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
>>
2015
>>
[2015] ZAWCHC 142
|
|
Muchatsi v Officer in charge, Pollsmoor Prison and Others; In re: Chidhakwa v Officer in charge Milnerton Police Station and Others; In re: Mupanduki v Officer in charge Milnerton Police Station and Others (13695/2015, 13696/2015, 13711/2015) [2015] ZAWCHC 142 (12 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: 13695/2015
DATE: 12 AUGUST 2015
In the matter between:
LLOYD
MUCHATSI
................................................................................................................
Applicant
And
OFFICER IN CHARGE, POLLSMOOR
PRISON
.....................................................
1st
Respondent
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES
.............................
2nd
Respondent
PROVINCIAL MANAGER OF THE DEPARTMENT
OF HOME AFFAIRS
CAPE
TOWN
..................................................................................................................
3rd
Respondent
DIRECTOR GENERAL OF THE
DEPARTMENT OF HOME
AFFAIRS
.........................................................................
4th
Respondent
MINISTER OF DEPARTMENT OF HOME
AFFAIRS
.............................................
5th
Respondent
CASE NO: 13696/2015
In the matter between
FEBBIE
CHIDHAKWA
...........................................................................................................
Applicant
And
OFFICER IN CHARGE MILNERTON
POLICE
STATION
..........................................................................................................
1st
Respondent
MINISTER OF
POLICE
...............................................................................................
2nd
Respondent
DIRECTOR GENERAL OF THE
DEPARTMENT OF HOME
AFFAIRS
.........................................................................
3rd
Respondent
MINISTER OF DEPARTMENT OF
HOME
AFFAIRS
............................................................................................................
4th
Respondent
CASE NO: 13711/2015
In the matter between
PATIENCE
MUPANDUKI
.......................................................................................................
Applicant
And
OFFICER IN CHARGE MILNERTON
POLICE
STATION
..........................................................................................................
1st
Respondent
MINISTER OF
POLICE
...............................................................................................
2nd
Respondent
DIRECTOR GENERAL OF THE
DEPARTMENT OF HOME
AFFAIRS
.........................................................................
3rd
Respondent
MINISTER OF DEPARTMENT OF
HOME
AFFAIRS
............................................................................................................
4th
Respondent
J U D G M E N T
DAVIS, J:
Introduction
Migration is one of the great
contemporary global problems. As the present form of economic
globalisation increases, a pace, the
division between the developed
and the developing world and, in particular between stable societies
and those that are fractured,
violent and, in many instances
ungovernable, have become more distinct and have created a greater
phenomenon of migration than
would have been the case, two or three
decades ago.
This global development has raised the
key question of whether freedom of movement can be constrained to be
a reasonable or, indeed
even a rational response, to the problems of
global inequality. In some ways this case, in which three applicants
have entered
South Africa, for a state of some desperation is
reflective of this contemporary phenomen. It highlights the
exquisite problem
of balancing between freedom of movement and
adequate regulation.
The three applicants launched an
application as a matter of urgency. They were arrested on the
grounds of being illegal foreigners
in South Africa. In the case of
the first and second applicants, on the 16th July 2015 and on the 2nd
July 2015, in the case of
third applicant.
Subsequent to their arrests, the
applicants were detained pending their deportation from South Africa.
In terms of these applications,
they sought their release from
custody. It is relevant to examine the backgrounds of all three
applicants.
The first applicant was arrested as
I’ve indicated on the 16th July 2015. Following her arrest,
she was detained at the Milnerton
police station pending deportation
from South Africa.
She entered South African on the 1st
June 2015 and was issued with a temporary visa that expired on the
16th June 2015. It is common
cause that she is illegally in South
Africa, because she has overstayed the duration of the visa. She had
taken up employment
in Sea Point, Cape Town which appears also to be
an act in contravention of the temporary visa which was issued to
her.
The second applicant, was arrested on
the 16th July 2015. Pursuant to her arrest she was detained at the
Milnerton police station
pending her deportation. On 11 May 2015 she
was issued with a temporary visa which expired on 29 June 2015.
