Minister of Home Affairs and Others v Bushiri (43470/2020) [2020] ZAGPPHC 796 (23 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED. YES

23 November 2020

CASE NO: 43470/2020

In the matter between:

THE MINISTER OF HOME AFFAIRS

First Applicant

THE ACTING DIRECTOR-GENERAL:

DEPARTMENT OF HOME AFFAIRS Second Applicant

NICO KRUGR: SENIOR ADMINISTRATION OFFICER Third Applicant

and

SHEPHERD HUXLEY BUSHIRI Respondent

NEUKIRCHER J:

1] On 21 October I handed down judgment in an urgent matter brought by the respondent[1] in which he sought, inter alia, to suspend the 30 day period to respond to the applicants’ Notice given under the provisions of the Immigration Act, 2002 (Act No 13 of 2002).

2] The order I granted is 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 have been noted in case number CC14/2020,

be afforded a period of 30 day from date of the plea, within which to make any formal representation if they so wish or are no advised in the Notice dated 2 August 2020.”

3] It is against only the order as set out in paragraph 44.1 (supra) that the applicants

seek leave to appeal.

4] The application for leave to appeal was fully argued before me via videoconferencing

on Friday 13 November 2020. All the parties were represented by the counsel who are mentioned at the conclusion of this judgment.

5] Later that same evening I became aware of the fact that the respondent and his wife had fled South Africa and were in Malawi. I found this out via various news reports[2]. It also appears that the they had been arrested in connection with various theft, fraud and money laundering charges and brought before the Pretoria Magistrate’s Court on 21 October 2020 where they were granted bail on certain bail conditions.

6] The first applicant was also reported to have revoked the respondent (and indeed his entire family’s) Permanent Residence Permit.

7] Thus it appeared to me that the entire basis for the application for leave to appeal had become moot.

8] On Monday 16 November 2020 I thus directed this query to the parties and asked

them to make submission in this regard. The responses were as follows:

8.1 The applicants, via the Office of the State Attorney, stated inter alia as follows[3]:

“2. Since the application was heard, there are developments regarding the departure of Mr Bushiri and his wife, Mary Bushiri from South Africa to his country of origin Malawi. The investigation conducted thus far revealed that Mr Bushiri and his wife left the country illegally and in flagrant disregard of the bail conditions. As matters stand, warrants of their arrest have been issued…

4. We are of the view that the judgment or decision of the Court will have no practical effect or result. The order of the Court to the effect that the notice issued by our clients is suspended until Mr Bishiri and his wife have pleaded to the charged under case no: CC14/22020 cnnot in the circumstances, be enforced. This is so because Mr Bushiri and his wife are now facing further criminal charges of fraud and money-laundering. The two were released under bail conditions which they have now violated…

6. There is another strong reason rendering the appeal moot. Mr Bushiri and his wife are fugitives from justice and have thus placed themselves beyond the jurisdiction of this Court and thus lacks the necessary

locus standi to pursue the appeal[4]…

7. We therefore request that the Court exercise its inherent powers and in terms of section 16(2) of Superior Courts Act and not issue the judgment in respect [of] the application for leave to appeal lodged by our clients.”

8.2 On the other hand, the stance of the respondent i(expressed via his attorney) is that the order remains valid, that the events upon which it is predicated will only arise in May 2021 and that all issues will be properly and fully ventilated in the proper forums in due course. It is also pointed out that it appears from the applicants’ stance that they appear to withdraw the application for leave to appeal.

9] Insofar as whether or not I can take cognisance of issues placed in the public domain it has been stated:

“The court takes into account the purpose of judicial notice. If a fact is so notorious that it would be a waste of time to hear evidence about it, the court takes notice of it.”[5]

10] In this case the facts set out supra have been admitted by both parties.

11] As to whether or not the respondent and his wife have “placed themselves beyond the jurisdiction of this Court and thus lacks the necessary locus standi to pursue the appeal,” it is necessary to point out that it is not they who seek leave to appeal – it is the applicants. The matter was fully argued and ventilated and all that remains of it is for judgment to be handed down.

