BERE J: Issues to do with the liberty of an
individual, foreign or a citizen of this country must no doubt be brought to
court at the earliest opportunity. Taking into account the circumstances
surrounding this particular case, I am satisfied that the application was
properly brought to court on an urgent basis.
The
format of a chamber application, be it ordinary or urgent is provided for ii
terms of Order 32 r 241 (i) of the High Court Rules, 1971. The rules governing
chamber applications do not make it mandatory that the applicant be the
deponent to the founding affidavit. Any one who can swear positively to the
facts prompting the filing of the application can initiate the application on
behalf of the applicant. It is therefore not a fatal omission in this case that
the founding affidavit was deposed to by one Ghulam Fatima and supported by
Muhammad Tufail who witnessed the applicant's arrest and therefore had full
knowledge of the basis upon which the complaint was made against the first
respondent. I accept that in this case, the applicant's application could have
been neater if the applicant had personally deposed to the founding affidavit
but I do not consider that technical omission to be fatal to the remedy sought.
The
officials entrusted with the administration of our immigration laws which can
be very drastic and harsh in their operation are enjoined to use their powers
properly otherwise those against whom this legislation is meant to impact would
be left to the mercy of these officials.
In
this regard I can do no better than re-state the remarks by BLACKWELL J, when
he stated:
“I do not think that I can stress too
strongly the duty which lies on officials entrusted with the administration of
the immigration laws, often drastic and even harsh in their operation, of
observing strictly and punctilliously the safeguards created by the Act”
GOLDIN
J followed this sound reasoning in the later case of Macara
where the ratio was stressed.
It
is imperative that before an individual is deprived of his liberty pursuant to
any enquiry by the immigration officer, that individual must be informed of the
reasons surrounding his arrest and detention. An immigration officer cannot
adopt a casual or carefree attitude in this regard. It is a wrong and a very
dangerous interpretation of the Immigration Act for an immigration officer to
think that he/she can just arrest and detain an individual without explaining
the reasons upon which such a drastic action is premised.
Coming
back to this case, I have no doubt in my mind that following on the strength of
the papers filed in this court, and in particular the correspondence that was
exchanged between the applicant's counsel and the first respondent's officer,
it is abundantly clear that at the time of his arrest and subsequent detention
the applicant was never furnished with the reasons for his arrest and
detention.
It
is clear from the papers filed that Annexure 'A' (the notice of prohibition)
purportedly dated 28 July 2010 was given as a direct response to the urgent
application served on the respondents. That annexure was conveniently backdated
to 28 July 2010 in order to cover up for the inadequacies on the part of the immigration officer in
failing to fully comply with his statutory requirements to notify the applicant
of the reasons for his arrest and detention. Annexure 'A' was fraudulently
crafted to cloud issues, and this explains why there is no indication that the
applicant personally inserted the date on which he was made to sign to
acknowledge receipt of that document. All indications are that the 28th
of July 2010 was inserted by the author of the document.
There
is also another dimension to this finding. If the applicant had been furnished
with Annexure 'A' on the 28 July 2010, it is inconceivable in my view that this
document would not have found itself in the hands of the applicant legal
practitioners at the time the urgent chamber application was filed. The
applicant's counsel could not have been that naïve to have written a letter on
2 August 2010 enquiring about the reasons for the applicant's arrest. In any
event Annexure 'A' does not in any way confirm that when the applicant was
arrested on 27 July 2010 he was informed of the reasons for that arrest and
detention.
If
the applicant was deliberately not advised of the reasons for his arrest and
detention, it follows that that arrest was unlawful and Annexure 'A' did not
have the capacity to legalise that arrest.
In
the final analysis, I am satisfied the applicant is on balanced feet in
bringing this application. I order that the interim relief sought be granted as
amended and in the following terms.
It
is ordered:-
That
the first respondent be and is hereby ordered to release the applicant from
detention forthwith.
Madzivanzira, Gama
& Associates,
applicant's legal practitioners
Civil
Division of Attorney General's Office, respondent's Counsel
