REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO:  26144/2020

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED: YES/NO

 Date: ……………		.......................... 

In the matter between:

OKOYE JONATHAN					          Applicant
and
THE MINISTER OF HOME AFFAIRS	  			  1st Respondent
DIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS	  2nd Respondent
THE DEPARTMENT OF JUSTICE 
AND CORRECTIONAL SERVICES					   3rd Respondent
LINDELA HOLDING FACILITY					   4th Respondent

JUDGMENT

STRYDOM J,
[1]	This is an urgent application for the release of Ukaegbu Ukandu Henry (“the detainee”) from detention at the Lindela Holding Facility where he is held as an alleged illegal immigrant awaiting deportation.
[2]	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: Ukaegbu Ukandu Henry be declared unlawful;
3.	The respondents are directed to release the detainee, Ukaegbu Ukandu Henry from the Lindela holding facility forthwith;
4.	The respondents are directed to re-issue the detainee: Ukaegbu Ukandu Henry with temporary asylum seeking 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: Ukaegbu Ukandu Henry 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.”
[3]	The applicant in this matter Okoye Jonathan, (“the applicant”) is not the detainee as this application was brought on his behalf by a person who describes himself as the brother of the detainee.
LOCUS STANDI 
[4]	A point in limine was taken on behalf of the respondent to the effect that the applicant lacks locus standi to bring the application on behalf of the detainee. The applicant indicated that as the detainee is in custody at the Lindela Holding Facility it was difficult to make contact with the detainee as a result of the Covid 19 pandemic. That is why he brought the application on behalf of the detainee. A previous urgent court found the applicant lacked the necessary locus standi and dismissed the application on that ground. The applicant now managed to obtain a power of attorney ostensibly signed by the detainee providing the applicant with authority to bring the application on his behalf. The applicant relied on section 38(b) of the Constitution of the Republic of South Africa 1996 for him to act on behalf of the detainee. It was argued that the freedom and liberty of a person is at stake which are constitutionally protected and therefore section 38(b) applied.
[5]	On behalf of the respondents it was argued that the detainee could have acted in his own name as he could sign the power of attorney. It was further pointed out that the document attached to the application was not properly signed by the applicant and the commissioner of oaths.
[6]	The court will accept that it is difficult for the detainee to act in person whilst in detention especially in urgent applications. This matter involves the freedom of a detainee and therefore the court will allow the applicant to act on behalf of the detainee as contemplated in section 38(b) of the Constitution. The court will condone the lack of signatures on the attached documents.
URGENCY
[7]	This matter came before the urgent court on an extremely urgent basis. The notice of motion was served on Thursday 17 September 2020 and the matter was set down for Tuesday 22 September 2020. The respondents were required to give notice of intention to opposed and file their answering affidavits on or before Monday 21 September 2020, the day before the scheduled hearing. This period afforded included the weekend. The matter was only uploaded onto CaseLines on the Monday. When the matter was called on 22 September 2020, counsel asked the court to stand the matter down until Friday 25 September 2020 as the Thursday was a public holiday. The court only received the answering affidavit on Friday morning outside court.
[8]	The applicant insisted that the matter should be heard as the freedom of the detainee, which according to the applicant was unlawfully detained, was at stake.
[9]	The court indicated to the parties that it will hear the matter but made it clear that a finding concerning urgency would be made after the court had heard argument on the merits and on urgency.
[10]	The court pointed out to Mr Dikolomela that urgent applications should be brought in line with the Practice Manuel. Paragraph 9.23.18 determines that when an urgent application is brought for the Tuesday at 10h00, the applicant must ensure that the relevant papers are filed with the Registrar by the preceding Thursday at 12h00. The “relevant papers” referred to include the answering affidavit and a replying affidavit and not only the founding affidavit as Mr Dikolomela argued. The application must be complete and paginated by 12h00 on the Thursday for set down on the next Tuesday. The time periods set in the notice of motion must afford the respondents sufficient time to file their affidavits. Sub-paragraph 9 further stipulates that the date and time selected by the applicant for enrolment of the application must enable the applicant to file a replying affidavit if necessary. These are the requirements for urgent applications to be heard on Tuesdays at 10h00. 
[11]	This does not mean that an application cannot be brought on other times and on a more urgent basis. Should this be the case, then the application must, apart from indicating why the matter is urgent, specifically deal with the deviation from the requirement that the complete application must be filed by 12h00 on Thursday to be heard at 10h00 on Tuesday. This the applicant has failed to do. Instead the applicant expected of the respondent to file an answering affidavit on the day before the hearing. Needless to say the respondent, being representatives of the State, could not comply with the unreasonable and self‑serving short notices. A court needs to decide matters with all relevant facts and legal argument placed before it. This can only be achieved if sufficient time is afforded for the filing of affidavits. In the interest of justice, and considering that the detainee was in custody, the court accepted the answering affidavit within a few hours before the end of the urgent week. The applicant then indicated that he did not want to file a replying affidavit.
