Zim lawyer wins damages against SA Home Affairs over boarder entry dispute

Pretoria – The home affairs department has been ordered to pay costs incurred by a Pretoria-based attorney, Eucan Gwanangura, after officials at the Beitbridge border post barred him entry on his return from Zimbabwe.

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SA home affairs Minister Malusi Gigaba

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The ruling by Judge Veyelwa Tlapi followed another ruling ordering home affairs to allow Gwanangura into the country.

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Gwanangura, a South African permanent resident, filed an urgent application while he was stuck at the Beitbridge border post. He was returning from a funeral in Zimbabwe and had passed through the border just a few days earlier.

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In court papers seen by the African News Agency, home affairs Minister Malusi Gigaba was cited as the respondent.

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Judge Tolmay ruled that “the respondent (Gigaba) or alternatively the supervisor of the Immigration Services at Beitbridge border post be ordered to authorise the applicant to enter into the Republic of South Africa forthwith”.

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In an affidavit before the court, Gwanangura said he travelled to Zimbabwe on February 1 to attend the funeral of his brother-in-law. His passport was stamped at the South African exit point and Zimbabwe’s entry port.

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On February 3, Gwanangura was ready to leave Zimbabwe but was turned back at the South African entry point.

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Gwanangura told the court that home affairs officials asked him to explain how he had gotten his permanent residency, which was sought directly from then home affairs minister Nkosazana Dlamini-Zuma, as stipulated in the Immigration Act of 2002.

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“To my surprise, the official accused me of misleading him and vehemently asserted that no statutory provision of that nature existed. He then escalated the matter to his supervisor,” Gwanangura wrote in an application to the court.

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“The supervisor slammed her office door, telling me to go away. She vowed that she was not going to help me and I must return to Zimbabwe.”

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Gwanangura said the home affairs officials declined to give their names and they were not wearing their name tags.

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He returned to Zimbabwe where his departure was cancelled on his passport.

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“I suffered prejudice because some government officials are incompetent in that they lack training in respect of requisite knowledge,” Gwanangura argued in his application.

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He told the court that he runs a law firm in Pretoria which regularly received trust funds which ran into more that one million rand.

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“Those trust funds need proper daily administration, including payment of funds due to clients, and this was not possible when I was denied entry into the Republic of South Africa.”

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He said he also had numerous criminal cases where he represented South Africa citizens in different courts which were jeopardised when he was denied entry.

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“I have a one-year-old daughter, a South African citizen, who needed urgent paternal care. I had left the child with family friends as she was not well enough to travel with her parents to her uncle’s funeral.”

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Gwanangura was finally allowed entry into South Africa after spending three days in Zimbabwe’s border town of Beitbridge.

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Head of the Zimbabwe Community in South Africa, Nqabutho Mabhena, said despite the South African law stipulating that Zimbabwean travelers had an annual visa-free 90 day-stay, officials often deny Zimbabwean nationals entry.

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“You find that officials do not even ask the traveler but just give three days to a person travelling to Cape Town. When the immigrant gets to Cape Town he or she is already declared an undesired person in terms of the law,” said Mabhena.

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“It boils down to the attitude of the particular immigration official. That is not the official position of the South African government, but officials do it at the borders.”

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Last year, Judge Eberhard Bertelsmann ruled that home affairs officials acted with flagrant disregard for human rights when they deported Botswana national Edwin Samotse.

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“It is obvious that the three Polokwane officials are prima facie guilty of having infringed the applicant’s fundamental rights to life, dignity and a murder trial to which a shadow of the gallows does not fall,” said Bertelsmann. He ruled the deportation was illegal and unconstitutional.

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“They may in fact have to, prima facie, face a charge of attempted murder for the unlawful exposure of the applicant to the death penalty.”

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Lawyers for Human Rights and Legal Aid SA approached the court in a bid to compel Home Affairs to find Samotse in Botswana and seek assurance that he would not face the death penalty if convicted.

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Samotse, a wanted murder-accused in his home country, was deported despite a South African court order barring the extradition. He faced the death penalty in his country. ANA