THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  139/08
In the matter between:

ISMAIL EBRAHIM JEEBHAI                                            FIRST APPELLANT
YASMIN NAIDOO                                                         SECOND APPELLANT
ZEHIR OMAR                                                                   THIRD APPELLANT

v

MINISTER OF HOME AFFAIRS                                    FIRST RESPONDENT
MICHAEL SIRELA                                                    SECOND RESPONDENT

Neutral citation:
Jeebhai v Minister of Home Affairs

(139/2008) [2009] ZASCA 35 (31 March 2009).

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

Summary:
Immigration Act 13 of 2002 read with Immigration Regulations -

lawfulness of arrest, detention and deportation of illegal

foreigner.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  Pretoria High Court (Ngoepe JP, Pretorius J, Snijman AJ).

The following order is made:

The appeal is upheld with costs;
The convictions and sentences of the appellants for contempt of court
are set aside;
The respondents are to pay the costs occasioned by their opposition to
the application for the admission of the amicus curiae;
The order of the court below is set aside and in its place the following is
substituted:
‘a
the detention of Khalid Mahmood Rashid at Cullinan Police
Station and his subsequent removal and deportation are
declared to have been unlawful;
b
The respondents are to pay the costs of the application;
c
The counter-application is dismissed with costs.’

______________________________________________________________

JUDGMENT
______________________________________________________________

CACHALIA JA ( Mpati P concurring)

[1] This is an appeal from the Full Court, Pretoria (Ngoepe JP, Pretorius J
and Snijman AJ sitting as a court of first instance) in which it dismissed with
costs an application to declare unlawful the arrest, detention and subsequent
removal from the country of one Khalid Mahmood Rashid (including certain

ancillary relief) and granted a counter-application by the respondents
declaring the appellants to have been in contempt of court.1 The full court
refused the appellants leave to appeal against its judgment but this court
granted the necessary leave to them.

[2] The first appellant is Mr Ismail Ebrahim Jeebhai who is a businessman
from Lenasia. Rashid was arrested in Estcourt at the home of Jeebhai’s
brother, Mr Mohamed Ali, in circumstances that are described in greater detail
below. As Rashid was unable to instruct attorneys or depose to an affidavit,
Jeebhai, the first appellant, instituted proceedings on his behalf. Mr Zehir
Omar, who is the attorney of record in these proceedings and his professional
assistant Ms Yasmin Naidoo were found guilty of having been in contempt of
court by the full court, along with Jeebhai. Jeebhai was cautioned and
discharged but Omar and Naidoo were each sentenced to a fine of R2 000 or
six months’ imprisonment suspended for a period of three years on condition
that they are not convicted of contempt of court committed during the period
of suspension – hence their interest in the present proceedings (as the third
and second appellants respectively). The first respondent is the Minister of
Home Affairs and the second respondent a senior immigration officer in the
Department of Home Affairs. They are cited in their official capacities.

[3] The events surrounding this appeal span more than three years. I set
them out in some detail so that the issues that arose from them are
understood in their proper context.

[4] On the evening of 31 October 2005, at about 22h00, a senior
immigration officer, Mr Anthony de Freitas, and several members of the South
African Police Service descended on Mohamed Ali Jeebhai’s home in
Fordeville, Estcourt in the Province of KwaZulu Natal. The police were armed
and clad in protective bullet-proof vests. The police first gained entry to the
house and, having established that it was safe to enter, De Freitas also
entered. They found Mohamed Ali and Rashid, a Pakistani national, on the

1 The judgment of the full court is reported as Jeebhai v Minister of Home Affairs & another
2007 (4) SA 294 (T).

premises. De Freitas asked them for their identification papers. Rashid was
not able to produce any permit authorizing his stay in the country. De Freitas
arrested both as illegal foreigners and accompanied them with the police to
the Cullinan Police Station in Pretoria where they were detained. De Freitas
played no further role in the events that unfolded.

[5] On 2 November 2005, Mr Joseph Swartland, a Chief Immigration
Officer, interviewed Rashid. Rashid, Swartland says, admitted to being an
illegal foreigner and also that he had fraudulently obtained documents
purporting to authorize his presence in the country. Swartland handed him a
‘Notice of Deportation’ as contemplated in regulation 28(2) of the Immigration
Regulations.2 The notice states that as the person is an illegal foreigner he is
notified that he is to be deported to his country of origin – in this case
Pakistan. The cryptic reason given for the deportation was that he is ‘illegal’.
The notice then states:

‘In terms of section 34(1)(a) and (b) of the Act, you have the right to –

(a)
appeal the decision to the Director-General in terms of section 8(4) of the Act
within 10 working days from the date of receipt of this notice; and
(b)
at any time request any officer attending to you to have your detention for the
purpose of deportation confirmed by a warrant of the court.

NB: Should you choose not to exercise the rights mentioned above, you shall be
detained pending your deportation. Should you however choose to exercise the
rights mentioned above, you shall remain in custody and may not be deported
pending the outcome of the appeal or the confirmation of the warrant of detention by
the court.
. . .
ACKNOWLEDGMENT OF RECEIPT OF NOTIFICATION OF DEPORTATION

I hereby acknowledge receipt of the original notification of deportation in which my
rights in terms of section 34(1)(a) and (b) of the Act were explained to me.

2 ‘Immigration Regulations, GN R616, GG 27725, 27 June 2005.’ The notice complies with
Form 29.

After due consideration, I have decided to –

Await my deportation at the first reasonable opportunity, whilst
Remaining in custody.
Yes

No

Appeal the decision to deport me.

Yes

No

Have my detention confirmed by a warrant of the court.
Yes
No

……………………………………………………..………………….

Signature of Detainee                                                          Date

. . .’

Swartland states that after handing this form to Rashid he informed him of his
right to appeal against the decision to deport him and to have his detention
confirmed by a warrant of the court. Rashid, he says, read the form and
placed a tick in the ‘yes’ column, indicating his wish to be deported at the first
reasonable opportunity, whilst remaining in custody. He also signified that he
did not wish to appeal the decision or have his detention confirmed by a
warrant of the court by placing a cross in the relevant ‘no’ column. Swartland
avers that Rashid signed the document in the space provided for the
detainee’s signature and said that he consented to being sent back to
Pakistan immediately so that he could receive treatment for a skin problem.

[6] On 6 November 2005 Rashid was handed over to five Pakistani law
enforcement officials at Waterkloof Military Air Base in Pretoria from where he
was flown to Islamabad Airport in Pakistan and held in custody.3 His removal
from the country was apparently effected secretly – without his relatives or
friends having been apprised of what had happened to him. In the meantime
Mohamed Ali was transferred to Lindela Repatriation Centre – a facility that

3 See judgment of the full court below cited above at n1 para 11.

the Department of Home Affairs uses to detain illegal immigrants pending
their deportation. It appears that he contacted his family from Lindela. The first
appellant then instructed his attorneys to commence legal proceedings in the
Pretoria High Court both for his and Rashid’s release. (They were at this
stage unaware of Rashid’s removal.) The application was set down for
hearing on 15 November 2005.

[7] On that day the application was postponed after the respondents
consented to an order for Mohamed Ali’s immediate release and to disclose
where Rashid was ‘upon such information being available’ by 6 December
2005. Mohamed Ali was released but the respondents failed to provide any
information concerning Rashid. On 25 January 2006 the respondents
delivered a notice to the first appellant’s attorneys that reads as follows:

‘Mr Mahmood Rashid Khalid was deported to Pakistan, in terms of s 34 of the
Immigration Act, no 13 of 2002, on 6 November 2005. As Mr Khalid is outside the
Republic, the first and (second) respondents are unable to say what his present
whereabouts are.’

