Bushiri v Minister of home Affairs and Others (43470/2020) [2020] ZAGPPHC 585 (21 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPOR TABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED. YES

Case Number: 43470/2020

In the matter between:

SHEPHERD HUZLEY BUSHIRI

Applicant

and

THE MINISTER OF HOME AFFAIRS

First Respondent

THE ACTING DIRECTOR-GENERAL:

DEPARTMENT OF HOME AFFAIRS: RONNY

MARHULE

Second Respondent

NICO KRUGER: SENIOR ADMINISTRATION

OFFICER

Third Respondent

NEUKIRCHER J:

The relief

1] In this matter the applicant seeks the following relief:

"2. Directing that pending the finalization of the criminal trial. At Gauteng Division, Pretoria under case number CC14/2020, alternatively until the applicant and his wife have pleaded and evidence Jed in the Department of Home Affairs related charges:

2.1 The respondent are interdicting (sic) and restrained from withdrawing the applicant's and his family's Permanent Residence Permits issue on 14 and 15 June 2916, respectively , as contemplated in the notice dated 02 August 2020, served on the applicant on 03 August 2020;

2.2 The thirty (30) days period within which the applicant is afforded in the aforesaid notice to make representations why himself and his family's Permanent Residence Permits should not be withdrawn is put in abeyance ..."

The background

2] The applicant and his family are of Malawian origin. He alleges he is a Malawian national with a Malawian passport and a holder of a South Africa Permanent Residence Permit (the permit).

3] At present, he and his wife are arraigned in the Gauteng Division, Pretoria under case number CC14/2020 on several charges including contravening certain provisions of the Immigration Act 13 of 2002 (the Act).

4] The criminal trial was set down for hearing from 27 July 2020 until 28 August 2020. On the first day of trial, the State brought an application for postponement which was granted. As a result, the matter is now to be heard from 31 May 2021 until 18 June 2021. The applicant and his wife, being dissatisfied with this postponement, filed a conditional leave to appeal to the Supreme Court of Appeal[1] and also sought direct access to the Constitutional Court. The latter application has been refused by that Court.

5] The applicant and his wife were arrested on 1 February 2019 and were released on bail a few days later. They appeared in the Specialized Commercial Court in Pretoria on 4 February 2019 on charges of fraud, forgery, money laundering, contravening item 25 of schedule 1 of the Prevention of Organized Crime Act 121 of 1998 and contravening regulation 6(1) and 6(6) of the Exchange Control Regulations.

6] On 6 February 2019, and after their release on bail, the applicant and his wife were issued with a notice by a Mr Langa (Langa) of the Department of Home Affairs (DHA), calling them for an interview in terms of s41[2] of the Act. This notice was subsequently withdrawn.

7] On 15 February 2019 Langa then issued a second notice -this was also subsequently withdrawn.

8] On 26 March 2019 the third notice was issued. This notice was eventually set aside by Fabricius J on 3 August 2020 who also declared it irrational, unlawful and invalid.

9] The current notice was issued on 2 August 2020 and served on the applicant and his wife on 3 August 2020. Its content is based on the evidence of two DHA officials: Ms Reyncke and Mr Mahlangu. The gist of the evidence is that they contend that the applicant's applications for Permanent Residence (PR) status were captured and granted by DHA officials in terms of an incorrect section of the Act which occurred as a result of certain commissions or omissions on the applicant and his wife's part[3]. All this seems to be tied up with the charges before the criminal court.

10] I do not intend to deal with these issues or allegations, as to do so may bind a subsequent court hearing them.

11] What is important is that the Notice dated 2 August 2020 (the Notice) provides as follows:

"4. Based on all the information provided above it is evident that the permanent residence permits which were issued to you and your family under reference numbers PTA 120-124/22016/PRP were issued in error or through oversight and needs to be withdrawn. In this regard I wish to draw your attention to section 48 of the Immigration Act, 2002 (Act No 13 of 2002), which reads as follows-

'No illegal foreigner shall be exempt from a provision of this Act or be allowed to sojourn in the Republic on the grounds that he or she was not informed that he or she could not enter or sojourn in the Republic or that he or she was admitted or allowed to remain in the Republic through error or misrepresentation, or because his or her being an illegal foreigner was undiscovered.'

You are hereby afforded a period of 30 calendar days from the date of receipt of this letter to make compelling representations why the Department should not proceed in withdrawing your and your family's permanent residence permits. Failure to do so will result in the Department continuing with necessary steps to enforce the fact that your permanent residence statuses have lapsed. All the documents identifying you and your family as permanent residents would then need to be handed in at an office of the Department for cancellation."

