have
concerns about it at the time when
she made her decision. He further contended that first applicant has
never been declared an
undesirable person and lastly that she was in
the country where she worked for Meizhu Trading in accordance with
her permit.
[41] Mr Brink
further contended that as immigration officers are obliged in law to
follow prescribed procedures in terms of the
relevant legislation
that Mfebe had committed an unlawful administrative act by not
conducting the regulation 6 interview, but
on her own version had
conducted a s 41 interview, and that based on this she then decided
to refuse admission to first applicant.
[42] In his argument
before me, Mr Nacerodien, for the first and second respondents,
contended that the relief claimed by first
applicant is ultra vires
the Act and that the first applicant cannot try ‘to gain entry
into the country through the backdoor,
when she clearly cannot get in
through the front door’.
[43] According to
him the first applicant’s permit is invalid and that
immigration was entitled and correct to refuse her
entry for inter
alia the following reasons:
1. There is a
discrepancy between the passport number on the work permit and that
which appears in the first applicant’s passport
in that the
work permit gives the passport number as G40374102 whereas the
passport number in her passport states G40371102;
2. First applicant
was unable to answer the questions posed to her and the immigration
officer had a discretion to deny her entry
based on the discretion
granted to her in terms of s 9(3)(d) of the Act.
3. Based on the
respondents’ permit track and trace records it would appear
that first applicant is in the country on the
strength of a s 19(5)
permit. The holder of a s 19(5) intra-company transfer work visa may
conduct work only for the employer referred
to in subsection (5) and
in accordance with the requirements set out in his or her visa;
4. The business
Meizhu Trading CC is a business conducting import and export and it
does not fall within the ambit of s 19(5) as
it would appear to be a
domestic juristic person with no sister/holding company from which an
intra-company transfer can take place.
5. It is likely that
first applicant obtained her s 19(5) permit by fraudulent means which
makes s 29(1)(f) of the Act applicable.
Should this be the
case, he argued, then first applicant does not qualify for entry into
the Republic. In my view points 3, 4 and
5 were not considered by
Mfebe when she made her decision to refuse the first applicant entry
into the Republic and can therefore
not be relied on by respondents
at this stage to bolster its case against the first applicant.
[44] There is merit
in the argument of Mr Brink that Mfebe was not entitled in law to use
the reasons she based her decision on
to refuse first applicant entry
into the country. According to the evidence the first applicant had
in fact produced the visa which
entitled her to work in the country
and she did give the correct information which appears to have been
mistranslated. It is further
correct that attempting to bribe an
officer is not one of the factors on the list to be considered and
the attempted bribery allegation
is in any event denied by the first
applicant.
[45] Mr Brink argued
forcefully that the whole process has been tainted to the extent that
first applicant had been denied a proper
opportunity to be heard
prior to the making of the administrative decision and that there has
therefore been a breach of her constitutional
right to fair and just
administrative justice. On the whole I am satisfied that the
decision of the respondents to refuse the
first applicant entry into
the Republic and to find her to be an illegal foreigner constituted
‘administrative action’
as defined in
section 1
of the
Promotion of Administrative Justice Act 3 of 2000
.
[46] These issues
will no doubt be properly ventilated and dealt with when the review
process takes place.
[47] Even though it
is not necessary for me to pronounce on the first applicant’s
prospects of success should the review process
take place the issues
referred to above indicate that she has reasonable prospects of
success on review.
[48] I turn now to
deal with the relief sought by the first applicant. The sole issue to
be decided is whether or not first applicant
should be allowed to
enter the Republic and remain in the country pending her judicial
review. Mr Nacerodien argued strongly that
I was bound by the
judgment of Savage AJ in the matter of Mahlekwa v Minister of Home
Affairs & 5 Others (case number 9798/2014)
[2014] ZAWCHC 89
(10
June 2014) where she stated that:
‘[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
Section
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,
Section 8(2)(b)
prescribes
that Mr Khan “shall not be removed from the Republic before the
Minister has confirmed the relevant decision”.
. . . .
[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”
. . . .
[11] ... the
decision to refuse Mr Khan entry relates rather to a determination
made under
Section 29(1)(f).
. . . .