[8] On 14 February 2006 the matter again came before Legodi J. The
appellants contested whether Rashid had indeed been deported because his
family in Pakistan had not heard of his arrival in that country. They also
persisted in their claim that the respondents were in contempt of court for not
having disclosed his ‘whereabouts’. The judge postponed the application
indefinitely to allow the respondents to file a further affidavit within 10 days
dealing with both issues.

[9] The further affidavit filed by Swartland provided no additional
information about Rashid’s location. It did, however, provide confirmation from
the Pakistani Ministry of the Interior that he had indeed arrived in that country.
So, on 15 March 2006 the appellants filed papers to amend the original notice
of motion directing the respondents to disclose details of the Pakistani officials
who dealt with Rashid during his deportation both in South Africa and in
Pakistan, the flight information of the aeroplane that transported him to

Pakistan and the airport where he was deported from. The amended notice
also included a prayer that all South African officials who had dealt with
Rashid appear in person to answer questions from the court concerning his
disappearance.

[10] The matter was enrolled for hearing before Poswa J on the urgent roll
on 10 May 2006. On 15 May 2006, having heard argument on the amended
application, Poswa J granted an order in the following terms:

‘The respondents must within 10 days of this order:

1. Identify the persons/people with whom arrangements were made at the Pakistani
Embassy to have Mr Rashid deported;
2. Identify the person in Pakistan who received Mr Rashid, by making appropriate
enquiries;
3. Name the airport where the aeroplane, in which Mr Rashid was transported,
landed in this country;
4. Furnish the flight number of the aeroplane in which Mr Rashid was transported at
the time of his being flown from this country.
. . .’

[11] On 6 June 2006 the respondents furnished the following information:

‘No arrangements were made with the Pakistani High Commission in South Africa.
Mr Khalid was handed to a Pakistani official by the name of Habib Ullah, by Joseph
Swartland, an official of the Department of Home Affairs, at Waterkloof Air Base. Mr
Ullah was accompanied by four Pakistani officials whose names appear on Annexure
A2. Mr Ullah signed as receiver as is apparent from Annexure A1.The aircraft
departed from Waterkloof Air Base on 6 November 2006. The Respondent has no
knowledge of the airport at which the aircraft landed in Pakistan. The Respondent is
not in possession of the flight number. However, the registration number of the
aircraft appears on Annexure A2. The respondent has no knowledge of the time of
landing.’

[12] By 12 June 2006, more that seven months after his arrest, the first
appellant had still not been able to establish what had happened to Rashid.
So he launched another urgent application in which he sought, among other
orders, a declaration that the arrest, detention and ‘removal’ of Rashid from
South Africa were unlawful, inconsistent with the Constitution and constituted
an ‘enforced disappearance’ as envisaged in article 7(2)(i) of the Rome
Statute of the International Criminal Court. In their answering affidavit filed in
response to the application the respondents applied for the appellants to be
committed for contempt of court. (I deal more fully with this issue later at
paras 46-49.) On 19 June 2006 Legodi J struck the matter from the roll for
want of urgency and ordered that the matter be heard by a full court. (This is
the application with which we are concerned in this appeal – the 12 June 2006
application.)

[13] A few days afterwards, on 22 June, yet another application was
launched – this time in the name of the ‘Society for the Protection of Our
Constitution’. The notice of motion sought relief similar to that claimed in the
application that Legodi J struck from the roll. The matter came before
Southwood J who also struck the matter from the roll.

[14] The matter was duly enrolled before the full court, which directed that
the various applications be consolidated so as to be heard together. The
appellants filed a consolidated record compromising 12 volumes in
compliance with the court’s directions. The court heard argument on
25 August 2006 and delivered its judgment on 16 February 2007.

[15] It is apparent that in considering the relief sought by the first appellant,
the court below had regard only to the evidence that appeared from the
papers in the 12 June 2006 application – not any other evidence that was
contained in the various applications that were part of the consolidated record.
In this court the appellant filed a consolidated record of all the applications
that were consolidated before the full court. On 4 November 2008 the matter
was struck from the roll mainly for the reason that the appellants had failed to
comply with the rules of this court relating to the record on appeal. During the

hearing it emerged that only three of the twelve volumes were relevant for the
adjudication of the appeal.4

[16] The matter was re-enrolled for hearing in this court on 16 February
2009. The application for the appeal to be reinstated, this time with a
shortened record, was granted. However, as part of the reinstatement
application the first appellant applied for leave to place further documentary
evidence, which had been part of the consolidated record but not of the
12 June 2006 application, before this court. (It was contained in the
application brought by the Society for the Protection of Our Constitution). The
evidence was required to support the contention that Rashid had been
removed from the country because he was being sought for his alleged
connection with international terrorism. There were two pieces of evidence
that they sought to have admitted for this purpose: first, the statement of the
Pakistan High Commission issued on 14 June 2006 which reads:

‘Mr Khalid Mahmood, a Pakistani national was arrested by South African Authorities
on 31 October 2005. Mr Khalid Mahmood was wanted in Pakistan for his suspected
links with terrorism and other anti state elements. The suspect was handed over to
Government of Pakistan officials on 6 November 2005. Presently he is in custody of
(the) Government of Pakistan.’

The second item of evidence was a letter apparently written by an Advocate
Malik of the Pakistan High Court. (The letter is addressed to Dr Mary Rayner
outlining their efforts to secure Rashid’s release in the Lahore High Court
Rawalpindi).

[17] The difficulty for the first appellant was that his attorneys did not bring a
proper application, supported by a reasonably sufficient explanation for not
having included the evidence in its founding affidavit, or outline any special
reason for the court to grant this relief.5 In the circumstances the evidence

4 Jeebhai v Minister of Home Affairs (139/08) [2008] ZASCA 160 (27 November 2008).
5 Section 22 of the Supreme Court Act 59 of 1959; P B J Farlam & D E Van Loggenberg
Erasmus-Superior Court Practice 30 ed A1-55-56.

could not be admitted and will be disregarded for the purposes of deciding this
appeal.

[18] The full court was asked to decide whether:


the respondents ought first to have invoked the procedure provided for
in s 8 of the Act before arresting Rashid;

the respondents’ failure to obtain a warrant for Rashid’s deportation
rendered the deportation unlawful;

the respondents purportedly used a deportation procedure to achieve
an ulterior and unlawful purpose – the extradition of Rashid as an
‘international terrorist’ under the guise that they were deporting an
illegal foreigner. (In other words the court was asked to decide whether
the deportation constituted a ‘disguised extradition’);

Rashid’s disappearance after his arrest constituted an ‘enforced
disappearance of persons’ as contemplated in Article 7(1)(i) of the
Rome Statute of the International Criminal Court – and  thus a ‘crime
against humanity’;

by annexing a document to the first appellant’s founding affidavit,
apparently in violation of a court order, the appellants were in contempt
of court.

[19] The court decided these issues against the appellants, but did not deal
with the argument advanced by the amicus concerning the respondents’
alleged failure to obtain a deportation warrant.