[12]	Despite the clear breach of the Practice Directives pertaining to urgency, the court has decided to hear the application and to make a finding on the merits thereof. This is solely done in the interest of justice as the application involves a person who is in detention and who faces deportation.
BACKGROUND FACTS
[13]	The facts stated by the applicant on behalf of the detainee in the founding affidavit are not clear. The court noted that facts pertinent to the detainee were few and far between. References were made to legislation out of context. Rights to appeals and reviews were claimed without stating when decisions were related to the detainee for the court to consider whether these processes were still available to the detainee. The founding affidavit seems to be a so-called “cut-and-paste-job”. This view is strengthened by similar matters which came before this court during the urgent week where the founding affidavit was materially the same as in this matter. The application is vague and apart from an illegible receipt referring to some appeal, no other substantiating documentation was attached to the founding papers. The respondents attached the relevant documentation, including notices and warrants of detention. Applying the Plascon Evans rule, the court will decide the matter on the version of the respondents and will only place reliance on the undisputed evidence contained in the founding affidavit.
[14]	The detainee hails from Nigeria. He came to South Africa on or about 28 October 2010. He applied for asylum in terms of the Refugees Act 130 of 1998. He was granted an asylum seeker permit in terms of section 22(1) which was extended from time to time. What has happened to his application for asylum is not clearly stated in the founding affidavit. In the answering affidavit, it is stated that the detainee came into the country as an asylum seeker and his application has been finally determined as being manifestly unfounded. He has not reviewed this decision nor was this decision taken on appeal. The court must accordingly accept that his asylum application was considered and rejected
[15]	The detainee was not deported and the reason seems to lie in the fact that he applied for a “relatives” visa, in terms of section 18 of the Immigration Act 13 of 2002, which was issued to him in 2012. He applied for an extension of this visa but it was refused on or about 23 July 2014. He appealed this decision and his appeal was successful giving him the right to sojourn in the country until 15 June 2018.
[16]	The date when the detainee’s asylum application was rejected was not mentioned by the parties. Also not if the permit was withdrawn pursuant to the rejection of the asylum application in terms of section 22(6)(c) of the Refugees Act. What is stated in the founding papers is that the detainee’s asylum permit expired as when he was arrested, according to the applicant, this permit was no longer valid. His relative’s visa providing him with a right to temporary residence however, was still valid. His right to be in South Africa was now regulated in terms of the Immigration Act and no longer in terms of the Refugees Act.
[17]	The detainee committed a drug-related crime and was convicted and sentenced to eight years’ imprisonment on 5 April 2017. Upon this event happening, the second respondent wrote to the “Head: Correctional Services Bethal” where the detainee was serving his sentence informing the prison head that the detainee would be deported upon his release from prison. It was requested that the notice of deportation should be handed to the prisoner and that he must acknowledge receipt. A letter was addressed to the detainee informing him of his deportation and that exemptions from visa requirements were withdrawn. Upon release from prison the detainee must be handed over to the Immigration Section at the nearest Home Affairs Office for deportation purposes. A warrant for the release of the detainee, after he has served his sentence, into the custody of the Immigration Department dated 25 April 2017 was also issued. From this date the detainee should have been aware of the decision that upon his release, he will be deported from South Africa.
[18]	On 23 July 2020, a day before the detainee was going to be released from prison on parole, the detainee was visited by an Immigration Officer, Mr Mhlongo, who informed him that he is an illegal immigrant who will be further detained pending deportation. His constitutional rights were explained to him and he signed a form acknowledging these rights. A warrant of detention of an illegal foreigner was issued by the immigration officer dated 23 July 2020. The detainee also signed an acknowledgement of receipt in which he indicated that he does not intend to make representations to the department in terms of section 8(2) of the Act to review the deportation decision. The court at Bethal also issued a Confirmation of Detention for Purposes of Deportation on 23 July 2020, valid for 30 days. There is no indication that the detainee was brought before court when the order was issued.
[19]	The immigration officer conducted an interview with the detainee on the same date. According to this document, the detainee acknowledged that he had no valid visa, nor pending visa applications, that he has been declared to be illegally in the country and that he has been convicted of a crime in South Africa. The detainee signed this document and his thumb prints were placed on the questionnaire.