Again, as in the
case of first applicant, she admits that she has
stayed beyond the duration of her temporary visa and that she is
therefore illegally
in South Africa.
The third applicant, was arrested on
2nd July 2015. On the 3rd July 2015 it appears that the respondent
verified that he had not
applied for asylum, was not in possession of
any valid visa, which had authorised either his stay or employment in
South Africa.
He was transported on the 3rd July 2015 to Pollsmoor
prison where he was detained pending his deportation.
He alleges that he applied for a
temporary work permit on the 31st December 2010, in support of this
he has attached an acknowledgment
of receipt of application.
However, on the papers there is no indication as to what steps he has
taken subsequent to that date
to determine the status of his
application or to regularise his stay in South Africa.
The Relevant Legislative Framework
The Immigration Act 13/2002 (‘the
Act’) provides for the regulation of admission of foreigners
to, their residence in
and departure from South Africa. Of relevance
is section 34(1) of the Act which reads thus:
“Without the need for a warrant
an immigration officer may arrest an illegal foreigner or cause him
or her to be arrested
and shall, irrespective of whether such
foreigner is arrested, deport him or her or cause him or her to be
deported and may, pending
his or her deportation, detain him or her
or cause him or her to be detained in a manner and to a place
determine by the Director
General, provided the foreigner concerned…”
It appears that the arrest and
detention of the applicants, on the grounds of the illegal foreigner,
was based on section 34(1)
of the Act. Consequently absent a
constitutional challenge to this legislation, the arrest and the
detention of the applicants,
pending their deportation, has to be
considered to be lawful by this Court.
In the light that there was no
constitutional challenge to the relevant section, the question arises
as to what the applicant’s
case. It appears to me on the
papers that two fundamental points were raised by the applicants,
both of which were confirmed by
Mr Kuzinya who appeared on behalf of
the applicants:
1.It was contended that when issued
with the requisite Form 29 (the deportation notice) the applicants
did not sign this document
and their relevant rights were not
explained to them fully. This form reads, to the extent that is
relevant;
“As you are an illegal foreigner,
you are hereby notified that you are to be deported to your country
of origin, namely Zimbabwe.
In terms of section 34(1)(a) and (b) of
the Act, you have the right to:
(a) Appeal the decision to the
Director-General in terms of Section 8(4) of the Act within 10
working days from date of receipt
of this notice; or
(b) At any time request the officer
attending to you to have your detention for the purpose of
deportation confirmed by a warrant
of the Court.
NB: Should you choose not to exercise
the rights mentioned above, you shall be detained pending your
deportation. You will not
be allowed to return to the Republic
unless you obtain the necessary lawful authority in this regard.”
2. Applicants were held, so it was
contended, in conditions which are manifestly contrary to the minimum
required standards for
holding individuals whom respondents seek to
deport, given that they are in breach of section 34 of the Act.
I turn then to the first of the two
contentions. The problem with the allegations, that the applicants
were not properly informed
of their rights to appeal and to have
their detention confirmed by a Court, is that to so find I would need
to accept applicants’
version that the deportation forms, which
were attached to the papers, were never seen by the applicants and
were never signed
by the applicants. In effect the signatures which
appears were fraudulently inserted by representatives of the
respondents and
thus the entire document constituted an act of fraud,
perpetrated on the applicants and on this Court.
On these papers, without more, this
finding cannot justifiably made. Firstly, in respondents’
papers this averment is hotly
contested. Secondly, to contend that
the signatures which are attached to the papers are not those of the
applicants as Mr Kuzinya
has contended, would mean that I would be
compelled to accept evidence from the bar. This on its own simply
cannot be done. In
short, on these papers, this contention stands to
be rejected.
As to the second argument, each of the
applicants have set out serious allegations of neglect in their
conditions while in detention.
In brief, first applicant contends that
she was detained in what she refers to as “despicable
conditions” at the Milnerton
police station where she has not
been allowed to attend to her oral hygiene with potentially
‘devastating effects’.