12] The applicants have referred me to the judgments of Mulligan v Mulligan and Maluleke v Dupont NO and Another[6] as authority for their view. In Mulligan the court stated:

“Before a person seeks to establish his rights in a court of law he must approach the court with clean hands; where he himself, through his own conduct makes it impossible for the process of the court (whether criminal or civil) to be given effect to he cannot ask the court to set its machinery in motion to protect his civil rights and interests. Were it not so, such a person would be in a much more advantageous position than an ordinary applicant or even peregrines, who is obliged to give security. He would have all the advantages and be liable to none of the disadvantages of an ordinary litigant, because, if unsuccessful in his suit, his successful opponent would be unable to attach either his property, supposing he had any, or his person, in satisfaction

for his claim for costs. Moreover, it is totally inconsistent with the whole spirit of our judicial system to take cognisance of matters conducted in secrecy. It is true the applicant is entitled to present his petition through a solicitor, but, nonetheless, while disclosing his whereabouts to his solicitor, he withholds that information from the court and from his opponent. As a fugitive from justice, he is not only not amenable to the ordinary criminal and civil processes of the court, but as far as this Court is concerned, it cannot call upon him to appear in person to give evidence on oath; it cannot order his arrest in case the facts testified to in his affidavit are proved to be false, whereas on the other hand he would be able to incept criminal

proceedings for perjury to have been committed by his opponent. And, in this case, he would be able to involve the authority of the court to arrest his opponent if she were suspected of flight with the property sought to be interdicted. Such a litigant might, moreover, conceivably be the cause of the courts being unable to arrive at any decision on the facts sought by him to be determined, if, during the hearing of the application, the court were to find that justice could not be done unless he was called to give evidence on oath before it. Were the court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would moreover, be conniving at and condoning the conduct of a person, who through his flight from justice, sets law and order in defiance.”

(emphasis provided)

13] In my view these authorities do not assist the applicants for the reasons set out in paragraph 11 supra. The applicants have a number of remedies available to them under the provisions of the Immigration Act and, if it is indeed so that the first applicant has revoked the Permanent Residence Permit, then the further issue is whether or not the relief I granted has been rendered nugatory by that decision. This is not something I intend to express any opinion on as it is not an argument that has been ventilated before me and to express and opinion at this juncture would not be appropriate.

14] Insofar as the applicant have requested that I refrain from “issu(ing) the judgment”, I am of the view that there is no precedent for this relief and none was provided. In terms of the Judges Norms and Standards[7]

14.1 s5.1(i) states: “Every Judicial Officer must dispose of his or her cases efficiently, effectively and expeditiously.”;

14.2 s5.2.6 provides that “…every effort shall be made to hand down judgments no later than 3 months after the last hearing.”

15] There is no reason to refuse to hand down judgment in the application for leave to appeal or, for that matter, to delay it. In my view, to do so (in this matter especially) may well set a dangerous precedent.

16] Given that the respondent had, by his own admission, fled South Africa and broken his bail

conditions, and given that it appears that the first applicant has already revoked the Permanent Resident Permit, the substratum for the entire matter has dissolved. This being so, there is no trialable issue that remains to be decided with regard to the application for leave to appeal.

17] s16(2) (a) (i) states

“When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

18] I am of the view that the application falls within that definition. However, I am of the view that the applicants should not be ordered to pay the costs of the application as the only reason that the order that I will make is because of the events that unfolded subsequent to the hearing on 13 November 2020 and this can be placed squarely at the feet of the respondent.

Order

19] Thus the order I make is the following:

The application for leave to appeal is dismissed.

B Neukircher

JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

Electronically submitted therefore unsigned

Date of hearing: 13 November 2020

Date of judgment: 23 November 2020

Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 23 November 2020.

Counsel for Minister of Home Affairs + 2: Adv Matabetse SC, with him Adv K Ramaimela

Instructed by: State Attorney, Pretoria

Counsel for Mr Bushiri: Adv N Manaka

Instructed by: Victor NKhwashu Attorneys

[1] Who was the applicant in the main application. I will refer to the parties as they are indicated in the headnote of this judgment

[1] Who was the applicant in the main application. I will refer to the parties as they are indicated

in the headnote of this judgment

[2] As to whether judicial notice can

[3] As the response is lengthy, I set out only the most salient comments

[4] And here reference was made to Mulligan v Mulligan 1925 TPD 164 at 167 and Maluleke v Dupont NO and Another 1967 (1) SA 574 (A)

[4] And here reference was made to Mulligan v Mulligan 1925 TPD 164 at 167 and Maluleke v

Dupont NO and Another 1967 (1) SA 574 (A)

[5]

Schmidt & Rademeyer; Law of Evidence; LexisNexis; 6-7 at par 6.2.1.1; Mabunda Inc and Others v Road Accident Fund and Others (15876/2020) [2020] ZAGPPHC 118 (30 April 2020) at par 5.9

[5]

Schmidt & Rademeyer; Law of Evidence; LexisNexis; 6-7 at par 6.2.1.1; Mabunda Inc and

Others v Road Accident Fund and Others (15876/2020) [2020] ZAGPPHC 118 (30 April 2020) at par 5.9

[6] See fn4 supra

[7] GG37390 of 28 February 2014, GN147