[14] ... In Patel
and Another v The Chief Immigration Officer, OR Tambo International
Airport and others 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
Khan, 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
Section 8(2)(b)
he may not be
removed from the facility until the decision has been confirmed.
. . . .
[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.’
[49] In support of
his contention Mr Nacerodien also referred me to the matter of Funeka
Khan v The Minister of Home Affairs &
Others (case number
8231/2014)
[2014] ZAWCHC 99
(27 June 2014), which he argued
supported the approach in Mahlekwa v Minister of Home Affairs and 5
others (supra), where Rogers
J stated:
‘[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 a 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),
ss34(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
s34(8)
and
35
(8). Jeebhai v Minister of Home Affairs & Another 2009(5) SA 54
(SCA), to which I was referred, was a case of a
s34(1)
arrest of a
foreigner already in South Africa.’
[50] Thus it was
contended on behalf of the respondents that first applicant was not
in detention and that she could return to China.
[51] Mr Brink
countered by arguing that the judgments of Savage AJ and Rogers J
were distinguishable from this matter on the basis
that in both
instances the applicants sought final relief as opposed to the
interim relief sought by the first applicant in this
matter. In his
view the relief sought by the first applicant is competent in the
circumstances of this case both because of the
provisions of
section
172(1)(b)
of the Constitution and on the basis that such orders have
previously been countenanced in this division. See Khan v Minister of
Home Affairs (supra); and Johnson and others v Minister of Home
Affairs and others; In re: De Lorie and others v Minister of Home
Affairs and another (10310/2014, 10452/2014)
[2014] ZAWCHC 101
(30
June 2014).
[52] It is trite law
that an applicant for interim relief must demonstrate the following:
1. a prima facie
right, ‘though open to some doubt’;
2 .a well-grounded
apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is granted;
3. a balance of
convenience in favour of the granting of the interim relief; and
4. the absence of
any other satisfactory remedy available to the applicant.
Our courts have
found that the requirements referred to above should not be
considered separately or in isolation but in conjunction
with one
another to determine whether or not the court should exercise its
discretion in favour of the grant of the interim relief
sought. See
Olympic Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382(D)
at
383E-F. It is now accepted law that less is required from the
applicants seeking interim relief than at the final interdict
stage.
In my view the first applicant does have a prima facie right to be
permitted to enter the Republic because on the face of
it she has a
valid permit permitting her to do so. The suggestion that she
allegedly tampered with her permit in the presence of
the immigration
officer is illogical and falls to be rejected. It is very likely that
the changes on her permit were due to human
error on the part of the
persons who completed and wrote out the permits. It is not disputed
that the permit is registered on the
first respondent’s data
system against the first applicant’s passport number. The
respondents in asserting that the
permit is ‘dubious’,
rely on their track and trace system which clearly contains errors. I
am accordingly not persuaded
by the first and second respondents’
attempt to defeat the application for interim relief on the assertion
that the permit
is “dubious”. All that first applicant is
required to do is to show that she has a prima facie right even if it
is
open to some doubt. I am further not persuaded that by granting
the interim relief that the effect thereof is ultra vires the Act
and
that it will ‘open the floodgates to foreigners to enter into
the country’. There is no foundation laid for such
an argument
based on the facts or the law. Each case must be judged on its own
facts and/or merits.
[53] It is not
necessary for me to find that the decisions of Savage AJ in Mahlekwa
(supra) and Rogers J in Khan (supra) are wrong
in order for me to
find that the first applicant is entitled to obtain the interim
relief that she seeks. In any event the judgments
of Savage AJ and
Rogers J appear to be distinguishable from the present matter. In
those matters the applicants sought final relief
as opposed to
interim relief as applies in this matter. In the Khan matter, the
applicant also admitted the facts on which the
decision to exclude
him were based, whilst in the present matter the first applicant does
not. The first applicant has further
made it clear that she cannot
return to China even if she was forced to go there. The suggestion
that she has a choice to go back
to China and return when the review
is concluded cannot be a choice if she cannot afford to return due to
financial constraints
and if the effect thereof is that she will be
separated from her husband. In any event it seems to me that the
judgment of Rogers
J in the Khan matter (supra) may very well be
authority for a finding that interim relief of the kind sought in
this matter can
be granted. In my view Rogers J confirmed the rule
granting such relief and even provided for the potential extension of
that relief
after the Minister’s decision had gone against
Khan. In Johnson (supra) Yekiso J granted such an order in
circumstances where
a person was outside the Republic.
