THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  320/08

In the matter between:

MANJAR ALI SHAIK YUSUF ULDE                                                 APPELLANT

v

MINISTER OF HOME AFFAIRS                                         FIRST RESPONDENT
PERSON IN CHARGE – LINDELA                                SECOND RESPONDENT
DETENTION CENTRE
LAWYERS FOR HUMAN RIGHTS                                            AMICUS CURIAE

Neutral citation:
Ulde v Minister of Home Affairs (320/2008) [2009] ZASCA 34
(31 March 2009).

Coram:
Mpati P, Streicher, Ponnan, Cachalia JJA et Hurt AJA
Heard:
16 February 2009
Delivered:
31 March 2009

Summary:
An arrest of an illegal foreigner under s 34(1) of the Immigration Act 13 of
2002 is subject to the exercise of a discretion by an immigration officer.
The discretion is to be construed in favorem libertatis. Where a magistrate
had granted bail to a suspected illegal foreigner, an immigration officer
could not ignore this fact in the exercise of his discretion.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:  High Court, Johannesburg (Sutherland AJ sitting as court of
first instance).

The following orders are made:

(1)
The appeal is upheld and the respondents are ordered to pay the
appellant’s costs;

(2)
The appeal against the referral of Mr Zehir Omar to the Law Society of the
Northern Provinces is dismissed;

(3)
Paragraphs (1) and (2) of the order of the court below are set aside and in
their place the following order is made:

‘(a)
It is declared that the detention of the applicant is invalid and is set
aside.

(b)
The respondents are to pay the costs of the application.’

________________________________________________________________

JUDGMENT
________________________________________________________________

CACHALIA JA (Mpati P, Streicher, Ponnan JJA, Hurt AJA concurring)

[1] This is an appeal against the judgment of the Johannesburg High Court
(Sutherland AJ) dismissing an application by the appellant for his detention at the

Lindela Detention Centre at the respondents’ instance to be declared unlawful.1
The appellant has since been deported to India. The high court granted the
appellant leave to appeal to this court on the grounds that if he returns lawfully he
may contemplate a claim for damages for his alleged unlawful detention and that
its judgment could be an impediment. The appellant is represented by Mr Zehir
Omar in this appeal as he was in the court below. I mention this because, as
appears from the concluding paragraph in this judgment, Mr Omar has a
personal interest in the order that is being appealed against.

[2] The high court considered two grounds to support the averment that the
detention was unlawful: First, that the question of the appellant’s status as an
illegal immigrant was the subject of criminal proceedings in the Kempton Park
Magistrate’s Court and that those proceedings disqualified the respondents from
dealing with him through the machinery of the immigration laws, and, secondly
that the appellant’s detention was invalid because the respondents had not
complied with the provisions of s 8 of the Immigration Act 13 of 2002 before
detaining him. It dismissed both. In the judgment of this court in Jeebhai v
Minister of Home Affairs,2 which will be delivered together with the judgment in
the present case, the second issue was decided in favour of the respondents.

[3] Before us, Mr Katz, on behalf of the amicus curiae, raised a new point
which is indirectly related to the first ground. He submitted that in arresting the
appellant, and then detaining him, the immigration officer failed to exercise any
discretion, or to the extent that he did, failed to do so properly. Accordingly, so he
submitted, the appellant’s arrest and subsequent detention was unlawful.

[4] The facts that are relevant to deciding this issue are these. The appellant
was arrested on 15 January 2008, it having been alleged that he had obtained a
passport and identity documents given to him by the Department of Home Affairs

1 Ulde v Minister of Home Affairs 2008 (6) SA 451 (W).
2 Jeebhai v Minister of Home Affairs (139/2008) [2009] ZASCA 35 (31 March 2009) in citation.

fraudulently. The documents were seized and remained in the possession of an
immigration official, Mr Moodley. The appellant faced criminal charges relating to
alleged contraventions of the Immigration Act in the Kempton Park Magistrate’s
Court. On 4 February 2008, the magistrate released him on bail despite the
respondents’ vigorous opposition. In this regard they filed a detailed affidavit by
an immigration officer, Willem Vorster, setting out the grounds for their
opposition. These included the strength of the case against him and the
likelihood that he would not stand trial if he was released on bail.

