The detention and deportation of Pakistani national Khalid Mahmood Rashid from South Africa to Pakistan in 2005 were unlawful, the SCA held on Tuesday
The detention and deportation of Pakistani national Khalid Mahmood Rashid from South Africa to Pakistan in 2005 were unlawful, the Supreme Court of Appeal (SCA) held on Tuesday.
The SCA upheld an appeal, brought on Rashid’s behalf, that his detention at the Cullinan police station from November 1 2005 and his subsequent deportation to Pakistan on November 6 were unlawful.
Businessman Ismail Ebrahim Jeebhai, who started court proceedings on Rashid’s behalf, unsuccessfully brought an application against the minister of home affairs in the High Court in Pretoria. He then appealed to the SCA.
The high court had held in February 2007 that Rashid’s arrest, detention and deportation had been carried out lawfully.
The SCA judgement, however, held that Rashid’s arrest on October 31, 2005 at a home at Estcourt in KwaZulu-Natal, where he was staying was lawful because evidence showed he was an illegal foreigner.
The Estcourt arrest was carried out at the home of Jeebhai’s brother, Mohamed Ali.
The SCA said the facts before the court revealed that Rashid had entered the country a few months earlier and had fraudulently obtained documents authorising his stay in the country.
The court said as an illegal foreigner he was therefore liable to arrest. However, the SCA held that the Immigration Act required that a warrant be issued by an immigration officer for the detention of an illegal foreigner and also for his removal from that place of detention.
The court said neither Rashid’s detention nor his removal from detention for deportation were backed by a warrant.
The judgement also set aside high court convictions and sentences of Jeebhai and his attorneys, Zehir Omar and Yasmin Naidoo, for contempt of court.
The Bloemfontein court rejected two further arguments by Jeebhai’s legal representatives. The first was that Rashid’s deportation was a disguised extradition and the second that his deportation was a crime against humanity.
The court held that in both instances the evidence placed before the court did not support these contentions.
The judgement ordered the minister of home affairs to pay the costs incurred by Jeebhai and his attorneys during high court and SCA proceedings. — Sapa