Case No. 2000/2000
Plaintiff Mr. PS. Dunseith
Defendant Mr. P. Msibi
is an application brought by an individual who is presently in
detention. The matter comes before the court as a matter of urgency
and the applicant seeks an order that the station commander Mbabane
Police Station be ordered to release the applicant from custody
forthwith. There is an alternative prayer that the station commander
be ordered to bring the applicant before the Honourable Court when
the matter is heard and that the respondent is ordered to pay the
costs of this application in attorney and
an affidavit attached to the notice of motion one Sabelo Benguni
Gumedze informs the court that he is an adult male Swazi articled
clerk, employed by an attorney of this court Mr. Dunseith He says
that on the 18th July 2000 he was instructed to visit the applicant,
one Kokai Uche, at the Mbabane Police Station. He attended at
the same date at 12.00p.m. Upon his arrival he requested
desk officer, whose name and rank is unknown to him, to see the
Applicant. The desk officer referred him to the CID office where he
made the same request to another police officer who informed him that
he has no authority to release the applicant in order to consult with
him. The deponent then further describes his frustrations at the
police station and particularly he was refused permission to see the
applicant. One of the officers there a certain Michael Dlamini
informed him that the applicant was being kept in prison but could
not produce any order or warrant authorising the police to keep the
applicant in custody.
the 19th July he saw the applicant and took instructions from him in
the presence of a police officer. He recounts his difficulties in
bringing this application. It is not necessary to deal with these
matters because the real question before the court is whether the
applicant is in lawful detention or not.
respondent has sought to justify the continued detention of the
applicant by referring to the terms of
17 of 1982. The deponent to the replying affidavit one Nonhlanhla
Sacolo states that the applicant was properly declared a prohibited
immigrant under section 3 of the Immigration Act No. 17 of 1982. and
the court to annexure 2 being a copy of the declaration issued by the
Minister of Home Affairs.
the strength of this there is a submission that the applicant is in
lawful custody and the annexure attached justifies such a
will not deal with the other aspects of the affidavit which deal with
the difficulties experienced by the attorney in obtaining permission
to consult and to obtain his client's signature.
annexures on which the respondent relies are firstly a letter bearing
a stamp from the immigration department dated 13th July 2000, The
letter is signed by Prince Sobandla who is the Minister of Home
Affairs. This first annexure is a letter addressed to the officer in
charge of Mbabane Correctional Serve and its
Kokai Uche; a Nigerian and David Matumba, a Ugandan."
letter reads that:
terms of Section 3 of the Immigration Act No. 17 of 1982 I hereby
direct that the abovenamed who has been declared a prohibited
immigrant be kept in custody until such time that arrangements for
their deportation from Swaziland are complete."
attached to the letter is a document headed "General Notice No.
2000, Immigration Act 1982, Act No. 17 of 1982. Declaration of
Prohibited Immigrants under section 3."
reads as follows:-
exercise of powers conferred on me by Section 3 of the Immigration
Act of 1982 and in consequence of information received from the
source considered by me to be reliable I hereby declare Uche Kokai a
Nigerian, and David Matumba a Ugandan to be undesirable immigrant or
person whose presence in
is contrary to the national interest within the meaning of the said
is signed by Prince Sobandla, Minister of Home Affairs and also bears
a date stamp of the Immigration Department dated 15th July, 2000. It
is assumed that both these documents were signed on the same day.
applicant has pointed out that the procedure adopted and the warrant
issue are not in accordance with the Act. In the first place the
notice which has been produced does not appear to have been gazetted.
No gazette has been produced, and a notice one presumes only takes
publication in the gazette. I see no reference hereto any
is there any attachment of a gazette
to show that publication indeed- took place. This is a defect which
should be borne in mind when reliance is placed on a Government
any other document which requires to be published in order to take
this is not the basis of the objection. One has to refer to the act
to understand it and
looks at the two sections
one would immediately see
section which defines a prohibited immigrant as a person or member of
a class of persons who in consequence of information received from
any Government or any other source considered by the Minister to be
reliable, is considered by the Minister to be an undesirable
immigrant, whose presence in Swaziland is declared by the Minister to
be contrary to the national interest.
the first annexure to the affidavit there is the notice to which I
referred. The Minister has said in terms of Section 3 he has declared
the applicant to be an undesirable immigrant or person whose presence
in Swaziland is contrary to the national interest within the meaning
of the said Section. That declaration in itself does not give anybody
the right to arrest the applicant. He may be arrested in regard to
criminal proceedings pending. In such a case the provisions of the
Evidence Act would have to be followed and the possibility of bail
would arise. This does not amount to unrestricted power to imprison.
on which the responded
section which reads, Section 8(1):-
by order in writing, direct that any person whose presence in
Swaziland was, immediately before the making of that order, unlawful
under this act, shall be removed from and remain out of Swaziland
section requires that a person who has been made a prohibited
immigrant may be ordered to be moved from Swaziland and to stay out
of Swaziland for any period which may be specified in the order No
order in those terms or any terms whatsoever requiring the removal of
the applicant or his remaining out of Swaziland has been put in
This again becomes relevant in regard to sub-section 3 of the same
person to whom
order made under this section-relates shall.
the Minister so directs be kept in custody until departure from
Swaziland and while so kept shall be deemed to be in lawful custody.
is a pre-condition to the operation of Section 3(b) that the
individual in whose custody it is sought to justify is a person to
whom an order made under that section has been made. If no order has
been made for his removal and for his remaining out of the country
then the Minister may not direct him top be kept in custody until his
departure from Swaziland because he does not have to leave Swaziland
until the order is made.
in the present case as I have said it is clear that the proper
procedures have not been followed and Mr. Dunseith in arguing the
matter referred me to a similar case which appeared before me in this
court some years ago. The same
reason to depart from the decision made by me in that court.
there ordered that because of the invalidity of the warrant issued by
the Minister, because
founded the detention is unlawful. The respondent is required to
release the applicant from
respondent will pay costs of this application.