Arse v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Citation: 2012 (4) SA 544 (SCA)

Arse v Minister of Home Affairs and Others
2012 (4) SA 544 (SCA)

2012 (4) SA p544

Citation	2012 (4) SA 544 (SCA)
Case No	25/2010; [2010] ZASCA 9
Court	Supreme Court of Appeal
Judge	Mpati P, Cloete JA, Cachalia JA, Malan JA and Theron AJA
Heard	February 24, 2010
Judgment	March 12, 2010
Counsel	S Budlender (with I de Vos) for the appellant.; IAM Semenya SC (with N Manaka) for the respondents.

Flynote : Sleutelwoorde B

Immigration — Refugee — Asylum seeker — Asylum seeker permit — On grant of, recipient ceasing to be illegal foreigner — Refugees Act 130 of 1998, ss 21(4) and 22(1); Immigration Act 13 of 2002, s 23(2).

C Immigration — Refugee — Asylum seeker — Asylum seeker permit — Allows holder to 'sojourn' — This disallowing detention — Refugees Act 130 of 1998, s 22(1); Immigration Act 13 of 2002, s 23(2).

Immigration — Refugee — Asylum seeker — Application for asylum — Minister may not proceed against individual who has applied for asylum until decision made on his application or his rights of review or appeal D exhausted — Refugees Act 130 of 1998, ss 21(4); Immigration Act 13 of 2002, ss 23(2) and 34(1).

Headnote : Kopnota

Mr A left his country to escape political persecution. He entered South Africa and an official issued him with an asylum transit permit to allow him to E apply for asylum. However, it expired before he could do so and police arrested and immigration officials detained him as an illegal foreigner under the Immigration Act 13 of 2002. Three months passed. Then officials from the Department of Home Affairs assisted A, who was still detained, to apply for asylum. On that day a refugee reception officer issued to him an asylum seeker permit. However, later that day a refugee status determination officer F rejected A's application. Mr A appealed the decision to the then Refugee Appeal Board, and A, still detained, was heard three months later. The Board reserved its decision. Shortly afterward A applied to a high court for it to order his release and to grant him certain other relief. The high court dismissed the application and A appealed to the Supreme Court of Appeal. In issue were whether the Immigration Act 13 of 2002 justified A's G detention; the high court's suggestion that A be released subject to conditions; and the impact of the Refugees Act 130 of 1998 on his position. (Paragraphs [2] – [3] at 548C – H.)

Whether the Immigration Act 13 of 2002 justified A's detention

As to the first issue, the SCA reiterated that once a person established that he had H been detained, the detaining authority had the burden to justify the detention. Here the Minister of Home Affairs argued that ss 23 and 34(1) and (2) of the Immigration Act justified the detention. That is, when A's asylum transit permit expired before he applied for asylum, he became an illegal foreigner (s 23(2)), whom an immigration officer might arrest and detain pending deportation (s 34(1)). Moreover, and relying on case law, the minister submitted that an illegal foreigner could be detained pending I a review or appeal. The SCA examined ss 34(1)(d) and 34(2), which permit detention if certain requirements are met, and found that those requirements were not satisfied. (Paragraphs [5] – [9] at 549C – 551G.)

The high court's suggestion that A be released subject to conditions

The SCA then turned to examine the high court's request to A and the minister to explore conditions on which A could be released. The minister indeed J proposed conditions but A was unable to satisfy them and the high court

2012 (4) SA p545

held that A's application for release thus had to fail. The SCA held that a A court generally cannot impose conditions for the release of a person unlawfully detained, and that a court's only course with unlawful detention was to order immediate release. (Paragraph [11] at 553D – H.)

The impact of the Refugees Act 130 of 1998

As to the minister's use of s 23(2) of the Immigration Act to support the detention, the SCA held that this failed to take account of s 21(4) of the B Refugees Act. Section 23(2) provides that:

'Despite anything contained in any other law, when the [asylum transit] permit . . . expires before the holder reports . . . at a Refugee Reception Office in order to apply for asylum . . . the holder of that permit shall become an illegal foreigner. . . .' C

And s 21(4) of the Refugees Act provides that:

'Notwithstanding any law to the contrary, no proceedings may be instituted or continued against any person in respect of his . . . unlawful entry into or presence within the Republic if . . . (a) such person has applied for asylum in terms of subsection (1), until a decision has been made on the application and, where applicable, such person has had an opportunity to exhaust his or her rights of D review or appeal in terms of Chapter 4. . . .'