She avers that she has observed a
fellow cell mate’s health deteriorate to an extent that that
the cell mate had to be temporarily
removed from the cells by
emergency medical services.
She has suffered an irritation to the
skin at the back of her buttocks and her thighs. No facilities were
made available to exercise
and she continues to be detained in a
dimly lit holding cell. She has been denied adequate nutrition and
the food which has been
provided does not comprise of a balanced
diet. She was advised that the only way she would be released from
custody was if she
would provide for the costs of air travel.
Insofar as second applicant is
concerned, she too complains about what she refers to as the
despicable conditions at the Milnerton
police station. Like first
applicant she has not been able to attend to her oral hygiene. She
has suffered the trauma of observing
the deterioration of a cell
mate’s deteriorating health and has suffered irritations to the
skin. She confirms that no facilities
were made available for her to
exercise and she has been detained in a dimly lit holding cell.
Similar to the first applicant,
she refers to the inadequate food
that has been supplied.
Third applicant is being held in the
awaiting trial section at Pollsmoor prison, amongst alleged
criminals, some of who have been
accused of committing very serious
crimes. He complains that his detention has been in conditions which
manifestly do not meet
the minimum standards required.
In the light of these averments, it is
necessary to deal with the conditions in which potential deportees
are held.
Conditions of Immigration Detention
In a recent judgment of Rahim v
Minister of Home Affairs [2015] (JOL 33310 SCA) the Supreme Court of
Appeal awarded damages to unlawfully
detained foreign nationals. It
found that detainees could not be detained at prisons as the
Director-General of Home Affairs had
not issued the requisite
designation under section 34(1) of the Act.
Navsa ADP (as he then was) in coming to
this finding, made detailed reference to the Report of the Special
Rapporteur of the Human
Rights Council of the United Nations on the
Rights of Migrants of 2012. At para 33 the Special Rapporteur
states:
“The Standard Minimum Rules for
the Treatment of Prisoners provide that persons imprisoned under a
non-criminal process shall
be kept separate from persons in prison
for a criminal offence. Additionally the Working Group on Arbitrary
Detention stated in
its deliberation number 5, that custody must be
effected in a public establishment specifically intended for this
purpose or, when
for practical reasons, this is not the case, the
asylum seeker or immigrant must be placed in premises separate from
those for
persons imprisoned under criminal law. At the regional
level, the Principles and Best Practices on the Protection of Persons
Deprived
of Liberty in the Americas provide that asylum or refugee
status seekers and persons deprived of liberty due to migration shall
not be deprived of liberty in institutions designed to hold persons
deprived of liberty on criminal charges.” cited at para
18.
Navsa ADP went on to refer to paragraph
34 of this report which reads:
“However, information received by
the Special Rapporteur indicates that migrants are detained in a wide
range of places including
prisons, police stations, dedicated
immigration detention centres, unofficial migration detention
centres, military bases, private
security company compounds, disused
warehouses, airports, ships etc. These detention facilities are
placed under the responsibility
of many different public authorities
at local, regional, national level, which makes it difficult to
ensure that consistent enforcement
of standards of detention.
Migrants may also be moved quite quickly from one detention facility
to another, which also makes monitoring
difficult. Moreover,
migrants are often detained in facilities which are located far from
urban centres making access difficult
for family, interpreters,
lawyers and NGO’s which in turn limits the right of the migrant
to effective communication.”
Referring to section 34(1) of the Act,
Navsa ADP noted that this section regulates the conditions of
detention. In his view, detention
could only take place as
prescribed by section 34(1). This meant that detention could only
take place in a manner and at a place
determined by the
Director-General. As the learned Judge of Appeal then stated at para
20:
“The exercise of public powers
constrained by the principle of legality which is the foundation of
the rule of law. In s
34(1) the words that dictate the manner and
place of detention are deliberate and not superfluous. Detention
pending deportation
can only occur according to its prescripts.”
