Okafor v Minister of Home Affairs and Others (26145/2020) [2020] ZAGPJHC 383 (12 October 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED: YES/NO

Date: …12/10/2020

CASE NO: 26145/2020

In the matter between:

OKAFOR CHIJIOKE LAWRENCE

Applicant

and

THE MINISTER OF HOME AFFAIRS First Respondent

DIRECTOR-GENERAL DEPARTMENT

OF HOME AFFAIRS Second Respondent

DEPARTMENT OF CORRECTIONAL SERVICES

Third Respondent

LINDELA HOLDING FACILITY

Fourth Respondent

JUDGMENT

STRYDOM J,

[1] This is an urgent application for the release of Ndu Jerry Chijioke (“the detainee”) from detention at the Lindela Holding facility where he is held as an alleged illegal immigrant awaiting deportation.

[2] Prior to hearing this matter, the court heard a similar matter which is on all fours with this matter. In the other matter Okoye Jonathan v The Minister of Home Affairs and others, Case No. 26144/2020, I gave a full judgment and do not intend to give a full judgment in this current matter as the conclusions I reach in both matters are the same.

[3] Apart from orders that this court deal with this application on an urgent basis and for costs, the applicant sought the following relief:

“2. That the continued detention of the detainee: Ndu Jerry Chijioke be declared unlawful;

3. The respondents are directed to release the detainee: Ndu Jerry Chijioke from detention at the Lindela

holding facility forthwith;

4. The respondents are directed to re-issue the detainee: Ndu Jerry Chijioke with temporary asylum seeker permit in terms of section 22 of the Refugees Act, 130 of 1998 pending finalisation of all process regarding his application;

5. Interdicting the respondents from deporting the detainee: Ndu Jerry Chijioke unless and until his status under the Refugees Act, 130 of 1998 has been lawfully and finally determined;

6. To the extent necessary, reviewing and setting aside any decision of the Magistrate’s Court to extend a warrant of detention, if any, issued or extended in terms of section 34(1)(d) of the Immigration Act, 13 of 2002 read with regulation 28(4) of the Regulations thereto;

7. To the extent necessary, permitting the applicant to bring this application without exhausting any applicable

internal remedies provided for in terms of section 8 of the Immigration Act, 13 of 2002.”

Locus standi

[4] The applicant in this matter is not the detainee. A power of attorney purportedly signed by the detainee was attached to the papers in terms of which the applicant was authorised to bring this application on behalf of the detainee. For the same reasons mentioned in the Okoye matter, the court was prepared to accept that the applicant was properly authorised to act on behalf of the detainee.

Urgency

[5] This matter came before the court on an extremely urgent basis and the deviation from the prescripts of the Practice Manual was not properly addressed in the founding affidavit. Nevertheless, the court in the exercise of its discretion decided to hear the matter on an urgent basis as it involved the freedom of a person.

Background facts

[6] This is also a matter where the factual allegations contained in the founding affidavit render it difficult to ascertain exactly what the alleged legal basis for the detainee was to remain in the country. No supporting documents in the form of asylum permits or visas were attached to the founding affidavit. The court had to rely on the documentation attached to the answering affidavit.

[7] It is alleged in the founding papers that the detainee had to flee Nigeria in 2001 because of political persecution and in fear of his life.

[8] During or about 2013 he applied for asylum. He was granted an asylum permit in terms of section 22 of the Refugees Act 130 of 1998 (“Refugees Act”). This permit was extended. According to the respondent the last permit expired during February 2014. On the applicant’s version he was informed by the detainee that the last extension of his asylum permit was granted in 2015 for a period of six months. Nothing turns on this factual difference.

[9] During or about 1 November 2015, the detainee committed the crime of dealing in drugs. He was convicted on 3 April 2018 and he was sentenced to 10 years imprisonment on 21 May 2018.

[10] There is no evidence that when his asylum application was rejected during or about 2014 or 2015, that the detainee took any steps to review or appeal this decision.

[11] When the immigration officer became aware that the detainee was due for parole, he went to visit the detainee in prison on or about 17 August 2020. There the detainee was presented with various documents, including a notification of deportation wherein he indicated that he is not going to appeal the decision for his deportation. Also a notification regarding his right to request a review by the Minister was provided to him which he signed. On this document it is not indicated whether he elected to review the decision to be deported. He was provided with a notice of decision adversely affecting right of person where

he was informed that within 10 working days from receipt of the notice he may make representations to the Director to review the

decision.