[20]	Form 29 is a notification of deportation attached to the answering affidavit. According to this form the detainee was informed that he will be deported to his country of origin. In terms of section 34 (1)(a) and (b) he was informed of his right to appeal the decision to the Director-General in terms of section 8(4) of the Act within 10 working days from date of receipt of the notice. He indicated that he was not going to appeal the decision but wanted the detention to be confirmed by court. This was done on the same date, 23 July 2020, as indicated hereinabove. There is no indication on the papers that the detainee was taken to court to confirm the warrant.
[21]	According to a document referred to as Form 1 (DHA-1756) (Notification Regarding Request Review By Minister), the detainee was also informed about his right as envisaged in section 8(1) of the Act to review the decision to the Minister within 3 days of the notice. The detainee never indicated his election on the document which he has signed. There is however no review or appeal pending the deportation lodged by the detainee.
[22]	The detainee has been sent to Lindela Holding Facility and has been detained in the facility ever since. On or about 30 July 2020 a magistrate authorised the further detention of the detainee for a further 90 days. Again there is no evidence that the detainee appeared in court.
IS THE DETAINEE’S DETENTION UNLAWFUL?
[23]	On behalf of the detainee, it was argued that his detention was, on various grounds, unlawful. 
[24]	Reliance for the unlawful detention of the detainee was based on section 29 of the Refugee’s Act.  This section determines as follows:
“No person may be detained in terms of this Act for a longer period than is reasonable and justifiable and any detention exceeding 30 days must be reviewed immediately by a judge of the High Court of the provision in whose area of jurisdiction the person is detained, designated by the Judge President of that division for that purpose and such detention must be reviewed in this manner immediately after the expiry of every subsequent period of 30 days.”
[25]	Reliance on this section is misplaced.  The detainee was not detained in terms of the Refugees Act, but rather in terms of section 34(1) of the Immigration Act.  I will deal with this section later in this judgment. 
[26]	From 25 April 2017, the detainee was a prohibited person as he was convicted on a drug-related offence as contemplated in section 29(1)(b) of the Immigration Act.  He also became an illegal foreigner as contemplated in section 32, read with section 1, of the Immigration Act and all permits and visas were withdrawn.  On the detainee’s own version, his asylum permit expired by the time he was sentenced to prison on 5 April 2017.  His position after he was granted a visa was regulated in terms of the Immigration Act and not the Refugees Act.  He is not detained in his capacity of an asylum seeker, as contemplated in section 23 or 29 of the Refugees Act.
[27]	It was further argued that the detainee was entitled to be re-issued with a temporary asylum permit in terms of section 22 of the Refugees Act.  Such permit will be issued pending the outcome of an application in terms of section 21(1) of this Act which refers to the application for asylum which must be made in person to a Refugee Reception Officer.  
[28]	It was averred in the founding affidavit that the detainee should be issued with an appropriate permit in terms of Regulation 2(2) of the Regulations to the Refugee Act valid for 14 days within which he must approach a Refugee Reception Office to lodge his review application. This allegation failed to take note that the previous Regulations promulgated in terms of the Refugees Act, including Regulation 2(2), was replaced with new Regulations which were published under notice number 42932 in the Government Gazette 1707 dated 27 December 2019.  The commencement date was 1 January 2020. The comparable, though different, new Regulation is Regulation 8 which substantially changed the wording of Regulation 2(2) pertaining to the intention expressed by an asylum seeker to apply for asylum. Counsel for both parties appear in refugee and immigration matters regularly but have failed to inform the court of the existence of the new regulations promulgated in terms of the Refugees Act. 
[29]	 Moreover, the reliance placed on the now defunct Regulation 2 is in any event without merit.  The detainee has previously submitted an application pursuant to sub-regulation 2(1) and cannot re-start a process that has already been concluded. 
[30]	On behalf of the detainee, reliance was placed on the matter of Ruta v Minister of Home Affairs but this case is distinguishable from the matter of the detainee.  In casu, the court is not dealing with a delayed application for asylum as this process was followed and culminated in the rejection of the application. There exists no evidence before this court that any review or appeal challenging this rejection is pending or can still be instituted. This is not a matter where the asylum claim had first to be determined and any arrest, deportation and detention under the Immigration Act deferred until then.  The current detention of the detainee is in terms of the Immigration Act and not in terms of the Refugees Act.
[31]	The court was also referred to the matter of Bula and others v Minister of Home Affairs and Others.  Similarly this matter is distinguishable as the applicants in that matter had not previously applied for asylum. In the Bula matter it was decided that once an applicant had indicated an intention to apply for asylum, he became entitled to be treated in terms of regulation 2(2) to be freed, and to be issued with an appropriate permit valid for 14 days, within which he was obliged to approach a Refugee Reception Office to complete an asylum application.  This, in the case of the detainee, has already transpired. Moreover the new Regulation 8 has now changed the situation.
