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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: 332/2002

In the matter between

MBAHDIKEOGU CHIMA Applicant

and

MINISTER OF HOME AFFAIRS First Respondent

CLIFF ALISTER PRINGLE N O Second Respondent

COMMANDING OFFICER, SOUTH AFRICAN

POLICE SERVICES, QUEENSTOWN Third Respondent

JUDGMENT

________________________________________________________________

FRONEMAN, J:-

The applicant is a Nigerian national who is illegally in South Africa. He has been arrested and is in detention pending his removal from this country. He seeks not only an order for his release from custody, but also an order directing immigration officials to issue him with an extended temporary residence permit, pending an application by him to review and set aside the decision to have him removed.

In October 1995 the applicant entered the country and applied for refugee status. The application was refused. He appealed the decision, but the appeal was rejected on 27 July 1999. He was issued with a temporary permit for a prohibited person (in terms of s. 41 of the Aliens Control Act 96 of 1991) valid till 9 March 2000, by when he had to leave South Africa. Shortly before that date, on 17 February 2000, he married a South African woman. Presumably on the basis of this marriage a temporary residence permit, in the form of a visitor’s permit under s. 26(1)(a) of the Act, was issued to him to accompany his spouse. Its expiry date was 22 March 2001. It was a condition of that permit that he had to apply for a permanent residence permit. He did not do so. Approximately three months after his marriage the applicant and his South African wife separated. Undeterred thereby the applicant obtained an extension to his visitor’s permit which allowed him to remain in South Africa until 22 March 2002 on condition that he continued accompanying his spouse and that he had to apply for a permanent residence permit within 90 days. Again he did neither.

During June 2000 he started dating Ms Fuziswa Lali and they started living together in July 2000. On 25 May 2001 a daughter was born of their relationship. On 4 March 2002 he was finally divorced from the South African wife who provided the only legal link he had to be in this country.

With the extended expiry date on his visitor’s permit fast approaching, on 22 March 2002, the applicant and Ms Lali took steps to formalize their relationship, by way of a customary law marriage, or customary union, as it is commonly referred to. They travelled from Johannesburg to Queenstown, Ms Lali’s parental home, and arrived there on 9 March 2002. The applicant paid lobola to Ms Lali’s family on that day. The next day, Sunday 10 March 2002, the traditional marriage ceremony took place. On Monday they went to have their marriage registered in terms of the Marriage Act 25 of 1961. Arrangements were made to see a marriage officer on Wednesday 13 March 2002. The marriage was, however, not registered, because on that day the applicant was taken into custody.

In terms of an arrangement with the marriage office, the immigration office at Queenstown is informed of an intended marriage involving an alien, to check on the legality of the latter’s presence in the country. As a result of this arrangement the applicant was referred to the immigration office, where he ended up being interviewed by the second respondent, a chief immigration officer in the department of home affairs. The second respondent describes what then happened:

“During his interview with me, he admitted that he and his wife had separated from each other during the year 2000. He produced a decree of divorce dated 4 March 2002. The endorsements in the passport of the Applicant indicated that he had been granted what is colloquially termed an “accompany spouse” permit, namely a permit granted to an alien to enable the alien to accompany, and on condition that the alien continues to accompany such alien’s spouse. From the information provided to me by the Applicant, it was clear that, when he applied for the extension of his permit prior to its scheduled expiry on 22 March 2001, he and his wife had already separated from each other, and that he had obtained an “accompany spouse” permit under false pretences. He had clearly not complied with the condition of the permit that he continue accompanying his spouse, nor had he complied with the condition that he apply for permanent residence within 90 days of the extension of the permit. In terms of the provisions of section 26(7), a person who fails to comply with the purpose for which, or a condition subject to which, a permit was issued, shall be guilty of an offence and may be dealt with under the Act as a prohibited person. Copies of the “accompany spouse” permit endorsements as they appear in the Applicant’s passport are annexed hereto marked “CAP 2” and “CAP 3”. I accordingly advised the Applicant that he would be dealt with as a prohibited person. He was further advised that a provisional permit would be issued to him in terms of section 10 of the Act, and that an investigation into his status would be conducted. I presented the document which is Annexure “D” to the founding affidavit to the Applicant, and tried to explain it to him. I further explained to the Applicant his rights to make written representations to the Minister in terms of section 52 of the Act. He was requested to deposit an amount of R5000,00 and to sign for receipt of the said notice, but he refused to co-operate without the presence of an attorney. Since he refused to co-operate at all, I decided in terms of the provisions of section 53(1) of the Act to take the Applicant into custody. Before I did so, I explained to the Applicant his rights in terms of section 35 of the Constitution of the Republic of South Africa, Act no 108 of 1996. The Applicant refused to sign the warning statement in this regard. On the date of his detention, I requested the head office of the Department of Home Affairs to furnish to me all documentation which was available in connection with the Applicant’s presence in this country.”