[20] Before I deal with each issue I outline what the law requires when
disputes regarding deportations arise. Deportation is a unilateral act of the
deporting state to remove a foreigner, who has no right or entitlement to be in
its territory. Its purpose is achieved when the foreigner leaves the deporting
state’s territory. The authority of and constraints on the state to deport people
is to be found in the Immigration Act 13 of 20026 and the Immigration

6 As amended by the Immigration Amendment Act 19 of 2004.

Regulations made by the Minister under s 7 of the Act.7 For a deportation to
be carried out lawfully, the ‘action or procedure’ used to facilitate an illegal
foreigner’s removal from the country must be done in ‘terms of the Act’.8

[21] A decision to deport someone often carries far-reaching consequences
– it concerns that person’s livelihood, security, freedom and, sometimes, his
or her very survival. This is why immigration laws, often harsh and severe in
their operation, contain safeguards to ensure that people who are alleged to
fall within their reach are dealt with properly and in a manner that protects
their human rights. Our courts have thus stressed

‘. . . the duty which lies on officials entrusted with the administration of the
immigration laws . . . of observing strictly and punctiliously the safeguards created by
the Act.’9

[22] An act of deportation does not necessarily involve the loss of a
deportee’s liberty, but it usually does – as in this case, where it is preceded by
arrest and detention. And because every deprivation of liberty is
presumptively unlawful the respondents bear the onus to adduce sufficient
facts to justify their actions.10 This is so also in motion proceedings – as an
exception to the general requirement that the applicant must disclose its entire
case in the founding affidavit.11 There is good reason for this approach,
especially in the present case where a person on whose behalf the application
was launched is alleged to have disappeared and is himself unable to depose
to an affidavit. Moreover, the respondents alone know the true facts
concerning the detention and deportation. The appellants have, in their
founding affidavit, squarely placed the lawfulness of Rashid’s arrest, detention

7 ‘Immigration Regulations, GN R616, GG 27725 of 27 June 2005.’
8 Section 1 defines ‘deport or deportation’ to mean ‘the action or procedure aimed at causing
an illegal foreigner to leave the Republic in terms of the Act’.
9 See Blackwell J in Kazee v Principal Immigration Officer 1954 (3) SA 759 (W) p 763A.
10 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) p 589E-F; Zealand v Minister of
Justice and Constitutional Development & another 2008 (2) SACR 1 (CC); [2008] ZACC 3
para [25].
11 Minister Van Wet en Orde v Matshoba 1990 (1) SA 280 (A) p 294B-D.

and deportation in issue – the respondents must therefore prove that they
acted lawfully.12

[23] It is convenient, at this stage, to outline the scheme of the relevant
provisions of the Act (and regulations) that bear on this appeal. The provisions
of the Act are ss 1, 8, 32, 34 and 41 and they are interrelated. Section 1
defines an ‘illegal foreigner’ as:

‘A foreigner who is in the Republic in contravention of this Act.’

Unless an illegal foreigner has the written authorization of the Director-
General to be in the country pending his application for a status he must be
deported. (Section 32)

[24] Section 41(1) is concerned with the verification of the identity and
status of persons suspected of being illegal foreigners.13 To this end an
immigration officer or police officer who reasonably suspects a person to be
an illegal foreigner may interview that person about his identity and status and
hold him in custody briefly for this purpose. If necessary, the person may be
detained in terms of s 34(2) for a period not exceeding 48 hours during the
verification exercise.14 In performing this function the officer must gain access
to relevant documents; or contact persons who may be of assistance; and
access departmental records.15 The detention contemplated in s 34(2) must

12 See Matshoba above at p 296B-D.
13 Section 41(1) provides: ‘Identification –
When so requested by an immigration officer or a police officer, any person shall identify
himself or herself as a citizen, permanent resident or foreigner, and if on reasonable grounds
such immigration officer or police officer is not satisfied that such person is entitled to be in
the Republic, such person may be interviewed by an immigration officer or a police officer
about his or her identity or status, and such immigration officer or police officer may take such
person into custody without a warrant, and shall take reasonable steps, as may be
prescribed, to assist the person in verifying his or her identity or status, and thereafter, if
necessary detain him or her in terms of section 34.’
14 Section 34(2) provides: ‘The detention of a person in terms of this Act elsewhere than on a
ship and for purposes other than his or her deportation shall not exceed 48 hours from his or
her arrest or the time at which such person was taken into custody for examination or other
purposes, provided that if such period expires on a non-court day it shall be extended to four
p.m. of the first following court day.’
15 Regulation 32.

be by warrant addressed to the station commissioner or head of a detention
facility.16 Thereafter the suspected illegal foreigner may either be released or,
if he is in fact an illegal foreigner, detained further under s 34(1) for the
purpose of facilitating the person’s deportation. 17

[25] However, the s 41 process may only be used in cases involving
persons who are suspected of being illegal foreigners. Where an immigration
officer has decided, as a fact, that the person concerned is an illegal foreigner
the officer must consider what to do next. He may either arrest the illegal
foreigner without a warrant and then detain him in terms of s 34(1) for
deportation or, in terms of s 8(1), inform the foreigner concerned in the
prescribed manner that he is entitled to make representations to the Minister
within three days to review his determination as an illegal foreigner.18 The
illegal foreigner may not be deported before the Minister’s decision is made.19
It must be emphasised that s 34(1) confers on an officer a discretion whether
or not to effect an arrest or detention of an illegal foreigner. There is no
obligation to do so. If the officer exercises his discretion to arrest and detain a
foreigner and it then transpires that the foreigner concerned is in fact not
illegally in the country, the arrest and detention would have been unlawful –
as it would have been if the officer had failed to exercise his discretion
properly or at all.20

16 Regulation 28(7) read with a form substantially complying with Form 33.
17 Section 34(1) provides: ‘Without the need for a warrant, an immigration officer may arrest
an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such
foreigner is arrested, deport him or her or cause him or her to be deported and may, pending
his or her deportation, detain him or her or cause him or her to be detained in a manner and
at a place determined by the Director-General, provided that the foreigner concerned –
(a)
shall be notified in writing of the decision to deport him or her and of his or her right to
appeal such decision in terms of this Act;
(b)
may at any time request any officer attending to him or her that his or her detention
for the purpose of deportation be confirmed by warrant of a Court, which, if not issued
within 48 hours of such request, shall cause the immediate release of such foreigner;
(c)
shall be informed upon arrest or immediately thereafter of the rights set out in the
preceding two paragraphs, when possible, practicable and available in a language
that her or she understands;
. . .’
18 Section 8(1)(b) read with reg 5(1). The request is submitted on a form substantially
corresponding to Form 1.
19 Section 8(2)(b).
20 Lawyers for Human Rights v Minister of Home Affairs 2003 (8) BCLR 891 (T) p 896.

[26] Once an illegal foreigner is arrested and detained in terms of s 34(1)
the Act and regulations contain safeguards to protect that person’s rights. He
must upon arrest or immediately thereafter be notified in writing of the
decision to deport him; of his right to appeal the decision and also of his right
to request that his detention be confirmed by warrant issued by a court within
48 hours. If the warrant is not issued he must be released immediately.21 In
addition, and although not mentioned in the Act or regulations, detained illegal
foreigners are beneficiaries of rights under s 12(1) and s 35(2) of the
Constitution.22 The arrested person’s detention must be by means of a
warrant issued by an immigration officer authorizing the station commissioner
or head of the detention facility to detain him.23 Where the authorities intend to
detain an illegal foreigner for longer than 30 days, they must obtain, from a
court, a warrant which may on good and reasonable grounds be extended for
a period not exceeding 90 days.24 The person must be held in compliance
with minimum standards protecting his dignity and human rights.25 Once
detained an illegal foreigner’s release may be effected only by written
authority of an immigration officer as contemplated in s 34(7) of the Act or if a
court so orders.26

[27] Section 8 of the Act provides for review and appeal procedures and
deals with people who are refused entry into the country and those who are
found to be illegal foreigners.27 In this appeal we are concerned only with the

