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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION CASE NO 98/02

In the matter between

LAVAL RAMSAMY First Applicant

RISHIDEO MUNGUR Second Applicant

ROBIN GOORANAH Third Applicant

RAJESH ATCHANAH Fourth Applicant

RITA ATCHANAH Fifth Applicant

-and-

THE MINISTER OF HOME AFFAIRS First Respondent

D.G. LACKAY Second Respondent

JUDGMENT

Froneman J.

The applicants are foreign nationals who face removal from the country under the Aliens Control Act 96 of 1991( the Act). They brought an urgent application seeking their release from detention; an interdict prohibiting their removal pending finalisation of this application; an order that the information upon which they were declared prohibited persons be provided to them; an order that the first respondent be ordered to consider their response to the information so provided and to review their declaration as prohibited persons; and, finally, an order that they be issued with temporary residence permits pending finalisation of the present application. The application is opposed by the respondents.

The applicants were initially arrested on 25 November 2001. They were then charged criminally under certain provisions of the Act and granted permits under s 41 of the Act to remain in South Africa for the purposes of attending their trial. These permits were due to expire on 18 January 2002. The docket in their criminal case mysteriously disappeared and the charges against them were, as a result, withdrawn. Despite reminders on 5 and 18 January from the second respondent to apply for new temporary permits the applicants failed to do so. They contend that to have done so would have amounted to an acceptance of their illegal status in the country. They say they are not illegally here. In early February they were then again arrested and detained pending their removal from the country. These arrests and detention prompted this application. Subsequent thereto, but prior to the hearing of the matter, the applicants’ warrant of detention was withdrawn pending the finalisation of the application.

The applicants contend that they are, or were, all legally in the country. The respondents dispute this, saying that the permits or permission that they rely on were fraudulently obtained and that, in any event, even on the basis of these permits or permission they are no longer entitled to remain in the country.

Applicants challenged the authority of the deponent to the main answering affidavit, Mr Vorster, to do so on the first respondent’s behalf. In my view it is clear, even if only from his later affidavit, that he had the requisite authority.

Although it appears to me that there is much merit in the contention that the permits upon which the first, second, fourth and fifth respondents rely were indeed fraudulently obtained, it is not necessary, because of the view I take of the matter, to decide that issue. The matter can be disposed of on the basis that the applicants have no right to be in the country, even on their own versions.

The first applicant relies on a work permit that expired at the end of December 2001. He did not apply to have this permit extended either before his arrest or after his release from prison on bail on 27 November 2001. The temporary permit granted to him for the purpose of attending the trial expired on 18 January 2002. As already noted he did not apply for an extension or renewal of that permit because he alleged that to do so would have been an admission of his illegal sojourn in South Africa. That attitude however, also precludes any possible attempt to explain the failure to apply for the extension of his alleged work permit on the basis that he was legally in the country by virtue of the temporary permit granted him for the court case. Either way, though, by the time of his arrest in February 2002 he had no valid permit to be in South Africa.

The same reasoning applies to the other applicants, but even more strongly. The second applicant had no permit to remain in South Africa subsequent to 31 October 1998. The fourth and fifth applicants’ alleged permits expired on 27 November 2001. The third applicant thought he was a permanent resident, but offered no documentary proof of the allegation. The respondents say there is no such proof. And all of them decided not to apply for an extension of the temporary permit granted to them to stay until 18 January 2002.

It does not help the applicants to say they thought they were still legally in the country:

“Central to the structure of the statute [the Act] is s 23, which provides that no foreigner shall enter or sojourn in the Republic unless he or she is in possession of an immigration permit or temporary residence permit. Section 27 of the Act imposes an obligation, on pain of criminal sanction, upon foreigners who do not possess either an immigration permit or a temporary residence permit to present themselves to the department. Furthermore, it is clear from s 26(7) that people who continue to reside in South Africa once their temporary residence permits have expired are guilty of a criminal offence. The responsibility for ensuring compliance with the provisions of the Act is therefore placed squarely on the shoulders of those wishing to obtain permits to reside in South Africa. Evading or ignoring those responsibilities constitutes criminal conduct and may result in deportation.”

(Per O’Regan J in Dawood and others v Minister of Home Affairs and others 2000(3) SA 936 (CC) para 23).

Those sections of the Act, referred to in the quotation above, have not been constitutionally impugned, nor have the applicants sought to do so in the present case. The applicants are, and were at the time of their arrest and detention in February 2002, illegally in South Africa. By that time it had been made clear to them that they were prohibited persons and they were ordered to leave the country. They refused to do so. As a result they were arrested and detained pending their removal from South Africa. It cannot, on the facts set out above, be contended that their arrest and detention in February was illegal. The applicants thus failed to make out a case for the relief sought in para. 2.1 of the notice of motion.

The further relief sought by the applicants, summarised at the beginning of this judgment, relate to the decision for their removal. It is not entirely clear to me on the papers what the applicants’ case for this relief is based on. There is, or at least was, until very late in argument before me, no relief sought either to review the decision that the applicants were prohibited persons under the Act or for a stay of their removal pending the institution of such review proceedings. In the absence of such relief being sought the orders asked for in paras. 2.2, 2.3, 2.4 and 2.5 of the notice of motion made little sense. Even if granted in the terms sought it would not prevent the removal of the applicants from South Africa. Realising this late in argument, applicants’ counsel sought an amendment of para. 2.4 to include words to the effect that the first respondent be ordered to review the declaration of the applicants as prohibited persons, in terms of s.52 of the Act.

This amendment does not cure the difficulties that I have referred to, but even on the assumption that what the applicants seek is a prohibition on their removal pending the requested review by the first respondent, they cannot succeed.

The second respondent confirmed in his affidavit that upon the applicants’ arrest on 25 November 2001 they were fully informed of (1) the reasons for them being prohibited persons, and (2) of their rights with respect to a review of this determination by the first respondent as contemplated in ss. 4(2) and 52(1) of the Act . The applicants, say the respondents, have not seen fit to utilise these procedures, despite being aware of them from that date. In reply the applicants deny that they were ever told this but there was no application that the issue be referred to oral evidence. It must, accordingly, be accepted as a fact that the applicants were so informed.

In that event there is no factual or legal basis in the papers upon which the further relief sought by the applicants can be granted. Factually the information the applicants seek in para.2.3 of the notice of motion was disclosed to them on 25 November. They did not use it to have their status as prohibited persons reviewed in terms of s.52, something that they now, belatedly, want to do. Legally the right to a hearing before removal as a prohibited person is encapsulated in the provisions of s.52 of the Act. That may be an attenuated form of hearing, but its validity has not been attacked as being unconstitutional or objectionable on any other ground. Reliance on the provisions of the Promotion of Access to Information Act 2 of 2000 and the Promotion of Administrative Justice Act 3 of 2000 are in my view misplaced. No case has been made out in the papers, nor was it so argued, that the provisions of the Act are in conflict with either of these two Acts, and thus not valid, or sufficient, for that reason.

In the absence of such a finding I fail to see how the provisions of these two Acts may assist the applicants. To the extent that there may be a free standing right to information under the Promotion of Access to Information Act 2 of 2000 the respondents’ answering affidavits fully provides the information the applicants seek. But such a right has nothing to do with the propriety of the decision for their removal from South Africa.

It follows that the application must be dismissed, with costs, and it is so ordered.

J.C.Froneman

Judge of the High Court.

Date of Delivery: 26 April 2002

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