The applicant’s detention was extended to 19 March 2002 when he first appeared in the Magistrate’s Court, Queenstown. The case was postponed to 26 March for further investigation. On that day it was postponed to the next, 27 March, for a formal bail application. Although bail was opposed by the State, the magistrate granted bail in the sum of R4000,00.

The second respondent was not happy with this turn of events. He told the police officer at the holding cells that if the bail amount was paid he should be contacted because he intended to arrest the applicant in terms of s.53(2) of the Act, having established that the applicant was not entitled to be in the country. He continues the story:

“I entered the police station and enquired whether bail had been paid. I was advised that bail had been paid, and I then enquired why the Applicant was still being held. The police officer advised me that Mr TIYO had presented a removal warrant to the police, and since I had previously explained that the Applicant was to be arrested again, the police had held him in terms of that removal warrant, Annexure “C” to the founding affidavit. I advised the police official that I had prepared a new removal warrant, and requested that the Applicant be brought from the cells so that I could arrest him and explain the position to him. The Applicant was brought from the cells, whereafter I arrested him and attempted to explain the situation to him. He was extremely aggressive and refused to listen to my explanation. Mr TIYO then attempted to explain the situation to him, but he again refused to listen. I attach a copy of the new renewal warrant issued by me in terms of delegated powers as Annexure “CAP 5””.

On the removal warrant, “CAP 5”, the following is written:

“SIO TIYO tried to inform him about his reason for removal – he refused to listen or to co-operate.

Copy handed to SAPS at 27/03/2002 at 19H35

Alien refused that his fingerprints be taken.”

It is quite clear that the applicant did not comply with the conditions of his temporary residence permit. He separated from his wife within three months of obtaining the initial permit. His application for an extension was thus clearly fraudulent. He never applied for a permanent residence permit, a condition of both the initial and extended temporary residence permits. He is certainly not an innocent: his use of two South African women to try and extend his stay in this country confirms that.

On the papers, therefore, the applicant clearly had no right to be or remain in South Africa, at least from the time of his separation from his first South African wife, in about June 2000.

In the face of this overwhelming evidence of applicant’s unlawful stay in this country, applicant’s counsel was constrained to rely on ingenuity. Three separate bases were advanced in argument as grounds for the relief sought. I understood them to be this:

1. The arrest on 27 March was done in bad faith. Evidence of the bad faith on the part of the second respondent was:

• the issue of an improper removal warrant following upon the

initial arrest on 13 March 2002;

• all the facts upon which applicant’s arrest on 27 March

2002 was based, was already known some time before that;

- the applicant was only re-arrested after bail was granted on 27 March 2002;

• whilst in custody after the initial arrest the applicant was

precluded from applying for an extension of his temporary

residence permit, which expired on 23 March 2002;

2. Even if the initial arrest on 27 March 2002 was lawful, the applicant’s continued detention was unlawful for want of a warrant of detention as provided for in the regulations issued in terms of the Act;

3. The issue to remove the applicant from South Africa, taken after his arrest and detention, was done without giving the applicant a hearing. The decision to remove him was thus unlawful and, as his arrest and detention served only the ultimate purpose of his removal, the latter’s unlawfulness also vitiated, in reverse as it were, the arrest and detention.

