Malinga and Others v Director-General of Home Affairs and Another (73595/2016) [2016] ZAGPPHC 1233 (16 November 2016)

Malinga and Others v Director-General of Home Affairs and Another (73595/2016) [2016] ZAGPPHC 1233 (16 November 2016)

The court found that the first applicant's detention was lawful under the Immigration Act. The applicant had acknowledged his status as an illegal foreigner, was properly notified of the deportation decision and his rights, and had signed documents indicating his consent to remain in custody and not to appeal. The applicant's explanation for signing these documents was found to be unconvincing and unsupported by the evidence. The court concluded that the applicant was not entitled to release from detention, as the requirements of the Act had been met and the respondents had discharged the burden of proving lawfulness.

Citation
[2016] ZAGPPHC 1233
Parties
Applicant: KS L Malinga; Applicant: M E Matlapeng; Applicant: S O Matlapeng; Applicant: J M M Malinga; Applicant: M L Lephogole; Applicant: A K Lephogole; Respondent: Director-General of Home Affairs; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 November 2016
Case Number
73595/2016
Procedural Posture
Urgent Application / Reasons for Order Following Urgent Application
Outcome
Application in terms of Part A dismissed with costs; application in terms of Part B postponed sine die; first applicant not to be deported pending finalisation of Part B.
Judges
D S Fourie
Legal Topics
Immigration Act Detention, Deportation Procedure, Lawfulness of Arrest, Interim Interdict, Internal Remedies
Administrative Law Civil Procedure Immigration Act Detention Deportation Procedure Lawfulness of Arrest Interim Interdict Internal Remedies

Case Brief

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Parties

KS L Malinga

Applicant

M E Matlapeng

Applicant

S O Matlapeng

Applicant

J M M Malinga

Applicant

M L Lephogole

Applicant

A K Lephogole

Applicant

Director-General of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Urgent Application / Reasons for Order Following Urgent Application

Legal Issues

  1. 1 Whether the first applicant's detention by the Department of Home Affairs was lawful.
  2. 2 Whether the first applicant is entitled to release from detention pending review.
  3. 3 Whether the applicant's consent to deportation and waiver of appeal rights was valid.

Ratio Decidendi

The court found that the first applicant's detention was lawful under the Immigration Act. The applicant had acknowledged his status as an illegal foreigner, was properly notified of the deportation decision and his rights, and had signed documents indicating his consent to remain in custody and not to appeal. The applicant's explanation for signing these documents was found to be unconvincing and unsupported by the evidence. The court concluded that the applicant was not entitled to release from detention, as the requirements of the Act had been met and the respondents had discharged the burden of proving lawfulness.

Court Disposition

Application in terms of Part A dismissed with costs; application in terms of Part B postponed sine die; first applicant not to be deported pending finalisation of Part B.

Orders

  • The application in terms of Part A of the notice of motion is dismissed with costs.
  • The application in terms of Part B of the notice of motion is postponed sine die.