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Government of the Republic of Namibia v Getachew (SA 21/2006) [2008] NASC 4 (15 April 2008)

.RTF of original document

REPORTABLE
CASE NO. SA 21/2006

IN THE SUPREME COURT OF NAMIBIA
In the matter between:

THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA APPELLANT

And

DEREJE DEMMSE GETACHEW RESPONDENT

Coram:            Shivute, C.J., Chomba, A.J.A. et Gibson, A.J.A
Heard on:                 2007/04/02
Delivered on:             2008/04/15


APPEAL JUDGMENT

CHOMBA, A.J.A:
[1]      This appeal arises from civil proceedings which were commenced in the High Court by way of combined summons. The summons was instituted at the instance of one Dereje Demmse Getachew, an Ethiopian by nationality, who sued the Government of the Republic of Namibia for wrongful and unlawful arrest and consequential detention. The gist of the action is captured in paragraphs 3 and 4 of the Particulars of Claim which accompanied the combined summons. The two paragraphs state as follows:

“3.       On 28 October, 2004, the Plaintiff was unlawfully and wrongfully arrested by immigration officials and/or members of the Namibian Police at Academia, Windhoek, and wrongfully and unlawfully detained from the time and date of arrest until 28 January 2005.

4.       The said wrongful and unlawful detention further violated the following of the Plaintiff’s rights guaranteed under the Namibian Constitution:

4.1      the right not to be subjected to arbitrary detention;

4.2     
the right to be brought before the nearest Magistrate or other judicial officer within a period of forty-eight hours of his arrest;

4.3     
the right to fair and reasonable administrative action;

4.4     
the right to personal liberty; and/or

4.5     
the right to dignity.”



The following further particulars are disclosed by the Particulars of Claim, that is to say –

(a)     
that the plaintiff aforementioned was resident at 1225 Ganges Street, Wanaheda, Windhoek in Namibia;

(b)     
that the defendant, namely the Government of the Republic of Namibia was duly constituted as such in terms of the Namibian Constitution, herein represented by the Minister of Home Affairs, in his capacity as the official responsible for police and immigration matters, care of the Government Attorney, 1st Floor, Marie Neef Building, Independence Avenue, Windhoek.

(c)     
That at all material times, the said members of the Namibian Police and/or immigration officials acted in the course and within the scope of employment with the defendant ; and

(d)     
That due and proper notice of the plaintiff’s claims had been given to the Inspector-General of Namibia Police in terms of section 39 (1) of the Police Act, No. 19 of 1990.

In consequence of the foregoing the plaintiff claimed damages in the sum of N$100.000.00; interest thereon at the rate of 20% per annum a tempore morae, further and/or alternative relief and costs of the suit.

[2]      The defendant denied liability and averred as follows, namely that while admitting the arrest and subsequent detention of the plaintiff, the arrest and said detention were not unlawful or wrongful. It asserted that both the arrest and detention were in accordance with the law; that it had no knowledge of the damages allegedly suffered by the plaintiff and therefore did not admit the same and consequently put the plaintiff to proof. Further, the defendant denied liability to pay the reliefs claimed by the plaintiff.

[3]      The action was heard by Muller, J, in the court below, with Mr. N. Tjombe of the Legal Assistance Centre, and Mr. R. Goba of the Government Attorney respectively, representing the plaintiff and defendant. Judgment was awarded in favour of the plaintiff and, except that the damages granted were pegged at N$65,000, all the other reliefs were awarded as claimed. The Government, not being satisfied with the whole of the judgment, launched an appeal. The same legal practitioners who represented the parties in the court below also argued the appeal before us still representing their respective clients.

In this appeal I shall refer to Getachew as the respondent and to the Government of the Republic of Namibia as the appellant.

