Lan v OR Tambo International Airport Department of Home Affairs Immigration Admissions, and Another

• Jurisdiction: South Africa
• Citation: 2011 (3) SA 641 (GNP)

Lan v OR Tambo International Airport Department of Home Affairs Immigration Admissions, and Another
2011 (3) SA 641 (GNP)

2011 (3) SA p641

Citation	2011 (3) SA 641 (GNP)
Case No	70261/2009
Court	North Gauteng High Court, Pretoria
Judge	R Du Plessis AJ
Heard	November 20, 2009; November 21, 2009; November 29, 2009
Judgment	October 11, 2010
Counsel	LM Hodes SC for the applicant.; G Bofilatos for the respondents.

Flynote : Sleutelwoorde F

Contempt of court — Disobedience of court order — What constitutes — Person acting in contempt of court order for period of time, and thereafter complying with order after much force and persuasion — Offence of G contempt of court committed in respect of period before order complied with — Once requirements of offence established for that period, and no valid defence raised, positive finding of contempt of court should be made — Contempt of court proceedings directed not only at perpetrator, but also at protection of courts, their order and integrity of court system. H

Headnote : Kopnota

A court cannot simply ignore the fact that a person for a specific period of time acted in contempt of a court order, and then thereafter, through much force and persuasion, changed his mind to then comply with the court order. Such a person should be regarded as having committed the offence, should a court order be sought against him in that regard. Once the requirements I of the offence have been established to have existed at a certain period in time, and once it is found that no valid defence has been raised in that regard, a positive finding should follow. It must be kept in mind that contempt of court proceedings are not only directed towards the perpetrator, but are directed towards the protection of the courts, respect towards the courts and court orders, and the protection of the integrity of the court system. Non-compliance at a specific period in time cannot therefore J

2011 (3) SA p642

A simply be ignored because compliance did in fact occur at a later stage. Non-compliance with a court order, at a specific, given period in time, constituting an offence that has been committed at that time, cannot be ignored by a court simply because of the fact that there was at a later stage compliance with the court order. (Paragraphs [71] – [72] and [75] at 656I – 657B/C and 657F – G.)

Cases Considered

Annotations: B

Reported cases

Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others 1956 (1) SA 105 (N): not followed

Clipsal Australia Pty Ltd and Others v Gap Distributors (Pty) Ltd and Others 2009 (3) SA 305 (W): dictum in para [23] applied C

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA): applied

Naidu and Others v Naidoo and Another 1993 (4) SA 542 (D): not followed

S v Basson 2007 (3) SA 582 (CC) (2007 (1) SACR 566; 2005 (12) BCLR 1192): dictum in para [27] applied

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449): referred to. D

Case Information

Applications for the setting-aside of certain decisions of the respondents and for order for the committal of certain of the respondents for contempt of court. The facts appear from the reasons for judgment.

LM Hodes SC for the applicant. E

G Bofilatos for the respondents.

[The court granted certain orders on 29 November 2009 and handed down the following reasons for judgment on 11 October 2010.]

Judgment

R du Plessis AJ:

F [1] In this matter the applicant brought an application on an urgent basis on Friday 20 November 2009, which application was brought by a family member of the applicant on her behalf, to obtain relief pertaining to her detention at OR Tambo International Airport.

[2] The applicant is a Chinese national, who was then employed as a G credit controller by Chung Fung (Pty) Ltd t/a Dragon City, doing business in Fordsburg, Johannesburg. She obtained, until February 2007, an extension of a temporary residence permit in terms of s 10 of the Immigration Act 13 of 2002 (hereinafter referred to as 'the Act'). According to the permit she was granted an extension of her temporary- H residence status in South Africa, which was valid until 15 December 2009. She apparently continued to work at Dragon City until 17 July 2008, whereafter, with the express permission of her employer, she returned to China, as her daughter was giving birth to a baby girl, and she wanted to be there for the birth. In China she became ill and could not return to South Africa. She then reached an agreement with her I employer to extend her stay in China, pending her healthy recovery.

