D S K v Minister of Home Affairs (735/2023) [2024] ZAECMHC 62 (30 July 2024)

Editorial note: Certain information has been redacted from this judgment in compliance with the law.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, MTHATHA)

CASE NO: 735/2023

In the matter between:

D S K Plaintiff

and

MINISTER OF HOME AFFAIRS Defendant

__________________________________________________________________

JUDGMENT

__________________________________________________________________

RUSI J

[1] The arrest, detention and deportation of foreigners by reason of their illegal status in the Republic of South Africa indubitably involves an exercise of discretionary powers. Against this background, the law as it stands demands that the arrest and detention of illegal foreigners be subjected to the criterion of interests of justice and must have due regard to the Rights of arrested and detained persons enshrined in section 35 of the Constitution¹ among other constitutional guaranteed rights.

[2] The plaintiff was arrested on 18 November 2022 for illegally being in the Republic of South Africa (the Republic). She was brought to the Mthatha Magistrates’ Court on 21 November 2022 where she pleaded guilty to the charge of contravening section 49(1)(a) of the Immigration Act 13 of 2002 (the Immigration Act) and was caused to pay an admission of guilt fine. She was subsequently detained at the Mthatha Central Police Station (the Central Police Station) from 21 November 2022 pending her deportation and her detention endured until 22 December 2022 when she was released by the members of the defendant.

[3] Aggrieved by her arrest and detention, the plaintiff sued the defendant for damages in the sum of R1million rand, alleging that her arrest and detention were unlawful. Her claim is resisted by the defendant who alleges that in arresting and detaining the plaintiff, his members acted on the strength of section 49 of the Immigration Act which makes it an offence for anyone to enter and remain in the Republic without the necessary permits authorizing her to do so. The defendant further states that the plaintiff’s continued detention was authorized by the court as provided for in the same Act.

The pleadings

[4] In her particulars of claim, the plaintiff avers in the main that her arrest was unlawful in that she was arrested without a warrant and was not informed of the reasons for her arrest, nor was she informed of the reasons of her subsequent detention. As regards her detention, she alleges that her further detention from 21 November 2022 after she pleaded guilty in court and convicted of contravening section 49(1)(a) of the Immigration Act, until 22 December 2022 was unlawful on the grounds that it was never authorized by the court; and further that she was not brought to court in order to challenge it.

[5] The plaintiff further alleges that she was detained in deplorable conditions at the Central Police Station which was not suitable for her detention, and she was not informed of the reasons for her detention from 21 November to 22 December 2022. She further alleges that she was refused the right to challenge the lawfulness of her arrest in person or through an attorney and the immigration officers failed to bring her to court at the expiry of 48 hours from her arrest.

[6] In the alternative, the plaintiff pleaded that her arrest and detention were on the strength of the provisions of section 34 of the Immigration Act which have been declared unlawful and therefore her arrest and detention in terms of the said section violated her rights provided for in sections 12 and 35 of the Constitution.

[7] The defendant alleges in his plea that his members were entitled to arrest the plaintiff as she failed to identify herself as envisaged in section 41 of the Immigration Act as foreigner who is lawfully in the country or a citizen of the Republic. The defendant further avers that the court authorized the plaintiff’s further detention, and she was duly informed of the decision to deport her and of the reasons for her continued detention.

[8] It is the defendant’s assertion further that the Central Police Station is the detention facility in which persons awaiting transfer to the Lindela holding facility are normally detained. The defendant denies that the plaintiff was not brought to court for the confirmation of her detention pending deportation.

[9] In defence to the alternative cause of action founded on the plaintiff’s arrest on the strength of constitutionally invalid provisions of section 34 of the Immigration Act, the defendant pleaded as follows:

9.1 Save to aver that the detention of the plaintiff was authorized by the Magistrate, the Defendant has no knowledge of the rest of the allegations contained therein and the plaintiff is put to the proof thereof.

The trial

[10] The trial of this matter was set to proceed on both the merits and quantum of the plaintiff’s claim as envisaged in the parties’ pre-trial minute dated 19 June 2023. As regards the merits of the claim I was called upon by the parties to determine in particular whether the members of the defendant were justified in arresting the plaintiff on 18 November 2022 and detaining her until 22 December 2022; and in particular, whether they were justified by the provisions of section 34 of the Immigration Act to act as they did. Only the defendant adduced viva voce evidence. Evidence of discovered documents was admitted into the record by agreement between the parties without any formal proof thereof.

The incidence of onus

[11] The defendant admitted the arrest and detention of the plaintiff and therefore bore the onus to justify them. He also accepted the duty to begin adducing evidence.

The issues

[12] It bears mentioning at this early stage that during the trial of this matter it became common cause between the plaintiff and defendant that the plaintiff had admitted being illegally in the country hence she paid an admission of guilt fine on her first appearance in court on 21 November 2022. It is further common cause that when application papers for the urgent release of the plaintiff were served upon the defendant’s offices in Mthatha, she was released from detention by the members of the defendant on 22 December 2022.