12] At present , the applicant's two children[4] are in Malawi and the entire family's identity documents and passports are in the possession of the South Africa Police Service

(SAPS).

13] This application was brought as one of urgency and an order was granted postponing the application to give the respondents an opportunity to consider it, and extending the Notice period for 30 days from 5 September 2020. This meant that the application was to be heard by 5 October 2020 - unfortunately on that date the matter was struck off the roll for a lack of urgency (despite the parties agreement that the matter was in fact urgent). It was then set down before me for hearing on 20 October 2020.

14] It is the applicant's case that the present DHA charges were only added subsequent to his and his wife's release on bail i.e. after their appearance in the Commercial Court, that the charges have changed " from time to time" and that were they to be compelled to provide a response to the Notice prior to their Plea in the criminal trial[5], the State may well use what they say in their representations to amend those charges or as evidence to prove the charges against them.

15] What the applicant now seeks is an order "to assist us to prevent the respondents from compelling us to make representations the contents of which may be used against us at the pending criminal trial".

16] The applicant thus seeks an interim interdict.

17] It is trite that in order to succeed the applicant must show:

17.1 a prima facie right, even if open to some doubt;

17.2 a reasonable apprehension of imminent harm;

17.3 that the balance of convenience favours the grant of the interdict; and

17.4 the applicant has no other remedy.[6]

The prima facie right

18] Section 35(3) of the Constitution provides as follows:

"(3) Every accused person has a right to a fair trial, which includes the right-

... (h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence; ... "

19]

In Thebus and Another v S[7] and as regards the right not to self­ incriminate, the court said

"[54] The rights to remain silent before and during trial and to be presumed innocent are important interrelated rights aimed ultimately at protecting the fundamental freedom and dignity of an accused person. This protection is important in an open and democratic society which cherishes human dignity, freedom and equality.

[55] The protection of the right to pre-trial silence seeks to oust any compulsion to speak. Thus, between suspicion and indictment, the guarantee of a right to silence effectively conveys the absence of a legal obligation to speak. This "distaste of self incrimination," as Ackermann J puts it, is a response to the oppressive and often barbaric methods of the Star Chamber78 and indeed to our own dim past of torture and intimidation during police custody. It is therefore vital that an accused person is protected from self incrimination during detention and police interrogation which may readily lend itself to intimidation and manipulation of the accused …

[58] It is well established that it is impermissible for a court to draw any inference of guilt from the pre-trial silence of an accused person. Such an inference would undermine the rights to remain silent and to be presumed innocent.87 Thus, an obligation on an accused to break his or her silence or to disclose a defence before trial would be invasive of the constitutional right to silence. An inference of guilt from silence is no more plausible than innocence. The majority of the US Supreme Court in Doyle v Ohio reminds us that "every post arrest silence is insolubly ambiguous".88 To hold otherwise, the mandatory warning under section 35(1)(b) will become a trap instead of a means for finding out the truth in the interests of justice."

20] This principle founds the applicant's right and the submission was that the right is so well-established that it is, in fact, a clear right.

21] There is no true argument to be made by the respondents in respect of the issue of the prima facie right. Instead, the argument was that a court should be slow to interdict a statutory power. This, in my view, is not an issue that should be considered here. Rather, in my view, it resorts under the argument in respect of the balance of convenience.

Well-grounded apprehension of harm

22] The applicant states that should he be compelled to make representations prior to pleading in the criminal trial, the State may well use the representations to amend the criminal charges or substitute the DHA charges with others (which is in fact what occurred when he responded to the Reserve Bank charges).

23] The respondent states that

"82 It is common for state departments to institute their respective investigations pertaining to compliance with their relevant statutes as a result of the sharing of information as envisaged ins 73 (sic) of the Prevention of Organised Crime Act, 1998 (Act No 121 of 1998) ("POCA”) in which case the investigation of the DHA will be limited to compliance with its statutes.

83. The SAPS made enquiries with the DHA, which inquiries prompted the investigations of the DHA.

84. There is nothing sinister if the complaint changes as a result of further investigation or discovery of new evidence or errors discovered ..."

24] The respondent also argues that section 35(5) of the Constitution provides a legal mechanism for the applicant to challenge any

evidence unconstitutionally obtained. Section 35(5) provides as follows:

"(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice."

