No affidavits were filed in support of the Amended Notice of Motion. On 22 July it would appear, respondents had filed a Notice in terms of Rule 6(5)(d)(iii) to the effect
CASE NO. SA 5/96 IN THE SUPREME COURT OF NAMIBIA
In the matter between
MARTINO NEVES CORREIA
THE COMMANDING OFFICER,
MINISTER OF HOME AFFAIRS
CORAM: MAHOMED CJ, et MTAMBANENGWE, AJA, et GIBSON AJA Heard on: 1997/07/01-02 Delivered on: 1998/02/10
MTAMBANENGWE, AJA.: This is an appeal against the whole of the High Court Judgment (Hannah J). On 15 October 1996 Hannah J sitting with Silungwe A.J. dismissed the application by Appellant for certain relief but made two orders in favour of Appellant, namely, that 'respondents continue to release the applicant from custody', and interdicting and restraining second respondent 'from deporting the applicant'; both pending the determination or decision of the matter by the Immigration Tribunal.
The appellant brought two urgent applications by notice of motion in which he
claimed more or less identical relief. The second application on 5th July 1996 was
brought subsequent to the first on 2nd July 1996 apparently because no prayer was
made in the first application for achieving immediate release from custody of the
Appellant. A rule nisi was granted in respect of each application. The applications
were subsequently heard together and dealt with in the judgment of the Court a quo.
On 26 July 1996, before the hearing of the applications leave was granted to amend the notice(s) of motion by the addition of the following prayers:
Declaring the provisions of Section 39(2)h, Section 42(l)(a)
and/or Section 42(4) of the Immigration Control Act, Act no. 7 of 1993 ("the Act) to be unconstitutional and invalid.
Setting aside Second Respondent's notice in terms of section 42
(4)(b)(i) of the Act to Applicant dated 22 February 1996, as being in violation of article IS of the Constitution.";
prayer 1.2 on appeal was not persisted in.
The Notice of Motion as amended was later filed with prayers reading as follows:
"2.1. Declaring the Applicant not to be a prohibited immigrant in respect of Namibia.
2.2. Declaring the'provisions of section 39(2)h, section 42(i)(S) and/or
section 42 (4) of the Immigration Control Act, Act No. 7 of 1993 ("the Act"), to be unconstitutional and invalid.
2.3 Setting aside Second Respondent's notice in terms of section 42(4)(b)(i) of the Act to Applicant dated 22 February 1996, as being in violation of article 18 of the constitution.
Declaring Applicants detention to be unlawful and invalid,
Directing that First and/or Second Respondent release Applicant from custody forthwith and that Second Respondent returns to Applicant her passport forthwith.
2.6. Directing that Second Respondent pay the cost of the application, First Respondent to be so liable only in the event of his opposing the application.
Directing that paragraphs 2.1. to 2.3 above, operate as in interim interdict pending the return day of the rule.
Granting the Applicant such further relief or alternative relief as the above Honourable Court may deem fit."
that at the hearing of the application (unamended) respondents intended to raise the
following question in law only, namely.
"1. That the Applicant, on his own version of events, is a prohibited immigrant in the Republic of Namibia in terms of Section 39(1 )h (apparently 39(2)(h) of the Immigration Control Act, 1993 (Act 7 of 1993).
2. That the Second Respondent was therefore entitled to arrest and detain him in accordance with the provisions of the Act.
That the Applicant marriage to Yolande Daphne Zaahl, in the circumstances of this matter cannot be regarded as a bona fide marriage as contemplated by Article 4(3) of the Namibian Constitution.