[13] The gravamen of the plaintiff’s case therefore became whether the defendant’s members were justified in detaining her from 21 November to 22 December 2022 in circumstances where, according to her, her detention was not authorized by the court. She also persisted with the contention that her continued detention was unlawful on the basis that she was not brought to court to challenge it. Alongside this, she also persisted with her challenge of the lawfulness of her arrest and detention on the strength of section 34 of the Immigration Act.

The defendant’s case

[14] The defendant adduced the evidence of Mr Xola Memani and Mr Msimelelo Maqeda both of whom were involved as immigration officers in the process leading to the detention of the plaintiff after her arrest on 18 November 2022.

(a) Mr Xola Memani

[15] According to Mr Memani, although he did not arrest the plaintiff, it was at his instance that she was detained subsequent to her arrest. He caused her detention at the Central Police Station after she did not produce the necessary permit or visa authorizing her to be in the country. It transpired during an interview he had with her at the police station that on 23 October 2020 in Krugersdorp Gauteng Province, she was ordered by an immigration officer to leave the Republic by 05 November 2020 on pain of being arrested and detained pending her deportation.

[16] A case docket was consequently opened, and the plaintiff was charged with contravening section 49(1)(a) of the Immigration Act. Upon her appearance in court on 21 November 2022, she elected to pay an admission of guilt fine. She was further detained at the Central Police Station as evinced by a warrant of detention issued by an Immigration officer under his supervision. The plaintiff was detained pending her deportation.

[17] It was already late on 21 November 2022 when he and his colleagues left the court, and as far as he knew no request was made to the court on this day for the confirmation of the plaintiff’s detention pending deportation. It was his and his colleagues’ intention to return to court the following day to apply for the court’s confirmation of the plaintiff's detention from 21 November 2022 pending deportation. The plaintiff’s presence in court was required when an application was made for the confirmation of her further detention post arrest pending her deportation. Failure to bring the plaintiff to court would be an irregularity.

[18] He did not return to court on 22 November 2022 as intended but his colleague, Mr Maqeda, and other colleagues did. It is from them that he heard of what transpired in court on this day. He was informed that the magistrate confirmed the plaintiff’s detention on 22 November 2022 and backdated the confirmation to 21 November 2022 as he still recalled the plaintiff’s case from the previous day. The plaintiff was also given notice on 21 November 2022 of the decision to deport her. An application was further made on 09 December 2022 for the extension of the plaintiff’s detention for a further period pending her deportation. The magistrate further confirmed the extension of the plaintiff's detention on 09 December 2022.

[19] It emerged during Mr Memani’s cross-examination by Mr Matotie who represented the plaintiff, that during an interview of the plaintiff by Mr Maqeda on 21 November 2022, she revealed that she entered the Republic on 20 December 2002 for the purposes of visiting her sister and as a result of ‘political problems’. This appears on an immigration interview questionnaire that Mr Maqeda completed as the record of the interview. From the same interview questionnaire, it also appears that the plaintiff was married in 2003 to one Mr S[…] M[…].

(b) Mr Msimelelo Maqeda

[20] Mr Maqeda testified that in the execution of his duties as the defendant’s immigration officer he arrested the plaintiff in the Mthatha central business district on 18 November 2022 during an operation that was aimed at identifying illegal foreigners. She was hiding in a room where she and another female were conducting business as herbalists.

[21] When the plaintiff and her female companion eventually came out of their hiding and upon being asked why they hid, they explained that they did not have permits authorizing them to be in the Republic. It was upon receiving this explanation that he and his colleagues took the plaintiff to the Central Police Station in order to question her fully regarding her presence in the Republic. When it transpired during their further interview at the police station that the plaintiff did not have a permit authorizing her to remain in the Republic, she was charged with contravening section 49(1)(a) of the Immigration Act.

[22] The plaintiff’s appearance in court on 21 November 2022 where she paid an admission of guilt fine of R1000.00 was confirmed by Mr Maqeda. At first Mr Maqeda testified that the plaintiff was present in court and so was he when the magistrate confirmed her detention. He too left court at 16h00 on 21 November 2022, and his colleagues that he left behind, namely, Mr Mvunge and Mr Memani were the ones who would attend to the remainder of their duties at court.

[23] He further confirmed that he made entries in the investigation diary recording both the plaintiff’s arrest on 18 November 2022 and her appearance in court on 21 November 2022 and the fact that the plaintiff was issued with the notification of the decision to deport her. It was him who interviewed the plaintiff on 21 November 2022 where it emerged that she entered the Republic in 2002 impelled by political unrests in her country of origin. The plaintiff indicated to him that she made an application for asylum on 23 January 2020, but no further details were obtained of the status of her application.

[24] Asked during cross-examination to explain why Mr Memani previously testified that no confirmation of detention was made by the magistrate on 21 November 2022, he told the court that Mr Memani was mistaken and would not have remembered all the illegal foreigners that were arrested on 18 November 2022 as they were too many. He was further asked whether during the court proceedings on 21 November 2022 the plaintiff was invited to respond to the application for the confirmation of her detention pending deportation. His response was that he does not know as he was not present when the confirmation of the plaintiff’s detention was granted.

