Kosta v Minister of Home Affairs and Others (13792/2002) [2003] ZAGPHC 8 (24 July 2003)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 13792/2002

DATE:2003-07-24

In the matter between

DHIMITRI KOSTA........................................................................................................ Applicant

and

MINISTER OF HOME AFFAIRS & OTHERS..........................................................Respondents

ORDER

WILLIS, J: The applicant has approached the court by way of urgency seeking an order that the respondents be interdicted and/or be prohibited from:

1. Taking any action to secure Jorgo Binjaaku's ("the detainee") deportation, repatriation or removal from the Republic of South Africa;

2. That the continued custody and detention of the detainee by the respondents be hereby declared wrongful and unlawful;

3. That the respondents jointly and/or severally release the detainee with immediate effect;

4. Further and/or alternative relief;

5. That the respondents jointly and/or severally be ordered to pay the costs of this application.

The applicant has brought the interdict de nomine libero ex hibendo. The detainee is currently being kept at the Lindela Detention Centre.

It is common cause that the detainee is an Albanian in respect of whom a notice of deportation has been issued in terms of section 34(1 Ma) and (b) of the Immigration Act number 13 of 2002. This notification was issued on 26 June 2003. It is also common cause that the detainee has been served with a "declaration of a foreign as an undesirable person" in terms of section 30 of the Immigration Act number 1 3 of 2002 and regulation 35 promulgated in terms thereof. This declaration was also issued and served on the detainee on 26 June 2003.

In the notification of deportation the detainee was advised that he could await his deportation at the first reasonable opportunity

whilst remaining in custody; that he could appeal the decision to deport him; that he could require to have his detention confirmed by a warrant of the court and that he could leave the Republic of South Africa within 14 days of the notification which departure would be regarded as an involuntary deportation.

Mr George Robert Steyn, the chief immigration officer of the Department of Home Affairs stationed in Johannesburg, who has had extensive

experience in immigration matters and has held this position for 27 years, has deposed to the affidavit opposing the relief sought by the applicant. In the affidavit opposing the relief sought by the applicant Mr Steyn has said that after asking the detainee a few questions he:

"Then declared him as an undesirable person. I informed him of this decision and further informed him that he has a right to appeal against the decision. He said that he does not want to appeal against the decision. As a result of this decision he became an illegal foreigner in this country." The basis upon which Mr Steyn came to the conclusion that the detainee was an illegal foreigner in the country was that he was in breach of the conditions of a temporary permit which had been issued, authorising him to be in the country. It was a condition of his permit that he undertake business training with an operation called "Tempest South Africa". It would appear that there is no such operation known as "Tempest South Africa" in the country and that the detainee was not undertaking such business braining. It would also appear from the affidavit deposed to by Mr Steyn that the detainee was working at the time at the Food Inn. Therein lies the justification for the deportation of the detainee.

An illegal foreigner is defined in section 1 of the Immigration Act number 13 of 2002 ("the Act"). It is defined as meaning:

"A foreigner who is in the Republic in contravention of this Act and includes a prohibited person."

The meaning of a "prohibited person" need not concern me. It is common cause that the detainee is not a prohibited person. It is

common cause that he is indeed a foreigner within the meaning of the Act. On the respondent's version of events he is, as I have already indicated, a foreigner who is in the Republic in contravention of this Act and is therefore an "illegal foreigner".

In terms of section 34 of the Act an immigration officer may arrest an illegal foreigner without need for a warrant 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 at the place under the control or administration of a department determined by the Director General provided that the foreigner concerned can -

(a) Shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;

(b) May at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by a warrant of the court which if not issued within 48 hours of such request, shall cause the immediate release of such foreigner;

(c) Shall be informed upon arrest, or immediately thereafter, of the rights set out in the preceding two paragraphs, when possible,

practicable and available in a language that he or she understands;

reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days; |e) Shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights." In terms of section 30 of the Act which deals with "undesirable persons" the following foreigners may be declared undesirable by the Department as prescribed;-

"(a) Anyone who is or is likely to become a public charge;

(b) Anyone identified as such by the Minister after consultation with the board, or tn the case of urgency, by the Minister who, in such cases, shall inform the board as soon as practicable;

(c) Anyone who has been judicially declared incompetent;

(d) An unrehabilitated insolvent;

(e) Anyone who has been ordered to depart in terms of this Act;

(ff) Anyone who is a fugitive from justice; and (g) Anyone with previous criminal convictions without the option of a fine for conduct which would b& an offence in the Republic, with the exclusion of certain prescribed offences."

