Director-General Department of Home Affairs v Islam
| Jurisdiction | South Africa |
| Judge | Maya P and Majiedt JA, Mbha JA and Van der Merwe JA and Rogers AJA |
| Judgment Date | 28 March 2018 |
| Docket Number | 459/2017 |
| Court | Supreme Court of Appeal |
| Hearing Date | 20 February 2018 |
| Citation | 2018 JDR 1292 (SCA) |
Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring):
This is an appeal, with leave of this Court, against the judgment of the Western Cape High Court, Cape Town (Salie-Hlophe J). It follows urgent application proceedings launched by the second respondent, Mrs Wageema Islam, on behalf of the first respondent, Mr Nurul Islam. [1] The latter, a Bangladeshi citizen, is a holder of a spousal visa issued by the South African Department of Home Affairs (DHA). Mrs Islam is a South African citizen and, according to her, the visa was issued on the strength of her Muslim marriage to Mr Islam which they concluded in 2008. [2]
The litigation was prompted by DHA's refusal to allow Mr Islam entry into the country at the Cape Town International Airport after he was found in possession of a fraudulent visa (the decision). The Islam's essentially sought an order allowing Mr Islam admission into South Africa (the Republic) pending the determination of his
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Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring)
request to the second appellant, the Minister of Home Affairs (the Minister), to review the decision [3] or, in the event that the Minister confirmed the decision, pending a judicial review which would be launched within ten days thereof.
The high court granted an order directing the appellants to (a) permit Mr Islam to enter and remain in the Republic subject to reasonable terms and conditions as prescribed by them, pending finalisation of the matter; (b) re-issue his spousal visa within 21 days from the date of the order; and (c) if they were unable to re-issue the visa, to file affidavits stating the reasons for their non-compliance. It is this order against which the appellants appeal.
The background facts, most of which may be gleaned from the appellants' answering affidavits to which there was no reply, are simple. On 8 January 2016, Mr Islam applied for a spousal visa in terms of s 11(6) of the Immigration Act 13 of 2002 (the Act). [4] The application was successful. On 2 February 2016 he was issued with a visa with reference number TRC 1510538 which he received two days later. On 3 March 2016, he left the country temporarily to visit his ailing mother. Upon his departure, the immigration officer who examined his passport wrote 'refer on arrival'
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Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring)
on the date stamp affixed to the passport. The note was an indication that Mr Islam's travel documents raised concerns that would have to be addressed on his return. And the concerns were not addressed at that stage as DHA does not deny a foreigner the right to depart to his country of origin on a direct flight and defers queries until the person seeks to re-enter the country to avoid delaying the departure of an entire flight.
On 10 June 2016 DHA's permitting section issued an alert regarding visa labels that had been fraudulently produced. This was circulated on its Movement Control System at all South African ports of entry and would automatically appear on the computer screen once the relevant DHA officials logged into the system. The alert read:
'*IMPORTANT NOTICE: VISA LABELS ISSUED FRAUDULENTLY*
Officials must be on the look-out for visa labels starting with control number B0028XXX and B0029XXX. These visa labels were issued fraudulently. If found, those in possession of these visa labels must be dealt with according to the Immigration Act and Regulations.'
On 30 June 2016 Mr Islam returned to South Africa on an Emirates Airlines flight from Dubai which landed at the Cape Town International Airport. He presented the immigration officials with a passport which was endorsed with a visa with reference number TRV1689435 and control number B00286091, one of the alert numbers, purportedly issued by DHA under s 18 of the Act. Upon this discovery, the immigration officials referred him to the Inspectorate Office for further verification. It was duly established that the visa endorsed on his passport was not the one which had been validly issued to him and had not been issued by DHA. It was therefore a fraudulent document.
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Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring)
Mr Islam was accordingly refused entry into the country under s 29(1)(f) of the Act. In terms of these provisions a foreigner, ie an individual who is not a citizen, [5] who is found in possession of a fraudulent visa, is deemed a prohibited person and does not qualify for a port of entry visa or admission into the Republic. His passport was confiscated and he was informed that he would be boarded on the flight on which he had arrived and removed from the country. [6] He was handed and signed various forms prescribed by the Act. [7] These documents mainly informed him that he had been refused entry into the country and the reason for that decision. They also informed him
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Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring)
of his right to ask the Minister to review the decision in terms of s 8(1) of the Act or to make representations to the first appellant, DHA's Director-General (the DG) to review the decision in terms of ss 8(3) and (4) of the Act. [8]
On 4 July 2016 the respondents successfully brought an urgent application, without notice to the appellants, in the high court before Samela J. The object of the application was two-fold. It was to interdict Mr Islam's allegedly imminent deportation and to have DHA ordered to allow him entry into the country pending the final determination by the Minister of the review of the decision, or if the review failed, pending the final determination of a judicial review of the Minister's decision. But the respondents' respite was short-lived. Samela J subsequently set aside the order on the same day at the instance of the appellants, who sought its reconsideration, as it
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Maya P (Majiedt, Mbha and Van der Merwe JJA and Rogers AJA concurring)
transpired that the respondents had not disclosed to the court why DHA refused him entry into the country. Furthermore, Mr Islam could in any event not have been removed from the country. This was so because he had already approached the Minister to have the decision reviewed and s 8(2)(b), which prohibited his removal from the country until that process was finalised, had automatically kicked in. But the Islam's were not discouraged by the set back. Two days later they returned to the high court and launched the proceedings which have resulted in this appeal.
The crisp issues on appeal before us were the appealability of the interim interdict granted by the high court and, if it was appealable, whether the Islam's had met the requirements for its grant. The argument advanced on their behalf was that the interdict was not final...
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