FACTS WHICH ARE COMMON CAUSE

[4]      Acting on information received, Walter Aribeb, an Immigration Officer, accompanied by a member of the Namibian Police, arrested the respondent to the present appeal on 18 October 2004. The information on which Aribeb acted was to the effect that two foreigners believed to be of Ethiopian nationality were known to be residing at an address on Blatter Street in the Academia area of Windhoek and that they were driving a motor car bearing a Botswana registration number. After two days of surveillance, the two men were seen driving into that residential address and were followed closely behind by Aribeb and the Police Officer who were also driving. The two law officers identified themselves. Aribeb, as an Immigration Officer, asked the then suspected foreigners to produce their documents of identity. One of them, named only as David, because Aribeb could not remember his surname, produced an acknowledgement showing that the Immigration Department of the Ministry of Home Affairs was in possession of his Ethiopian passport for some official purpose. The other foreigner, who turned out to be the current respondent, only produced an old and scruffy affidavit which stated that he had lost his Ethiopian passport. Both men were requested to accompany Aribeb and the police officer to the Police Station and they did so. There, David was subsequently released while the respondent was in due course detained on the strength of a detention warrant of current date, namely 18 October, 2004. For the ostensible reason of wanting to establish the respondent’s immigration status in Namibia, Aribeb continued to detain him until 28 January 2005 when he was released.

[5]     
In the intervening period between the date of expiry of the first detention warrant, dated October 18, and the day of the respondent’s release on 28 January, 2005, warrants of further detention were issued on 1 and 22 November, 9 and 28 December 2004, and 14 January 2005. The respondent was first detained in Windhoek for about one week and then transferred to Okahandja where he remained for about two weeks before being returned to Windhoek for further detention.
[6]     
It was also common cause that the respondent at a later stage during his detention disclosed to Aribeb that in fact his passport was not lost but was in the possession of a lady going by the name of Tony who lived in Wanaheda area of Katutura. The passport was in due course found sometime in early January 2005 at some flat in Windhoek. The respondent was one of the two persons who led Aribeb and Acting Chief Immigration Officer Matrida Masweu to that flat. It was equally an undisputed fact that at some stage still during the respondent’s detention a marriage certificate was produced to Aribeb. This certificate showed that the respondent was married to a Namibian citizen called Dale Dawn Van Wyk.

[7]     
Equally common cause is the fact that the Ethiopian passport which surfaced in the manner described in the preceding paragraph, though bearing the purported holder’s photographic portrait, does not show the holder’s signature or thumb print. Pages 7 and 8 of the passport are missing. Other features to be observed in the passport are that it was issued by the Ethiopian Embassy in Pretoria, Republic of South Africa on 2 October 2002, while on the Visas page 9 is endorsed a “Re-Entry Visa” dated 3 October 2002 issued at Windhoek in Namibia. Finally in this respect, the said passport was exhibited in the trial in the court a quo and was marked “Ex N”.

ISSUES FOR DETERMINATION IN THE APPEAL.

[8]     
In the course of hearing this appeal a number of issues arose. They require to be determined. The principal ones are whether or not the arrest of the respondent was wrongful and unlawful and secondly whether the subsequent detention following the arrest was wrongful and unlawful or not. Under each of these principal issues are a number of incidental questions to be resolved. These are:

1.       The arrest:
(i)      whether there was a reasonable suspicion to justify it

(ii)    
whether Walter Aribeb, the Immigration Officer acted in fraudem legis in arresting the respondent

(iii)    whether at the time of his arrest the respondent was domiciled in Namibia

2.       The Detention:
(i)      lawfulness of the initial warrant of detention issued on         18 October, 2004

(ii)    
lawfulness of further warrants of detention dated 1 and 22 November, 9 and 28 December, 2004 and 14 January 2005

(iii)   
the status of the respondent during the period of detention

[9]     
The credibility of Immigration Officer Aribeb has been a subject of contention in this appeal. That, too, deserves consideration as an issue.