[25] It was Mr Maqeda’s evidence further on this score that he later gathered from his colleagues that it was on 21 November 2022 that the magistrate confirmed the plaintiff’s further detention pending deportation and that this was done in open court in the presence of the plaintiff with his colleague Mr Mvunge as the one who made the application.

[26] He further told the court that when it appeared that the plaintiff’s deportation would not take place within 30 days from 21 November 2022, an application was made on 09 December 2022 for the extension of her detention for a further period that would not exceed 90 days pending her deportation. He heard afterwards that the plaintiff was released from detention after the defendant’s department was served with court application papers in which the plaintiff sought a mandamus for her release.

[27] Mr Mvunge was not called by the defendant, nor was the magistrate who allegedly confirmed the plaintiff’s detention on 21 November 2022 and 09 December 2022, respectively, pending deportation.

[28] For the sake of completeness, I must point out that from the bundle of documents that were admitted in evidence marked “Bundle 3”, the plaintiff’s case was transferred from the court of her first appearance to “A” court for the admission of guilt fine proceedings, in which latter court she was legally represented. Below I reproduce the relevant portion of record of the proceedings before the magistrate who was seized with the plaintiff’s case after its transfer from the court of first appearance on 21 November 2022:

“PP: Accused is before court in custody.

Def: Confirm appearance

PP: Accused have (sic) paid an admission of guilt fine.

Def: Confirmed

Court: Matter is disposed of by payment of an admission of guilt fine of R1000.00.

[Signed by the magistrate].”

[29] Mr Maqeda denied the plaintiff’s version that she told her arrestors that she was an asylum seeker. He also denied the fact that none of her rights as an arrested and detained person were explained to her. That the plaintiff was not present in court when the confirmation of her detention pending deportation was granted by the magistrate, was also denied by Mr Maqeda.

The application for judgment in favour of the plaintiff

[30] At the close of the defendant’s case after the testimony of Mr Maqeda, and without reference to authority from case law, Mr Matotie applied that judgment be entered in favour of the plaintiff on the merits of her claim. I asked Mr Matotie if it was competent to do so without the plaintiff having closed her case at that stage.

[31] I deal hereunder with Mr Matotie’s submissions in persisting with the application and those made in response by Mr Mdeyide who represented the defendant.

Submissions on behalf of the plaintiff

[32] In substantiating the application for judgment in favour of the plaintiff, Mt Matotie highlighted the fact that the two witnesses that were called by the defendant gave conflicting versions regarding the aspect the plaintiff’s further detention from 21 November to 22 December 2022. On this score he further submitted that it would be unfair for the plaintiff to be put on her case in rebuttal as it is unclear which of the two conflicting versions she would have to rebut.

[33] Relying on the decision of the Constitutional Court in Ex Parte Minister of Home Affairs² where the provisions of section 34(1)(b) and (d) of the Immigration Act were declared unconstitutional, he further submitted that it ought to follow that the confirmation of the plaintiff’s detention from 21 November to 22 December 2022 was unlawful. From the time of this declaration of constitutional invalidity, so the submission went, the courts have accepted that the provisions of section 34(1)(b) of the Immigration Act were not operative.

[34] Mr Matotie further submitted that in the light of the uncontroverted evidence of the plaintiff that she was an asylum seeker, her continued detention was in any event unlawful on that basis only. I must immediately state that this was not the case that the plaintiff pleaded. It is trite that a party cannot plead one case and seek to introduce another during trial. Nor is it permissible for the court to have recourse to issues falling outside the pleadings in deciding a case.³

[35] It is necessary that in brief terms I put the litigation that culminated in the 2023 Constitutional Court decision that Mr Matotie referred to in correct perspective. It was in 2017 that the Constitutional Court first declared the provisions of section 34(1)(b) and (d) unconstitutional and suspended the order of invalidity for 24 months pending parliament enacting corrective legislation to cure the defect.⁴ Regarding the prospective regulation of illegal foreigners, the Constitutional Court made the following order:

‘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 the 48 hours, if 48 hours expired outside ordinary court days.’⁵

[36] This meant that at the expiry of the 24-month period in June 2019, the constitutional invalidity took effect – the impugned provisions could not be applied.

[37] When Parliament failed to meet the deadline to enact corrective legislation, the Minister of Home Affairs, in 2023, approached the Constitutional Court for the revival of the order it made in 2017.⁶ The Constitutional Court, on 30 October 2023, granted an order giving Parliament 12 months from the date of its order within which it was to enact remedial legislation as it was envisaged in the 2017 order.