21 Section 34(1)(a), (b) and (c). In terms of reg 28(2) the notification of the deportation of an
illegal foreigner contemplated in s 34(1)(a) shall be in a form substantially corresponding to
Form 29. The form does not make provision for the detainee to be informed of his
constitutional rights under s 35(2) of the Constitution.
22 Lawyers for Human Rights & another v Minister of Home Affairs 2004 (4) SA 125 (CC)
para 27.
23 Regulation 28(1) read with Form 28.
24 Section 34(1)(d).
25 Section 34(1((e).
26 Section 34(7) provides: ‘On the basis of a warrant for the removal or release of a detained
illegal foreigner, the person in charge of the prison concerned shall deliver such foreigner to
that immigration officer or police officer bearing such warrant, and if such foreigner is not
released he or she shall be deemed to be in lawful custody while in the custody of the
immigration officer or police officer bearing such warrant.’
27 Section 8 provides: ‘Review and appeal procedures
(1)
An immigration officer who refuses entry to any person or finds any person to be an
illegal foreigner shall inform that person on the prescribed form that he or she may in writing
request the Minister to review that decision and-

latter category. I have mentioned earlier that the effect of s 8(1) is that once
an immigration officer finds that a person is an illegal foreigner, he must
inform the foreigner concerned of his right to make representations to the
Minister. In terms of s 8(3) any decision other than one contemplated in s 8(1)
(a finding by an immigration officer that a person is an illegal foreigner), which
adversely and materially affects the rights of any person, must be
communicated in writing to the person concerned. In my view, a decision to
deport a person falls within the purview of this sub-section. A decision of this
nature, and the reasons for it, must be communicated in writing to the affected
person promptly. The notification must also inform the person that he may,
within 10 working days, make representations to the Director-General for a
review or appeal of the decision.28 An aggrieved applicant who has made
written representations to the Director-General in terms of s 8(4), may, if still
unhappy with the outcome, make further representations to the Minister.29

(a)     if he or she arrived by means of a conveyance which is on the point of departing and is
not to call at any other port of entry in the Republic, that request shall without delay be
submitted to the Minister; or

(b)     in any other case than the one provided for in paragraph (a) , that request shall be
submitted to the Minister within three days after that decision.
(2)
A person who was refused entry or was found to be an illegal foreigner and who has
requested a review of such a decision-

(a)     in a case contemplated in subsection (1) (a) , and who has not received an answer to
his or her request by the time the relevant conveyance departs, shall depart on that
conveyance and shall await the outcome of the review outside the Republic; or

(b)     in a case contemplated in subsection (1) (b) , shall not be removed from the Republic
before the Minister has confirmed the relevant decision.
(3)
Any decision in terms of this Act, other than a decision contemplated in subsection
(1), that materially and adversely affects the rights of any person, shall be communicated to
that person in the prescribed manner and shall be accompanied by the reasons for that
decision.
(4)
An applicant aggrieved by a decision contemplated in subsection (3) may, within 10
working days from receipt of the notification contemplated in subsection (3), make an
application in the prescribed manner to the Director-General for the review or appeal of that
decision.
(5)
The Director-General shall consider the application contemplated in subsection (4),
whereafter he or she shall either confirm, reverse or modify that decision.
(6)
An applicant aggrieved by a decision of the Director-General contemplated in
subsection (5) may, within 10 working days of receipt of that decision, make an application in
the prescribed manner to the Minister for the review or appeal of that decision.
(7)
The Minister shall consider the application contemplated in subsection (6), whereafter
he or she shall either confirm, reverse or modify that decision.’
28 Read with reg 5(2) and Form 2. Form 2 makes reference only to a review and has
erroneously omitted the reference to an appeal.
29 Section 8(6).

[28] It is apparent that s 8 is concerned only with appeals and reviews and
s 34(1) with the arrest, detention and deportation of illegal foreigners. The
review procedure contemplated in s 8(1) applies only when an illegal foreigner
has not been arrested for deportation purposes. A right of review or appeal of
any other decision contemplated in s 8(3), including the decision to deport an
illegal foreigner, which adversely affects the rights of any person are clearly
applicable to all people, whether or not they are in custody.

[29] I revert to the first issue. The appellants and amicus curiae submitted
that the provisions of s 8 of the Act ought to have been invoked before Rashid
was arrested.

[30] The source of the contention that s 8 procedures providing for appeal
and review must be applied before an arrest is effected under s 34(1) is a
trilogy of decisions of the Pretoria High Court. The first was Arisukwu & others
v Minister of Home Affairs30 where De Villiers J held that the s 9 of the Aliens
Control Act 96 of 1991, must be complied with before an illegal alien may be
detained in terms of s 44(1)(a) of that Act. (These provisions are the
predecessors of s 8 and s 34 in the current Act.) This was followed by
judgments of Southwood J in Muhammed v Minister of Home Affairs &
others31 and Bertelsman J in Khan v Minister of Home Affairs.32 In the latter
case the learned judge held that:

‘(O)nce an official ha(s) decided that a foreigner was illegally in the country and the
foreigner ha(s) been informed of that fact, the foreigner must be informed of his rights
in terms of the relevant section. The foreigner is entitled, as a matter of law, not to be
detained immediately after his having been informed of the decision to deport him,
but to exercise his rights either to appeal to the Minister or to apply to the Director-
General to review or appeal the decision to deport him either in terms of s 8(1) and s
8(2) or s 8(4) without and before being incarcerated.’

30 2003 (6) SA 599 (T).
31 [2007] JOL 18935 (T).
32 [2007] JOL 18958 (T) at p 18.

[31] A contrary view was adopted by Mabuse AJ in Abid Ali & others v
Minister of Home Affairs & others33 who held that an illegal foreigner has no
right not to be detained in terms of s 34(1) while he is being dealt with under
s 8. The full court approved of Mabuse AJ’s approach and disagreed with the
judgments that preceded it. In Ulde v Minister of Home Affairs34
Sutherland AJ, considered himself bound by the full court. His view captures
the essence of the difference between the approach in these cases and that
of the earlier trilogy:

‘Section 8 does not address an arrest. Section 34 does. It is a decision that a person
is an illegal immigrant and in turn the decision to deport that triggers s 8. The notion
that a s 8 notice must be given for an arrest to be valid is not warranted.’35

[32] The first appellant’s contention that a person may not be arrested or
detained in terms of s 34(1) until he has been permitted to exhaust his right of
appeal and review is, in my view, not only contrary to the scheme of the Act
but would, if upheld, effectively render s 34(1) nugatory. This may be
illustrated by a simple example, which regrettably, is common place in this
country. A person enters the country illegally and fraudulently obtains
documents which appear to authorize his presence here. An immigration
officer examines the documents, realises that they are forgeries, and having
failed to obtain a satisfactory explanation for them decides that the person is
an illegal foreigner who is liable for deportation. The officer proceeds to arrest
and detain him. The submission that s 8 must be invoked before such a
person may be arrested and detained for the purposes of deportation,
effectively means that the fraudster is entitled not to be arrested and detained
until he has exhausted his right of appeal and review in terms of s 8. If on the
other hand a person has been found to be an illegal foreigner and an officer
decides not to arrest him, it would rarely be necessary to arrest him after the
appeal or review process is finalised. In the event that his appeal or review

33 TPD case No. 36405/06 (Unreported). It appears that the cases mentioned earlier dealing
with this point were not brought to the learned judge’s attention, as he made no mention of
them in his judgment. This is troubling because he would have been bound to follow those
judgments unless satisfied that they were clearly wrong.
34 2008 (6) SA 483 (W) paras 33-34.
35See Ulde quoted above at para 29.

fails, the foreigner concerned is likely to depart voluntarily, without the need
for an arrest and detention.

[33] But there is a more telling reason why this submission is unsustainable.
Section 41(1), as I have mentioned, read with s 34(2), permits the detention of
a suspected illegal foreigner for a period not exceeding 48 hours while his
status is being verified. And s 34(1) permits the arrest and detention of an
illegal foreigner for deportation purposes. The consequence of the submission
is that a suspected illegal foreigner can be taken into custody – but not a
person who is found in fact to be an illegal foreigner because, as it is
submitted, he may not to be arrested until he has exhausted his right of
appeal or review under s 8. This is an absurdity that the legislature could not
have contemplated.

[34] To recapitulate, a decision that a person is an illegal foreigner triggers
his right to appeal or review that decision. It may also cause an arrest and
detention for the purposes of deportation, but need not.36 The decision to
arrest and detain an illegal foreigner for the purposes of deportation is a
discretionary one. It does not detract from any of the alleged foreigner’s rights
under s 8 and is not contingent upon his decision whether or not to exercise
them. I conclude that the judgment of the full court on this aspect is, with
respect, correct and the trilogy of cases which are relied upon in support of
the contrary view not.