In dealing with the facts in Rahim, the
Court held that the burden was on the respondent to show that the
Director-General had made
a determination in terms of section 34(1).
As Navsa ADP, then said:
“No attempt was made to show that
any part of the St Albans prison or any part of any police holding
cells or indeed even
in respect of Lindela detention centre, was
determined by the Director-General in accordance with international
norms to be a place
at which illegal foreigners were to be detained
pending deportation. The making of a determination by the
Director-General under
s 34(1) of the IA seems, on the face, to be a
relatively simple exercise while at the same time being crucially
important in upholding
the rights of detained foreign persons. No
attempt was made by the respondent to justify the failure to do so.
And although the
issue did not arise for a final determination in
this case, I would add that it seems to me that such a determination
must be publicly
proclaimed as this is vital for certainty and
effective administration according to constitutional and
international standards
para 24.
Subsequent to this decision, the
Director-General reacted to this judgment by issuing Government
Notice 534 on 22nd June 2015 (Government
Gazette number 38903:22 June
2015) To the extent that it is relevant to this case it states:
“The determination of places of
detention of illegal foreigners pending deportation.
I Mr Mkuseli Apeleni, Director-General:
Department of Home Affairs determine in terms of section 34(1) of the
Immigration Act…
Lindela Holding Facility and any detention
facilities and offices under the management or managed on behalf of
or in partnership
with the Department of Home Affairs, as places of
detention of illegal foreigners pending deportation.
The minimum standards relating to
detention of illegal foreigners shall be as prescribed in regulation
33(5) of the Immigration
Regulations, 2014.”
These standards contain the following
requirements:
“1. Accommodation:
(a) The detainee shall be provided
accommodation with adequate space, lighting, ventilation, sanitary
installations and general
health conditions and access to basic
health facilities;
(b) Every detainee shall be provided
with a bed, mattress and at least one blanket;
(c) Male and female detainees shall be
kept separate from each other: provided that this does not apply to
spouses;
(d) Detained minors shall be kept
separate from adults and accommodation appropriate to their age…
(e) Detainees of a specific age or
falling in separate health categories or security risk categories
shall be kept separately;
(f) There may be a deviation in the
above standards if so approved by the Director-General at a
particular detention centre: provided
that such a deviation is for
the purposes of support services or medical treatment: provided
further that there shall not be any
deviation in respect of sleeping
accommodation
2. Nutrition:
(a) Each detainee shall be provided
with an adequate balanced diet;
(b) The diet shall make provision for
nutritional requirements of children, pregnant women and other
categories of detainees whose
physical condition requires a special
diet.
(c) The medical officer may order a
variation in the prescribed diet for a detainee and the intervals at
which the food is served,
when such variation is required for medical
reasons.
(d) Food shall be well prepared and
served at intervals not less than four and a half hours and not more
than 14 hours between the
evening meal and breakfast during a 24 hour
period.
(e) Clean drinking water shall be
available at all times for every detainee.
3. Hygiene:
(a) Each detainee shall keep his or her
person, clothing, bedding and room clean and tidy.
(b) The department shall provide the
means to comply with item 3 (a)
I agree with Ms de la Hunt, who
appeared on behalf of the amicus, that this particular notice is
vague and that it may not pass
legal muster as a proper designation
in terms of section 34(1) of the Act as interpreted in the Rahim
case, particularly if it
seeks to allow any and all detention
facilities in the country to be so designated. This would impose a
duty upon the Director-General
to determine whether the minimum
standards of detention as set out in the Immigration Regulations 2014
have been or will be complied
with when such a facility is used for
detention for immigration purposes.
Any detention centre in which an
immigration detainee is held must comply with the minimum standards
of detention as set out in
the Immigration Regulations to which I
have already made reference. Only designation facilities that comply
with these regulations
can fall legally within a legal designation.
The published regulations should have so stated this key requirement
expressly.
