Florio v Minister of Interior and Another (CIV/APN 295 of 91) [1991] LSCA 131 (22 October 1991)

-1- CIV\APN\295\91 IN THE HIGH COURT OF LESOTHO In the matter between: GIUSEPPE ANTONIO MARIO FLORIO Applicant and MINISTER OF INTERIOR THE ATTORNEY GENERAL 1st Respondent 2nd Respondent JUDGMENT Delivered by the Honourable Mr. Justice J. L. Kheola on the 22nd day of October. 1991. This is an application for an order in the following terms: 1. 2. 3. 4. 5. Dispensing with the normal periods of notice required by the Rules of Court, Declaring null and void and of no force or effect a certain document styled an expulsion order signed by one Mathealira Seeiso on the 11th October, 1988 purporting to expel the Applicant from Lesotho which document is annexed hereunto marked "A". Interdicting the respondents and any of their officers servants or agents from acting on the strength of the said document; in particular by refusing the Applicant admission to Lesotho for purposes other than residence and so journ solely on the strength of the said document. Granting the Applicant such further and or alternative relief as this Honourable Court may deem fit. Directing the Respondents to pay the costs of this Application only in the event of their opposing the same. The following facts are common cause: -2- (a) At all material times between the years 1974 and October, 1988 the applicant resided in Lesotho on the authority of a residence permit issued to him in terms of the Aliens Control Act 1966. The applicant has extensive business interests in Lesotho. (b) On the 12th September, 1988 the applicant received a letter from the Minister of the Interior, advising him that his said indefinite residence permit No. 358\80 had been cancelled in accordance with Section 10 (1) of the Aliens Control Act No.16 of 1966. (c) He was given up to the 2nd October, 1988 to leave the country; after which date his presence in Lesotho would be unlawful. (d) The applicant thereupon brought before this Court, unsuccessfully, proceedings to interdict the said Minister of Interior, ad interim, from carrying into effect the said notice. In his founding affidavit the applicant avers that after losing the said proceedings he voluntarily left Lesotho for the Republic of South Africa on the 10th October, 1988 at about 9.00 a.m. He left Lesotho for the specific purpose of avoiding a possible expulsion order would have had the effect of preventing him from entering Lesotho at all. On the 8th May, 1991 he was granted a visa to enter into this country and left on the 13th May, 1991. On the 20th May, 1991 he again presented himself at the Maseru Bridge Border Post with a similar request for a visa. This time he was not allowed to enter into the country and was served with an Expulsion Order dated the 11th October, 1988 (Annexure "A" to the founding affidavit). The applicant avers that at the time the then Minister of -3- Interior signed Annexure "A" he had already departed from Lesotho and the said Minister was aware of this fact. On the 20th May, 1991 having been refused entry into Lesotho there was no how he could be served with an Expulsion Order because he was beyond the official Lesotho border and the service was without any legal effect or consequence. The present Minister of Interior, Chief Mphosi Matete has filed an opposing affidavit in which he makes the point that the Expulsion Order signed by his predecessor on the 11th October, 1988 is valid until it is revoked. It will be convenient at this stage to set out in some detail some of the provisions which are relevant to the present proceedings. Although section 5 (3) of the Aliens Act 1966 (Act) is quoted in the expulsion order form, it seems to me that it is not relevant to the present proceedings because it refers to an alien found in Lesotho who is not in possession of an indefinite permit etc., his presence shall be unlawful for the purposes of Part IV, which relates to the expulsion of aliens. The applicant was not found in Lesotho and not having in his possession an indefinite permit. His indefinite permit was cancelled by the then Minister of Interior. He was never found in this country without having an indefinite permit in his possession. He departed from Lesotho before he was so found. -4- The relevant section seems to be section 10 (1) of the Act which reads as follows: "If an indefinite permit has been issued on an application which contains any incorrect information, or if the holder of such permit or his agent has furnished any incorrect information in connection with that application, or if the holder of such a permit, in the opinion of the Minister formed in accordance with the principles set out in the First Schedule, should no longer sojourn in Lesotho, the Minister may direct that a notice in writing be addressed to the holder of the permit, whereby that permit is cancelled and whereby he is ordered to leave Lesotho within a period stated in the notice and upon the expiration of that period that permit shall become null and void and that person's presence in Lesotho shall thereupon become and be unlawful for the purposes of Part IV,which relates to the expulsion of aliens." It is clear that in terms of section 10 (1) the applicant's indefinite permit became null and void on the 2nd October, 1988 and his presence in Lesotho thereupon became and was unlawful for the purposes of Part IV, which relates to the expulsion of aliens. On the 7th October, 1988 the interdict proceedings which the applicant had instituted against the Minister of Interior were dismissed. On that day the applicant's presence in Lesotho became finally unlawful. The crucial question in these proceedings is the. validity of Annexure "A". Mr. Soggot. Counsel for the applicant, submitted that in both sections 5 (3) and 25 (1) of the Act the prerequisite -5- of issuing an expulsion order is the presence of the applicant in Lesotho at the time the order was made. An