[12] Various warrants for the detention of an illegal foreigner were also signed. One by the immigration officer in terms of section 34(1) of the Immigration Act 13 of 2002 (“the Immigration Act”), also a confirmation by a court of detention for purposes of deportation purportedly signed by a magistrate. Lastly an application to court for the extension of detention and authorisation by court for that extension was signed on 26 August 2020 extending the detention for a further 90 days.

[13] As in the Okoye matter, these warrants were issued without the detainee appearing in court.

[14] The immigration officer interviewed him on 17 August 2020 and completed an immigration interview questionnaire. In this document the detainee purportedly admitted that he was illegally in the country.

[15] The detainee did not review or appeal the decision in terms of which he was found to be an illegal foreigner facing deportation.

[16] His asylum application was rejected as unfounded during or about 2015 and since that date, this decision was not challenged by way of internal remedies or through court processes.

[17] I am of the view that the detainee should be dealt with in terms of the Immigration Act and not the Refugees Act as his application for asylum has been rejected some time ago. He cannot at this stage re-apply for asylum and expect to be issued

with a temporary permit in terms of section 22 of the Refugees Act. The same applies to the issue of a temporary permit to pursue an appeal or review as this avenue was never pursued by the detainee.

The warrants of detention

[18] In the applicant’s founding affidavit the non-specific allegation is made that the detainee is unlawfully detained for lack of compliance with the Immigration Act. In a further paragraph 53 of the founding affidavit it is stated that the applicant is advised that in terms of the Immigration Act, no person may be detained for longer than 48 hours. The issue regarding the validity of detention warrants was not raised. In heads of argument filed on behalf of the applicant the legal submission was pertinently raised that section 34(1)(b) and (d) of the Immigration Act could no longer be relied upon for the extension of detention of illegal immigrants. Reference was made to the Constitutional Court’s

decision in Lawyers for Human rights v Minister of Home Affairs and Others.[1]

[19] It was argued on behalf of respondent that the court should not entertain the applicant’s defence based on the invalidity of the warrants of detention as it was not properly raised in the founding affidavit. Further, that this will also explain why the respondent failed to address this issue in the answering affidavit or in heads of argument.

[20] The court is of the view that the lawfulness of the detention of the detainee was sufficiently raised in the founding affidavit. The onus was on the respondents to prove the lawfulness of the detention and the continuation thereof.[2] The respondents endeavoured to do this by referring to various warrants and by arguing that these warrants rendered the detention of the detainee lawful. What the respondents failed to do, either in the answering affidavit or in heads of argument, was to refer to the most important matter on this issue, to wit, the Constitutional Court decision in Lawyers for Human Rights, supra. The issue pertaining to the validity of the warrants is a legal issue which this court cannot ignore. The court will have to consider the impact which this decision may have on the case of the detainee.

[21] The warrant of detention of the detainee as an illegal foreigner was issued in terms of section 34(1) of the Immigration Act. This warrant was issued by an immigration officer. The court on the same day, 17 August 2020, confirmed the detention of the detainee for purposes of deportation and confirmed that the detainee. How this warrant was authorized by the magistrate on the same day as the warrant issued by the immigration officer remains unexplained. There is no indication that the detainee appeared in court.

[22] A further application to court for extension was authorised to extend the period of detention for a further 90 days. The application was made by, an immigration officer one N Kgwale. The magistrate stated that after perusing the documentation he was prepared to order the extension. The documentation referred to was, inter alia, an affidavit of the immigration officer and there is a reference to possible representations made by the detainee. The application form (Form 32) refers to Regulation 33(4)(c) which refers to written submissions made by a detainee. All of this is a clear indication that the extension was considered and

granted without the detainee appearing in court.

[23] The court was referred to the matter of Lawyers for Human Rights v Minister of Home Affairs and others.[3] In that matter it was found that sections 34(1)(b) and (d) limited the rights of a detainee as contemplated in sections 12(1)(b) and 35(2)(d) of the Constitution.[4]

[24] The Constitutional Court found that section 12(1)(b) of the Constitution affords a person the right not to be detained without a trial and that section 35(2)(b) afforded a detained person the right to challenge the lawfulness of his detention in court in person.

[25] The declaration of invalidity was suspended for 24 months from the date of the order to enable the parliament to correct the defect. The court order further read as follows:

“4. Pending legislation to be enacted within 24 months or upon the expiry of this period, any illegal foreigner detained under section 34(1) of the Immigration Act shall be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of 48 hours, if the 48 hours expired outside ordinary court days.

5. Illegal foreigners who are in detention at the time this order is issued shall be brought before a court within 48 hours from this order or on such later date as may be determined by a court.

6. In the event of parliament failing to pass corrective legislation within 24 months, the declaration of invalidity shall operate prospectively.”