WHETHER RESPONDENT'S ARREST WAS UNLAWFUL

[10]    
According to the evidence of Aribeb, the Immigration Officer, the circumstances leading to the arrest of the respondent were these. First he received instructions to follow up two men suspected to be residing in Namibia illegally. They were believed to be Ethiopians and were driving a motor car with a Botswana registration number plate. Their address of abode was identified as being in the Academia area of Windhoek. Aribeb testified that the instructions were given to him on or about 16 October 2004. He kept surveillance on the house on the 17 and 18 October. On the latter date he got a police officer by the name of Calitious or Clasius Mwilima to accompany him to the said house. The two proceeded to the vicinity of the house. This was in the early hours of the night of 18. They subsequently saw the suspect car drive into the identified premises. The two officers, who were themselves driving an official car, drove into the premises closely behind the suspect car.

[11]    
At the house, Aribeb told the two men who emerged from the Botswana numbered car that he wanted to see their legal documents. He said he made that request in order to verify their immigration status. One of the two referred to as David, produced a document which Aribeb identified as an acknowledgement showing that his passport was with the Immigration Department for some official purpose. The respondent, being one of the two, only produced an old and scruffy looking affidavit declaring that his passport was lost. Aribeb became suspicious of the legality of the men’s presence in Namibia. He asked them to accompany him to a police      station, which they did co-operatively. At the Police Station Aribeb informed the men that he was going to detain them pending verification of the documentation they had displayed. The respondent refused to sign a Notice of Detention in respect of himself. On the same date, 18 October, a warrant of detention was issued in respect of the respondent’s detention.

[12]    
In his heads of argument on the foregoing point, Mr. Tjombe stated that the arrest of the respondent could be justified only if the arresting officer, Aribeb, had a reasonable suspicion. As to what amounts to a reasonable    suspicion he cited a passage from Du Toit et al, “The commentary on the Criminal Procedure Act,” viz:


“The question as to whether the suspicion of the person effecting the arrest is reasonable, must be approached objectively. Accordingly the circumstances giving rise to the suspicion must be such as would ordinarily move a reasonable man to form the suspicion that the arrestee has committed a First Schedule offence. R v Van Heerden 1958 (3) SA 150 (TPD) 152.

In judgments of the erstwhile Rhodesia Appeal Court the sensible view was adopted that a police officer, who suspects a crime has been committed, must take the trouble to confirm his suspicion, or allow to dissipate, if he has the opportunity. This must be done especially if the suspicion is somewhat unfounded. A police officer who fails to substantiate his suspicions where he has the opportunity does not act reasonably. It follows that his suspicion will not be reasonable” (S v Purcell–Gilpin 1971(3) S A 548 (RAD) 554C)



[13]    
I pause here to observe that the second paragraph as quoted above does not tally with the paragraph of the text I have found in the photocopy which Mr. Tjombe supplied to the bench during the hearing of the appeal. The text appearing in the photocopy reads as follows in the last paragraph of clause 5-10 under the rubric “Reasonable suspicion”:

“The erstwhile Rhodesian Appeal Court adopted the sensible view that a police officer who suspects that a crime has been committed must, if he has the opportunity, take the trouble to either confirm his suspicion or allow it to dissipate. This must be done especially where the suspicion is somewhat unfounded. A police officer who fails to substantiate his suspicion even though he has the opportunity to do so, does not act reasonably. It follows that his suspicion will not be reasonable. (S v Purcell-Gilpin 1971 (3) SA 548 (RAD) 554C; S v Miller 1974 (2) SA33 (RAD) 35E).”


[14]    
Based on the authority of the foregoing passage Mr. Tjombe submitted that Aribeb did not have a reasonable suspicion in effecting the respondent’s arrest. This was because, according to him, before the arrest Aribeb visited the work place of Dale Dawn Van Wyk whom he already knew as the respondent’s wife and there asked Dale for the whereabouts of her husband. As will be discussed later, Mr. Tjombe contended that the respondent was domiciled in Namibia by virtue of his marriage in good faith to Dale, a Namibian citizen.

[15]    
In his evidence under cross-examination Aribeb denied that the purpose of his visit to Motown, which happened to be Dale’s work place, was to go and ask Dale for the whereabouts of the respondent. Rather he went to Motown because the instructions he had received from Mushilenga included the need to visit Motown on account of the fact that the respondent was reputed to be a regular visitor to that place as most foreigners were wont to do. In other words, Motown was included as an alternative to the house in Academia where the wanted foreigners might be found.

