[20]       On the affidavits before the Court on 31 July 2024, the applicant had, in my view, comfortably discharged the onus of showing that its version was “prima facie established though open to some doubt”, and thus satisfied the well-established test enunciated in Webster v Mitchell, where Clayden J added:[2]

“The proper manner of approach … is to take the facts as set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown upon the case of the applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to ‘some doubt’. But if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief.”

[21]       The fact that Mr Maow could not produce the copy of his asylum application on 19 or 25 June 2024 has been adequately explained and was also confirmed by copies of the relevant pages of his cousin’s passport; while the fact that Mr Bout’s DHA search had come up empty was easily explicable on the basis of the names and dates used in the search.

[22]       Doubtless aware of their difficulties in this regard, the first and second respondents sought leave to file a supplementary affidavit of Mr Bout on 2 August 2024, in order to adduce evidence regarding the further searches undertaken on the DHA system on 30 July and 1 August 2024, using the correct names and birth date of Mr Maow, which had apparently also not reflected the alleged asylum application. Although the DHA had expressly rejected the applicant’s attorneys’ invitation on 24 July 2024 to conduct such a search, I considered it in the interests of justice to allow that further affidavit in and to permit the applicant to respond thereto. The matter was accordingly postponed to 8 August 2024 to allow this further evidence to be introduced, as well as to permit the first and second respondents’ counsel to present argument with reference to the new affidavits, in accordance with those respondents’ specific request.

[23]       The further evidence adduced by the DHA casts some doubt on the applicant’s version. But I do not consider it to throw “serious doubt … upon the case of the applicant”. The completed and signed and commissioned pro forma affidavit, which was corroborated by the affidavit from the commissioner of oaths who commissioned that affidavit and affixed his stamp thereto (which accompanied the applicant’s further supplementary affidavit), is prima facie evidence that Mr Maow applied for asylum. As it appears that the DHA does not have a discretion to refuse to allow an application to be made, despite section 21(1)(a) of the Refugees Act requiring such an application to be made within five days of entry into the Republic, the apparent existence of such a document also does not invite immediate scepticism. It is moreover difficult to evaluate the reliability of a search on the DHA system in the abstract. Even if the search function was foolproof, there could moroever be various reasons why an electronic search for an asylum application turns up no results, including a failure on the part of a DHA official to capture the application on the system, or at least do so accurately. What might therefore have been more useful would have been evidence from an appropriate official at the Gqerberha Refugee Reception Office, as to whether it had any record of Mr Maow’s alleged application and subsequent biometric testing.

[24]       In the circumstances, I was satisfied that the applicant had prima facie established that he had applied for asylum before he was arrested, and that being so, he was insulated from deportation by section 21(4) of the Refugees Act until his application had been finally considered.[3] Any potential harm to the DHA, and thus any balance of convenience concerns, were also addressed by the default terms and conditions prescribed in paragraph 2 of my order of 7 August 2024.

[25]       Those reasons alone justified the order I made on 7 August 2024. But there were also further considerations which supported that order. I set these out below.

ISSUES WITH THE ORDER OF 12 JULY 2024

[26]       As noted in paragraph [13] above, the Order granted by this court on 12 July 2024 stated in paragraph 2 thereof that:

“2.     Pending the outcome of Part B of the application:

2.1      The Form 30 (confirmation by the court of his detention for purposes of deportation), in terms of the Immigration Regulations to the Immigration Act 13 of 2002, dated 25 June 2024 in respect of the applicant be suspended and of no force and effect insofar as it is relevant to the applicant”

[27]       At the same time, the Order provided, in paragraph 3, that the prayer for the release of the applicant from detention pending the final outcome of Part B was postponed to 31 July 2024.

[28]       As I see it, those prayers are mutually inconsistent.

[29]       Form 30, which is headed “confirmation by court of further detention for purposes of deportation”, is, as it indicates, to be completed by a court pursuant to regulation 33(3) of the Immigration Regulations which states that: “The confirmation of detention for purposes of deportation contemplated in section 34(1)(b) of the [Immigration] Act shall be on Form 30 illustrated in Annexure A”.

[30]       Section 34(1)(b) of the Immigration Act provided that:[4]

“(1) Without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director-General, provided that the foreigner concerned-

…

(b)    may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner”

[31]       In terms of regulation 33(3), the means by which a court confirms the (further) detention of an allegedly illegal foreigner for purposes of deportation is by signing and issuing a Form 30 (which is the “warrant of a Court” contemplated in section 34(1)(b)).[5] That was also in any event what the magistrate in this case, Mr Lendor, did on 25 June 2024, as evidenced by the completed, signed and stamped Form 30 attached to the applicant’s founding affidavit, as well as his ex tempore judgment at the end of the proceedings of 25 June, which according to the transcript (appended to the answering affidavit) contains inter alia the following statement of the magistrate:

“The court then … further authorises a warrant for your detention for purposes of deportation and will [sic] the Form 30 be attached to today’s proceedings.”