The two were to be reconciled such that s 23(2) ceased to apply when an official granted an asylum seeker permit to an illegal foreigner. Thereafter the individual was no longer an illegal foreigner, and the minister could not institute or continue proceedings against him in respect of his unlawful E entry or presence in the country, until a decision had been made on his application, or he had exhausted his rights of review or appeal. The case the minister relied on to contend for detention pending review or appeal had not considered s 21(4). (Paragraph [19] at 558A – H.)

A's detention was also unlawful under the Refugees Act in that it did not comply with s 29(1) (the detention exceeded 30 days and had not been reviewed by a high court); or s 23 (A's asylum seeker permit had not been withdrawn). F (Paragraph [21] at 559B – C.)

Nor did it comply with s 22(1), which provides that:

'The Refugee Reception Officer must, pending the outcome of an application [for asylum] . . . issue to the applicant an asylum seeker permit . . . allowing the applicant to sojourn in the Republic temporarily. . . .' G

Here the high court had held that '(t)he right to sojourn does not necessarily entail a right to go about freely in South Africa without any restrictions' and that '(h)e is indeed sojourning in South Africa, albeit under restriction'. (Paragraph [22] at 559D – E.)

With this the SCA disagreed. It held that 'sojourn' meant 'to make a temporary H stay in a place; to remain or reside for a time'. This implied that the asylum seeker made a decision to stay or remain in a place, and this was not the same as to detain a person in a place against his will. (Paragraph [22] at 559E – F.)

Cases Considered

Annotations: I

Case law

Southern Africa

Arse v Minister of Home Affairs [2010] ZAGPJHC 1: reversed on appeal

Aruforse v Minister of Home Affairs and Others 2010 (6) SA 579 (GSJ): dictum in para [17] approved J

2012 (4) SA p546

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13: referred to A

Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530: referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219): referred to

In re Willem Kok and Nathaniel Balie (1879) 9 Buch 45: applied B

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079): dicta in paras [22] – [26] applied

Jeebhai and Others v Minister of Home Affairs and Another 2009 (5) SA 54 (SCA): C distinguished

Johannesburg City Council v Makaya 1945 AD 252: referred to

Johnson v Minister of Home Affairs and Another 1997 (2) SA 432 (C): referred to

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C): dictum in para [27] applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775): referred to D

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120): referred to

Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A): referred to

Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A): referred to E

Nkabinde v Nkabinde & Nkabinde 1944 WLD 112: referred to

Petz Products (Pty) Ltd v Commercial Electrical Contractors (Pty) Ltd 1990 (4) SA 196 (C): dictum at 204H – I applied

Principal Immigration Officer and Minister of Interior v Narayansamy 1916 TPD 274: dictum at 276 applied

R v Maseti and Others 1958 (4) SA 52 (E): referred to F

R v Sachs 1953 (1) SA 392 (A): dictum at 399F – H applied

Silva v Minister of Safety and Security 1997 (4) SA 657 (W): referred to

Tafira and Others v Ngozwane and Others (GNP case No 12960/06, 12 December 2006): referred to

Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others G 2007 (4) SA 395 (CC) (2007 (4) BCLR 339): referred to

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) (2008 (11) BCLR 1123): referred to

Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458 (CC) (2008 (2) SACR 1; 2008 (6) BCLR 601): H referred to.

United States

Nishimura Ekiu v United States 142 US 651 (1892): referred to.

Statutes Considered

Statutes

I The Immigration Act 13 of 2002, ss 23(2) and 34(1): see Juta's Statutes of South Africa 2010/11 vol 7 at 4-47 and 4-51

The Refugees Act 130 of 1998, ss 21(4) and 22(1): see Juta's Statutes of South Africa 2010/11 vol 7 at 4-28.

Case Information

Appeal against a decision in the South Gauteng High Court, Johannesburg J (Willis J).

2012 (4) SA p547

S Budlender (with I de Vos) for the appellant. A

IAM Semenya SC (with N Manaka) for the respondents.

Cur adv vult.

Po...