I pause to comment that these arguments are far removed from the ground foreshadowed in the founding affidavit deposed to by Ms Lali, namely the existence of a customary union between herself and the applicant, as a basis for his lawful stay in South Africa. By the time of final argument before me, it was common cause that the provisions of s.1(2) of the Act had put paid to that line of attack.

In my view the “bad faith” argument cannot be upheld. The mere fact that applicant could have been arrested, detained and removed under s.53(2) of the Act earlier, does not make a later arrest one necessarily made in bad faith. In fact, s.53(2) only allows an arrest without a warrant if the person is not in custody. It was thus perfectly legitimate for second respondent to arrest the applicant upon his release from bail - he did not do so for any ulterior purpose, he did it to remove the applicant from South Africa because he was not entitled to be or remain here under the Act.

The applicant cannot rely on his fraudulently obtained temporary residence permit to justify his stay here until 23 March 2002. His non-compliance with its conditions in any event made him liable to be dealt with as a prohibited person under the Act (s.26(7) of the Act).

What remains of the argument are the alleged irregularities of the earlier s.53(1) arrest – said to vitiate the later arrest, because the latter depended on its validity for its own. It will be remembered that second respondent only effected the s.53(1) arrest because applicant refused to co-operate in respect of the other options presented to him, viz - that he was a prohibited person; would be granted a provisional permit in terms of s.10 and that an investigation into his status would commence. Applicant was explained his rights to make written representations in terms of s. 52, requested to deposit an amount of money and sign an acknowledge of receipt of notice - all of which he refused. What followed was an arrest under s.53(1) on suspicion of being an alien, requiring proof of his entitlement to be in the country (which he had shown he did not have) and further dealings in terms of s.7. All that was, in substance, done before his arrest on 27 March 2002 in terms of s. 53(2): it was established that he was not entitled to be in South Africa and it was not necessary for him to be convicted of any offence prior to an arrest in terms of s.53(2).

The fact that an (invalid) removal warrant was issued upon his s. 53(1) arrest on 13 March 2002 does not logically or otherwise impinge upon the validity of the arrest or detention - neither of which are connected to an earlier decision for his removal. That (invalid) decision to issue a removal warrant had no legal consequences - it was not acted upon. It has no bearing on his further (valid) re-arrest, detention and warrant for removal from the country.

The second attack - no warrant for the applicant’s detention under the regulations - is, in my view, without merit. S. 53(2) provides for his detention, upon arrest, “in a manner and at a place determined by the Director-General”. No case was made out for a challenge on these grounds in the papers.

The third attack - no hearing before the removal decision - was said to be based on Patel v Minister of Home Affairs 2000(2) SA 343(D & C). I accept that the applicant is entitled to the protection of the Bill of Rights as an alien. But on 13 March 2002 he was made aware of his rights as a prohibited person under the Act, to make representations in terms of s.52 to the Minister. He declined. On 27 March 2002 efforts were made to explain matters to him again. He refused to co-operate, or even listen. When the application was launched it was not alleged that he did not have a proper opportunity to do so and that therefore the arrest and detention was unlawful. The hearing he is entitled to is that prescribed in s.52 - if he refused to use the opportunity when it presented itself, he is the author of his own misfortune.

It was faintly suggested that the issue of whether applicant was told of his rights should be referred to oral evidence, if, but only if, all the other submissions made on his behalf failed. I decline to do so, because the applicant’s denial is highly improbable. He has not explicitly denied that he fraudulently obtained temporary residence and the handwritten note on “CAP 5” eloquently refutes his denial. It has not been suggested that the note was not made at the time.

I may add that there may be cases where aliens may legitimately feel aggrieved by harsh treatment under the Act. But this is not such a case: the applicant manipulated the system for his own advantage - fraudulently and intentionally so - for a long time. He cannot complain now that, at last, the system has caught up with him.

The application is dismissed with costs.

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J C FRONEMAN

JUDGE OF THE HIGH COURT

Date of Delivery: 26 April 2002

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