25] In Thebus Moseneke J put it thus:

"The Constitution confirms that the duty of a judicial officer to ensure a fair trial reaches beyond that of ensuring that the rights of the accused are not or have not been violated. Section 35(5) confirms this. It does not direct that evidence obtained in violation of any right in the bill of rights must be excluded regardless. This by definition includes evidence obtained in violation of the rights of the accused. The court has a

discretion to admit such evidence if it is fair to do so or if it is in the interests of the administration of justice. As Kriegler J said'[134]

" The general approach to evidence obtained under constitutionally doubtful circumstances was outlined in Key v Attorney-General, Cape of Good Hope Provincial Division and Another:

'What the Constitution demands is that the accused be given a fair trial.

Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial Judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted. If the evidence to which the applicant objects is tendered in criminal proceedings against him, he will be entitled at that stage to raise objections to its admissibility. It will then be for the trial Judge to decide whether the circumstances are such that fairness requires the evidence to be excluded.' "

26] It was also argued that the applicant can rely on the Hollington rule to exclude the section 48 evidence from his criminal trial. In this regard, Henney J in Graham v Park Mews Body Corporate and Another[8] stated:

" [59] The rule laid down in Hollington v F Hewthorn (Pty) Ltd [1943], 2 ALL ER 35 provides that the conviction of an accused in a criminal court cannot be used as evidence in a subsequent civil trial of the fact that the accused had indeed committed the crime of which he was convicted.

Schmidt at p 1-3 Law of Evidence; states.... "Hollington is therefore authority for the view that a finding in a criminal case cannot in a subsequent civil case serve as evidence of a fact that the criminal had considered to be proved."

[60] I am of the view that such rule is applicable in the present matter, even though the previous proceedings were not a criminal trial, but arbitration proceedings.

There seems to be a general rule that findings of another tribunal cannot be used to prove a fact in a subsequent tribunal. I also see no logical reason why the application of this rule cannot be extended to the findings, orders and awards of other tribunals, so as to exclude the opinion of triers of fact in these proceedings in civil or criminal matters."

27] But a person's s25(3) rights are well-established. In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others[9]

[21] The main attack which Mr. Levine, on behalf of the applicants, launched on the constitutionality of section 417(2)(b) of the Act was that its provisions were inconsistent with an accused's rights "to a fair trial" as provided in section 25(3) of the Constitution. For the sake of brevity these rights will be referred to as "the section 25(3) rights" or "an accused's section 25(3) rights." It was submitted that the right against self-incrimination is not limited to detained, arrested or accused persons (which are the classes of persons to which the section 25 rights apply) but that "the right against self-incrimination is a right recognised under the Constitution in extra-curial proceedings including proceedings at an enquiry constituted in terms of section 417 of the Companies Act."

[22] Mr. Levine submitted that, properly construed, the issue before this Court relating to the constitutionality of section 417(2)(b) of the Companies Act, was whether:

(a) the statutory duty to give answers which might tend to incriminate the person examined; and

(b) the statutory provision that such answers may thereafter be used in evidence against the examinee,

limit any right entrenched in Chapter 3 of the Constitution. Mr. Cilliers, on behalf of second respondents in the Ferreira referral, submitted that the attack based on section 25 of the Constitution was, on the clear and unambiguous wording of the Constitution, fundamentally flawed. As to (a), Mr. Cilliers submitted that there was no general right against self­ incrimination expressly enumerated in Chapter 3. Mr. Cilliers rightly conceded that some protection against self-incrimination was extended by section 25(2) of the Constitution to "[e]very person arrested for the alleged commission of an offence" and in terms of section 25(3)(c) and (d) to "[e]very accused person" as part of such person's right to a fair trial. However, the rights enumerated in section 25(2)(a) to (d) only apply to arrested persons and the rights enumerated in section 25(3)(c) and (d) only to an accused person while such person is on trial.

[23] As to (b), Mr. Cilliers submitted that "the right to a fair trial" enacted in section 25(3) would, unless the context otherwise indicates, require self-incriminating evidence, involuntarily given, to be excluded in the criminal trial of an accused. That is the rule of our common law. In R v. Camana Innes CJ observed as follows:

"Now, it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial.''