[35] I turn to the next issue. The first appellant and amicus curiae
contended that Rashid’s arrest, detention and deportation were unlawful
because of the failure of the respondents to comply with the peremptory
requirements of the Act. Concerning the arrest, detention and deportation the
respondents were, at the very minimum, required to prove that:

(i)
the arresting officer arrested a person who is an illegal foreigner as
defined in s 1;

36 Lawyers for Human Rights & another v Minister of Home Affairs 2003 (8) BCLR 891 (T)
p 896.

(ii)
the detention was, as reg 28(1) prescribes, by means of a warrant
corresponding to Form 28;
(iii)
the detainee was informed promptly, in writing at the time or soon
thereafter in terms of s 34(1) read with reg 28(2), and on a form
corresponding to Form 29, what the reason(s) for his intended
deportation were; that he may in terms of s 34(1)(a) appeal against the
decision to deport him and also, in terms of s 34(1)(b) to request his
detention to be confirmed by a warrant of a court. (If the warrant is not
issued within 48 hours of such request, he must be released); and
(iv)
the detained illegal foreigner’s removal from custody for deportation
was effected in terms of s 34(7) read with reg 28(9) through the issue
of a warrant, corresponding to Form 35, by an immigration officer
addressed to the person in charge of the detention facility. (As proof
that the person removed from detention and deported through a port of
entry is in fact the person whose name appears in the warrant, the
Form makes provision for a left and right thumb print of the deportee to
be taken and also the identification of the port of entry from which the
deportation will be carried out. This is to ensure that there is a proper
record of the identity of the illegal foreigner and the place from where
he was deported. Its purpose is also to protect the Department from
unwarranted allegations.)37

[36] De Freitas arrested Rashid on 31 October 2005 to, in his words,
‘facilitate his deportation under s 34 (and) it was decided to detain him at the
Cullinan Police cells, pending further investigation and compliance with the
formalities prescribed in the Act’.

[37] At the time of his arrest Rashid was an illegal foreigner and on that
basis, absent any attack on the exercise of the arresting officer’s discretion,
his arrest was authorised by the section. In respect of the other formalities

37 Section 34(7) provides: ‘On the basis of a warrant for the removal or release of a detained
illegal foreigner, the person in charge of the prison concerned shall deliver such foreigner to
that immigration officer or police officer bearing such warrant, and if such foreigner is not
released he or she shall be deemed to be in lawful custody while in the custody of the
immigration officer or police officer bearing such warrant.’

prescribed by the Act the facts show a lamentable disregard for them. On the
respondents’ own showing:


Rashid was detained without a warrant;

Form 29 was given to him almost two days after his arrest – not
promptly as s 34(1)I requires; and the respondents provide no
explanation for the delay. (It was suggested in argument by counsel for
the respondents that there was in fact no delay as Rashid was being
dealt with under s 41(1). De Freitas’s affidavit, however, makes clear
that Rashid was arrested immediately in terms of s 34(1). He makes no
reference to s41(1)).

No warrant was obtained for his removal from the Cullinan Police
Station for the purposes of his deportation; and

He was not deported from a port of entry that the Minister had
designated for this purpose in terms of s 1 of the Act. I should point out
that the full court accepted the respondents’ denial that Waterkloof Air
Base was not a designated port of entry. But it erred in this regard. The
respondents were required to prove that the Airbase was a designated
port of entry as contemplated in s 1 of the Act. They failed to do so.38

[38] In the view I take it is not necessary to deal with what legal
consequences, if any, flow from the failure of the respondents to warn Rashid
of his rights under s 34(1)(a) and s 34(1)(b) promptly after his arrest or their
failure to prove that he was deported through a designated port of entry. For
present purposes, the fact that Rashid was detained at the Cullinan Police
Station without a warrant and then removed from this facility, also without a
warrant, means that both his detention there and his deportation were
unlawful.

[39] It is true, as counsel for the respondents contended, that the failure of
the respondents to comply with the regulations, at least in respect of Rashid’s
deportation, was not raised pertinently on the papers. But, it does not follow,

38 The Government’s website, http://www.home-affairs.gov.za/airports.asp lists 11 airports as
ports of entry. Waterkloof Air Base is not one of them.

as counsel for the respondents sought to contend, that this failure precludes
the point being raised before this court as a point of law. As I have mentioned,
the respondents bore the onus to prove that the detention and deportation
were lawful. And once the first appellant had placed the lawfulness of the
detention and deportation in issue, the respondents were required, at the very
minimum, to adduce sufficient facts to prove that every procedural
requirement, including the issue of the necessary warrants, was complied
with.

[40] The first appellant and amicus raised another important challenge to
Rashid’s deportation. They contended that his deportation to Pakistan was the
result of a request to the South African Government from the Government of
Pakistan or some other state, because of his alleged links with international
terrorism. His deportation, so it is contended, therefore constituted an unlawful
disguised extradition.39 A variation of this argument is that the deportation was
constitutionally offensive because the South African Government failed to
secure an assurance from Pakistan that Rashid would not be tortured or
sentenced to death if put on trial. The challenge failed before the full court on
the ground that the respondents were not shown, on the admissible evidence,
to have been aware that Rashid was being sought because of his alleged
connection with international terrorism at the time of his deportation.40

[41] Although the circumstances of Rashid’s deportation from the country
are troubling, the first appellant did not make out a case for a disguised
extradition in his founding papers. His case is that Rashid is not an illegal
foreigner (I have already found that he was) and that:

‘The real reason for the unlawful arrest, detention and deportation of Mr Rashid,
which was never frankly disclosed . . . was the request by the British Authority
/Intelligence following upon their suspicion that Mr Rashid was suspected of having
links to International Terrorist Networks.’

39 See generally J Dugard. International Law – A South African Perspective 3 ed (2005)
p 229-231.
40 See judgment of the full court above at n1 para 37.

[42] Be that as it may, the only evidence to support this allegation directly is
the first page of a document emanating from a file of the respondents. The
document became a hotly contested issue after the appellants had annexed it
to the founding papers before the full court, apparently in violation of a court
order of Poswa J issued on 14 May 2006. The circumstances under which the
file containing the document was placed before Poswa J are not explained in
the papers before us. The document linked Rashid to international terrorism
and appears to be part of a report on Rashid’s arrest which, according to the
respondents, formed ‘a part of the notes by an employee of the first
respondent for the purposes of briefing counsel’.

[43] In summary the document reveals that a member of the South African
Police Service Crime Intelligence Unit, Captain Moses, contacted De Freitas
to assist in arresting a suspected illegal foreigner. De Freitas referred him to
his supervisor, Mr Chembayan. Moses then contacted Chembayan and told
him that he required De Freitas’s help to track down the Pakistani national
‘who was suspected of having links with International Terrorist Networks
abroad’. He also told Chembayan that due to the ‘sensitive nature of the case’
it was being ‘handled at Ministerial level’. Chembayan authorized De Freitas’s
participation in the operation. The following day, on 31 October, Moses
collected De Freitas at the Durban Central Police Station from where they
proceeded to Estcourt in search of the suspected illegal foreigner. On route
Moses indicated that the suspect was ‘wanted by the British Authorities for
having links with international terrorist Networks’, but made no mention of the
suspect’s nationality.

[44] The full court struck out the contents of the founding affidavit upon
which this report was based on the grounds that the appellants had published
it in violation of Poswa J’s court order of 14 May 2006.

