Jeebhai v Minister of Home Affairs and Another (35377/05) [2007] ZAGPHC 243; 2008 (3) BCLR 316 (T); [2008] 1 All SA 280 (T) (26 October 2007)

/IE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 26/10/2007

CASE NO: 35377/05

REPORTABLE

In the matter between:

ISMAIL EBRAHIM JEEBHAI APPLICANT

and

MINISTER OF HOME AFFAIRS 1ST RESPONDENT

MICHAEL SIRELA 2ND RESPONDENT

JUDGMENT

NGOEPE JP, PRETORIUS J, SNIJMANN AJ

[1] This is an application for leave to appeal to the Supreme Court of Appeal against the judgment delivered by the full court on 16 February 2007.

The application is against the judgment of the court on the main application, as well as the judgment delivered in the counter application. This judgment must be read in conjunction with the main judgment.

[2] Mr Cassim, counsel for the applicant, argues that there are three grounds on which another court may come to a different conclusion in the main application.

The first ground is the interpretation of sections 8 and 34 of the Immigration Act, 13 of 2002 (“the Act”) by this court. The applicant conceded that the reasoning of the court as set out in the judgment regarding the detention of illegal immigrants in terms of section 8 and the decision to deport such an illegal foreigner in terms of section 34 of the Act is compelling, logical and the analysis appealing. The court was once again referred to the judgments of DE VILLIERS J in Arisukwu and others v Minister of Home Affairs and another 2003(6) SA 599 (T); SOUTHWOOD J in Mohammed v Minister of Home Affairs and others [2007] JOL 1835 (T) and Bertelsmann J in Khan and others v Minister of Home Affairs and others [2007] JOL 18958 (T). It was argued that having regard to these three judgments another court might come to a different view. The court dealt with all three judgments during the main application and found:

“to the extent that the judgments are to the effect that after a determination is made in terms of section 8 that the person is an illegal foreigner or a decision is taken in terms of section 34 to deport the person, that person is not liable to be detained pending the outcome of appeal or review (to the Director-General and or the Minister as the case may be), we disagree”.

A detention per se does not necessarily deprive the person of the opportunity to consult and take decisions. After all, it is common practice for accused persons to consult in prison and, in some cases, even run their criminal trials while in detention. What is required is that the conditions of detention conform to certain acceptable standards; each case would then depend on its own circumstances.

This court has no reason to believe, having regard to the facts of this matter, that another court will come to a different decision and leave to appeal on this ground has to fail.

[3] The second ground of appeal revolves on the so-called “disguised extradition”; it was also relied on by the amicus curiae.

Rashid was arrested on 31 October 2005 as an illegal foreigner and on 6 November 2005 deported from Waterkloof air Force Base. The applicant argues that the fact that the respondents did not disclose that Rashid was wanted in Pakistan for terrorist activities by the British authorities should move the court to grant leave to appeal. It is the first time, in these heads of argument, that the allegation is made that Rashid was sought by the British authorities. During the hearing of the main application the decision to deport Rashid was challenged by the applicant on the ground that Rashid was wanted in Pakistan for alleged terrorist activities.

[4] According to the applicant, the reason why Rashid should not have been deported to Pakistan was that he would be exposed to a possible death sentence and execution in that country. The court was referred to Mohamed & Others 2001(3) SA 893 CC. That case was dealt with by this court in its judgment:

“The conclusion is that notwithstanding the fact that there are some facts by the respondent which may be suspicious, there are not sufficient proven facts from which an inference can be drawn that at the time Rashid was handed over, the authorities were aware that he was being sought (if that was the case) for questioning in connection with alleged acts of terror. This finding is profound as it distinguishes this case from that of Mohamed. The prayer sought, namely that the South African government be ordered to intervene as Rashid could be facing a death sentence, cannot be granted if the authorities were not aware of those facts. It cannot be that the duty arises in respect of every person deported without such prior knowledge; this would be unworkable. All the authorities knew was that he was being taken back to his own country.”