[38] The Court simultaneously supplemented the 2017 order by setting out the procedure that would be followed in the meantime when an illegal immigrant is to be arrested and detained in term of section 34 (1) of the Immigration Act.⁷ It is instructive, with respect, that I repeat the terms of the order that the Court made, they are as follows:

‘1. Subject to and pending the enactment of legislation outlined in paragraph 2, as from the date of this order, and pending remedial legislation to be enacted and brought into force within 12 months from the date of this order, the following provisions, supplementary to those contained in paragraph 4 of this Court’s order of 29 June 2017, shall apply:

(a) An immigration officer considering the arrest and detention of an illegal foreigner in terms of section 34(1) of the Immigration Act 13 of 2002 (Act) must consider whether the interests of justice permit the release of such person subject to reasonable conditions, and must not cause the person to be detained if the officer concludes that the interests of justice permit the release of such person subject to reasonable conditions.

(b) A person detained in terms of section 34(1) of the Act shall be brought before a court within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.

(c) The Court before whom a person is brought in terms of paragraph (b) above must consider whether the interests of justice permit the release of such person subject to reasonable conditions and must, if it so concludes, order the person to be released subject to reasonable conditions.

(d) If the Court concludes that the interests of justice do not permit the release of such person, the Court may authorize the further detention of the person for a period not exceeding 30 calendar days.

(e) If the Court has ordered the further detention of a person in terms of paragraph (d) above, the said person must again be brought before the Court before the expiry of the period of detention authorized by the Court and the Court must again consider whether the interests of justice permit the release of such person subject to reasonable conditions and must, if it so concludes, order the person to be released subject to reasonable conditions.

(f) If the Court contemplated in paragraph (e) above concludes that the interests of justice do not permit the release of such person, the Court may authorize the person’s detention for an adequate period not exceeding a further 90 calendar days.

(g) A person brought before a Court in terms of paragraph (b) or (e) must be given an opportunity to make representations to the Court.’

[39] Therefore, for the purposes of the plaintiff’s arrest and detention in the instant case, the 2017 decision of the Constitutional Court is the starting point.

Submissions on behalf of the defendant

[40] No submissions were made in opposition per se of the application made by Mr Matotie for judgment in favour of the plaintiff at the close of the defendant’s case. On the merits of the plaintiff’s claim Mr Mdeyide submitted that in as much as the law as it stands is that when an indication is given by a foreign national that she or he is an asylum seeker, an arrest is not competent. In the present case, he said, the question is whether at the time of arrest the immigration officers were aware that the plaintiff was an asylum seeker.

[41] Mr Mdeyide took the view that a reasonable immigration officer would indeed have asked why the plaintiff was in the Republic. He made no pertinent submissions regarding the pleaded challenge to the lawfulness of the plaintiff’s further detention from 21 November to 22 December 2022.

[42] Regrettable as it is that the arguments made by both counsel in this matter do not engage fairly with the evidence and the relevant case law as they ought to, I deal first hereunder with the legal position regarding an application for judgment in favour of the plaintiff at the close of the defendant’s case.

The law

(a) The application for judgment in favour of the plaintiff

[43] It is trite that at the close of the defendant’s case where the defendant bears the onus of proof and adduces evidence first, and since there can be no question of absolution from the instance, the proper course for the plaintiff to follow would be to apply for judgment in his/her favour if the defendant fails to discharge the burden of proof.⁸

[44] In Hodgkinson v Fourie⁹ which was an appeal against the decision of a magistrate who granted judgment in favour of Fourie (plaintiff in the court a quo), at the close of the defendant’s case before the plaintiff closed his case, the court held that there was uncontroverted evidence by Hodgkinson, the defendant, upon which a reasonable man might have found for him. The court found that the same principles that apply in an application for absolution from the instance apply to an application for judgment in favour of the plaintiff at the close of the defendant’s case.

[45] Referring to the decision of Mason J in Est Hoskings v Colonial Mutual Life Assurance Society¹⁰ the court in Hodgkinson further explained the position regarding absolution from the instance as follows:

‘[H]ad the Court come to the conclusion in that case that the evidence given by the plaintiff was a deliberate concoction and utterly unworthy of credence, then it is clear, if one applies the principle there laid down, that a reasonable man would not have found for the plaintiff, and then there would have been no obligation on the defendant to tender evidence or to close his case. But once the evidence of the plaintiff is such that a reasonable man might come to the conclusion that the evidence might be accepted, then a duty is cast on the other side to call evidence to rebut that evidence, or to close its case. . .’¹¹

[46] And in Siko v Zonsa¹², the plaintiff had claimed the return of a wood and iron hut which the defendant had verbally agreed to erect for her on his stand. As consideration for the erection of the hut on the defendant’s stand, the plaintiff agreed to allow the defendant use of the hut during the plaintiff’s temporary absence when she went to ‘the colony’. When the plaintiff returned from ‘the colony’ and claimed the return of the hut, the defendant refused to return the hut, his defence being that he bought the hut from the plaintiff for two pounds. The court a quo having found that the onus was on the defendant to prove the sale of the hut, the defendant gave evidence of the circumstances under which he bought the hut from the plaintiff, and also called a witness. At the close of the defendant’s case, the magistrate rejected the evidence of the two witnesses, and gave judgment for the plaintiff. The magistrate stated that “he did not believe the evidence of the two witnesses and considered that it would be a useless waste of time to proceed further”. On appeal, the court held that the course followed by the magistrate in granting judgment in favour of the plaintiff who did not close his case or call evidence was incorrect.