[3] She knew that the permit would expire on 15 December 2009, and therefore she returned to South Africa on 20 November 2009 in order to comply with the provisions of her permit, and to continue with her employment at Dragon City. She and her employer intended to renew J her work permit.

2011 (3) SA p643

R Du Plessis AJ

[4] Her niece, Lam Shuk Ching, accompanied her on 19 November 2009 A on flight SA287 from Hong Kong to South Africa. Her niece was to assist her in English, especially to communicate with doctors in South Africa. The flight arrived at OR Tambo International Airport on 07h10 on Friday 20 November 2009.

[5] She was approached, whilst proceeding through immigration, by an B immigration officer with the surname of Mogale, who perused her passport and permit, and who asked her certain questions which she could not answer because she could not speak English. She was then escorted to the immigration office with Ching and Mogale, where he asked Ching the same questions, which were then translated.

[6] On the question what her reason was for coming to South Africa, she C answered that she was coming back to South Africa to continue working at Dragon City. However, Mogale was aggressive and dismissive of her, and, inter alia, made the comment that it was impossible for her to be returning to work, alleging that she was too old to work. He asked questions about the reason why she was out of the country for such a D long period, and did not seem satisfied with the answer.

[7] Mogale then made copies of her passport and permit, and completed certain documents which he instructed her to sign. She refused to sign the documents because she said she did not understand the documents. She and Ching were then left in the immigration office for a period of E approximately one hour, whereafter a policeman was called and Ching was told to go.

[8] Applicant's attorney, Mr Strauss, contacted Mogale and explained to him that applicant's employer would immediately be applying for an extension of her work permit in terms of s 19 of the Immigration Act 13 of 2002. F He told Mogale that he would see to it that she would comply with the provisions of the Act, and that the necessary financial guarantees would be given. Mogale simply told Strauss that he was not interested, and put the phone down on him. This appears to have been the attitude of all the immigration officials involved in this matter. G

[9] At 15h00 a representative from South African Airways tried to give applicant a return ticket to Hong Kong, which she refused to accept. Seven representatives from the Immigration Department, as well as members of South African Airways, attempted to convince her to follow them to board the return flight to Hong Kong. She refused. They then H physically picked her up and started carrying her to the departure lounge. She was kicking, screaming and crying hysterically. A Chinese male person, who witnessed what was happening, told them to return her to the holding cell until her attorney arrived.

[10] She was then left in the national transfer area with a policeman from I the South African Police Service guarding her. She remained there without food, water or warm clothing. This continued until the following afternoon (Saturday).

[11] Late that Friday afternoon attorneys representing the applicant brought an urgent application before me to prevent the deportation of the applicant back to China. J

2011 (3) SA p644

R Du Plessis

A [12] I was presented with a notice of motion which I marked 'X', meaning to convey that the contents of the notice of motion would constitute a court order on an urgent basis. I also signed the notice of motion at the end thereof, and it was officially stamped by my registrar.

[13] Ching gave oral evidence at court pertaining to the situation of the B applicant. Although it was not clear to me what the factual position was, and I could not decide who was right or wrong, I decided to grant an order requesting the department to give reasons why the following order was not to be made, which reasons had to be given on a return date, the next Tuesday, 24 November 2009:

'1.

C Rule nisi is issued, with a return date of 24 November 2009 in the urgent court, when the respondent shall give reasons why the following order should not be made:

1.1

that the applicant shall not be deported from South Africa;

1.2

that the respondent shall act towards the applicant in accordance with all official permit and authorisation issued to her;

1.3

D that the respondent is ordered to immediately return the applicant to No 39 Kloof State, Bedford View;

1.4

that the applicant's documentation including her passport be returned to her;

1.5

that the cost of this application should be reserved.'

E [14] The order was telefaxed by the applicant's attorney to the airport Home Affairs Immigration Admissions Office immediately after it was granted. I decided to grant the order on the basis of the evidence of Ching.

[15] Ching returned to the airport with applicant's counsel and attorney F to arrange applicant's release. The immigration officers refused to release the applicant. The attorney made...