[32]       By suspending and declaring of no force and effect the Form 30 issued in respect of the applicant (as sought in prayer 2.1 of Part A of the notice of motion), the court was therefore suspending and declaring of no force or effect the magistrates’ court’s confirmation of the applicant’s (further) detention for purposes of deportation. That being so, the applicant should also have been released from detention, as sought in prayer 2.2 of Part A of the notice of motion. Prayers 2.1 and 2.2 thus had to stand or fall together; and so prayer 2.1 could not be granted while prayer 2.2 was postponed for subsequent consideration.

[33]       When I put this to counsel at the hearing, the applicant’s counsel acknowledged the force of the proposition, but stated that this was not what was apparently intended. After some deliberation, he eventually proposed in replying argument during the 7 August hearing that paragraph 2.1 of the Order of 12 July 2024 should be deleted and replaced ex tunc with a clause suspending the applicant’s deportation, resulting in paragraph 2 thereof reading as follows:

“2.     Pending the final outcome of Part B of the application:

2.1    The deportation of the applicant is suspended”

[34]       I shall assume that this was at least the applicant’s understanding of the prayer embodied in paragraph 2 of the 12 July Order (in the absence of reasons, there is no indication of what the court itself considered the effect to be), although any such order would have been inconsistent with the court’s remanding of the relief sought in prayer 2.2 of the Part A notice of motion to 31 July 2024, and thus the court’s deferral until then of the enquiry as to whether the applicant should be “permitted to remain in the Republic of South Africa” pending the outcome of Part B.

[35]       But in order for paragraph 2 of the 12 July 2024 Order to be amended in that way, at least one of the parties would have had to provide a legal justification for the amendment, and the applicant did not do so, while the first and second respondents did not even seek the amendment of prayer 2, notwithstanding being the parties detrimentally affected by that order. Nor is it immediately apparent what the basis for such an amendment would be. Uniform Rule 42(1)(a) would not be applicable, as it is apparent from the State Attorney’s affidavit that the first and second respondents were present in Court on 12 July 2024, even though they had not yet had an opportunity to consider the founding papers properly; while in any event the error was not of the kind contemplated by this sub-rule, as the applicant was procedurally entitled to the order he sought and obtained.[6] There was also not an “ambiguity, or a patent error or omission” as contemplated by Rule 42(1)(b). The problem was not that the court had expressed itself ambiguously or itself made an error; it was instead that the applicant had sought specific relief without apparently appreciating the consequences thereof and the court granted the applicant that relief, in the precise terms sought, thereby bringing about that unforeseen result. Rule 42(1)(c) is inapplicable as well, as the parties were not mistaken as to the correctness of certain facts, merely apparently oblivious of the legal consequences of the prayer in question.

[36]       It may therefore be that the only way in which paragraph 2 of the 12 July Order could be changed would be pursuant to an appeal, were one to have been brought. And if that were the case, the relief sought in prayer 2.2 of Part A of the notice of motion may, as a necessary consequence of paragraph 2 of the 12 July Order, have had to be granted in the absence of an appeal (or an application for leave to appeal), irrespective of what I considered the merits of that prayer to be. In the light of the conclusion I have independently reached above (and below) in relation to prayer 2.2 of Part A of the notice of motion, it is however unnecessary for me to consider that dilemma further. Nor is it incumbent on me to resolve the contradiction between paragraphs 2 and 3 of the Order of 12 July 2024. For there is synchronicity between the earlier order granted in respect of prayer 2.1 of the Part A notice of motion and what has now been ordered in relation to prayers 2.2 and 2.3 thereof; and that means that the divergence between paragraphs 2 and 3 of the Order of 12 July 2024 has, at least for present purposes, become moot.

THE CONSTITUTIONAL COURT’S ORDER of 30 october 2023

[37]       The matter was argued before me by both sides on the basis that section 34(1) of the Immigration Act was of full force and effect. The answering affidavit and heads of argument of the first and second respondents even quoted that section in full.

[38]       As I discovered with rudimentary research prior to the resumed hearing on 8 August 2024, the Constitutional Court had however found subsections of section 34(1) to be unconstitutional as far back as June 2017 in Lawyers for Human Rights v Minister of Home Affairs,[7] and also twice prescribed what should apply during a period afforded to Parliament to correct the defect(s), most recently doing so in a judgment delivered on 30 October 2023.[8]

[39]       In the former case, the Constitutional Court’s order (of 29 June 2017) read in relevant part as follows:

“2.     Section 34(1)(b) and (d) of the Immigration Act 13 of 2002 is declared to be inconsistent with ss 12(1) and 35(2)(d) of the Constitution and therefore invalid.

