Court name
High Court
Case number
APPEAL 155 of 1996
Case name
Correia v Commanding Officer Windhoek Prison
Media neutral citation
[1995] NAHC 6
















CASE
NO'S. A 155/96 & A 147






MARTTNO
NEVIS COREIA versus THE COMMANDING OFFICER WINDHOEK


PRISON
& MINISTER OF HOME AFFAIRS







SILUNGWE,
A.J. et
HANNAH.
J
1996/10/15


IMMIGRATION



Applicant
seeking declaration in motion proceedings that he is not a prohibited
immigrant. Applicant's case yet to be heard by Immigration Tribunal.
Only in exceptional circumstances would the High Court entertain the
matter before a decision is made by the Immigration Tribunal. To do
so would mean that the High Court is performing the statutory
function of that tribunal.



Applicant
also seeking order declaring parts of Immigration Control Act
unconstitutional. No allegation made in founding affidavit that any
of applicant's constitutional rights have been inflicted. Respondent
kept in dark as to applicant's case and in particular what article or
articles of Constitution are realist on for the relief sought.
Founding affidavit held to be defective.



CASE
NO. A 155/96 A 147/96








IN
THE HIGH COURT OF NAMIBIA









In
the matter between









MARTINO
NEVIS CORREIA


versus



THE
COMMANDING OFFICER WINDHOEK PRISON MINISTER OF HOME AFFAIRS








CORAM:
HANNAH, J. et SILUNGWE, A.J.









Heard
on:



Delivered
on: 1996.10.15









JUDGMENT



HANNAH,
J.

:
In the applications now before us the applicant seeks various forms
of relief but the principal head of relief is a declaration that he
is not a prohibited immigrant in this country. Ancillary to that
relief a declaration is also sought that his detention as a
prohibited immigrant is accordingly unlawful and invalid and the
applicant seeks an order that he be released from custody forthwith
and an interdict restraining the second respondent from deporting him
from Namibia. The last two items of relief have in fact already been
granted on a temporary basis by this Court.









The
relief sought was subsequently extended by an amendment to the
notices of motion and the extended relief embraces a declaration
declaring certain sections of the Immigration Control Act, 7 of 1993,
to be unconstitutional and invalid; but, as I have said, the
principal relief concerns whether or not the applicant is a
prohibited immigrant. This question has to be considered, at least
initially, having regard not only to the facts of the case but also
with regard to the proper construction to be given to certain
sections of the Immigration Control Act and it is only if the
construction contended for by the applicant is rejected that the
constitutional points which the applicant's legal representative
seeks to raise come into play.









At
the outset of the hearing Mr Coetzee for the respondents raised two
points in
limine
and we have decided to deal with these two points straightaway. The
first concerns the fact that the Immigration Tribunal set up under
the Immigration Control Act has not yet considered the applicant's
case and it is submitted by Mr Coetzee that in these circumstances
the applicant was not entitled to approach this Court for the
substantive relief sought. At most he could have applied for an
interim interdict restraining the respondent from deporting him,
pending the determination of the matter by the tribunal and perhaps
for an order for his release from custody pending the tribunal's
decision.






In
our opinion, the point taken on behalf*of the respondents is a good
one. The function of determining whether a person is a prohibited
immigrant and whether he should be deported has been entrusted by
the Immigration Control Act to the



Immigration
Tribunal and, in our opinion, that tribunal is clearly the best forum
for determining that question. It may summon witnesses to give
evidence or produce documents and thus obtain a full factual picture
and should the need arise it may, at the request of the person
affected by the application, reserve any question of law which arises
for the decision of the High Court. It would only be in exceptional
circumstances, and in our view in the present case there are none,
that an application of the instant kind can properly be brought
bypassing the Immigration Tribunal and in effect seeking to have this
Court perform the function entrusted by statute to that tribunal. The
cases relied upon by Mr Light, for the applicant, dealing with ouster
of a Court's jurisdiction are in our view clearly distinguishable
although that is not to say that an applicant in the position of this
applicant cannot approach this Court for an order releasing him from
detention or for an order interdicting the Minister of Home Affairs
from deporting him. The first point in
limine
therefore succeeds.






The
second point in
limine
raised by Mr Coetzee concerns the constitutional points raised by the
applicant's legal representative. I say raised by the applicant's
legal representative advisedly because as Mr Coetzee points out they
are not raised by the applicant himself in his founding affidavit and
only arose when the notice of motion was amended. No supplementary
affidavit was filed. It is trite law that in motion proceedings an
applicant must set out sufficient facts and allegations in his
founding affidavit upon which a Court may find in his favour. But
when one examines the founding affidavit in the present
case one finds that there is not a single
reference to the constitutional points raised in the
amended notices of motion. No factual basis is set out for the
attack made on the constitutionality of the various
provisions of the Immigration Control Act referred to in the
amended notices of motion nor are the grounds relied on for the
attack set out. No mention is made of any
infringement of a constitutional right and no particulars are
given of the specific article or articles of the Constitution relied
on for the relief ' sought. The respondent was thus
kept completely in the dark as to what the applicant's case is and
light only began to dawn when heads of argument were delivered a
few days before this hearing. And when that light began to dawn
it emerged that amongst the points being taken was, for example,
the point that one section of the Immigration Control Act,
namely section 39(2) (h), is unreasonable and not necessary
in a democratic society. The determination of that point
could well depend on facts beyond the common knowledge of the
Court and the respondents may well wish to address such
facts in an answering affidavit. By concealing the nature
of his case by making no reference to this aspect of his
case at all in the founding affidavit the applicant
effectively precluded the respondents from dealing with such facts
and in my opinion this cannot be allowed.






Mr
Light seeks to equate allegations of infringement of constitutional
rights with pure legal argument which, of course, it is
unnecessary to set out in a founding affidavit; but it is not always
the case that the two can be equated or should be equated and in our
opinion this is one such case. In these circumstances, I agree with
Mr Coetzee that the relief sought in paragraph
2.2
of
the amended notice of motion, that is to say the extended relief,
should not be granted on the papers as presently formulated before
us.






However,
although the application must for reasons I have given be dismissed
Mr Coetzee has indicated that he would have no objection if the
applicant were to be granted certain interim relief pending a
decision of the Immigration Tribunal and that interim relief will be
granted.






As
for costs, Mr Light mounted some argument to the effect that because
the merits have not been dealt with no order should be made at this
stage. That is not my view of the matter at all. The application has
been found to be premature and the founding affidavit to be defective
and on this basis the respondents are not only entitled to have the
application dismissed but are also entitled to costs.






Accordingly,
the applications are dismissed with costs save that the following two
orders are made:







1.
The
respondents are ordered to continue to release the applicant from
custody pending determination of the matter by the Immigration
Tribunal.



2.
The second respondent is interdicted and restrained from deporting
the applicant pending a decision in the matter by the Immigration
Tribunal.












.At
*




ON
BEHALF OF THE APPLICANT: Instructed by:









ON
BEHALF OF THE RESPONDENTS: Instructed by:


MR
LIGHT Legal Assistance Centre












ADV
G S COETZEE & ADV A STRYDOM The Government Attorney