This finding distinguishes this case from that of Mohamed; in the latter case the authorities were aware that Mohamed, who was already indicted, faced criminal charges (which could attract a death sentence).

[5] The applicant argues that the way in which Rashid was deported, militates against a legal deportation, and rather points to a disguised extradition. There were no facts before this court from which such findings could be made. The respondents denied any wrong doing in deporting Rashid by handing him over to Pakistani officials at the Waterkloof Air Force Base.

It is mere speculation at this stage whether the respondents had any knowledge that Rashid was sought in Pakistan or by the British Authorities for terrorist activities. There were no facts placed before the court on which such a finding could be made. The court has already dealt in its main judgment with the placing of certain facts before it in violation of a court order. One must resist the temptation of accessing and using facts in favour of a litigant obtained against a court order. The authority of the court is far more important; it is the pillar of democracy. The court therefore finds that another court would not come to a different conclusion.

[6] It must also be borne in mind that, unlike in Mohamed’s case, Rashid was a professed illegal foreigner and, on the basis thereof and after the respondents had complied with section 34 of the Act, returned to his own country. The court has found that he admitted being an illegal foreigner and that he wanted to be returned to his own country.

[7] The third ground that the applicant and amicus curiae rely on is section 2(i) of the Rome Statute of the International Criminal Court Act, 27 of 2002. Section 2(i) sets out the meaning of enforced disappearance of persons as: “the arrest, detention or abduction of persons by, or with authorisation, support or acquiescence of a state or political organisation, followed by a refusal to acknowledge that deportation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”. This court found from the outset that Rashid had not disappeared and that it was common cause that he was handed to Pakistani authorities and that he was in his own country. The Statute of Rome clearly does not apply in this instance as there was no disappearance as defined in section 2(i).

[8] Mr du Plessis, acting as amicus curiae, argues that this court should grant leave to appeal to the Supreme Court of Appeal as the matter is of great public importance. He referred the court to a document released by Amnesty International on 17 April 2007.

As the court pointed out to him, Rashid had not disappeared. It has always been common cause, also confirmed by the document of Amnesty International of 17 April 2007, that Rashid is in Pakistan, his own country. Mr du Plessis further argued that another court may interpret section 8 and 34 of the Act differently and find in favour of the applicant. This has been dealt with in the main judgment:

“In our view however it is not so that section 8 always applies; that would depend on the procedure in terms of which the person was brought into section 34. In the present case, Rashid came under section 34, at best for him, via section 41, and not via section 8. He admitted that he was an illegal foreigner, admitting all the material facts for that conclusion; for example, that he had paid for the documents from an agent. The fact that he was an illegal foreigner was not in dispute; in fact, it was common cause.”

This court finds that there is no reasonable prospect that another court will come to a different conclusion.

[9] Also to be considered is whether or not the appeal would be academic. The court has a discretion whether to decide an issue even though it is moot. The main consideration in exercising this discretion will be whether any order made will have any practical effect on the parties or on others. Mr Mtshaulana, for the respondents, argues that should the court grant leave to appeal to the Supreme Court of Appeal, it would be of academic interest only, as it is common cause that Rashid is in Pakistan and has never disappeared.

Section 21 A (1) of Act 59 of 1959 provides that:

“When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

The learned authors Farlam, Fichardt and van Loggerenberg Erasmus Superior Court Practice revision service 28 at page A1 – 54A set out the test as follows:

“The test is whether the judgment or order will have a practical effect or result, not whether it might be of importance in a hypothetical future case.”