[47] However, Solomon J, with whom Mason J concurred, further said:

‘… I cannot conceive that the magistrate, having the evidence of the two sworn witnesses before him, and there being nothing whatever to contradict their testimony, was justified in saying, “I do not believe these witnesses, and therefore I give judgement for the plaintiff without hearing evidence on her part”. I can conceive of a magistrate taking that course in a case in which witnesses have palpably broken down, and where it is clear that they have stated what is not true. But there is nothing on record to show that the defendant’s witnesses broke down. Their evidence is quite clear and consistent, and it is difficult to see what ground the magistrate had for the course he took.’¹³

[48] Although both in Zonsa and Hodgkinson the court stated that an order granting judgement in favour of the plaintiff at the close of the defendant’s case before the plaintiff closed its case or led evidence was incompetent, it considered that such an order would not be improper where it was manifestly clear from the record that the defendant could not have been prejudiced thereby. This, the court said, could be the case where it cannot be said that there was before court evidence on which a reasonable man might find for the defendant.¹⁴

[49] Based on the aforegoing and for reasons that will become clear herein below, I am inclined to consider the application made by Mr Matotie. Before doing so, I must first set out the legislative framework and legal principles governing the arrest and detention of illegal immigrants for proper context.

(b) The legislation and legal principles on arrest and detention of foreigners

[50] Section 49 (1)(a) of the Immigration Act provides that anyone who enters or remains in the Republic in contravention of the Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three months. Section 34 of the same Act empowers the defendant’s officers (the immigration officers) to arrest and detain an illegal foreigner by providing as follows:

‘34(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner or 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 at 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 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 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 out in the preceding two paragraphs, when possible, practicable and available in a language that her 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 reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days, and

(e) shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.’

(2) The detention of a person in terms of this Act elsewhere than on a ship and for purposes other than his or her deportation shall not exceed 48 hours from his or her arrest or the time at which such person was taken into custody for examination or other purposes, provided that if such period expires on a non-court day it shall be extended to four p.m. of the first following court day.

(3) The Director-General may order a foreigner subject to deportation to deposit a sum sufficient to cover in whole or in part the expenses related to his or her deportation, detention, maintenance and custody and an officer may in the prescribed manner enforce payment of such deposit.

[51] It is as well to mention that the identification of persons for the purposes of determining their status is governed by section 41(1) of the Immigration Act which provides that:

‘(1) when so requested by an immigration officer or a police officer, any person shall identify himself or herself as a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status, and such immigration officer or police officer may take such person into custody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter, if necessary detain him or her in terms of section 34.’

[52] Significant to note is that detention under section 34(1) must be for the purposes of deporting the illegal foreigner. Hence, any detention which is not for the purposes of deportation cannot exceed 48 hours from the time of arrest. This is in terms of section 33(2). Additionally, any period of detention longer than 30 days will be subjected to judicial oversight whereupon the court will exercise its discretion in determining whether the period of detention must be extended or not.

[53] As already mentioned above, the Constitutional Court in Lawyers for Human Rights v Minister of Home Affairs and Others¹⁵ declared the provisions of section 34(1)(b) and (d) of the Immigration Act unconstitutional, having found that they offend the illegal foreigners’ rights as a detained person (as provided in section 35(2) of the Constitution). The Court found no reason why illegal foreigners could not be beneficiaries of the rights of detained persons as provided for in section 35(2) of the Constitution.

[54] The Court went on to find that said provisions of section 34 as they were then, did not allow the illegal foreigner to appear in court in person to challenge the lawfulness of his/her detention. Furthermore, it found that section 34(1)(b) and (d) offended the right not to be detained without trial (a right provided in section 12(1)(d) of the Constitution). It was the Court’s finding further, that the provisions of section 34(1)(b) and (d) gave wide a wide discretion to immigration officers and the court considering the foreigner’s detention without providing any guidance on how the discretion given ought to be exercised.¹⁶ The Court suspended the declaration of invalidity for 24 months pending Parliament passing appropriate legislation to cure the defect.¹⁷

[55] In granting the order of constitutional invalidity on 30 October 2023, the Constitutional Court put in place the criterion of interests of justice in terms of which an illegal foreigner who is arrested in terms of section 34(1) ought to be dealt with. It also made provision for an automatic judicial oversight over the continued detention of an illegal foreigner in his/her presence after his/her first appearance in court which must be within 48 hours from the time of arrest.

[56] With this background of the law in mind, I turn to deal with the application made by Mr Matotie.

Discussion

[57] Section 34 of the Immigration Act is the only empowering provision under the said Act for the arrest and detention of illegal foreigners pending deportation. What is immediately discernible from Lawyers for Human Rights is that only the provisions of section 34(1)(b) and (d) were declared invalid.