[32]	The question may be asked whether an asylum seeker may yet again apply for asylum after a previous permit has lapsed.  The court in Ersumo v Minister of Home Affairs and Others referred to this question without deciding it.  The court, considering the previous regulations, found as follows:
“Before leaving the topic of regulation 2(2), however, it is important that I record an important qualification to what I have said about the effect of that regulation. Everything I have said is on the footing that we are dealing with a first encounter by an immigration officer with an illegal foreigner who has not made an application for asylum. Nothing in this judgment addresses the situation where an asylum transit permit has been issued under regulation 2(2), where no application for asylum is made and that permit lapses. It would be odd were the regulation to mean that, if an immigration officer thereafter encountered the same foreigner and the foreigner again indicated a desire to apply for asylum, an obligation to issue a fresh asylum transit permit would arise. However, it is unnecessary to express any final view on this, as those are not the facts before us.”
[33]	In the case of the detainee, not only did his temporary permit lapse, but further, he already applied for asylum but his application was rejected. There are no appeals of reviews, as envisaged in the Refugees Act, pending on strength of which his temporary permit could be extended.
[34]	This is not a matter in which the Immigration Act provisions supersede or subordinate those of the Refugees Act.  The detainee’s asylum claim had first to be considered in terms of the Refugees Act. This was done and besides being provided with a permit pending his application he never obtained asylum status. He never became a refugee which is defined in the Refugees Act as any person who has been granted asylum in terms of the Act.   This is rather a matter where these two acts became applicable, one after the other. The current position of the detainee should be considered in terms of the Immigration Act.
[35]	The detainee was informed on 25 April 2017 that he would be deported after he served his sentence. This is a date long before his release from prison. This decision was again related to the detainee on 23 July 2020. The detainee was found guilty on a drug related matter and in terms of section 29(1)(b) of the Immigrations Act he became a prohibited person. Any visas he might still have had was withdrawn and he became an illegal foreigner.  This was a decision as contemplated in section 8(1) and (2) of the Immigration Act and the detainee had three days to approach the Minister to review the decision.  This never happened.  After the detainee was again on 23 July 2020 informed that he was regarded as an illegal foreigner, he signed a document indicating that he does not intend to make representations, within 3 days, to the Department in terms of section 8(2) of the Immigration Act to review the decision. 
[36]	In a notice, referred to as a Notice of Decision Adversely Affecting Right of Person, dated 23 July 2020, the detainee indicated that he will not review his deportation. 
[37]	Accordingly, there are no pending appeals or reviews outstanding which would prohibit the detention and deportation of the detainee. 
THE WARRANTS OF DETENTION
[38]	In the applicant’s founding affidavit, the non-specific allegation is made in paragraph 46 that the continuous detention of the detainee is challenged on the ground that the decision was never given to the detainee. The detainee signed documents where it is indicated that he was arrested and detained as an illegal immigrant.  In a further paragraph, wrongly referred to as paragraph 45 as there is a prior paragraph 45, 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. It is again stated that for purposes of deportation his detention is illegal. The issue about the validity of his detention warrant was not specifically raised in the founding affidavit. What was raised was his deportation without him being afforded an opportunity to exhaust his rights under the Immigration Act.  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. 
[39]	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.
[40]	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. 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 that this decision may have on the case of the detainee.    
[41]	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 Mr Mathebula, a control immigration officer.  The court on the same day confirmed the detention of the detainee for purposes of deportation and confirmed that the detainee could be detained for 30 days pending his deportation from the Republic. How this warrant was obtained and issued 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.  
[42]	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 SM Tau. 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), of the previous regulations, which refers to written submissions made by a detainee. All of this is a clear indication that the extension is considered and granted without the detainee appearing in court.
[43]	The court was referred to the matter of Lawyers for Human Rights v Minister of Home Affairs and others.  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.
[44]	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.
[45]	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.”
[46]	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 unlawful.
[47]	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.  
[48]	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 declared 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. 
[49]	The detainee was detained on the strength of warrants issued by an immigration officer and magistrates without being afforded the opportunity to 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 is unlawful and that he would be entitled to his immediate release.  
[50]	The legislature’s failure to pass corrective legislation has now caused legal uncertainty as the detainee remains an illegal foreigner, despite his eminent 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. This issue 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 and susceptible to arrest and deportation. The detention warrant which extended the detention of the detainee which is still effective should be set aside as the warrant was issued pursuant to the constitutionally invalid section 34(1)(d). 
[51]	Costs should follow the result.
[52]	Accordingly, the following order is made:
(1)	The respondents are directed to release the detainee Ukaegbu Ukandu Henry with immediate effect from detention at the Lindela Holding Facility.
(2)	The detention warrant dated 30 July 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