[16]    
Despite Aribeb’s denial of the postulation put to him in regard to the visit to Motown, Mr. Tjombe preferred to draw our attention to the fact that the trial judge had found that Aribeb lacked credit as a witness. The insinuation was therefore that Aribeb, having already known that the respondent was married to a Namibian, could not have had a reasonable suspicion that the presence of the respondent, a foreigner, in this country was illegal.

[17]    
I shall delve into the question whether the situation portrayed in Du Toit's commentary, as quoted above, is on all fours with the present case. Here I note that the first paragraph which Mr. Tjombe quoted from the commentary talks about an arrested person being a person reasonably suspected to have committed a Schedule 1 offence. Section 40(1) of the Criminal Procedure Act, No. 51 of 1977 provides that a peace officer may arrest without warrant any person:


“(b)      whom he reasonably suspects of having committed an offence referred to in Schedule 1 ...”



[18]    
Schedule 1 contains a list of criminal offences ranging in seriousness from Treason, Sedition, Murder, Rape, Robbery to offences of Escaping from lawful custody, including offences of conspiracy, incitement or attempt to commit any offence referred to in that schedule. The list does not include immigration offences. For circumstances empowering a peace officer to arrest for such an offence one has to look to some law outside the Criminal Procedure Act. In casu, that law is the Immigration Control Act, No. 7 of 1993 Act. For a start I shall therefore reproduce sections 6, 7, 8, 9, 12, 39 and 42 of that Act and consider to what extent they affect foreigners entering into Namibia:


“6(1)     subject to the provisions of section 7, 8 and 9, no person shall enter Namibia at any place other than a port of entry, unless –

(a)      the passport of such person of a category determined by the Minister, bears an endorsement; or

(b)      such person is in possession of a document issued to him or her by an immigration officer, to the effect that permission has been granted to him or her by the Minister or such immigration officer to enter Namibia at such place and to be in Namibia for such purposes and during such period and subject to such conditions as may be stated in that endorsement or document.

7.      
A person seeking to enter Namibia shall, before entering Namibia, present himself or herself to an immigration officer at a port of entry and shall satisfy such officer that he or she is not a prohibited immigrant in respect of Namibia and is entitled to be in Namibia.

8(1)     For the purpose of ascertaining any matter referred to in section 7, an immigration officer may require any person referred to in that section –

                  (a)      …

                  (b)      …

(c)      to produce documentary or other evidence relevant to his or her claim to enter or be in Namibia or that his or her entry into or his or her presence within Namibia will not be unlawful.
        
9.       An immigration officer shall, if he or she is satisfied that a person seeking to enter Namibia complies with the requirements of sections 6,7 and 8 and who is not or is clearly not a prohibited immigrant in respect of Namibia, or is clearly entitled to enter or be in Namibia, permit such person to land and enter or remain in Namibia.

12(1)    Any person seeking to enter Namibia who fails on demand by an immigration officer to produce to such immigration officer an unexpired passport which bears a valid visa or an endorsement by a person authorized thereto by the Government of Namibia to the effect that authority to proceed to Namibia for the purpose of being examined under this Act has been granted by the Minister or an officer authorised thereto by the Minister, or such person is accompanied by a document containing a statement to that effect together with particulars of such passport, shall be refused to enter and to be in Namibia, unless such person is proved to be a Namibian citizen or a person domiciled in Namibia.
                          
39(1)    Any of the persons referred to in sub section (2) who enters or has entered Namibia or is in Namibia, shall be a prohibited immigrant in respect of Namibia.

(2)      A person referred in sub section (1) shall be a prohibited immigrant in respect of Namibia, if –

         (a) – (b) (not applicable)
                          
(h)      such person, in terms of any other provisions of this Act, may be dealt with as a prohibited immigrant or is not in terms of such provision otherwise entitled to be or to remain in Namibia.
                 