[58] It is evident from the parties’ pleadings and the evidence of the defendant during trial that the parties made common cause the fact that the plaintiff was taken into detention by the defendant’s members for two pronged purposes – that she may be dealt with in terms of section 49(1)(a) of the Immigration Act and for her subsequent deportation.

[59] In as much as the plaintiff’s conviction on the charge of contravention of section 49(1)(a) of the Immigration Act would not affect any decision to detain her pending her deportation, her further detention after her appearance in court on 21 November 2022 had to comply with the prescripts of the law as at the time of her appearance in court. This would be the position of the law at the expiry of the 24-month period of the 2017 suspension of invalidity of section 34(1)(b) and (d).

[60] Regard being had to the plaintiff’s particulars of claim, it is not unreasonable to state that they are no model of clarity and precision concerning the specific provisions of the Immigration Act on which she bases her main cause of action. It is equally not pleaded with the required specificity which provisions of section 34 of the same Act she bases her alternative cause of action on.

[61] That being so, on a benevolent reading of the particulars of claim it must necessarily follow that the plaintiff bases her challenge to the lawfulness of her further detention from 21 November 2022 on the fact that the immigration officers acted in accordance with the provisions of section 34(1)(b) and (d) as they previously were despite the fact that they were declared invalid. Thus, the plaintiff relied on the legal position as it obtained after the decision of the Constitutional Court in Lawyers for Human Rights.

[62] As a starting point, it bears restating that the reason why the Constitutional Court declared the provisions of section 34(1)(b) and (d) of the Immigration Act invalid was that the immigration officers were previously given wide powers to arrest and detain an illegal foreigner for a period of 30 days without any provision for automatic judicial intervention and review of their decision to detain the illegal foreigner. It was also left to an illegal foreigner to make a request that his detention pending deportation be confirmed by court, which confirmation must be granted within 48 hours of the request. Furthermore, the court was ‘left to its own devices’ so to speak, regarding what would constitute good and reasonable grounds for the extension of the pre-deportation detention.

[63] On the score of the lawfulness of the plaintiff’s arrest on 18 November 2022, Mr Matotie conceded that it could not boldly be argued that it was unlawful, but contended in similar vein that the defendant’s witnesses ought to have verified from the plaintiff before her detention what she meant when she explained that she did not have a permit to be in the Republic. I disagree with this submission.

[64] The failure of the immigration officers to satisfy themselves that the plaintiff was in possession of the appropriate documents identifying her as a foreigner who was lawfully in the Republic was not a case pleaded by the plaintiff in her particulars of claim. The plaintiff pleaded that her arrest and subsequent detention were unlawful because they were without a warrant. She also makes an assertion in her particulars of claim that she pleaded guilty to contravening section 49(1)(a) of the Immigration Act.

[65] Besides this, if the plaintiff wanted to plead that she had the permit elsewhere than on hand but the immigration officers failed to take reasonable steps to verify that she was authorized in terms of that permit to be in the Republic, she would have done so.

[66] The defendant’s defence, on the other hand, is that when the immigration officers encountered the plaintiff on 18 November 2022 and asked her to identify herself as either a citizen of the Republic or a foreigner who is lawfully in the Republic, she failed to do so. In his testimony Mr Maqeda stated that at the time of her arrest the plaintiff explained to her arrestors that she hid herself because she did not have the permit authorizing her presence in the Republic. He went on to state that it was only during his interview of the plaintiff on 21 November 2022 that she mentioned that she came to the Republic for ‘political reasons’.

[67] Suffice it to state that what is relevant for the purposes of the plaintiff’s arrest is the information that Mr Maqeda had at the time he decided to arrest her on 18 November 2022. His evidence that at that time he only had the plaintiff’s own admission that she did not have a permit authorizing her to be in the Republic was not challenged.

[68] Furthermore, this Court had heard from Mr Maqeda that at the time he opened the docket for the plaintiff for illegally being in the Republic, and having examined her further at the Central Police Station on 18 November 2022, she did not have any permit authorizing her to be in the Republic. This version was similarly not challenged.

[69] What was put to Mr Maqeda was that after her arrest the plaintiff informed him and his colleague, Mr Memani, that she came to the Republic as an asylum seeker, and he confirmed that this explanation indeed came about on 21 November 2022. I have already stated that this is not the plaintiff’s pleaded case. That being the case, Mr Maqeda testified that even though the plaintiff told him that she applied for asylum on 23 January 2020, no details were found of the status of such an application. What he was able to obtain from the plaintiff was an order issued by an immigration officer in Krugersdorp on 23 October 2020 that she must leave the Republic by the 5^th of November of that year.

[70] It stands to reason that as regards the plaintiff’s subsequent detention from 18 November to 21 November 2022, the following facts are crucial. Mr Maqeda testified that it was on the strength of her explanation that she was taken to the Central Police Station where she was questioned further and charged with contravening section 49(1)(a) of the Immigration Act.

[71] It has equally not been disputed that the immigration officers took the plaintiff to the Central Police Station in order to obtain more information from her regarding her presence in the Republic (something they are entitled to do in terms of section 41 of the Immigration Act). Having been charged with contravening section 49(1)(a) of the Immigration Act, she was caused to appear in court on 21 November 2022.

