Hooper v Superintendent, Johannesburg Gaol and Another (2)

• Jurisdiction: South Africa
• Judge: Cillié J
• Judgment Date: 24 December 1957
• Citation: 1958 (2) SA 157 (W)
• Court: Witwatersrand Local Division

G Cillié, J.:

The applicant is a citizen of the United States of America who was given permission in terms of the provisions of the Aliens Act, 1937, to reside permanently in the Union of South Africa. In September, 1956, she entered the Union and settled in Natal where she acquired immovable property.

H On the morning of the 10th March, 1957, while she was on a visit to Johannesburg, she was arrested by two members of the South African Police Force. After a short detention at a Police Station, she was taken to and detained at the Johannesburg Gaol. The apprehension was made by virtue of a warrant granted under the hand of the Minister of the Interior on the 6th February, 1957. The warrant reads as follows:

'Whereas Mary Louise Hooper has rendered herself liable to removal from the Union of South Africa in terms of sec. 22 (3) of the Immigrants' Regulation

Cillié J

Act, 1913, as amended, now, therefore, you are hereby authorised to cause the said Mary Louise Hooper to be removed from the Union of South Africa under proper escort and, pending removal, to cause her to be detained in such custody as prescribed by regulation under the said Act.'

On the day after her arrest, her attorney sent a telegram to the Minister of the Interior asking for her release and offering to furnish A security that she would leave the Union at her own expense 'within 30 days after settling all her business affairs'. When no reply to this telegram had been received by the 14th March, the applicant petitioned this Court for relief which included an order for her immediate release, an interdict prohibiting the second respondent from deporting her on the B warrant issued, and an order declaring the warrant to be of no force and effect.

The petition was treated as an urgent matter, and after having heard argument on the 14th and 15th March, DOWLING, J., ordered that the applicant should be released immediately. He also granted a rule nisi calling upon the second respondent to show cause -

(A)

C Why it should not be interdicted from deporting the applicant from the Union of South Africa on any warrant or order heretofore issued.

(B)

Why an order should not be granted declaring that any warrant heretofore issued by the second respondent for the removal of the applicant from the Union of South Africa is invalid, illegal, null and void and of no force and effect.

D Finally it was ordered that the costs of the appearance of the 14th and 15th March and such other costs as relate to the applicant's release must be paid by the second respondent. [*]

It is relevant to state here that the order for the applicant's release E and the order in respect of costs were made on the ground that there are no regulations in existence under which the authorities are permitted to detain a person whose removal from the Union has been ordered in terms of the relevant sub-section.

The applicant claims that the order for her removal is illegal because at no time prior to her arrest was she given any indication that the F second respondent was considering the issue of a warrant for her removal from the Union, and because she was at no time prior to the issue of the warrant given an opportunity of being heard in answer to any allegations which may have been made against her, and which lead to the issue of the warrant. She states that if she had been given such an opportunity, she would have been able to show that it is not in the public interest to remove her from the Union.

G Before the hearing on an extended return day, the Minister of the Interior filed an affidavit in which he set out certain details about the petitioner's application for entry into the Union and the reasons which she gave for wanting to settle here permanently. The Minister admits that he gave the applicant no indication that he contemplated H issuing the warrant, but he disputes that he was in law obliged to give her any indication of his intention. He says further:

'There is in any event no reason why applicant, if she so desires, should not, even after the execution of the said warrant, have made any representations she desired to me. This she has not yet done.'

Cillié J

He refers to the telegram from her attorney which dealt with an opportunity to the applicant to settle her affairs pending her departure, and then he...