[26] The date of the court order in Lawyers for Human Rights was 29 June 2017. The 24 month period mentioned in the court order has lapsed before the detainee was detained. The effect of this would be that sections 34(1)(b) and (d) of the Immigration Act 13 of 2002 became invalid. On behalf of the applicant it was argued that the further detention of the detainee was after the expiry of the 24 months period unlawful.

[27] This court was not made aware of any amendment to section 34 rendering the section constitutionally compliant. The effect of this is that section 34(1)(a) and (b) no longer forms part of the Immigration Act. This court must now decide what the impact of the invalidity of section 34(1)(b) and (d) would have on the further detention of the detainee.

[28] As indicated previously in this judgment, there is nothing on the papers indicating that the detainee was taken to court after his initial detention or when his detention was extended for a further 90 day period. I do not intend to repeat all the grounds stated by the Constitutional Court why these sub-sections were declare unconstitutional save to state that the main reason was that the detainees were detained in terms of these sections without being placed before a court to make representations to challenge the

legality of their detention.[5]

[29] The detainee was detained on strength of warrants issued by an immigration officer and magistrates without being afforded the opportunity the challenge the legality of his detention in court. This was found by the Constitutional Court to be in conflict with the constitution. This would mean that the detention of the detainee, pursuant to these warrants issued in terms of the unconstitutional sections of section 34(1) of the Immigration Act will be is unlawful. The detainee would be entitled to his immediate release. [6]

[30] The legislature’s failure to pass corrective legislation has now caused legal uncertainty as the detainee remains an illegal foreigner, despite being release from detention. The detainee remains a person who faces deportation. It is not for this court to speculate or advise how this situation should be dealt with as this aspect falls within the prerogative of the legislature. As indicated hereinabove, the detainee would not be entitled to be re-issued with a temporary asylum seeker permit in terms of section 22 of the Refugees Act. The detainee would also not be entitled to an order interdicting the respondents from deporting him as his status under the Refugees Act has been lawfully and finally determined. The detainee remains a person who is illegally in the country who faces arrest and deportation. The detention warrant which extended the detention of the detainee which is still effective should be set aside as this warrant was issued pursuant to the constitutionally invalid section 34(1)(d).

[31] Costs should follow the result.

[32] Accordingly, the following order is made:

(1) The respondents are directed to release the detainee Ndu Jerry Chijioke with immediate effect from detention at the Lindela Holding Facility.

(2) The detention warrant dated 26 August 2020 in terms of which the Magistrate’s Court extended the detention of the detainee in terms of section 34(1)(d) of the Immigration Act 13 of 2002 is set aside.

(3) The first and second respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

R STRYDOM

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

JOHANNESBURG HIGH COURT

Date of Hearing:

23 September 2020

Judgment Delivered:

12 October 2020

APPEARANCES

Counsel for the Applicant:

Adv. N. Nharmuravate

Counsel for the Respondent:

Adv. T. L. Dikolomela

[1] 2017 (5) SA 480 CC

[2] See Arse v Minister of Home Affairs 2012 (4) SA 544 SCA at 549 C-E para [5]

[3] 2017 (5) SA 480 (CC)

[4] Section 34(1)(b) and (d) read as follows: “(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner and cause him or her to be arrested, 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 a place determined by the Director-General, provided that the foreigner concerned – (a) shall be notified in writing of the decision to deport him or her 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 by confirmed by warrant of a 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 in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands; (d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and legal grounds may extend such detention for an adequate period not exceeding 90 calendar days; and (e) …”

[4] Section 34(1)(b) and (d) read as follows:

“(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner and cause him or her to be arrested, 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 a place determined by the Director-General, provided that the foreigner concerned –

(a) shall be notified in writing of the decision to deport him or her 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 by confirmed by warrant of a 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 in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;

(d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and legal grounds may extend such detention for an adequate period not exceeding 90 calendar days; and

(e) …”

[5] See: Lawyers for Human Rights v Minister of Home Affairs supra at para 56; in para 67 the CC found as follows: “It will be recalled that the defect is not restricted to the omission of judicial review and personal appearance before the court. The

problem with s 34(1) of the Immigration Act is way much wider. In the first place the section confers broad discretionary powers without any guidance on how the powers to arrest and detain illegal foreigners must be exercised.”

[6] See also the unreported judgment of OA v The Minister of Home Affairs and others a decision of Windell J in the Gauteng Local

Division Case number 33905/2019 available on SAFLLI where the Honourable Judge referred the CC decision in Lawyers for Human

rights, supra.