[72] The fact that the plaintiff was brought to court on 21 November 2022 is borne out by the record of proceedings of both the court of her first appearance and the court to which her case was transferred for the admission of guilt proceedings as set out elsewhere herein.

[73] Furthermore, it is incontrovertible that the date of the plaintiff’s arrest fell on a Friday, and therefore, the next court date at the expiry of 48 hours would be 21 November 2022. Apart from this, it was never ventilated with the defendant’s witnesses why the plaintiff was not brought to court on 18 November 2022, the same day she was arrested. That being so and absent a properly pleaded case in this regard, it is not clear what the case sought to be made by the plaintiff is about not being brought to court within 48 hours of her arrest.

[74] From the aforegoing, it seems to me that the actions of the immigration officers subsequent to the plaintiff’s arrest until 21 November 2022 when she appeared in court for the first time were within the parameters of sections 34 and 41 of the Immigration Act. Therefore, Mr Matotie’s submission that the defendant has not justified the plaintiff’s detention from 18 to 21 November cannot be sustained.

[75] I accordingly find that the immigration officers were justified in arresting the plaintiff on 18 November 2022 without a warrant and detaining her until her first appearance in court on 21 November 2022 for her to face the charge of contravening section 49(1)(a) of the Immigration Act.

[76] With this being said, I turn to consider the plaintiff’s contention that his further detention from 21 November to 22 December 2022 was unlawful.

[77] The documents that were admitted in evidence clearly establish that the magistrate confirmed the detention of the plaintiff on 21 November 2022. However, I am unable to ignore the evidence of the two witnesses of the defendant regarding the process that culminated in the ostensible confirmation granted by the magistrate on 21 November 2022. The starting point is the record of proceedings of the court that is alleged to have granted the confirmation of the plaintiff’s further detention.

[78] Nowhere does it appear on the face of this record that an application was made in open court by Mr Mvunge for confirmation of the plaintiff’s detention pending her deportation. Nor is it recorded therein that such confirmation was indeed granted. Yet in the investigation diary, Mr Maqeda recorded at 16h00 that on 21 November 2022 the magistrate had signed the confirmation of the plaintiff’s detention. This is something he was told by Mr Mvunge and Mr Memani he did not witness it himself.

[79] To compound issues further, Mr Memani had told the court on the other hand that when he left the court at 16h00 no confirmation had been granted of the plaintiff’s detention pending deportation. The intention was to return to court the next day to seek that confirmation. Even so, he did not return to court on 22 November 2021 for the confirmation. It must be remembered that Mr Memani and Mr Mvunge were the ones that Mr Maqeda left in court to attend to the duties that remained at the time he left.

[80] All of this begs this question – how then, did the confirmation of the plaintiff’s detention on 21 November 2022 pending deportation come about? This question is relevant to what the plaintiff has pleaded that her detention was confirmed in her absence, and she was not afforded an opportunity to challenge it resulting in her rights as a detained person being violated. These are the substantial issues that this Court has to determine. Importantly, the onus rests on the defendant to justify the plaintiff’s detention from 21 November to 22 December 2022.

[81] This Court heard from Mr Memani that from what his colleagues told him, the decision of the court granting confirmation was made not on 21 November 2022, but on 22 November 2022 and was backdated by the magistrate to 21 November 2022 based on his recollection of the plaintiff’s case from the previous day. This is equally worrisome in the light of the conflicting versions given by the two witnesses of the defendant and the fact that it does not at all appear that the confirmation was sought in open court in the presence of the plaintiff as Mr Maqeda would have this court believe. Even worse, the decision which purports to have been signed by the magistrate also does not indicate that the plaintiff appeared in person before him, nor does it indicate what representations, if any were made by the plaintiff to the court.

[82] It was also indicated by Mr Memani in his evidence that it was a requirement of the law that the plaintiff be present in court when confirmation of her detention is considered. In his words “there would be a problem if the plaintiff is not brought to court when the confirmation of her detention pending deportation is considered.”

[83] There is therefore no correlation between the record of proceedings of 21 November 2022 and the evidence given by Mr Maqeda. His evidence and that of Mr Memani is not only confusing regarding what took place in court on 21 November 2022 regarding the confirmation of the plaintiff’s detention pending deportation, but also inherently contradictory.

[84] The magistrate who granted the confirmation order was not called by the defendant, neither was Mr Mvunge. Their testimony would elucidate when and where the confirmation of the plaintiff’s detention from 21 November 2022 was granted and whether it was considered in the presence of the plaintiff as required in terms of the law as of 29 June 2019.

[85] I was not told that Mr Mvunge or the magistrate who granted the confirmation were not available to give evidence. It is trite in our law that a failure to call a witness may, under certain circumstances, justify an adverse inference being drawn against the party failing to call such a witness. In Elgin Fireclays Limited v Webb¹⁸ the court held:

‘[I]t is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. . . But the inference is only a proper one if the evidence is available and if it would elucidate the facts. . .’

