IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 22621/2011

In the matter between:

VIOLETTA MUKHAMADIVA						Applicant

and

THE DIRECTOR-GENERAL DEPARTMENT
OF HOME AFFAIRS							First Respondent

THE MINISTER OF HOME AFFAIRS				Second Respondent

JUDGMENT: 23 October 2012

DAVIS J
[1] On 21 November 2011 this Court found that the chief immigration officer at Cape Town Internationa! Airport, Mr Hans Grobbler, was not guilty of contempt of a court order which had been granted on 06 November 2011. The background to this dispute is set out in the judgment of 21 November 2011, and I need not repeat it in this judgment. Of relevance however was Mr Grobbler’s evidence that, when seized with the order of this Court, he contacted his supervisor, Mr Geneva Hendricks, who advised him not to accept the order because the parties cited were only first and second respondent. That evidence raised a serious concern as to the procedures which immigration officials adopt upon being served with court orders.

[2] Pursuant to this judgment, the court ordered that the first respondent, through his delegee in the Western Cape who happened to be the head of immigration, Mr Patrick Tariq Mellet, provide this Court with a report as to what procedures are adopted by officials when a court order is issued, particularly if it is issued on an urgent basis. Further, he was to report to the court as to exactly what departmental officials were instructed to do when a court order is issued and, further, to provide the court with a plan that had been adopted or will be adopted to educate immigration officers to comply with the constitutional requirements of this country, and in particular to comply with court orders.

[3] Mr Mellet duly replied on 29 February 2012 with a report which is attached to this judgment. I am indebted to him. On 19 March 2012 applicant’s counsel provided submissions with regard to this report and this, in turn, prompted a supplementary report from Mr Mellet which was provided to this Court on 16 March 2012.

[4] Mr Albertus, who appeared on behalf of the respondents, contended in argument which followed the submission of the written reports, that this court had no jurisdiction over the respondents, particularly with regard to making a further order in that the issue of respondents’ policy had not been placed in dispute. The respondents however were clearly before this court in that it was alleged that there had been deliberate failure on the part of officials of first and second respondent to comply with a court order granted after an urgent application.

[5] One of the reasons for finding that Mr Grobbler was not in contempt of court was the evidence that he provided as to how he had followed the advice and hence the procedures which are adopted by first respondent with regard to orders of court issued on the basis of urgency to officials who are about to extradite or deport a particular person, who is the subject of the application.

[6] In a specific question addressed to the parties by this court on 29 February 2012 the difficulty confronting this Court was expressed thus:

This question sought to focus upon the importance of insuring that respondent has a policy which is both constitutionally compliant and ensures that the principle of legality in South Africa enjoys meticulous compliance.

[8] Mr Mellet continues:

Mr Mellet finds the source of this restricted approach in the Convention of International Civil Aviation (CICA) and the law governing International Civil Aviation Organisation (ICAO) of the United Nations to which South Africa is a signatory and which provides, in his view, justification for the conclusion that immigration officials have no authority in the international transit sector. In summary therefore, he contends thus:

•	hold a passenger (denied entry) in detention at the airport;
•	marshal a passenger in any manner after that passenger has been signed off to remain in the custody of an Airline;
•	
•	interfere with the movements of any aircraft because of issues of inadmissibility of a passenger 
It is this approach, which Mr Mellet contends forms the core of the protocol adopted by the respondents. It is this reading of the relevant law which is then employed to justify the refusal to implement the court order which had been issued by this court and which gave rise to the proceedings against Mr Grobbler.

“ 
Bertelsmann AJA went on to say at para 29:

deportee who is held in an inadmissible facility at a South African port of entry is untenable. If correct, it would constitute an unwarranted administrative intrusion into the affairs of the Republic, a sovereign state. This suggestion is foreign to international law. ”
[11] These cases notwithstanding, the question arises as to whether the Convention of International Civil Aviation is applicable in these situations. In this connection Mr Mellet has sought to invoke Annex 9 to the Convention. Annex 9 divides the responsibility for custody and control over a passenger into three separate phases:

2. While the passenger is being examined to determine admission, until he or she is admitted or returned to the custody of the carrier, the passenger is under the custody and control of the public authorities.
3. if the person is:
3.1. Admitted, they remain in the custody of the public authorities;

[13] On the basis of Mr Mellet’s argument, these provisions would be significantly undermined, I may add, not by any express reading of Annex 9 but, at best, for him on the strength of Annex 9: 516 which provides that the contracting state shall not prevent the departure of an operators aircraft pending a determination of admissibility of any of it arriving passengers.
[14] Thus, when immigration refers to an aircraft having left it means that boarding has closed. Immigration officials’ responsibility, on Mr Mellet’s argument, ends after its last contact with the traveller, either at the time the traveller has been cleared for entry or the time that the passenger is denied entry at the border line barrier. The express words of Item 5.6 reflect its purpose: it is designed to prevent a state from delaying a flight because there may be inadmissible passengers on a different incoming flight. It has nothing to say about the enforceability of a court order that requires the removal of someone from a plane nor is anything provided which deals with the powers of immigration or any other state agency to enforce a court order.
[15] In summary, Mr Mellet’s report provides no legal justification for the approach that he has adopted. There is both international and South African law, apart from that which I have already cited, which dictates that the opposite of Mr Mellet’s approach should be followed by respondent.

[17] It was precisely this set of circumstance that confronted the case of applicant and which resulted in a refusal to comply with an order. It is important to emphasise that the order of the Court of 06 November 2011 provided that the applicant be detained at Cape Town International Airport until the next morning when both affected parties would have been afforded an opportunity to present their respective cases before the court concerning the applicant’s repatriation.

[20] In summary, the report which is attached by Mr Mellet to this judgment is manifestly flawed. It cannot, either under international law nor under our Constitution, justify the approach to the enforcement of court orders that he outlined therein. There is case law which dictates that the exact opposite approach should be adopted. Were Mr Mellet’s approached to be followed it would mean that many orders of our Courts, given on an urgent basis, and dealing, for example, with the abduction of children or other forms of criminal activity would be stymied by the Department of Home Affairs which it must be emphasised is not above the law.
[21] For these reasons this judgment will be made available to both respondents with the objective that an adequate policy reflecting the Department’s commitment to the Constitution and the rule of law be followed in the future. It will also be made available to the South African Human Rights Commission with a view to ensuring that it assists the Department, if necessary, and helps promote that the Department’s respect for the rule of law, within the specific context of this kind of case.
[22] The Court is indebted to Mr Katz who together with Mr Bishop, prepared extremely useful submissions which were of considerable assistance in examining the approach which had been set out by Mr Mellet.

DAVIS, J