Summary from the judgment:
CASE NUMBER: 70261/2009
DATE: 11/10/2010
THE HONOURABLE ACTING JUSTICE ROELOF DU PLESSIS
In the application of:
LIN GUI LAN
and
OR TAMBO INTERNATIONAL AIRPORT
DEPARTMENT OF HOME AFFAIRS _
IMMIGRATION ADMISSIONS …............................................................First Respondent
SOUTH AFRICAN AIRWAYS................................................................Second Respondent
JUDGMENT
[1] In this matter the applicant brought an application on an urgent basis on Friday, 20 November 2009, which application was brought by a family member of the applicant on her behalf, to obtain relief pertaining to her detention at OR Tambo International Airport.
4] Her niece.... accompanied her on 19 November 2009 on flight SA 287 from Hong Kong to South Africa. Her niece was to assist her in English, especially to communicate with doctors in South Africa. The flight arrived at OR Tambo International Airport on 7h10 on Friday, 20 November 2009.
[5] She was approached whilst proceeding through immigration, by an immigration officer ..., who perused her passport and permit, and who asked her certain questions which she could not answer because she could not speak English. She was then escorted to the immigration office with her niece and the officer, where he asked the neice the same questions, which were then translated.
[6] On a question what her reason was for coming to South Africa, she answered that .... However, the immigration officer was aggressive and dismissive of her and inter alia made the comment that it was impossible for her to be returning to work, alleging that she was too old to work. He asked questions about the reason why she was out of the country for such a long period and did not seem satisfied with the answer.
[7] The immigration officer then made copies of her passport and permit and completed certain documents which he instructed her to sign. She refused to sign the documents because she said she did not understand the documents. She and her niece were then left in the immigration office for a period of approximately one hour whereafter a policeman was called and the niece was told to go.
[8] Applicant's attorney, Mr Strauss, contacted the immigration officer and explained to him that applicant's employer would immediately be applying for an extension of her work permit in terms of section 19 of the Immigration Act, No 13 of 2002. He told the officer that he would see to it that she will comply with the provisions of the Act and that the necessary financial guarantees would be given. The immigration officer simply told Strauss that he was not interested and put the phone down on him. This appears to have been the attitude of all the immigration officials involved in this matter.
[9] At 15h00 a representative from South African Airways tried to give applicant a return ticket to Hong Kong, which she refused to accept. Seven representatives from the Immigration Department as well as members of South African Airways attempted to convince her to follow them to board the return flight to Hong Kong. She refused. They then physically picked her up and started carrying her to the departure lounge. She was kicking, screaming and crying hysterically. A Chinese male person who witnessed what was happening told them to return her to the holding cell until her attorney arrived.
[10] She was then left in the national transfer area with a policeman from the South African Police Services guarding her. She remained there without food, water or warm clothing. This continued until the following afternoon (Saturday).
[11] Late that Friday afternoon attorneys representing the applicant brought an urgent application before me to prevent the deportation of the applicant back to China.
[16] I was also contacted during Friday evening by the counsel who acted on behalf of the applicant, informing me that the immigration officials refused to adhere to the court order. I then requested my registrar to speak to Mr MacKay (Deputy Director General of Immigration) and to explain to him that I had granted a court order. He refused. I then personally spoke to Mr MacKay who told me that he knew the law better than any Judge did and that he was not going to release the applicant. He also summarily terminated the telephone call by putting the phone down.
[17] The immigration officials blatantly ignored the first court order that I had granted. On Saturday, 21 November 2009 the lawyers for the applicant as well as the niece and representatives of the applicant's employer arrived at the airport to once again endeavour to persuade the officials to adhere to the court order. They still refused. The attorney Mr Strauss, who is the attorney who acted for the employer, arrived at the airport at 11h00 that day to attempt to have the applicant released. He was apparently informed by Mr MacKay that they had the right to disregard the first court order, and that he himself decided to disregard it.
[61] I have taken into account that the standard of proof is "beyond reasonable doubt" and not a "preponderance of probabilities", such as in normal civil proceedings.
[68] ...However, if this court had not intervened strongly as it had done, I believe that the applicant would have been deported back to Hong Kong, notwithstanding the first court order.
77] ... However in the case of Mr MacKay, I am of the view that his approach to the original court order, and also the second order issued by me during the course of the Saturday, showed a clear and unarguable disdain and disrespect towards the courts. There was a wilful and mala fide disregard of this court's court orders. I therefore come to the conclusion that the application should succeed in respect of Mr MacKay, but that the later compliance with my two court orders, justifies a sanction of a warning only.
89] That leaves only the issue of costs. ...
I therefore make the following order:
"1. The order granted on 27 November 2009 is confirmed and first respondent shall pay the costs in respect thereof;
2. The application for recusal is dismissed with costs;
3. Deputy Director-General MacKay is found guilty of contempt of court and is warned;
4. The costs of the application of the contempt of court application shall be paid by first respondent. (home affairs)"
SIGNED AT PRETORIA THIS 11 th DAY OF OCTOBER 2010.
For the full report:
http://www.saflii.org/za/cases/ZAGPPHC/2010/165.html
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