42(1)(a)         When a person who enters or has entered or is found within Namibia, on reasonable grounds is suspected of being a prohibited immigrant in terms of any provision of this Act, an immigration officer may –

(i)      if such person is not in custody, arrest such person or cause him or her to be arrested without warrant; and

         (ii)     pending the investigations to be made in terms of sub-section (4) by such immigration officer, detain such person or cause him or her to be detained in the manner and at the place determined by the Minister, for such period, not exceeding 14 days, or for such longer period as the Minister, may determine, not exceeding 14 days at a time.”


[19]    
I pause there for a moment to translate the provisions of all the foregoing sections in a language ordinarily understood by the man in the street. In terms of the provisions quoted from section 6 of the Act, all persons traveling to Namibia are required to enter into the country at designated ports of entry. Such a person should be in possession of a passport, or if they do not have a passport, then they should have a document issued to them by an immigration officer. The passport or document should show that permission has been granted to the holder thereof to enter Namibia for the purpose, period and subject to the conditions endorsed in such passport or document. Section 7 in essence requires intending entrants into Namibia and present at a port of entry to present themselves to an immigration officer. Such intending entrants should satisfy the attendant immigration officer that they are not prohibited immigrants to Namibia and further that they are entitled to enter and to be in Namibia. Section 8 gives power to an immigration officer to require such persons present at a port of entry with an intent to enter Namibia to produce to the immigration officer evidence that they have a good claim to enter and remain in Namibia and thereby to show that their presence in Namibia will not be unlawful. The tone of the foregoing sections is peremptory and obligatory in nature and, therefore, inescapable. If therefore the persons reporting at the port of entry and intending to enter this country have satisfied the requirements of sections 6,7 and 8 to the extent explained in this paragraph, then in terms of section 9 of the Act the immigration officer attending to them may allow them to enter and remain in Namibia for the duration and on conditions prescribed and endorsed in their passport or document.

[20]    
As is shown by the provisions of section 12 of the Act, persons seeking to enter Namibia are required to have in their possession an unexpired passport which should bear a valid visa. If they do not have these, an immigration officer is empowered to refuse them entry into Namibia, unless they are Namibian citizens or they are domiciled in Namibia.

[21]    
The effect of the quoted provisions of section 39 is that any foreigner who is present in Namibia is declared to be a prohibited immigrant if such foreigner in terms of any provision of the Act is not entitled to be or to remain in Namibia. By section 42(1) of the Act when a foreigner is found in Namibia and is not in custody, an immigration officer is empowered, if he has a reasonable suspicion that such foreigner is a prohibited immigrant, to arrest and detain him or her.

[22]    
I shall now consider how the foregoing provisions affected the respondent herein on the basis of the evidence presented before the learned trial judge. On the day of arrest, 18 October 2004, the respondent was initially not under any restraint when he was found by Aribeb. Aribeb testified that he in effect asked the respondent for evidence that his presence in Namibia was lawful. On the basis of the information and instructions he had earlier received from his superior, Mushilenga, the Chief of Immigration, it was legitimate for Aribeb to make such request because the respondent was suspected to be an Ethiopian, a foreigner. According to Aribeb the respondent, in answer to the request, produced an affidavit on old paper. The deposition in the affidavit was to the effect that the respondent’s passport was lost. That such was the immediate information he provided is confirmed by the respondent’s own evidence under cross-examination as reflected on pages 774 to 776, viz:-

"Goba:   I know that you were not in possession of a passport. But I assume that you were not a holder of a valid passport.

                  Respondent:      Yes

                  Goba:             Correct? At the time of your arrest, the 18th of October 2004?
                  Respondent:      Yes, Sir.

                  Goba:             And so, you have said that one of the persons who had arrested you was Mr. Aribeb, sitting at the back of the courtroom?

                  Respondent:      Yes.

                  Goba:             And you told the court, I think that, when he arrested you, he produced his Appointment Certificate?

                  Respondent:      Yes

                  Goba:             So you know that he was an immigration officer?

                  Respondent:      Yes

                  Goba:             And then he asked you whether you had a passport?