[86] With regards to the further period of detention from 09 December 2022, Mr Memani and Mr Maqeda did not tell the court of the circumstances under which the plaintiff’s detention was extended by the magistrate. They both testified regarding the nature and purport of the documents that have been filed of record being application forms and the court decision extending the plaintiff’s detention from 09 December 2022.

[87] On the face of these documents, the magistrate was presented with an application addressed to the clerk of the court, for the extension of the plaintiff's detention. A further document purporting to be a notification by the immigration officer to the plaintiff of an intention to apply for the extension of her detention further purports that the plaintiff was aware that such an application was indeed intended to be made by the immigration officers. The notice contains following warning to the plaintiff:

“you are entitled to make representations to a magistrate of the court who will rule on your extended detention and you are requested to provide me with such representations on or before 2022/12/14. If you require assistance, you may approach the head of the institution where you are being detained.”

[88] My discomfort lies with the fact that the application for confirmation of the plaintiff’s detention pending deportation and the magistrate’s decision were both made on 09 December 2022 even though the plaintiff was given until 14 December 2022 to make representations to the magistrate who would consider her extended detention. I emphasize that there is no indication ex facie the immigration officer’s application dated 09 December 2022 that any representations were made by the plaintiff or that she elected not to make any having been given an opportunity to do so.

Conclusion

[89] At the close of the case for the defendant, this Court had before it the fundamentally contradictory evidence of the two witnesses of the defendant on the substantial issues regarding the lawfulness of the plaintiff’s detention from 21 November 2022 until she was released on 22 December 2022.

[90] One thing remains clear – there ought not to have been any doubt in the mind of the immigration officers (and the court) regarding what was expected of them in their exercise of the discretion given to them in terms of section 34 of the Immigration Act after the above quoted 2017 decision of the Constitutional Court in Lawyers for Human Rights. There, the Court made it clear that in the event of Parliament failing to pass corrective legislation within 24 months, the declaration of invalidity of section 34(1)(b) and (d) of the Immigration Act would operate prospectively.¹⁹

[91] I emphasize that among the reasons why the Constitutional Court declared the provisions of section 34(1)(b) and (d) of the Immigration Act invalid in Lawyers for Human Rights was that they resulted in the detention of illegal foreigners for a period of more than 48 hours without any judicial oversight. They sanctioned the detention of the illegal foreigners without trial in contravention of section 12(1)(d) of the Constitution.

[92] It ought to follow that bringing an illegal foreigner to court for the decision to be made regarding the confirmation of his/her detention pending deportation is not a matter of mere formality. As the Constitutional Court envisaged²⁰, it is required so that the illegal foreigner’s right to make representations in open court and/or challenge the decision to be made that is adverse to him/her may be realized.

[93] It is rather confounding that the defendant pleaded ignorance of the provisions of section 34 of the Immigration Act. Section 34 is the provision of the Immigration Act empowering immigration officers to arrest and detain illegal foreigners pending deportation.

[94] An ineluctable conclusion is that the documents that have been produced in casu purporting that the extension of the plaintiff’s detention from 21 November to 22 December 2022 was granted in terms of the law are a façade to obfuscate the shortcomings in how the defendant’s officers (and regrettably the court) dealt with the plaintiff from 21 November 2022. It is unsurprising that the version of the two witnesses of the defendant palpably broke down regarding how the plaintiff was dealt with upon her appearance in court on 21 November 2022.

[95] Added to this is the defendant’s failure to call the witnesses (Mr Mvunge and the magistrate) mentioned above, who, as already mentioned would elucidate the material aspects of the case pertaining to the detention of the plaintiff from 21 November to 22 December 2022. For these reasons, the evidence of the two witnesses of the defendant must be rejected.

[96] In the light of these findings, I do not need to deal with the rest of the grounds relied upon by the plaintiff in contending that her further detention from 21 November to 22 December 2022 was unlawful.

[97] Even though the plaintiff did not close her case nor give evidence at the close of the defendant’s case, the defendant would not be prejudiced were this Court to grant her application. I see no reason why judgment should not be entered in favour of the plaintiff on the question of the lawfulness of her detention for the already mentioned period.

Costs

[98] The general rule is that the successful litigant must be awarded its costs. There are no grounds for me to deviate from this general rule. Costs must follow the result.

Order

[99] In the result, the following order shall issue:

1. The defendant is liable to compensate the plaintiff for proven or agreed damages suffered as a result of her unlawful detention from 21 November to 22 December 2022 at the Mthatha Central Police Station.

2. The question of quantum is postponed sine die.

3. The defendant shall pay the plaintiff’s costs.

______________________

L. RUSI

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the plaintiff : Adv. L Matotie

Instructed by : A. Zozi Attorneys

70 Cumberland Street

MTHATHA

Counsel for the defendant : Adv. A Mdeyide

The Office of the State Attorney Mthatha

94 Sissons Street Fort Gale

MTHATHA

Date heard : 21, 22 and 24 November 2023

Date delivered : 30 July 2024