[5] Two days later, while on a visit at Lindela Detention Centre the appellant
was confronted by an immigration official, Mr Matone Peter Madia, who asked
him to produce proof of his entitlement to be in the country. Madia’s version of
what happened appears from his answering affidavit:

‘5.1
After initially, in terms of s 41 of the Immigration Act requesting the applicant to
produce documentation or any other form of proof of his entitlement to be lawfully within
the borders of the Republic of South Africa, the applicant informed me of the fact that his
travel document was in possession of a certain Mr R Moodley who is an employee of the
Department of Home Affairs in the special Investigations Branch. I then informed the
applicant that I would communicate with Mr Moodley to assess what the position was
regarding his passport.

5.2
I then telephonically communicated with Mr Moodley who thereupon informed me
that, after investigations by the relevant sections of the Department of Home Affairs, it
was found that the applicant’s entire sojourn, from the outset, in the Republic of South
Africa is based upon fraudulent documentation . . .

5.3
I was then also informed of the content of the affidavit of Mr W Vorster which was
tendered during the recent bail proceedings (which I have, subsequent to the lodging of
this application had sight of).

5.4
I then confronted the applicant on the allegations made by Mr Moodley and which
are contained in the affidavit of Mr Vorster, upon which the applicant was unable to

furnish me with satisfactory answers, as a consequence whereof I was of the opinion
that I was not satisfied that the applicant is entitled to be in the Republic of South Africa
and thereafter proceeded to detain the applicant in terms of s 34 of the Immigration Act,
as is the Department of Home Affairs’ obligation when regard is had to s 32 of the
Immigration Act. (Emphasis added)

. . .

8.1
I should also respectfully point out that the decision to detain the applicant is
based solely upon the seriousness of the allegations levelled against the applicant
regarding the applicant’s fraudulent conduct, as well as the nature and extent of such
fraudulent conduct.

8.2
I verily believe that the applicant, should he be released, and regard being had to
the extent to which the applicant is prepared to defraud or, alternately be party to a
fraudulent scheme, that in the event the applicant would simply have, as is usually the
case, “gone under the radar” of the officials of the Department of Home Affairs and
simply disappeared . . .

8.3
My motivation to detain the applicant was based upon the premise that, regard
being had to the content of the affidavit of Vorster which I had at my disposal on
6 February 2008, the applicant’s chances of succeeding in regularising his stay in the
Republic of South Africa, are highly improbable.’

[6] In Jeebhai this court confirmed that an officer who decides that an illegal
immigrant is liable to be deported has a discretion whether or not to arrest and
detain the person pending his deportation. There is no obligation to do so.3 In
Lawyers for Human Rights v Minister of Home Affairs4 Du Plessis J described the
discretion that an immigration officer has not to arrest a person as ‘limited’ having
regard to the fact that s 34(1) applies only to foreigners who are by definition in
the country illegally. He went on to state:

3 At para 29.
4 2003 (8) BCLR 891 (T).

‘As such the Act renders their personal freedom subject to restriction . . . The
immigration officer’s limited discretion therefore amounts to no more than not to arrest
persons who are by reason of their transgression of the law liable to arrest. In its effect
the immigration officer’s limited discretion operates in favour of the individual concerned.
The absence of guidelines where the discretion is so limited does not in my view violate
the rule of law. The section merely allows an immigration officer to be humane’.5

[7] What the learned judge said about the nature of an immigration officer’s
discretion concerning an arrest of an illegal foreigner is clearly also applicable to
the discretion to detain the foreigner concerned. But his description of the
discretion not to arrest (or detain) as being ‘limited’ in that it allows the
immigration officer to merely be humane is, however, misleading because this
may be read to mean that the illegal foreigner ought presumptively to be arrested
(or detained) unless the immigration officer decides not to do so for humane
reasons. Bearing in mind that we are dealing here with the deprivation of a
person’s liberty (albeit of an illegal foreigner’s), the immigration officer must still
construe the exercise of his discretion in favorem libertatis when deciding
whether or not to arrest or detain a person under s 34(1) – and be guided by
certain minimum standards in making the decision.6 Our courts have over the
years stated these standards as imposing an obligation on the repository of a
discretionary power to demonstrate that he has ‘applied his mind to the matter’ –
in the celebrated formulation of Colman J in Northwest Townships (Pty) Ltd v The
Administrator of the Transvaal7