[45] The document is incomplete, unsigned and its author unknown. Ex
facie the statement the information it contains constitutes inadmissible
hearsay evidence. Moreover, it does not suggest that Rashid was wanted for
questioning in Pakistan. In those circumstances there was no basis for the

suggestion, in argument, that the deportation was actually a disguised
extradition. In my view, the contents of the document are not only unreliable
but do not advance the first appellant’s case that he now seeks to make.

[46] I turn to deal with the next issue – whether the appellants were properly
convicted of contempt of court arising from their use of the controversial
document in support of their application. On 15 May 2006, Poswa J prohibited
publication of the file’s contents (mentioned earlier in connection with the
disguised extradition argument) and ordered its return to the Department. The
order read:

‘1.
That there shall be no publication of the contents of the affidavit for the
intended application for intervention as amicus curiae and annexures
whatsoever.

2.
That there shall be no publication of the contents of the file of the Department of
Home Affairs.

3.
That the file shall be restored to the representative of the respondent.’

[47] The order, which was issued by the registrar, is clear in its terms.
Nevertheless, in the present proceedings the appellants annexed the
document to the founding affidavit to support the allegation that Rashid was
deported because of his alleged involvement with international terrorism. The
respondents, in addition to filing an answering affidavit on the merits in the 12
June 2006 application, lodged a counter-application for the appellants to be
committed for contempt of court because of their use of the document in
apparent disregard of the court order. However, in their answering affidavit
filed in response to the respondents’ counter-application, Mr Omar avers that
Poswa J stated in court that the prohibition on publication did not prevent him
from using the contents of the file in any other proceedings. The respondents
do not deny this averment and for present purposes it must be accepted.

[48] Mr Omar, however, took a further precaution by instituting proceedings
before Poswa J, before the full court heard the matter, for his order to be
corrected so as to confirm the appellants’ understanding of it. Having heard
the party’s submissions the judge upheld the appellants’ contentions and
amended the order on 8 August 2006. The relevant amendment was
contained in paragraph 4 of the amended order. It reads as follows:

‘4.
Orders 1 and 2 above shall not prohibit use of the file of the Department of
Home Affairs in the advancement of any other court proceedings. The orders
in 1 and 2 above shall endure until judgment by this court in these
proceedings.’

[49] The full court took the view that the amended order had no bearing on
the original prohibition against the usage of the contents of the file before any
other court.41 But it seems that this is precisely what Poswa J intended. The
appellants’ use of the document before the full court, therefore, did not violate
his order. It follows that the appellants were incorrectly convicted of contempt
of court.

[50] The last issue to be decided is whether the manner of Rashid’s
removal from South Africa constituted a ‘crime against humanity’ under Article
7(1)(i) of Part 2 of the Rome Statute of the International Criminal Court
because it was an ‘enforced disappearance’. The Rome Statute sets a
threshold for a crime to be elevated to the level of a ‘crime against humanity’.
The criminal act must be committed with specific intent and be ‘part of a
widespread or systematic attack directed at a civilian population’.42 Article
(2)(i) defines ‘enforced disappearance of persons’ as ‘the arrest, detention,
abduction, of persons by, or with the authorization, support, or acquiescence
of, a State or political organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing them from the protection of the
law for a prolonged period of time’. For present purposes, even if I were to

41 See the judgment of the full court above at n1 para 45.
42 Dugard International Law - A South African Perspective 3 ed (2005) p 182-185.

accept that the circumstances of Rashid’s removal from South Africa does fall
within this definition (which I do not because the definition refers to ‘persons’,
not a person), there can be no suggestion that removing a single person from
a country meets the threshold level for a ‘crime against humanity’. This
contention must fail.

[51] I turn to the question of costs. In the reinstatement application,
Mr Omar contended that the order of this court on 27 November 2008 that he
pay the wasted costs de bonis propiis relating to the record on appeal which
had been struck from the roll, be reconsidered because it was interlocutory in
nature. The submission is without merit. An order striking a matter from the
roll with costs is final in effect and cannot be reconsidered.

[52] The amicus contended that the respondents ought to pay their costs for
having unreasonably opposed their application to be admitted as amicus
curiae in this court. In this matter the submissions of the amicus were of
considerable assistance to the court. There were no proper grounds for
opposing its application and I agree that it is appropriate that the respondents
pay such costs.

[53] To conclude, Rashid’s arrest was lawful but his detention and
deportation were not because they were carried out without compliance with
the peremptory procedures prescribed by the Act. We were informed from the
bar that Rashid was released from the custody of the Pakistani authorities in
December 2007. The appellants have accordingly abandoned the relief
sought for an order declaring that the government conduct an investigation
while Rashid’s fate was not clarified. The appellants have, in the main, been
successful in this appeal and it follows that they are entitled to their costs.

[54] I must express our gratitude to the amicus curiae for its assistance to
us.

[55] The following order is made:

1.
The appeal is upheld with costs;
2.
The convictions and sentences of the appellants for contempt of court
are set aside;
3.
The respondents are to pay the costs occasioned by their opposition to
the application for the admission of the amicus curiae;
4.
The order of the court below is set aside and in its place the following is
substituted:
‘a.
the detention of Khalid Mahmood Rashid at Cullinan Police
Station and his subsequent removal and deportation are
declared to have been unlawful;
b.
The respondents are to pay the costs of the application;
c.
The counter-application is dismissed with costs.’

_________________
A CACHALIA
JUDGE OF APPEAL

PONNAN JA (Streicher JA et Hurt AJA concurring)

[56] I have read the judgment of my colleague Cachalia. I take a far
narrower approach to the matter. Although there had been a proliferation of
applications and counter-applications involving essentially the same issues,
the matter ultimately came to be decided, at the direction of the learned Judge
President, by a specially constituted court consisting of three judges (Ngoepe
JP, Pretorius J and Snijmann AJ), on the basis of just one of the many
applications that served before them. It is noteworthy that the founding and
answering affidavits in the matter comprise a single volume of less than 120
pages. That matter serves before us on appeal on the basis of leave having
been granted by this court. We are thus constrained by that record, which I
may add, does not contain a replying affidavit.

[57] A useful starting point is the allegations made in the affidavits filed of
record in the matter. To my mind, the crux of the first appellant’s case is to be
found in paragraph 24 of the founding affidavit, which reads:
'NOTEWORTHY is that Mr. De Freitas, who at all material times worked in the
course and scope of his employment with the First Respondent immediately arrested,
detained and later deported Mr. Rashid following upon the said Mr. De Freitas having
declared Mr. Rashid an "illegal foreigner". Mr. Rashid was not afforded the rights
contemplated in Section 8(1) and (2) of Act 13 of 2002, more specifically to appeal/
make representations challenging the decision to declare him (Mr. Rashid) an 'illegal
foreigner". The adverse consequence of being declared "an illegal foreigner" is that
an "illegal foreigner" may be arrested, detained and deported. I respectfully say that
the "legislature" intended that the procedure in Section 8(1) and (2) of Act 13 of 2002
must be followed before arrest and detention in terms of Section 34 of Act 13 of
2002. The arrest and detention of Mr. Rashid on the 31st October 2005 is / was
therefore unlawful.
. . . .
The response it elicited was:
‘In the light of the facts before court, the affidavits of De Freitas and Swartland I do
not understand on what basis the deponent makes the allegations in this paragraph.
He has no personal knowledge of what happened to Khalid after his arrest. The rest
of the contents of this paragraph are argumentative, speculative and incapable of
traverse. Questions of interpretation of the Act will be dealt with at the hearing of this
matter.’