[54] The undisputed
facts are that the first and second applicants have lived and worked
in the country for a substantial period
of time. It is clear that
first applicant’s financial situation is dire and that she
lacks money to return to China and will
not have money to return to
the Republic should the judicial review be favourable to her. Even if
she is removed from the country
at the expense of the third
respondent then she will still have an inability to pay for her
return to South Africa. The effect
of her removal from the country
would result in her being separated from the second applicant, her
home and her work. See Dawood
and another v Minister of Home Affairs
and others; Shalabi and another v Minister of Home Affairs and
others; Thomas and another
v Minister of Home Affairs and others (CCT
35/99)
[2000] ZACC 8
2000 (3) SA 936
;
2000 (8) BCLR 837
(7 June
2000). She will also be deprived of the advantages of direct
consultation with her South African legal representatives.
[55] In my view it
is untenable and certainly not in accordance with the highest
applicable standards of human rights protection
or human rights based
culture to expect that first applicant should remain in the transit
lounge, in which she has been detained
since 5 October 2014, until
the judicial review process is finalised. The transit lounge facility
has been described as nothing
more than a small room, which has bars
on the door, which, although it has a toilet and ablution facilities,
is poorly ventilated
and demoralizing. A security officer is posted
at the door to this room which is kept locked and first applicant is
not allowed
out of this room. The situation first applicant finds
herself in is tantamount to being kept in a cell. When she was
examined by
Dr Kan Li on 7 October 2014 she was found to be tired,
weak and dehydrated. She had difficulty swallowing and was nauseous
regularly.
It is not surprising that she was diagnosed as suffering
from acute stress. I accordingly have serious concerns that the first
applicant’s health and mental wellbeing is being severely
compromised. In my view the situation that she finds herself in
undermines her fundamental right to dignity, her right to freedom and
security of person and her right to freedom of movement.
I am
accordingly satisfied that first applicant has proved irreparable
harm.
[56] It is necessary
to emphasize that should the interim relief that is sought be
granted, first applicant does not acquire any
more or better rights
than what her permit allows her to have. There is further no reason
why, with the constructive involvement
of the first respondent,
appropriate terms and conditions cannot be put into place to regulate
the first applicant’s presence
in the Republic pending the
final determination of the judicial review process. It is also common
practice for foreigners who have
committed offences in this country
to be released on bail with appropriate conditions. In my view there
can be no inconvenience
and/or prejudice to the respondents should
the applicants be granted the interim relief they have asked for.
[57] The first
applicant has already been subjected to severe prejudice and
inconvenience by being forced to remain in the transit
lounge. The
prejudice and inconvenience will continue should she be forced to
leave the Republic and should she be unable to return
she will suffer
further prejudice and inconvenience. On the whole I am satisfied that
the relief sought by the applicants is not
sought on frivolous
grounds. The applicants are clearly suffering prejudice and have no
alternative remedy available to them other
than the relief sought in
the notice of motion.
[58] Section
172(1)(b) of the Constitution affords me the power to make an order
which is just and equitable even in instances where
the outcome of a
constitutional dispute does not depend on the constitutionality of
legislation or conduct. In arriving at my decision
I find support in
what was said by Moseneke DCJ in Head of Department: Mpumalanga
Department of Education and another v Hoërskool
Ermelo and
another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177(CC)
at para 97:
‘It is clear
that section 172(1)(b) confers wide remedial powers on a competent
court adjudicating a constitutional matter.
The remedial power
envisaged in section 172(1)(b) is not only available when a court
makes an order of constitutional invalidity
of a law or conduct under
section 172(1)(a). A just and equitable order may be made even in
instances where the outcome of a constitutional
dispute does not
hinge on constitutional invalidity of legislation or conduct.’
This approach was
endorsed by Mogoeng J (as he then was) in Minister for Safety and
Security v Van der Merwe and others 2011(5)
SA 61 (CC) at para 59.
[59] In the
circumstances I have decided to exercise the wide remedial powers
afforded to me and make an order which is just and
equitable
considering the circumstances of this matter.
[60] In the result I
granted the applicants the relief as set out above.
J F RILEY