                  Respondent:      Yes.

                  Goba:             You told the court --- when you testified in your evidence-in-chief earlier on, that when he asked you for your passport, you said that your passport was lost?

                  Respondent:      Yes.

                  Goba:             And, but then you also told the court that at that time, you had given the passport to someone else to keep it for you?

                  Respondent:      Yes.

                  Goba:             Even the record will show that when you just testified, you said you told Mr. Aribeb that you lost your passport, even though you knew at the time that you had given it to someone else to keep?

                  Respondent: Yes.

                  Goba:             You told him that you lost the passport. Now, those are two different things?

                  Respondent:      Yes. The time when he asked me, I gave him the Police paper Affidavit which says that I lost a driving licence and a passport.”


[23]    
Significantly when the learned trial judge noted and listed the several aspects which he held to be common cause in this case, he omitted to include the foregoing important fact of the respondent’s failure immediately prior to the arrest to produce evidence to justify as lawful his presence in Namibia: The importance of this fact is underscored on the premise that before an immigration officer can effect an arrest of a foreigner found in Namibia, such immigration officer should have reasonabe grounds for suspecting that the foreigner is a prohibited immigrant. In this regard the judge a quo failed also to pay regard to the information Mushilenga had communicated to Aribeb that the two foreigners, including the respondent, were suspected to be in the country illegally.

[24]    
Mr. Tjombe submitted before us, and he did the same in the court a quo, that the presence of the respondent in Namibia was lawful based on the fact that the respondent was at the time of arrest known to be a person married to a Namibia citizen. The judge below made a finding of fact that the respondent was indeed at that material time a person married to a Namibian citizen. Mr. Tjombe argued in the court below that by virtue of that marriage the respondent was domiciled in Namibia. However, the trial judge found it unnecessary to consider that extended argument. He stated at page 34 of his judgment (page 1083 of the appeal record in Volume 8) the following –

“In the light of my decision that the immigration officer, Aribeb unlawfully arrested and detained the plaintiff, it is not necessary to deal with Mr. Tjombe’s interesting argument that the plaintiff was domiciled in Namibia because of his bona fide marriage to a Namibian citizen and therefore Parts V and V1 of the Act do not apply.”


[25]    
The learned trial judge was content in founding his decision that the respondent’s arrest was unlawful principally on the evidence of the respondent’s marriage to a Namibian citizen. This is evident from the following passage occurring at page 33 of his judgment (page 1082 of the record)-

“The furnishing of the marriage certificate Annexure ‘U’ to Mushilenga have been much earlier than he or Aribeb indicated. Aribeb definitely, and Mushilenga most probably, knew from the beginning that the plaintiff was married to a Namibian citizen, but ignored that and did not consider this even after the marriage certificate was handed to Mushilenga and he was satisfied that it was authentic.”



[26]    
With due respect to the learned trial judge, he fell into error in coming to that decision. Marriage per se does not legalise a foreigner’s residence in Namibia under the Act. In this regard the provisions of sections 24 and 35 are apposite. Section 24 provides for limitation to entry into and residence in Namibia. It states –

“Subject to the provision of section 35, no person shall –

(a)     
enter or reside in Namibia with a view to permanent residence therein, unless such person is in possession of a permanent residence permit issued to him or her in terms of section 26; or

(b)     
enter or reside in Namibia with a view to temporary residence therein, unless –

(i)      in the case of any person who intendeds to enter or reside in Namibia for the purpose of employment or conducting a business or carrying on a profession or occupation in Namibia, such a person is in possession of an employment permit issued to him or her in terms of section 27; or

(ii)    
in the case of a person who intends to enter or reside in Namibia for the purpose of attending or undergoing any training, instruction or education at any training or educational institution in Namibia, such person is in possession of a student’s permit issued to him or her in terms of section 28; or

(iii)    in the case of any person who intends to enter or reside for any other purpose, such person is in possession of a visitor’s entry permit issued to him or her in terms of section 29.”