[58] Earlier in the answering affidavit filed on behalf of the respondents, the
following appears:
‘Khalid's arrest and detention were effected pursuant to information that the
Department had received that he was an illegal foreigner, residing in Estcourt. On 31
October 2005, Anthony de Freitas, who is employed by the Department as a Senior
Immigration Officer at its offices in Durban, arrested Khalid in the following
circumstances. He went to Khalid's place of residence, namely, 12 Canna Avenue,
Fordville, Estcourt. As is often the practice when Department officials effect arrests
under their statutory powers, De Freitas was accompanied by a number [of]
policemen. On this occasion, the policemen were under the command of Inspector
Arumugan Munsamy. They were armed and clad in bullet proof vests, which is the
practice employed in such operations. After they had pronounced the premises safe

to enter, De Freitas went in. There he found Khalid and Mohamed Ali Ebrahim Moosa
Jeebhai ("Jeebhai"), the deponent to the founding affidavit.
. . .
When De Freitas entered the premises in which Jeebhai and Khalid were to be
found, he asked for their identification and travel documents. Khalid said he did not
have any identification papers. He said his passport was in Johannesburg. But he
produced a copy of the passport. However, no permit of any nature appeared on the
page where his personal particulars were reflected. It was clear to De Freitas that
Khalid was an illegal foreigner, as contemplated in the Act. As such, he was subject
to arrest and deportation.

De Freitas informed Khalid that he was being placed under arrest. The purpose of his
arrest was to facilitate his deportation under s34 of the Act. In order to facilitate his
deportation, it was decided to detain him at the Cullinan Police cells, pending further
investigations and compliance with the formalities prescribed in the Act. Khalid was
then transported to the Cullinan Police cells. De Freitas accompanied the police who
were responsible for such transportation. After Khalid was placed in the police cells
at Cullinan, De Freitas returned to Durban. While at the Cullinan police cells, Khalid
was in the custody of the police members there. I annex hereto as "JS1" a
confirmatory affidavit of De Freitas.

Swartland, an employee of first respondent, conducted an investigation into the
residence status in South Africa of Khalid. In his capacity as the Department's
Tshwane Chief Immigration Officer, he has access to all [the] Department's records
on foreign nationals in South Africa.

He interviewed Khalid at the Cullinan Police Station on 2 November 2005. Khalid
admitted to Swartland that he had entered the country illegally. He then advised him
that, because he was in the country illegally, he was liable to be deported. As he is
required to do under the Act, he gave Khalid written notification of his decision to
deport him to his country of origin, namely Pakistan. He further informed Khalid of his
right to appeal against that decision and to have his detention confirmed by a warrant
of the Court. These averments are confirmed by the written notification that he then
handed to Khalid, on 2 November 2005. A copy of that notification is annexed hereto
marked "JS2".
. . .

I may mention that Khalid's decision in respect of the three matters43 are entirely
consistent with the following. In response to Swartland's enquiries as to how he had
entered the Republic and secured a "work permit", Khalid told Swartland the
following: That he had entered the country without a visa, and had paid an agent
$600 "to get me through the immigration". He had thereafter paid R7 000.00 to the
agent for "a fake work permit". Khalid later confirmed the aforegoing in an affidavit. A
copy of the affidavit is annexed hereto, marked "JS3".'

[59]  Significantly, those allegations are not disputed by or on behalf of the
appellants. Nor, given the nature of the allegations, could they be. Absent a
referral to oral evidence and there was none here, it follows that the matter
falls to be determined on the version of the respondent. On that version they
were dealing with a self-confessed illegal foreigner in Mr Khalid Rashid, who
had by virtue of that fact rendered himself liable to arrest in terms of s 34(1) of
the Act for the purposes of deportation. I pause to record that, in my view as
well, the cases, in which it was held that the procedure outlined in s 8(1) and
(2) must be followed before a person may be arrested in terms of s 34, were
wrongly decided. If a person is an illegal foreigner he may be arrested in
terms of s 34. An illegal foreigner is, in terms of s 1, by definition a foreigner
who is in the Republic in contravention of the Act and not a person who is
confirmed to be an illegal foreigner by the Minister upon review in terms of s
8(2). Mr Khalid Rashid, by his own admission, fell within this definition of
‘illegal foreigner’. Moreover, also on his own version, he had perpetrated a
fraud in order to facilitate his entry into and sojourn in the Republic. In those
circumstances, like Cachalia JA, I too am of the view that his arrest was
authorised by the Act.

[60] The same does not hold true for Mr Rashid’s detention at the Cullinan
Police Station and his subsequent deportation. The receipt and subsequent
retention of an individual in custody is an exercise of public power. Any such

43 In terms of JS2, Khalid chose: (i) To await his deportation at the first reasonable
opportunity, whilst remaining in custody; (ii) Not to appeal the decision to deport him; and (iii)
Not to have his detention confirmed by a warrant of court.

exercise is constrained by the principle of legality.44 It may thus only occur in
terms of lawful authority.

[61] Regulation 28 (1) of the Immigration Regulations45 provides:
‘The detention and deportation of an illegal foreigner contemplated in section 34(1) of
the Act shall be by means of a warrant issued by an immigration officer, which
warrant shall substantially correspond to Form 28 contained in Annexure A.’
Form 28 is headed ‘WARRANT OF DETENTION OF ILLEGAL FOREIGNER’,
and must be addressed to the relevant ‘Station Commissioner/Head of Prison
or Detention facility’. It reads:
‘As ………….. (first name(s) and surname of illegal foreigner) has made
*himself/herself liable to *deportation/removal from the Republic and for detention
pending such *deportation/removal in terms of section *34(1)/34(5)/34(8) of the Act,
you are hereby ordered to detain him or her until such time as *he/she is
*deported/removed from the Republic.’
There then follows designated spaces on the Form for the ‘Signature of [the
relevant] immigration officer, ‘Date’ and ‘Official stamp’.

[62] Regulation 28(9)(a) provides that the warrants contemplated in s 34(7)
of the Act shall ‘in respect of the removal of an illegal foreigner, be in a form
substantially corresponding to Form 35’. Form 35 reads:

DEPARTMENT OF HOME AFFAIRS
REPUBLIC OF SOUTH AFRICA

WARRANT FOR REMOVAL OF DETAINED ILLEGAL FOREIGNER
[Section 7(1)(g) read with section 34(7); Regulation 28(9)(a)]

TO: Person in charge of prison or detention facility

44 Minister of Justice and Constitutional Development and Another v Zealand 2007 (2) SA 401
(SCA); [2007] ZASCA 92;  Zealand v Minister for Justice and Constitutional Development and
Another 2008 (4) SA 458 (CC); [2008] ZACC 3.
45 See footnote 7.

As ............................................................................................................(first name(s)
and surname), whose fingerprints appear on the reverse side of this Form, has made
*himself/herself liable to removal from the Republic, you are hereby requested to
deliver *him/her into my custody.

Removal from the Republic shall be affected via ........................................... (port of
entry) and the responsible immigration officer or police officer at that port of entry
shall, before the removal of the detainee, impress the left and right thumb prints of
the detainee in the space provided hereunder and certify that the prints were taken
by him or her.

.......................................................

..............................................
Signature of immigration officer

Date

Appointment no.: ...................................................
Place: ......................................................................
Reference no.: .......................................................

CERTIFICATE BY IMMIGRATION OFFICER

I hereby confirm that the abovementioned person was removed from the republic on
....................................(date) to .................................... (country)
via ......................................................(port of entry).
I also confirm that *his/her left and right thumb prints were taken by me.

LEFT THUMB PRINT

RIGHT THUMB PRINT

Immigration officer: ........................................................................................
Appointment number: ....................................................................................
Date: ..............................................................................................................
Port of entry: ..................................................................................................

Departure Stamp

[63] Given that the deprivation of Mr Rashid’s liberty was prima facie
unlawful, it was for the respondents to justify such deprivation.46 In this
instance, one would have thought that, as a bare minimum, the respondents
would have sought to show compliance with Regulation 28.  It would to my
mind have been a relatively simple matter to have adduced duly completed
Forms 28 and 35 as proof of compliance with Regulation 28. That the
respondents failed to do. After all, it seems to me that the Regulation 28
safeguards exist, not just for the benefit of the illegal foreigner, but also to
protect the respondents against unjustified and unwarranted claims flowing
from detention or deportation or both. Accordingly, on the view that I take of
the matter, from the time that Mr Rashid was handed over by De Freitas to the
officials at the Cullinan Police cells until he came to leave the Republic, the
conduct of the state officials in whose charge he found himself, was unlawful.
It follows that Mr Rashid’s detention and subsequent deportation was
unlawful.