3.      The declaration of invalidity is suspended for 24 months from the date of this order to enable Parliament to correct the defect.

4.      Pending legislation to be enacted within 24 months or upon the expiry of this period, any illegal foreigner detained under s 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 the 48 hours, if 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 the date of 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.

7.      The Minister of Home Affairs and the Director-General: Department of Home Affairs shall, within 60 days from the date of this order, file on affidavit a report confirming compliance with para 5, at the High Court of South Africa, Gauteng Division, Pretoria.“

[40]       The order made by the Constitutional Court at the end of its judgment of 30 October 2023 read thus (omitting the costs paragraphs):

“1.     Subject to and pending the enactment of legislation outlined in para 2, as from the date of this order, and pending remedial legislation to be enacted and brought into force within 12 months from the date of this order, the following provisions, supplementary to those contained in para 4 of this court's order of 29 June 2017, shall apply:

(a)     An immigration officer considering the arrest and detention of an illegal foreigner in terms of s 34(1) of the Immigration Act 13 of 2002 (Act) must consider whether the interests of justice permit the release of such person subject to reasonable conditions, and must not cause the person to be detained if the officer concludes that the interests of justice permit the release of such person subject to reasonable conditions.

(b)     A person detained in terms of s 34(1) of the Act shall be brought before a court within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.

(c)     The court before whom a person is brought in terms of para (b) above must consider whether the interests of justice permit the release of such person subject to reasonable conditions and must, if it so concludes, order the person to be released subject to reasonable conditions.

(d)     If the court concludes that the interests of justice do not permit the release of such person, the court may authorise the further detention of the person for a period not exceeding 30 calendar days.

(e)     If the court has ordered the further detention of a person in terms of para (d) above, the said person must again be brought before the court, before the expiry of the period of detention authorised by the court and the court must again consider whether the interests of justice permit the release of such person subject to reasonable conditions, and must, if it so concludes, order the person to be released subject to reasonable conditions.

(f)      If the court contemplated in para (e) above concludes that the interests of justice do not permit the release of such person, the court may authorise the person's detention for an adequate period not exceeding a further 90 calendar days.

(g)     A person brought before a court in terms of para (b) or (e) must be given an opportunity to make representations to the court.

2.      If remedial legislation is not enacted and brought into force within the said 12-month period, the provisions in para 1 above shall continue to apply until such remedial legislation is enacted and brought into force.”

[41]       As the record shows, there was not even an attempt to comply with the provisional regime which has been applicable, at the instance of the Constitutional Court, since 30 October 2023.

[42]       Neither the DHA nor the magistrate considered whether the interests of justice permitted the release of Mr Maow subject to reasonable conditions; they instead considered it dispositive that he had no documentary proof of an asylum application or a right to live or work in South Africa and that the DHA system apparently had no record of any such application. When the present application first came before this court on 12 July 2024, there was also no analysis of that kind.

[43]       In my view, the interests of justice permitted, and indeed warranted, the release of Mr Maow subject to the default conditions that I imposed, or reasonable terms and conditions furnished by the respondents within five days of the order. This was all the more if, as I was advised by applicant’s counsel, the order granted by the court on 12 July 2024 was intended to preclude Mr Maow from being deported until his asylum application had been considered; for, if that was the case, his continued detention in the interim was not justifiable when relatively strict reporting conditions could instead be imposed.

[44]       Independent of the interdict enquiry engaged in above, an application of the test laid down in paragraph 1(c) of the Constitutional Court’s 30 October 2023 order thus required the order that I made on 7 August 2024.

[45]       When making that order shortly after the resumed hearing on 7 August 2024, I was also concerned that there had been non-compliance with paragraphs 1(d) and (e) of the Constitutional Court’s 30 October 2023 order when this court had, on 12 July 2024, postponed until 31 July 2024 a consideration of prayer 2.2 of the Part A notice of motion (and thus postponed a consideration of whether the applicant should be released from detention and permitted to remain in South Africa pending the final outcome of Part B).

45.1.    In terms of paragraph 1(d) of the Constitutional Court order, the court before whom a detained person first appears may, if it concludes that the interests of justice do not permit the release of such person, authorise the “further detention of the person for a period not exceeding 30 calendar days”. In terms of paragraph 1(e), “If the court has ordered the further detention of a person in terms of para (d) above, the said person must again be brought before the court, before the expiry of the period of detention authorised by the court and the court must again consider whether the interests of justice permit the release of such person subject to reasonable conditions, …”.