In Premier, Province Mpumalanga, en ‘n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (HHA) at p 1141 OLIVIER JA says of the section:

“Die artikel is, myns insiens, daarop gerig om die drukkende werklas op Howe van appèl, insluitende en miskien veral hierdie Hof, te verlig. Dit breek weg van die destydse begrippe soos ‘abstrak’, ‘akademies’ of ‘hipoteties’, as maatstawwe vir die uitoefening van ‘n Hof van appèl se bevoegdheid om ‘n appèl se bevoegdheid om ‘n appèl nie aan te hoor nie. Dit stel nou ‘n direkte en positiewe toets: sal die uitspraak of bevel ‘n praktiese uitwerking of gevolg hê? Gesien die doel en die duidelike betekenis van hierdie formulering , is die vraag of die uitspraak in die geding voor die Hof ‘n praktiese uitwerking of gevolg het en nie of dit vir ‘n hipotetiese toekomstige geding van belang mag wees nie.”

And at p 1143:

“Praktisyns behoort dus deurgaans die doel van art 21A voor oë te hou; in die besonder by ‘n aansoek om na ‘n hoër Hof te appelleer en by die voortsetting, voorbereiding en beredenering van die appël.”

In Radio Pretoria v Chairman ICASA 2005 (1) SA 47( SCA) NAVSA JA found at p 55 I – J:

“Courts of appeal often have to deal with congested court rolls. They do not give advice gratuitously. They decide real disputes and do not speculate or theorise. Furthermore, statutory enactments are to be applied to or interpreted against particular facts and disputes and not in isolation.”

In National Coalition of Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA (CC) ACKERMAN J found at para [21] (footnote 18):

“A case is moot and therefore not justifiable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”

[10] This court is aware that this case may make for interesting academic or jurisprudential debate, but the principle against academic appeals is clear. This court has taken into consideration the fact that Rashid is in Pakistan, that the respondents had not known at the time of his deportation that either the Pakistani or the British authorities wanted Rashid in connection with terrorist activities and that Rashid had never disappeared; he was handed to the Pakistani authorities. Therefore the court finds that there is no live controversy between the parties and any decision by another court would be moot.

[11] The applicant is also requesting leave to appeal against the judgment of the court regarding the counterclaim, in which the court found that the applicant, Mr Omar and Ms Yasmin Naidoo, were in contempt of court. Leave is sought to appeal against both the conviction and sentence. There can be no doubt that POSWA J prohibited the use of the contents of the relevant file of the respondents. He had ordered that no publication of the documents should take place. The respondents wilfully and mala fide went against the order.

[12] Both orders by POSWA J, that is, the original order and the so-called amended order, made it clear that the use of the contents of the file of the Department of Home Affairs was prohibited. In any event, even if the latter order was not prohibitive, the appellants’ act of violation was against the first order as it stood then. The applicant ignored these orders and Mr Omar even referred to an extra page of the file in Court whilst arguing the main application.

[13] The Department’s file, contents of which were prohibited, disappeared as mysteriously as it re-emerged, after the applicant and his legal representatives had made copies. The applicant, Mr Omar and Ms Naidoo all made common cause with each other in deliberately violating the court order in copying and using the prohibited contents. Not only must the court refuse to reward a conduct undermining its authority, but should also mete out an appropriate sanction. Whether the order was right or not, was irrelevant; it had to be respected until overturned, no matter how sympathetic one may be to the situation of the offender.

[14] The court also finds in this instance that there is no reasonable prospect that another court will find in favour of the applicants.

Therefore the following order is made:

The application for leave to appeal in the main application is dismissed.

The application for leave to appeal against the judgment in the counter-application is dismissed.

The applicant is to pay the costs of the application, including the costs of two counsel.

B M NGOEPE

JUDGE PRESIDENT OF THE

HIGH COURT

C PRETORIUS

JUDGE OF THE HIGH COURT

J L M SNIJMANN

ACTING JUDGE OF THE

35377/05

Heard on:

For the Applicants:

Instructed by: Mr Zahir Omar Attorneys

For the Respondents: Adv P M Matshoulane SC

Adv M Bofilates

Instructed by: State Attorneys

Date of Judgment: