Case No.:
SCA Case No: 965/2013
In the matter between:
MINISTER OF HOME AFFAIRS Applicant
and
ABDUL RAHIM First Respondent
HOSSAIN KAMAL Second Respondent
ZAKIR HOSSAIN Third Respondent
HARUN MOHAMMED Fourth Respondent
MOHAMMED SALLA UDDIN Fifth Respondent
ABDUL SHAMOL Sixth Respondent
MAHBUB ALOM Seventh Respondent
TOYOBUR RAHMAN Eighth Respondent
SUMAN CHUDHURY Ninth Respondent
MUSTAFI GURRAMAN Tenth Respondent
EUNICE HAYFORD Eleventh Respondent
SZAIUR RAHMAN Twelfth Respondent
MD ALAP Thirteenth Respondent
NOLUL ALOM Fourteenth Respondent
MAHE MINTU Fifteenth Respondent
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FOUNDING AFFIDAVIT
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I, the undersigned,
MKUSELI APLENI
do hereby state under oath that:-
1. I am an adult male and am the Director-General of the Department of Home Affairs. I am duly authorised to bring these proceedings on behalf of the applicant.
2. The allegations contained herein are true and correct. They also fall within my personal knowledge and belief, unless the converse appears from the context.
3. This application seeks leave to appeal against the judgment and order of the Supreme Court of Appeal, in the matter under case number 965/2013, which was decided on 29 May 2015. A copy of the judgment which is appealed against is annexed hereto marked “A”.
THE PARTIES
4. The applicant is the Minister of Home Affairs.
4.1 He is referred to as “the Minister” in these proceedings.
4.2 The Minister is responsible for the administration of the Immigration Act 18 of 2002 (“the Act” or the “Immigration Act”). At the core of this application is the correct meaning to be ascribed to the provisions of Section 34(1) of the Act.
4.3 Service on the Minister should be effected at the office of the State Attorney which appears at the foot of the notice of motion.
5. The respondents are Abdul Rahim, Hossain Kamal, Zakir Hossain, Harun Mohammed, Mohammed Salla Uddin, Abdul Shamol, Mahbub Alom, Toyobur Rahman, Suman Chudhury, Mustafi Gurraman, Eunice Hayford, Szaiur Rahman, MD Alap, Nolul Alom and Mahe Mintu (hereinafter referred to as “the respondents”).
6. The full and further particulars of the respondents are not known to the applicant.
7. The respondents were arrested and detained in accordance with the provisions of Section 34(1) of the Act on the grounds that they were illegal foreigners within the contemplation of Section 32, read with Section 34(1) of the Act.
MATERIAL FACTS
8. The facts in this matter appear, in full, from the record of the proceedings of the trial, which was held before the Eastern Cape High Court and was the subject of the appeal before the Supreme Court of Appeal. They are not repeated in this application. The full record shall, however, be made available at the hearing of this matter should leave be granted. In this application, only the limited facts relevant to the issue of whether leave to appeal must be granted are dealt with. The application is, in any event, concerned with a legal question, namely the correct interpretation of the provisions of section 34(1) of the Immigration Act.
9. The respondents were arrested and detained on the grounds that they were illegal foreigners.
9.1 Section 32 of the Act provides that any illegal foreigner shall depart (or be deported), unless authorised by the Director General to remain in the Republic pending an application for the legalisation of their status.
9.2 Pending the deportation which is contemplated by Section 32(2), Section 34(1) applies. That section allows for the arrest and deportation of an illegal foreigner. While awaiting their deportation, an illegal foreigner may be detained in a manner and at a place
determined by the Director General, with certain provisos which are not immediately relevant.
10. In this case the respondents were arrested and detained in police stations which are in Port Elizabeth. Save for the eleventh respondent who is from Ghana, the remainder of the respondents are from Bangladesh.
11. The respondents were all asylum seekers who had applied for asylum status in terms of Section 21 of the Refugees Act 130 of 1998. (As a result of the narrow ambit of the approach of the SCA, the issue pertaining to the asylum seeker status and applications has become irrelevant at this stage. The SCA fixed upon the issue of the lawfulness of the arrest of the respondents by reference only to Section 34(1) of the Act. No reference was made in respect of the Refugees Act).
12. The respondents were arrested and detained at several police stations in Port Elizabeth, including at KwaZakhele Police Station, St. Albans Prison and New Brighton Police Station. These shall be referred to as
“places of detention”. They remained at these places of detention for several periods ranging from four days to thirty-five days, before they were released.
13. Subsequent to their release, the respondents instituted separate delictual actions for damages against the applicant. These actions were consolidated and heard together in a single trial. At the trial only
the Applicant gave evidence. There were no testimonies given by the respondents.
14. The gravamen of the delict complained of was the alleged unlawful arrest and detention of the respondents.
14.1 In the particulars of claim on behalf of the respondents, no allegation was made to the effect that the arrest and/or detention by virtue of non-compliance with Section 34(1) of the Act.
14.2 At the trial several grounds for the alleged delict were advanced.
One of them concerned the alleged non-compliance with Section 34(1) of the Act, to the extent that the places of detention which were used for the detention of the respondents had not been determined by the Director General.
14.3 The entire claim of the respondents was dismissed by the High Court. A copy of the written judgment of the High Court is attached marked “B”.
15. The respondents appealed to the Supreme Court of Appeal. The SCA overturned the High Court.
15.1 It focused its attention on one ground, namely the alleged non- compliance with Section 34(1) of the Act, in that the places of detention had not been determined by the Director General.
15.2 Having referred to what was called “international best practice”
the SCA concluded:-
“[20] Cognisant of international best practice the legislature adopted s34(1) of the IA, with a Director-General being required to make a determination which would be in line with what is set out in the preceding paragraphs. The detention of illegal foreigners subject to deportation in circumstances such as in the present case is not subject to the Criminal Procedure Act 51 of 1977. Section 34(1) of the IA regulates their detention. Thus, the detention can only take place as prescribed by that sub-section and that means in the manner and at a place determined by the Director General. The exercise of public power is constrained by the principle of legality which is foundational to the rule of law. In s34(1) the words that dictate the manner and place of detention are deliberate and not superfluous. Detention pending deportation can only occur according to its prescripts. Reliance on s34(7) by the court below and the respondents is misplaced.
The latter sub-section of the IA regulates the removal or release of a detained illegal foreigner on the basis of a warrant to be presented to ‘the person in charge of the prison’. It does not follow that the prison referred to, does not have to be determined by the Director-General as a place at which an illegal foreigner may be detained pending deportation. There is nothing to prevent a determination by the Director General that a discreet part of a prison or other State detention facility which meets international standards, is to be used as a place at which illegal foreigners can be detained pending their deportation.”
16. Turning to the facts, the SCA concluded:-
“[24] [In] the present case, it was for the respondents to show that the Director-General had made the determinations contemplated in s34(1). This they failed to do. No attempt was made to show that any part of St. Albans Prison or any part of any police holding cells, where indeed even in respect of the Lindela Detention Centre, was determined by the Director General, in accordance with international norms to be a place at which illegal foreigners were to be detained pending deportation.”
17. Based on these findings, the SCA concluded that the detention of the respondents at the places of detention mentioned above was unlawful and consequently an actionable wrong had been committed by the Applicant. As a result, the SCA thereafter awarded damages to the respondents in various amounts ranging from R3 000,00 to R25 000,00 per individual.
GROUNDS FOR APPEAL
18. The applicant submits that the finding by the SCA that the detention of the respondents at the places of detention mentioned above constituted an actionable delict is wrong and should be overturned by this Court. It is an incorrect interpretation of the provisions of Section 34(1) of the Immigration Act.
(i) A constitutional issue of importance
19. The question of the correct interpretation of section 34 of the Immigration Act is one of immense constitutional significance. First, it implicates South Africa’s obligations under international law in relation to the detention of illegal foreigners. Second, it raises the question of the obligations imposed by the Constitution in respect of the detention of illegal foreigners. Third, the application is about the correct construction of a piece of legislation. It has been held by this Court that an interpretation of legislation does raise a constitutional issue when the contention must be measured against the constitutional standard.
The issue herein is about the constitutionally compliant interpretation of section 34(1) of the Immigration.
20. The SCA reasoned that the approach it was adopting was informed by the principle of legality and the substantive obligations of South Africa under international law. It is submitted that the SCA was wrong on both counts.
21. The applicant submits that Section 34(1) of the Act has been authoritatively interpreted by this court. The SCA took an interpretation which is at odds with that of this court.
22. It is also submitted that there is a public interest in having this matter finally decided by this Court, being the final appellate court, rather than the SCA, which in any event wrongly interpreted the law.
(ii) Incorrect interpretation of the Act by the SCA
23. In addition to the above considerations, the applicant submits that leave to appeal must be granted because the interpretation by the SCA is wrong. The grounds for this contention are the following.
Dominant purpose of section 34(1)
24. The SCA adopted an unduly mechanical approach to the section, without regard to its dominant purpose. It is conceded that Section 34(1) serves a dual purpose. On a proper construction, its dominant or primary purpose is to empower immigration officers to ensure that illegal foreigners who are already in the country can be arrested and detained at places of detention which are under the control of the State. Its dominant purpose is not to prescribe minimum conditions for detention. Nor is it to impose obligations on the Director-General to designate or determine places of detention with regard to international norms. While these are purposes found in the section, they can hardly be said to be the primary purpose of the section.
25. In elevating a subsidiary purpose above everything else, the SCA completely failed to ask itself what the dominant purpose of Section 34(1) is. Had it done so, it would have come to the conclusion that such dominant purpose, being to ensure that illegal foreigners in South Africa are arrested and detained at public places under the control of the State, was fulfilled. To this extent, there was no actionable wrong committed by the State arising from the fact that no evidence was led that the police stations and the prisons at which the respondents were
detained had not been designated or determined as such by the Director-General.
26. The question as to the dominant purpose behind Section 34(1) of the Act should not have been controversial before the SCA. It has been explicitly commented upon by this court in Lawyers for Human Rights &
Others v Minister of Home Affairs & Others 2004 (4) SA 125 (CC) in the following terms:-
“[39] Section 34(1) is concerned with a situation different from that contemplated by s34(8). Sub-section (8), in part, is concerned with and authorises the detention of people suspected of being illegal foreigners on a ship by which they arrived. It will be remembered that s34(8) gives immigration officers a choice. They can either be content with a detention of the people concerned on the ship, or cause people to be detained elsewhere. Section 34(1) is designed to cater for the situations in which illegal foreigners are detained in a facility over which the government has control and which is service or frequented by State officers. Thus, for example, people detained on a ship cannot ‘at any time request any officer attending’ to them that their detention be confirmed by a court in compliance with s34(1)(b). There is no officer attending to them on a ship. The government correctly concedes that s34(1)(c) cannot be applied because the person detained on a ship cannot be said to have been arrested. There is also the consideration that sub-section (e) of s34(1) refers to prescribed standards of detention which again suggests a State facility. Finally, the provisions in s24(8) do not expressly make the s24(1)
protection available to a person detained on a ship.
[40] It was submitted on behalf of the government that the s34(1) protection or conditions apply to any person who is caused to be detained by the immigration officer. The argument goes that it is the immigration officer who causes the detention of the suspected illegal foreigner on a ship in terms of s34(8). It is true that immigration officers caused the detention of people on a ship in a broad sense. All the officer does is to make the relevant statement after forming a reasonable suspicion. But the question we have to answer is whether immigration officers who make such a statement caused the detention of people within the meaning of s34(1). Section 34(1) authorises immigration officers to cause the detention of illegal foreigners at a place under the control of the administration of the department. Immigration officers must be responsible for the detention in the sense that they must make arrangements for that detention to take place within a State facility. This is confirmed by the use of the words ‘cause such person to be detained’ in the second half of s34(8) which has nothing to do with detention on a ship. The sub-section makes a distinction between the detention of suspected people by the master on a ship on the one hand and detention at the instance of the immigration officer who ‘may cause such person to be detained elsewhere’ in a State facility on the other.
Section 34(1) applies to detention in a State facility but it does not apply to detention on a ship.”
[Emphasis added]
27. It is submitted that the main purpose of Section 34(1) is to require that
a person detained under that section should be held at a State facility or a facility under the control and administration of the State. The mere fact that such a place of detention has not been determined by the Director-General is not the primary pre-occupation of the section.
28. A detention which takes place in a State controlled or owned facility is not unlawful for being in conflict with Section 34(1). It is lawful. The fact that the Director-General may have failed to carry out the obligation to determine a place of detention does not affect the legality of the use of a State owned or State controlled centre for purposes of detention. Since the dominant purpose to the section is to ensure that detentions only happen at State controlled or State owned centres, any detention at such centres would not be unlawful. It is therefore submitted that the SCA was wrong in failing to appreciate that by detaining the respondents at the police stations and prisons mentioned above, it had complied with its statutory obligations.
Substantial compliance with section 34(1)
29. The SCA failed to ask if there was substantial compliance with the provisions of section 34(1). It is submitted that as set out above, in the Lawyers for Human Rights case before this Court, the primary purpose behind section 34(1) is to ensure that any detention takes place at a State controlled or run facility. The reason why the section requires the Director-General to designate and/or determine a place of detention is so that any place of detention can be under the control of the State. It
is accepted that such place of detention must also meet international standards.
30. On the facts of this case, the SCA should have asked whether the object of the legislation was fulfilled or not, even if there was a technical non-compliance in the failure by the Director-General to designate the relevant police stations as places of detentions. The enquiry of this nature would have yielded the clear answer that since the objective of the designation by the Director-General is to ensure that State controlled facilities are used when detaining illegal foreigners.
31. It is submitted that the underlying purpose behind section 34(1) was met. Since the purpose behind the section was fulfilled, there was substantial compliance with the section. There was, for all intents and purposes, compliance with section 34(1) of the Act.
Conflating prescribed minimum conditions and the issue of
“determination” by the Director-General
32. The SCA made references to international standards, which it seemed to suggest, should have been taken into account when determining places of detention by the Director General. The SCA appears to imply that simply because prisons or police stations do not meet international standards, they could not be determined as places of detention in terms of Section 34(1) of the Act. This is an absurd proposition. The
determination is a separate act from the assessment of compliance with international standards.
33. It is accepted that any place of detention must comply with international standards and South Africa’s Constitution. But it is submitted that the power of determination should not be conflated with the detention conditions. The two are separate and should be treated as such.
Whether a police station has been determined as a place of detention cannot depend on whether it meets certain basic international standards for the purposes of adjudicating the present dispute.
34. In any event, on the facts, there was no evidence suggesting that the specific police stations in question do not meet the constitutional or international standards for the detention of illegal foreigners.
35. It is accordingly submitted that the SCA was wrong in coming to the conclusion that the alleged non-compliance with international standards has any impact on the question whether the Director- General had exercised the power of determining the affected police stations as places of detention under Section 34(1) of the Act. The issue of determination of whether a police station could be used for detention depends on the objects behind the legislation, which is to ensure that any place of detention is owned or controlled by the State.
It does not depend on whether it meets international standards. It is wrong to reason – as the SCA appears to have done – that compliance with international standards is integral to the issue of determination.
Formal determination not necessary
36. It is submitted that there is no textual justification for insisting on a formal determination of each and every place of detention prior to giving effect to a detention. Properly construed, the determinations can be made on an ad hoc basis by officers appropriately delegated by the Director-General, depending on the exigencies of the circumstances of the arrest at a particular given time. This approach is context specific and sufficiently sensitive to South Africa’s resource constraints.
37. In any event, if it is correct that every place of detention should be specifically determined or designated as such by the Director-General, it is disputed that failure to determine such police stations or prisons as places of detention necessarily results in an actionable wrong in the event a person is detained at such place of detention, where the detention is otherwise lawful in that it is effected with sufficient cause and the prerequisites of Section 34(1)(a) to (e) have been fulfilled. Any detention in those circumstances would not be rendered unlawful simply on account of the use of a police station. It has already been submitted that the principal purpose of Section 34(1) is to ensure that any detention takes place at a State controlled facility.
38. Furthermore, the section itself by using terms like “arrest” and
“detention”, clearly envisages the use of facilities akin to those found in
prisons or police stations. A person detained in such facility would accordingly suffer no harm to the extent that they would be entitled to damages in the delictual sense, as happened herein.
APPLICATION FOR CONDONATION
39. I am advised that this application ought to have been filed on or before 22 June 2015 in light of the fact that the judgment of the SCA was delivered on 29 May 2015. I was however informed by the Department’s legal counsel that the last day for the filing of the application was 23 June 2015. This however later proved to be incorrect and it purely based on the miscalculation of the dates.
40. I signed the affidavit on 23 June 2015 which was delivered to the State Attorney the same day for filing. The State Attorney indicated that the application could not be filed without an application for condonation because it was one day out of time. I instructed the legal representatives to draft an application for condonation which was only done on the 2nd of July 2015. I then signed the affidavit upon receipt thereof. The lateness was solely occasioned by the error in the calculation of the dates and not due to wilfulness thereof. I apologise for this error. The application is only out of time by 9 days which is not long, and the respondents are not prejudiced. The prospects of success are good in the application for leave to appeal.
41. For the above reasons, I ask the Honourable Court to grant
condonation.
CONCLUSION
42. It is therefore submitted that the SCA was wrong in coming to the conclusions which it did. The interests of justice require that this court should grant leave to appeal against the judgment. There is an immense public interest in the matter. It is important that there should be clarity as to the meaning and import of Section 34(1) of the Act.
Only this court can provide the determinative meaning to the provisions of the section.
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DEPONENT
I hereby certify that this affidavit was signed and sworn to before me at ______________ on this the _____ day of JULY 2015, by the deponent who acknowledged that he knew and understood the contents of this affidavit, had no objection to taking this oath, considered this oath to be binding on his conscience and who uttered the following words: “I swear that the contents of this affidavit are true so help me God”.
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