45.2.    In the present case, Mr Maow first appeared before a magistrate for confirmation of his detention on Thursday, 20 June 2024, though the matter could not proceed then due to the absence of an interpreter, and his detention was only considered by the court on 25 June 2024. While the practical exigencies might potentially be sufficient in this instance to justify the absence of strict compliance with the Constitutional Court’s requirement that the detention of a foreigner be confirmed by a court within 48 hours,[9] the period of further detention permitted by paragraph 1(d) of the Constitutional Court (a maximum of 30 calendar days) should, in fairness to the applicant, be calculated with reference to the first court appearance (20 June 2024). Accordingly, the magistrate before whom Mr Maow appeared on 25 June 2024 could only authorise his continued detention for a period up until 20 July 2024 at the latest (even if satisfied that the interests of justice did not permit his release, something which Mr Lendor did not consider).

45.3.    Although the Form 30 was not properly completed, it would, as mentioned earlier, seem that the applicant was intended to come before the court again on 11 July 2024 in order for his detention to again be considered by the magistrates’ court. The court did not however consider the matter on that day, in part because the present application was due to be heard in the High Court on the 12^th of July. Nor did it deal with it again.

45.4.    When the present application was heard in this court on 12 July, the Court should therefore have considered on that day whether the interests of justice permitted the release of the applicant, subject to reasonable conditions; or, at the very least, ensured that this question was considered by the court by 20 July 2024 (which would have meant a court hearing on or before Friday, 19 July 2024). The Court could not, consistent with the Constitutional Court order, have postponed the matter until 31 July 2024, and thus brought about a situation in which Mr Maow’s further detention was not considered until a period of 41 calendar days had passed since Mr Maow first appeared before a court in order for his detention at the instance of the DHA to be judicially considered.

[46]       For this reason, too, I considered it to be in the interests of justice that an order be made as soon as soon as possible after the hearing on 7 August 2024, releasing Mr Maow from detention.

CONCLUSION AND COSTS

[47]       There were accordingly various bases for the substantive order that I handed down on 7 August 2024, after considering the parties’ further affidavits (which were admitted) and hearing the parties’ further argument.

[48]       As to costs:

48.1.    As noted, the Court on 12 July 2024 ordered that the costs of Part A should stand over for determination at the hearing of Part B.

48.2.    That was a procedural order, regulating when the this court would determine the question of the costs of Part A. The court made no finding at all regarding the costs order which was appropriate in respect of Part A – and it would also clearly have been premature to have done so given that the respondents had not yet been afforded an adequate opportunity to deliver an answering affidavit, and the court had also not yet considered a key component of Part A. That order was consequently a purely interlocutory one, capable of being revisited by the court before final judgment,[10] more especially in the context of a determination of the remaining relief sought in Part A.

48.3.    For the reasons given above, I am satisfied that the applicant made out a case for interim interdictory relief and that it was also anyway in the interests of justice for him to be released from detention. The applicant was moreover compelled to come to court to seek such relief urgently given the intransigent and uncommunicative approach of the DHA as outlined in allegations in the founding and replying affidavits which effectively stood uncontroverted (the relevant paragraphs in the founding affidavit only being disputed in general, sweeping and unsubstantiated terms, which did not create a genuine dispute of fact). Importantly, too, the DHA and the magistrate disregarded the Constitutional Court order of 30 October 2023, and the Minister of Home Affairs and the Director-General compounded that failure by not even mentioning the Constitutional Court’s order in their papers filed of record, instead approaching the matter on the patently incorrect basis that the parties’ respective rights and obligations were set out in a statutory provision which had been declared unconstitutional some seven years earlier. That flouting of a Constitutional Court order in a case in which the Minister and Director-General were applicants is deserving of censure.

48.4.    In the circumstances, I considered it appropriate that the first and second respondents pay the applicant’s costs in respect of Part A,[11] and that the applicant not have to wait until the determination of Part B (which may in any event not have to be persisted with in the light of this judgment, or the DHA accepting the applicant’s version).

48.5.     I therefore made an order to that effect on 7 August. Insofar as it may not have been clear from the wording of that order that the costs award merely related to Part A, any such ambiguity may legitimately be cleared up in terms of Rule 42(1)(b), as that lack of clarity would have been attributable to infelicitous language in the Court’s order, attributable to the court, which did not reflect its true intention.[12] To the extent that it may be necessary to do so, and make any practical difference (which I doubt, as the papers before me effectively only dealt with Part A and the costs order could hardly have been interpreted as covering future developments), I hereby clarify that the costs award in paragraph 3 of the Order of 7 August 2024 was intended merely to relate to Part A and that the first line of that paragraph was intended to convey the following (the words between square brackets having been inserted for the sake of clarification): “The first and second respondents are to pay the costs of [Part A] of this application jointly …”.

                                                                 ACTING JUDGE P FARLAM

For applicant:

Adv Marius Botha

Instructed by: ZS Inc. (Mr Waleed Saban)

For second respondent:

Adv Daniel Nyathi

Instructed by: State Attorney (Ms Dalphine Smit)