5See Lawyers for Human Rights above at 896 G-H.
6 Cf s 41(1). Section 41(1) read with s 34(2) confers on an immigration officer a discretion to
detain a suspected illegal foreigner for a period not exceeding 48 hours for the purposes of
conducting an investigation into his status – but only if the detention is necessary. The
requirement of necessity (and the concomitant element of proportionality) connotes that an
immigration officer must consider whether there are sufficient grounds for the detention and also
whether there are other less coercive measures to achieve the objective (Saadi v United Kingdom
13229/03 [2008] ECHR 80 (29 January 2008)). However, the prerequisite for the detention to be
necessary in s 41(1) is omitted from s 34(1) thus relieving the immigration officer of this more
onerous justificatory requirement in the latter instance. The constitutionality of this omission is not
before us.
7 1975 (4) SA 1 (T) p 8F-G.

‘(A) failure by the person vested with the discretion to apply his mind to the matter
(includes) capriciousness, a failure on the part of the person enjoined to make the
decision, to appreciate the nature and limits of the discretion to be exercised, a failure to
direct his thoughts to the relevant data or the relevant principles, reliance on irrelevant
considerations, an arbitrary approach, and the application of wrong principles.’

[8] The approach I have outlined is now subsumed under s 12(1)(a) of the
Constitution which provides that freedom may not be deprived ‘arbitrarily or
without just cause’. Simply put a person may not be deprived of his freedom for
unacceptable reasons.8 However, once the decision-maker has demonstrated
that the discretion has been properly exercised, a court will not interfere, even if it
appears that the wrong decision was made.

[9] Before examining whether, or how, Madia exercised his discretion to
detain the appellant I must point out that the appellant did not in terms raise this
as a ground of review in his founding affidavit. He asserted merely that his
detention was unlawful because it arises from the very complaint for which the
magistrate had ordered his release. In Northwest Townships parlance this
complaint relates, in my view, to ‘a failure to direct [the immigration officer’s]
thoughts to the relevant data’. The appellant has therefore put in issue Madia’s
exercise of his discretion, albeit somewhat obliquely.

[10] The amicus submitted that the appellant’s detention was unlawful because
it was carried out pursuant to a blanket policy to detain all persons found to be
illegal foreigners. There is merit in the submission. It is clear from the extract
from Madia’s affidavit quoted above that he believed that he had an obligation to
detain the appellant ‘when regard is had to s 32 of the Immigration Act’. But s 32
imposes an obligation on an immigration officer to ‘deport’ an illegal foreigner – it
is not concerned with the power to detain.9 By assuming that he had an

8 S v Coetzee  1997 (3) SA 527 (CC) para 159, quoted in De Langa v Smuts 1998 (3) SA 785
(CC) para 18.
9 Section 32:
‘Illegal foreigners

obligation to detain the appellant, Madia was not exercising any discretion – he
was carrying out what he believed to be a ‘blanket policy’ which by definition
precludes the exercise of a discretion.

[11] However, to the extent that Madia may be said to have exercised a
discretion this also was not done properly. The factors he says he took into
account (and contradict his assertion that he had an obligation to detain the
appellant) when deciding to detain the appellant were ‘the seriousness of the
allegations’ against him; that he would simply have ‘gone under the radar’ and
that ‘the chances of succeeding in regularizing his stay in the Republic of South
Africa, are highly improbable’. These are the very considerations that the
magistrate was asked to consider in the bail application. It seems to me that once
the respondents had elected to charge the appellant, and the magistrate then
decided to release him on bail, this should have been taken into account as a
relevant and material factor in any further decision to detain him. Madia makes
no mention, in his affidavit, that he considered the fact that the appellant was
released on bail. He must have known of this fact because, on his own version,
he had sight of Vorster’s affidavit made to support opposition to bail being
granted to the appellant and would therefore have been aware that the appellant
had been granted bail despite Vorster’s opposition. The magistrate’s order could
not simply be ignored – which is what happened. The appellant was therefore
detained for unacceptable reasons – thus rendering his detention unlawful.

