Ismail Ebrahim Jeebhai and Others v Minister of Home Affairs and Another

On 31 October 2005, Khalid Mahmood Rashid, a Pakistani national, was arrested at Estcourt as an illegal foreigner by senior immigration officer Anthony de Freitas and police. He was detained at Cullinan Police Station without a warrant. On 2 November 2005, Chief Immigration Officer Joseph Swartland interviewed Rashid, who allegedly admitted to being an illegal foreigner and to having fraudulently obtained documents. Rashid was handed a Notice of Deportation. On 6 November 2005, Rashid was handed over to Pakistani law enforcement officials at Waterkloof Military Air Base and removed to Pakistan, where he was held in custody. The removal was done secretly without informing his family or friends. Ismail Ebrahim Jeebhai (first appellant) instituted proceedings on Rashid's behalf to challenge the lawfulness of the arrest, detention and deportation. The Full Court of the Pretoria High Court dismissed the application and found the appellants in contempt of court for annexing a document allegedly in violation of a court order. Rashid was released from Pakistani custody in December 2007.

• Whether section 8 of the Immigration Act must be complied with before arrest under section 34(1)
• Whether Rashid's detention and deportation were lawful given non-compliance with prescribed procedures and warrants
• Whether the deportation constituted a 'disguised extradition' for alleged terrorism connections
• Whether Rashid's removal constituted an 'enforced disappearance' and crime against humanity under the Rome Statute
• Whether the appellants were properly convicted of contempt of court

The appeal was upheld with costs. The convictions and sentences for contempt of court were set aside. The Full Court order was replaced with: (a) a declaration that the detention of Khalid Mahmood Rashid at Cullinan Police Station and his subsequent removal and deportation were unlawful; (b) the respondents to pay costs of the application; (c) the counter-application dismissed with costs. The respondents were also ordered to pay costs of their opposition to the amicus curiae application.

The binding principles established are: (1) An illegal foreigner may be arrested under section 34(1) without first invoking section 8 review procedures - the discretion to arrest does not depend on exhaustion of appeal rights. (2) Detention and deportation of illegal foreigners must strictly comply with mandatory procedural requirements in the Immigration Act and Regulations, including: detention by warrant (Regulation 28(1) and Form 28); prompt notification of rights on Form 29; removal from detention by warrant (section 34(7), Regulation 28(9) and Form 35); and deportation through a designated port of entry. (3) Non-compliance with these mandatory requirements renders detention and deportation unlawful. (4) The state bears the onus to prove lawfulness of arrest, detention and deportation by adducing sufficient facts showing compliance with all procedural requirements. (5) Immigration officials must observe strictly and punctiliously the safeguards in immigration legislation. (6) Any deprivation of liberty is presumptively unlawful and must be justified by the state with reference to lawful authority.

Cachalia JA observed (obiter) that: Form 29 does not make provision for detainees to be informed of constitutional rights under section 35(2) of the Constitution, though detained illegal foreigners are beneficiaries of rights under sections 12(1) and 35(2). The court noted the 'lamentable disregard' by state officials for prescribed formalities. The court expressed gratitude to the amicus curiae (WITS Law Clinic) for valuable assistance. Ponnan JA noted (obiter) that Regulation 28 safeguards exist not just for the benefit of illegal foreigners but also to protect respondents against unjustified claims. He observed that if British authorities were truly seeking Rashid for terrorism, it would be inconceivable that South African agents would simply hand him to Pakistani authorities. The court commented that immigration laws are 'often harsh and severe in their operation' but contain safeguards to ensure people are dealt with properly in a manner that protects human rights.

This case provides authoritative guidance on the interpretation and application of the Immigration Act 13 of 2002 and Immigration Regulations. It clarifies that: (1) section 8 review procedures need not precede arrest under section 34(1); (2) strict compliance with prescribed procedural safeguards (including warrants for detention and deportation) is mandatory and non-compliance renders detention and deportation unlawful; (3) the state bears the onus to prove lawfulness of detention and deportation; and (4) immigration officials must observe 'strictly and punctiliously' the safeguards created by immigration legislation given the far-reaching consequences for affected persons' liberty, livelihood, security and survival. The case affirms the principle of legality constraining exercises of public power involving deprivation of liberty.