[64]  That, ordinarily at any rate, ought to be the end of the matter certainly
insofar as the main issue is concerned. There remains the contention ─ which
was not pressed with any vigour before us ─ that Mr Rashid’s deportation
constituted a disguised extradition. Although I am by no means persuaded

46 Zealand (CC) para 24.

that this is still a live issue in the current appeal, it may nonetheless be
prudent for me to deal with it, albeit briefly. Once again the starting point has
to be the founding affidavit. In this regard, the closest that the founding
affidavit comes to advancing that rather speculative hypothesis is as follows:
‘The real reason for the unlawful arrest, detention and deportation of Mr. Rashid,
which was never frankly disclosed to this Honourable Court was the request by the
British Authority / Intelligence following upon their suspicion that Mr. Rashid was
suspected of having links to International Terrorist Networks. Ironically, the former
British Prime Minister Margaret Thatcher labelled our former president Madiba
(Nelson Mandela) a terrorist. Madiba, was conferred the status of "Icon"
approximately three years ago. British Authority and particularly the British Prime
Minister were clearly wrong in labelling Madiba a terrorist, particularly because not
too long ago the same Madiba was awarded an International Nobel Peace Prize. Mr.
Rashid was not linked to any International Terrorist Network nor was Mr. Rashid
suspected of having committed a crime anywhere in the world including South
Africa.'

The response, unsurprisingly was:
I deny that the real reason for the arrest of Khalid was not disclosed. Khalid was an
illegal foreigner who had entered the country through illegal means including fraud
and corruption in that he paid money to buy both a visa and a permit. The Act
referred to above empowers first respondent to arrest, detain and deport an illegal
foreigner. That is the basis on which Khalid was deported from South Africa. The rest
of the contents of this paragraph are polemic, vague, irrelevant and incapable of
traverse.'

[65] Without more and given the nature of the factual dispute, had those
juxtaposed paragraphs stood in isolation, the issue of the alleged disguised
extradition would have been resolved against the first appellant.  But, in the
paragraph of the founding affidavit immediately preceding that under
consideration, the following appears:
‘"MV9"47 hereto is the first page of a report supplied to the First respondent about the
"arrest" of Mr. Rashid by the SAPS Crime Intelligence Unit Durban. Noteworthy is the
concluding paragraph on "MV9" more specifically:-

47 Summarised in para 43 of Cachalia JA’s judgment.

" ... That the suspected illegal foreigner to be arrested in Estcourt (referring to Mr.
Rashid) was wanted by the British Authority for having links to International Terrorist
Networks abroad ..." ‘.

The response it elicited was:
‘The report referred to in this paragraph is also part of the notes by an employee of
first respondent drawn for the purposes of briefing counsel. The notes are privileged
and inadmissible and should have never have been used or annexed to this
application. The use of all these documents in contempt of a court order shows how
desperate deponent is to buy publicity.’

It is thus necessary to subject MV9 to greater scrutiny to ascertain whether it
materially advances the first appellant’s case in this regard.

[66]  For the reasons that follow, I am of the view that no evidential weight
can be attached to MV9. First, on the first appellant’s own showing, it is only
the first page of a report. Second, the statement is unsworn and unsigned and
there is, moreover, no evidence as to the identity of its author. Third, ex facie
the statement, the information it contains constitutes inadmissible hearsay
evidence. Fourth, even if it be shown to have been made by an official in
another arm of state, MV9 could hardly be binding on the first respondent,
absent an admission by her of the truth of its contents. Fifth, if agents of the
South African state were acting at the behest of British Authorities in securing
Mr Rashid’s arrest ─ as the document asserts – it is incomprehensible and
indeed would appear to be inconceivable, that they would have simply handed
him over to the Pakistani authorities. I thus remain unpersuaded that such
evidence as there is (namely the reliance on MV9) – which to my mind is
neither reliable nor credible and stands to be disregarded in its entirety -
supports the inference sought to be advanced by the first appellant.

[67] I agree with Cachalia JA that the contempt of court conviction cannot
stand and that the respondents’ counter-application in that regard should
accordingly have been dismissed with costs by the court below. I likewise

agree with his approach to costs. In the result, I agree with the order proposed
by my learned Colleague.

_________________
V M PONNAN
JUDGE OF APPEAL

APPEARANCES:

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

A Katz; M du Plessis

INSTRUCTED BY:

Zehir Omar Attorneys; Springs
Amicus Curiae:

WITS Law Clinic, Johannesburg

CORRESPONDENT:

Goodrick & Franklin; Bloemfontein
Amicus Curiae:

Matsepes Inc., Bloemfontein

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

The State Attorneys; Pretoria
CORRESPONDENT:

The State Attorneys; 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

Ismail Ebrahim Jeebhai & others
v
Minister of Home Affairs & another

The Supreme Court of Appeal (SCA) today upheld an appeal brought on behalf of
Pakistani national Mr Khalid Mahmood Rashid that his detention at the Cullinan
Police Station from 1 November 2005 and his subsequent deportation to Pakistan on
6 November were unlawful. It however held that his arrest on 31 October 2005 at a
home at Estcourt in KwaZulu Natal where he was staying was lawful because the
evidence disclosed that he was an illegal foreigner. The Pretoria High Court had
held in February 2007 that his arrest, detention and deportation had been carried out
lawfully. Mr Ismail Ebrahim Jeebhai who unsuccessfully brought the application
against the Minister of Home Affairs in the high court, then appealed to the SCA.

The facts that were placed before the court revealed that Rashid had entered the
country a few months earlier and had obtained documents authorizing his stay in the
country fraudulently. As an illegal foreigner he was therefore liable to arrest. On 31
October 2005 an immigration official supported by armed police arrested him at
Estcourt. He was then driven to the Cullinan Police Station where he was detained.
On 6 November he was removed from detention and deported to Pakistan.

The SCA held that the Immigration Act 13 of 2002 and the Regulations promulgated
thereunder required a warrant to be issued by an immigration officer for the
detention of an illegal foreigner as also for his removal from that place of detention.
As neither Rashid’s detention nor his removal from detention for deportation was
effected pursuant to a warrant both his detention and deportation were held to be
unlawful.

The SCA also set aside the convictions and sentences by the high court of Jeebhai
and his attorneys Mr Zehir Omar and Ms Yasmin Naidoo for contempt of court. In
the high court Jeebhai was cautioned and discharged but Omar and Naidoo were

each sentenced to a fine of R2 000 or six months’ imprisonment which was
suspended for a period of three years on condition that they are not convicted of
contempt of court committed during the period of suspension. The high court had
found that Jeebhai and his attorneys had used a document in violation of an earlier
court order that had issued by Judge Poswa on 14 May 2005. The SCA, however,
held that that Judge Poswa’s order had not prohibited the use of the document in the
proceedings before the high court – accordingly the convictions and sentences could
not stand.

The SCA rejected two further arguments by Jeebhai’s legal representatives. The first
was that Rashid’s deportation was a disguised extradition; and the second that
Rashid’s deportation was a ‘crime against humanity’ because it amounted to an
‘enforced disappearance’ under the Rome Statute of the International Criminal
Court. In both instances the SCA found that the evidence that was placed before the
court did not support those contentions.

Nevertheless because Rashid’s detention and deportation were held to have been
unlawful, the Minister of Home Affairs was ordered to pay the costs incurred by
Jeebhai and his attorneys of the legal proceedings both in the high court and in the
SCA.

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