[12] I wish to express our gratitude to the amicus curiae for its most helpful
submissions.

[13] In its order dismissing the application for the appellant’s release from
detention, the learned judge in his order also referred to the Law Society of the
Northern Provinces, Mr Omar’s conduct in failing to inform the court of authority

(1) Any illegal foreigner shall depart, unless authorised by the Director-General in the prescribed
manner to remain in the Republic pending his or her application for a status.
(2) Any illegal foreigner shall be deported.’

adverse to the appellant’s case and directed the Society to report the outcome of
the referral to the Deputy-Judge President of the Johannesburg High Court.
Mr Omar seeks to appeal that part of the order. However, while an order may be
appealed against, a referral of an attorney’s conduct to the Law Society may not
– it is not a judgment or order as contemplated in s 21A(1) of Supreme Court Act
59 of 1959.

The following order is made:

(1)
The appeal is upheld and the respondents are ordered to pay the
appellant’s costs;

(2)
The appeal against the referral of Mr Zehir Omar to the Law Society of the
Northern Provinces is dismissed;

(3)
Paragraphs (1) and (2) of the order of the court below are set aside and in
their place the following order is made:

‘(a)
It is declared that the detention of the applicant is invalid and is set
aside.

(b)
The respondents are to pay the costs of the application.’

____________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANT:   Z Omar (Attorney)
Amicus Curiae:

A Katz;  M du Plessis;  J van Garderen
INSTRUCTED BY:

Zehir Omar Attorneys; Springs
CORRESPONDENT:                   E G Cooper & Sons Inc; Bloemfontein

COUNSEL FOR RESPONDENT:   P M Mtshaulana SC;  G Bofilatos
INSTRUCTED BY:

The State Attorney; Pretoria
CORRESPONDENT:

The State Attorney; Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 March 2009
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

Ulde v Minister of Home Affairs & others

The Supreme Court of Appeal today declared that the detention of Mr Manjar Ali
Shaik Yusuf Ulde at the Lindela Detention Centre on 6 February 2008 had been
invalid and set it aside. The SCA held that the immigration officer (an official in the
Department of Home Affairs) had failed to exercise any discretion or not properly
exercised his discretion in deciding to detain him. It accordingly set aside a judgment
of the Johannesburg High Court dismissing the application to declare Ulde’s
detention unlawful.

The facts before the court were that Ulde was arrested as an illegal foreigner 15
January 2008 and charged with this and other offences in the Kempton Park
Magistrates Court. On 4 February 2008 the magistrate released him on bail despite
the vigorous opposition of the Department.

Two days later, while he was visiting a friend at the Lindela Detention Centre, he
was once again detained by an immigration officer, Mr Matone Peter Madia, who
was aware that Ulde had been released on bail. In his affidavit before the court
Madia said that after he was satisfied that Ulde was an illegal foreigner he detained
him because he had an ‘obligation’ to do so. He also asserted that because of the
seriousness of the allegations against Ulde, and the unlikelihood that he could
succeed in regularising his stay in the country, he would simply have disappeared
and evaded his trial. It appears that after spending a brief period in detention in
February Ulde was deported to India.

The SCA held that Madia had not been under any obligation to detain Ulde because
the law gave him a discretion on whether or not to detain him. Also, Madia was not
entitled to simply ignore the magistrate’s decision to grant bail to Ulde, which were
based on the very considerations that Madia used to detain Ulde. To the extent that
Madia did exercise a discretion therefore, the SCA held that he had not done so

properly. The Minister of Home Affairs was ordered to pay the costs of the
application in the high court and of the appeal.