And section 35(1) provides –

“Notwithstanding the provisions of this Act, the Minister may exempt any person or category of persons from all or any of the provisions of this Part, and for a specified period and either unconditionally or subject to such conditions as the Minister may impose, and may do so also with retrospective effect whereupon the Chief of Immigration shall be notified to that effect.”



The rest of the subsections of section 35 are not relevant to the present case.

[27]    
Therefore in terms of section 24 as read with section 35 of the Act, the only alien person entitled to enter and/or reside in Namibia are those comprising the following categories, namely –

(a)     
holders of permanent residence permits;
(b)     
students in possession of student’s permits;
(c)     
holders of employment permits, and
(d)     
holders of visitors’ entry permits.

Section 35 by necessary implication also grants an entitlement to residence in Namibia to persons with an exemption granted by the Minister, exempting them from holding any of the above mentioned permits referred to in section 24. The absence of marriage as a factor constituting lawful residence in Namibia is conspicuous. We have, therefore, to search elsewhere in the Act or any other law for provisions warranting lawful residence in Namibia on the basis of marriage to a Namibian citizen.

[28]    
Section 22 of the Act is one such other provision. It states :

“22(1)    For purposes of this Act, no person shall have a domicile in Namibia, unless such person –

(a)     
is a Namibian citizen;

(b)     
is entitled to reside in Namibia and so resides therein, whether before or after the commencement of this Act, in terms of provisions of section 7(2)(a) of the Namibian Citizenship Act, 1990 (Act 14 of 1990);

(c)     
is ordinarily resident in Namibia, whether before or after the commencement of this Act by virtue of a marriage entered into with a person referred to in paragraph (a) in good faith as contemplated in Article 4(3) of the Namibian Constitution;

(d)     
in the case of any other person, he or she is lawfully resident in Namibia, whether before or after the commencement of this Act, and is so resident in Namibia, for a continuous period of two years.


(2)     
For the purposes of the computation of any period of residence referred to in subsection (1)(d), no period during which any person –

(a)     
is or was confined in a prison, reformatory or mental institution or other place of detention established by or under any law;

(b)      resided in Namibia only by virtue of a right obtained in terms of a provisional permit issued under section 11, or an employment permit issued under section 27, or a student's permit issued under section 28 or a visitor's entry permit issued under section 29;

(c)      involuntarily resided or remained in Namibia;

(d)      has entered or resided in Namibia through error, oversight, misrepresentation or in contravention of the provisions of this Act or any other law; or

(e)      resided in Namibia in accordance with the provisions of paragraphs (d), (e), (f) or (g) of section 2(1),

shall be regarded as a period of residence in Namibia.”



[29]    
In terms of paragraph (c) of section 22(1) of the Act, if one is ordinarily resident in Namibia by virtue of his or her marriage entered into in good faith to a person falling within the ambit of Article 4(3)(a) of the Namibian Constitution, then his or her residence would be lawful. Article 4(3)(a) constitutes as Namibian citizens foreign persons who in good faith marry Namibian citizens. Upon such marriage a foreign spouse concerned acquires Namibian domicile. The rest of the provisions of section 22 are not relevant and I shall not refer to them any more.

[30]    
I shall in due course elaborate on the issue of residence when I come to consider the question whether the respondent was domiciled in Namibia at the time of his arrest. For now the point under consideration is whether Aribeb, the immigration officer, had a reasonable suspicion to justify his act of arresting the respondent on 18 October 2004.

[31]    
As we have seen, on that occasion the respondent was requested to satisfy Aribeb whether his presence in Namibia was lawful. In response to that request, the respondent produced what Aribeb perceived to be a false affidavit stating that the respondent had lost his passport. It suffices to say that when his arrest was imminent – having been required to accompany the arresting officer to a Police Station and while there, having been informed that he would be detained pending investigation into the lawfulness of his immigration status – the respondent failed to satisfy Aribeb that his presence in Namibia was legally above reproach. It is, therefore, patent that the circumstances then prevailing were enough to induce, and I am satisfied that they did induce, a reasonable suspicion in Aribeb's mind, that the respondent was probably unlawfully present in Namibia. Therefore, the arrest was perfectly justified in law.