After some debate between counsel it became clear that the only basis upon which the detainee could be declared an "undesirable person" was a person who had been ordered to depart in terms of the

Act.

It therefore seems to me that Mr Steyn in first declaring the detainee to be an undesirable person and then issuing him with a notification

of deportation got his sequence wrong. It seems that in terms of the Act the notice of deportation must precede the notification that a person has been declared an undesirable person. It does not seem to me that this is a material irregularity which would justify the vitiation of the decision to deport the detainee. After all, the decision to deport does not, as a matter of law, depend upon a person having been declared an undesirable person but depends on the immigration officer concerned being satisfied that the person was an illegal foreigner. On the facts before me Mr Steyn was indeed satisfied that the detainee was an illegal foreigner.

Even if I were to decide to set aside the notification of the declaration as an undesirable person this would not affect the substance of the relief which has been sought by the applicant on behalf of the detainee, namely that his deportation order be set aside and that his continued custody be declared wrongful and unlawful.

In my view it is important to note that an immigration officer has the right to detain a detainee as has been done in this particular

instance at a place such as Lindela. Of course administrative law principles would have to apply in respect of any such decision made by an immigration officer to detain a person and at a particular place but there have been no allegations put before me to the effect that the immigration officer concerned acted ultra vires or that he acted in a mala fide manner or that in any other way he departed from the accepted principles of administrative law, as I have already indicated.

The fault of issuing the notification of a declaration as an undesirable person before the deportation order does not affect the essential issues before me. Accordingly I can see no basis upon which this court as a matter of law can interfere with the continued detention of the detainee at Lindela. I wish to record that obviously it is preferable that alternatives be explored to detaining a person at a centre such as Lindela and in the light of what follows I would urge the respondent seriously to consider sensible alternatives to detention at Lindela Detention Centre.

The undesirability of keeping people in centres of detention is indeed reflected in the Act itself. In section 34 subsection (b):

"A detainee has the right at any time to request any officer attending to him or her that his Dr her detention for the purpose of deportation be confirmed by a warrant of a court which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner."

It is clear from the argument presented before me that the applicant and the detainee not unsurprisingly were unaware of the significance of this right. In other words, as I understand it, any detainee has the right to call upon the immigration officer concerned to justify the detention at a particular place. Furthermore subsection (b) of section 34 provides that a person may not be held in detention for longer than 30 days without a warrant of a court. The 30 days has not yet expired but I think it would be salutary for both sides in this matter to have regard to the fact that they are about to expire and that minds should be applied as to whether it is justified to keep this particular detainee at this particular detention centre.

Counsel forthe respondents ultimately and graciously conceded that it would be fair, now that the detainee was aware of the full import of his rights, to be given a fair opportunity to appeal the decision to deport him; to make written representations in regard to the declaration of himself as an undesirable person and to request the officer attending to him to have the detention for the purpose of deportation confirmed by a warrant of a court.

This, it would seem to me, is the furthest that I can go in granting relief to the detainee. I do not think it is appropriate to make any order as to costs in this particular matter.

The following order is made:

Jorgo Binjaaku ("the detainee") is given 11 calendar days from the date of this order to appeal against the decision to deport him; to make written representations to the Department of Home Affairs to review the declaration of him as a foreigner being an undesirable person and to request the officer attending to him that his detention for the purpose of deportation be confirmed by warrant of a court.

There is no order as to costs.