Mr. Cilliers also submitted that, unless the context of section 25(3) otherwise indicated, the provisions of section 417(2)(b) of the Act, which enable the State to use self-incriminating evidence obtained under the legal

compulsion of the latter section during a criminal trial, limit the accused's section 25(3) right to a fair trial. On this approach it is no answer to contend that, at the time of the examination under section 417 of the Act, the examinee is not yet an accused person. The concluding words of section 417(2)(b) of the Act "and any answer given to such question may thereafter be used in evidence against him" do refer to and find application, inter alia, during a subsequent criminal trial. On the other hand, the mere statutory obligation to answer self-incriminating questions in extra-curial proceedings is not inconsistent with the "right to a fair trial" (for the examinee is not an accused and therefore not entitled to invoke the section 25(3) rights); only the subsequent use of such answers at any criminal trial against the examinee would fall within the purview of section 25(3). The applicants are not accused nor is there any suggestion that they will be accused. Accordingly they cannot, at the time of their examination under section 417(2)(b) of the Act, rely on the section 25(3) rights."

28] In my view, the applicant and his wife are "accused persons" and thus they are afforded "some protection against self-incrimination was extended by section 25(2) of the Constitution to "[e]very person arrested for the alleged commission of an offence" and in terms of section 25(3)(c) and (d) to "[e]very accused person" as part of such person's right to a fair trial."[10]. Thus, the respondent's contention that any violation of the applicant's right in respect of unconstitutionally obtained evidence or the right against self-incrimination can be dealt with at trial[11] , cannot be sustained.

The balance of convenience

29] Here the applicant alleges that were his and his wife's PR permits to be withdrawn, their bail may well also be withdrawn as he and his wife would then be in South Africa illegally. On this note, it bears mentioning that they were originally granted bail upon confirmation of their passports and official documents.

30] Respondent argues that in issuing the present notice, the respondents were exercising a statutory power which may only be interdicted in the clearest of cases.[12]

"46. If the right asserted in a claim for an interim interdict is sourced from the Constitution it would be redundant to enquire whether that right exists. Similarly, when a court weighs up where the balance of convenience rests, it may not fail to consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought.

47. The balance of convenience enquiry must now carefully probe whether and to which extent the restraining order will probably intrude into the exclusive terrain of another branch of Government. The enquiry must, alongside other relevant harm, have proper regard to what may be called separation of powers harm. A court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant's case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessary to define "clearest of cases". However one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights. This is not such a case."

31] In my view, what was sought and granted in the OUTA case supra differs from that which is sought here. In the present matter the DHA is not prevented from exercising a statutory function - there is no interdict sought against the DHA proceedings in toto. What is sought is an interdict of a temporary nature and ultimately the applicant will have to answer to the allegations made in the Notice (if of course he chooses to do so).

32] The respondent also argues that simply because the PR permits may be revoked does not necessarily mean that the applicant and his wife's bail will be revoked as it is within the power of the court to impose bail conditions. The applicant argues that this is not so - where the PR permits are revoked it means that the applicant and his wife are in the country illegally and therefore not entitled to bail. This then treads on the applicants fundamental right to freedom. Without deciding this issue formally (as this may well tread on another court's domain) this fact is in itself and issue that, in my view, should be decided in favour of the applicant both in respect of the issue of irreparable harm and that of balance of convenience.

33] The argument is also that, were the applicant's response to the Notice be delayed until after the evidence has been presented[13], that would give the applicant and his family an unfair advantage were they to apply for citizenship i.e. the longer they remain in South Africa, the stronger the likelihood that they will qualify. This gives them an unfair advantage over other foreign nationals. But this is simply a hypothetical issue and I have no doubt one which would weigh with DHA should such an event occur. In any event, the order I propose to make does not envisage such an extended grace period for the applicants.

No alternative remedy

34] The respondent argues that there are other avenues open to the applicant and his wife other than this relief:

34.1 they can make representations and if unsuccessful, they can file an internal appeal to the Minister of Home Affairs;

34.2 if that is unsuccessful they can launch a judicial review of the decision; and

34.3 if that is unsuccessful, they can note an appeal.

35] Thus, the applicant and his wife have other remedies available.

36] The difficulty with all of this, as is argued by Ms Manaka, is that the applicant and his wife then put proverbial pen to paper and those representations may be used against him and his wife in the pending criminal proceedings, which is prejudicial.

37] Ms Ramaimela's response to this is that this court can may an order that any such representations may not be used in a criminal trial. But in my view this would not only pre-empt the representations and any outcome, it would usurp the role of the trial court in deciding whether or not to allow such evidence.

Costs

38] The applicant asks for a punitive costs order if successful and, if unsuccessful, no order as to costs following the rule laid down in the matter of Biowatch Trust v Registrar Genetic Resources and Others[14] (Biowatch). Essentially that case states that public interest litigants acting in good faith should not be financially crippled by exercising their right to take state bodies to court.

39] In Biowatch, Sachs J said:

"Nevertheless, even allowing for the invaluable role played by public interest groups in our constitutional democracy, courts should not use costs awards to indicate their approval or disapproval of the specific work done by or on behalf of particular parties claiming their constitutional rights. It bears repeating that what matters is not the nature of the parties or the causes they advance but the character of the litigation and their conduct in pursuit of it. This means paying due regard to whether it has been undertaken to assert constitutional rights and whether there has been impropriety in the manner in which the litigation has been undertaken. Thus, a party seeking to protect its rights should not be treated unfavourably as a litigant simply because it is armed with a large litigation war-chest, or asserting commercial, property or privacy rights against poor people or the state. At the same time, public interest groups should not be tempted to lower their ethical or professional standards in pursuit of a cause. As the judicial oath of office affirms, judges must administer justice to all alike, without fear, favour or prejudice."

40] Ms Makana argues that applicant is vindicating a constitutional right and the respondent should not have opposed this application because of that.

41] Mr Ramaimela argues that it was necessary for the respondents to make representations to enable the court to come to a decision on the issues raised by the applicant. Therefore, it is not appropriate in the present circumstances to grant a punitive costs order if the respondent's opposition is unsuccessful. She also argues that the notice of motion is so widely framed that it prompted the argument on whether the relief, in the form pleaded, was competent. She submitted that, at best for applicant if he is successful is that the costs should follow the result, however a more appropriate order would be that no costs order should be made.

42] I am of the view that the notice of motion was too widely framed. If granted in that form, it would lead to an indefinite postponement of the proceedings envisaged by the Notice and this cannot be countenanced: at some stage all proceedings must come to an end as one of the cornerstones of justice and a fair trial is a speedy resolution of issues.

43] I am of the view that is was also important for the respondent to make submissions in respect of the relief sought and the issues before this court. The opposition was thus justified and therefore I intend to make no costs order.

The order

44] The order I make is thus the following:

44.1 The respondent's Notice dated 2 August 2020 is suspended until the applicant and his wife have pleaded to the charges under case number CC14/2020 in the Gauteng Division, Pretoria.

44.2 The applicant and his wife shall, once their plea to the charges has been noted in case number CC14/2020, be afforded a period of 30 days from date of the plea, within which to make any formal representations (if they so wish or are advised to do so) as envisaged in the Notice date 2 August 2020.

NEUKIRCHER J

Date of hearing: 20 October 2020

Date of judgment: 21 October 2020

Judgment and order granted electronically in accordance with the directives regarding special arrangements during the National State of Disaster

Counsel for applicant: Adv N Manaka

Instructed by: Victor N Khwashu Attorneys

Counsel for respondent : Adv K Ramaimela

Instructed by: State Attorney, Pretoria

[1] Subject to the m being granted direct access to the Constitutional Court

[2] "41. Identification (1) When so requested by on immigration officer or a police officer, any person shall identify himself or herself a s a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status , and such immigration officer or police officer may take such person into custody without a warrant,

and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter,

if necessary detain him or her in terms of section 34. (2) Any person who assists a person contemplated in subsection (1) to evade the processes contemplated in that subsection, or interferes with such processes, shall be guilty of an offence"

[2] "41. Identification

(1) When so requested by on immigration officer or a police officer, any person shall identify himself or herself a s a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status , and such immigration officer or police officer may take such person into custody without a warrant,

and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter,

if necessary detain him or her in terms of section 34.

(2) Any person who assists a person contemplated in subsection (1) to evade the processes contemplated in that subsection, or interferes with such processes, shall be guilty of an offence"

[3] All of which relate to the original charges set out in par 5 supra

[4] Both born in South Africa

[5] See par 4 supra

[6] Setlogelo v Setlogelo 19 14 AD 221

[7] [2003] ZACC 12; 2003 (6) SA 505 (CC) at

[8] 2012 (1) SA 355 (WCC)

[9] 1996 (1) SA 984 (CC

[10] Per Ferreira v Levin NO and Others(supra)

[11] And here the argument was it could be dealt with in a " trial within a trial "

[12] National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC)

[13] As is sought in the notice of motion

[14] 2009 (6) SA 232 (CC(