[32]    
In the event, I reject Mr. Tjombe's contention that the respondent's arrest could not be justified because the arresting officer did not have a reasonable suspicion. I am of the firm view that the requirements of section 42(1)(a)(i) of the Act were present at the time of arrest. By those requirements, an immigration officer is empowered to arrest a person who on reasonable grounds is suspected of being a prohibited immigrant. It has to be remembered that at the stage Aribeb had already been alerted by Mushilenga to the fact that there were two foreigners living at an address in the Academia area who were believed to be in Namibia unlawfully, and that they were driving a car which had Botswana registration number plates. The respondent, together with his companion David, appeared to fall within the description. With that background information, it was no wonder that Aribeb construed the respondent's failure to produce authentic evidence of residence in Namibia as an indication that the respondent was probably a prohibited immigrant.

WHETHER RESPONDENT WAS DOMICILED IN NAMIBIA

[33]    
We have seen that Mr. Tjombe's submission was that the respondent was domiciled in Namibia by virtue of his marriage in good faith to Dale, the Namibian citizen. Therefore my focus will be directed at paragraph (c) of section 22(1) of the Act when discussing the question whether the respondent did acquire Namibian domicile. There is no need to reproduce that provision because I have already quoted that part of section 22(1) in full elsewhere.

[34]    
Mr. Tjombe tried to strengthen his argument that the respondent was domiciled in Namibia. He did so by urging this court to accept that by virtue of his marriage in good faith to the named Namibian woman, he had acquired that status. He made an issue of marriage in good faith as opposed to marriage of convenience. In the course of his submission in that vein, he cited the case of Kohlhaas v Chief Immigration Officer, Zimbabwe and Another 1998(3) SA 1142. One of the headnotes in that case reads as follows:

“In Rattigan and Others v. Chief Immigration Officer, Zimbabwe and Others 1995(2) SA 182 (ZSC) C1994(2) ZLR 54 (S), 1995(1) BCLR 1 it was declared that a female citizen of Zimbabwe, married to an alien, was entitled, by virtue of the right of freedom of movement under s 22(1) of the Constitution of Zimbabwe, to reside permanently with her husband in any part of Zimbabwe. A few months later the ruling was extended in Salem v. Chief Immigration Officer, Zimbabwe, and Another 1995 (4) SA 280(ZSC) 1994(2) ZLR 287(S); 1995(1) BCLR 78 to embrace within the mobility rights of the citizen wife, the right of the alien husband to lawfully engage in employment or other gainful activity in any part of Zimbabwe.”



[35]    
In all the three above mentioned cases the accent was placed on the nature of marriage of the aliens concerned to citizens of Zimbabwe, namely whether in each case the marriage was entered into in good faith or it was a marriage of convenience, but what I have found to be of interest is that in each of the three Zimbabwean cases there was no illegality tainting the entry into or residence in Zimbabwe by each of the alien husbands. In Kohlhaas the alien husband entered Zimbabwe under the authority of a temporary residence and subsequent work permits. In Rattigan the alien husband entered Zimbabwe initially on a visitors’ permit which was later extended by issuance to him of a two-year residence permit. In Salem the wife and alien husband met in South Africa. Both later went to Zimbabwe, the country of which the wife was a citizen. After getting married in Harare, the alien husband later applied for a residence permit. Although it is not expressly so stated, it is evident that the alien husband’s entry into Zimbabwe was above board.

[36]    
The situation in the present case is the reverse in terms of how the respondent entered Namibia and how subsequently he resided in the country before his marriage to Dale. The uncontested evidence of Aribeb was that the respondent claimed to have entered Namibia at the Ariamsvlei port of entry on 21 September 2004. A check was made at that port and no record was found of the respondent having been attended to in accordance with the provisions of the Act. Nor did the respondent adduce any evidence to show that he entered Namibia at any other port of entry or that he had authority granted by the Minister allowing him to enter at any place other than a port of entry.