expulsion order cannot be made when the person to be expelled has already left the country. He submitted that a new expulsion order was required when the applicant re-entered the country. I entirely agree with Mr Soggot's submission that under normal circumstances an expulsion order is used to expel an alien who is present in Lesotho at the time the order is signed. However, there are exceptional circumstances where the order may be signed after the alien has surreptitiously departed from the country. The Minister of Interior may not be aware that the alien has already left the country at the time the order is signed. In the present case the applicant deposes that the then Minister of Interior knew that the applicant had already left the country when he issued the expulsion order. This allegation has not been denied by the respondents because the present Minister of Interior apparently has no knowledge of that fact. Now the question which immediately arises is whether the then Minister of Interior had the power to sign or issue the expulsion order when he was aware that the applicant had already left the country. Section 25 (1) provides that the Minister may make an order that an alien whose presence within Lesotho is unlawful shall be expelled from and remain out of Lesotho either indefinitely or for a period to be specified in the order. It seems to me that an -6- expulsion order in terms of section 25 (1) serves two purposes, namely, to expel the alien from Lesotho and secondly, to make him remain out of Lesotho indefinitely or for a specified period. When the then Minister of Interior purported to expel the applicant who was already out of Lesotho, his act could not be put into effect because the applicant could not be served with the order as he was out of the jurisdiction of the country. However, the same expulsion order remained valid for the purpose of keeping the applicant out of the country. In other words, if the applicant attempted to re-enter Lesotho he could be served with the same order which has the. effect of stopping him from entering the country again. I therefore reject the submission that the expulsion order was null and void because it was signed and issued after the applicant had left this country. It shall remain valid until it is revoked or varied by the Minister in terms of section 25 (4) of the Act. In paragraph 5 of his founding affidavit the applicant deposes that he left Lesotho for the specific purpose of avoiding a possible expulsion order which would have had the effect of preventing him from entering Lesotho at all. I think the applicant omitted to pay attention to the actual meaning of the words "and remain out of Lesotho either indefinitely or for a period to be specified in the order," which appear in section 25 (1). As I have said above the effect of those words is to give the expulsion order -7- the effect of stopping the applicant from entering Lesotho again indefinitely. It seems to me that he may be served with the order at any time he attempts to enter the country. This brings me to the submission that the service of the expulsion order upon the applicant was not effected in Lesotho inasmuch as the applicant was denied entry into Lesotho. I do not agree with this submission because the Immigration office at Maseru bridge border post is about fifty metres from Mohokare River into Lesotho. The applicant alleges that the Immigration Officials handed himto one CaptA1n Lethunya who served him with the expulsion order. I am of the opinion that the service was effected in Lesotho. The border between Lesotho and the Republic of South Africa at that point is Mohokare River. Once the applicant crossed the international border between the two countries he was in Lesotho for the purpose of service. Let us suppose that a serious offence such as murder is committed by an alien while waiting at the Immigration offices at Maseru bridge border post before his passport is stamped with a visa; are the Lesotho police going to let the alien go scot free on the ground that the office was committed out of Lesotho? The answer must be in the negative as the alien would be about fifty metres within Lesotho. I am therefore of the opinion that service of the expulsion order upon the applicant took place in Lesotho and that it was valid and will remain so until it is revoked or varied by the Minister in terms of section 25 (4) of the Act. -8- Another section which seems to confirm my view that an expulsion order once issued remains in force until revoked or varied is section 25 (7) of the Act which reads as follows: "An order made before the commencement of this Act under a law for the time being in force, whether or not since repealed, and directing that an alien be expelled, removed or deported from Lesotho and remain out of Lesotho indefinitely or for a specified period, shall, subject to the provisions of sections thirty-eight and thirty-nine be carried into effect and enforced under this Act according to the tenor thereof as if it were an order made under this section and shall, for the purposes of this Act, be deemed to be such an order, and an alien who in contravention of the terms of an order made or deemed to be made under this section enters or is found within Lesotho having previously left or been expelled, removed or deported from Lesotho in virtue or pursuance of such an order may, subject to the provisions of sections thirty-eight and thirty-nine, again be expelled from Lesotho without further order and the provisions of this section shall apply in any such case as if an order had been made against that alien under subsection (1) directing that he be so expelled, but without prejudice to any penalty to which that alien may be liable under this Act or any other law for the time being in force." In the result the application is dismissed with costs. J. L. KHEOLA JUDGE For Applicant - Mr. Soggot For Respondents - Mr. Tampi