In this case, the applicants complain
about poor nutrition and treatment, contrary to paragraph 2 of the
minimum standards. If
one examines the averments in papers, tea and
bread and samp and beans served to applicants do not constitute the
adequate balanced
diet envisaged by the regulations. It appears that
the general conditions of detention at the Milnerton police station
are substandard.
It is presumably for this reason that respondents
desired that applicants not to be detained for any further period at
the police
station, as it was inadequate to hold detainees for this
purpose.
The complaints about the putrid
conditions, an inability to clean their clothes, brush teeth, use
sanitary supplies and the afflictions
of rashes due to unsanitary
toilet facilities are deeply disturbing and confirm this
apprehension.
I should add that, although this did
not appear to be part of applicant’s case, as Ms de la Hunt
pointed out, the Milnerton
police station has not being determined as
a place of detention in terms of section 34(1) of the Act. For this
reason, there is
no question that applicants detention at the police
station was unlawful. The respondents are required to detain illegal
foreigners
at designated detention facilities, at which facilities
the minimum standards are met. Neither can the awaiting trial prison
section
at Pollsmoor pass legal muster, in that it is not a discrete
section of the prison designated specifically for the category of
persons such as applicants.
There is no doubt that what occurred as
described in these papers, imperfectly as they were drafted, is
sufficient to justify a
conclusion that there was illegality in the
conduct which resulted in the detention of the applicants both at the
Milnerton police
station or and Pollsmoor.
I will return to the consequence of
this finding presently. I indicated earlier that section 34(1) of
the Act was not subject to
a constitutional challenge. I was
informed, however, by Ms de la Hunt that Lawyers for Human Rights,
the amicus, had filed an
application in the Gauteng High Court,
seeking to declare section 34(1)(b) of the Act to be
unconstitutional. To the extent that
this section requires a
detainee to request that his or her detention be confirmed by a court
rather than containing a clear requirement
that a detention must be
confirmed by a court, this is a disturbing feature which may, and I
do not express a firm view thereon,
constitute a constitutional
defect in the design of the Act.
Given the cruel history of detention
without trial in South Africa and the debilitating consequences for
categories for detainees
who suffer this treatment, many of them who
may battle to speak English (this is not necessarily the case with
Zimbabwean applicants),
there should, in my view, be an automatic
safeguard built into this legislation by way of direct court
supervision. Given that
this was not part of the present challenge, I
will not say more about this issue.
Conclusion
In the light of the conclusions at
which I have arrived, it had been my intention to ensure that the
applicants could no longer
be held in conditions which were in breach
of the regulations. I was, however, sympathetic to the point raised
by the third and
fourth respondents that, were I simply to release
these detainees and as, it is common cause that they were illegally
in South
Africa, it would be exceedingly difficult for the
respondents to re-arrest them. Given this situation, this could not
be viewed
as a case similar to a bail hearing where it can be
determined that an accused has a fixed address and that regular
reportage to
the police will occur.
However on Friday 7th August, shortly
after hearing argument, I was informed by Ms Slingers, who appeared
on behalf of third and
fourth respondents, that the applicants were
to be transported to Lindela Holding Facility. There was nothing on
the papers, nor
any representation from the applicants not the
amicus, that if they were to be held at Lindela, this would be in
breach of any
of the conditions to which I have made reference.
In the result the only basis by which I
could have held in favour of the applicants has been removed. To
have released the applicants,
all of whom are illegally in South
Africa on these papers, on any other basis may have been proved
problematic given their illegal
residence in South Africa.
The application therefore stands to be
dismissed. Although Ms Slingers sought costs against applicants, de
bonis propriis for the
shoddy and in her view, unmotivated
application, the course of action taken on behalf of the applicants
does not merit such an
order. There were important concerns raised
by applicants which I have already articulated and which certainly
would not justify
such an order.
I am indebted to Ms de la Hunt who
represented Lawyers for Human Rights (LHR), as amicus, to LHR: I am
grateful for the extremely
thoughtful and helpful submissions that
were made. Without these submissions this task would have been made
all the more difficult.
In the result, the application is
dismissed. There is no order as to costs.
DAVIS, J