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    THE HIGH COURT OF SOUTH AFRICA

    GAUTENG LOCAL DIVISION, JOHANNESBURG

    CASE NO: 2016/ 01352

    In the matter between:

    S L First Applicant

    T H Second Applicant

    C D Third Applicant

    C K Fourth Applicant

    and

    THE MINISTER OF HOME AFFAIRS First Respondent

    THE MINISTER OF POLICE Second Respondent

    THE BOSASA GROUP OF COMPANIES Third Respondent

    t/a LINDELA REPATRIANTION FACILITY

    and

    THE COMMISION FOR GENDER EQUALITY Amicus Curiae

    JUDGMENT

    MODIBA J:

    (1) REPORTABLE: YES / NO

    (2) OF INTEREST TO OTHER JUDGES: YES/NO

    (3) REVISED.

    .. ...

    DATE SIGNATURE

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    INTRODUCTION

    [1] I heard this application in the urgent motion court. After considering the papers and

    hearing counsel, I granted an order for inter alia the release of the detainees from the Lindela

    Repatriation Centre (Lindela), that the detainees (the detainees) be accommodated at a home

    of safety; as well as an order directing the first and second respondents to deal with the

    detainees in terms of the provisions of the Prevention of Combatting of Trafficking in Persons

    (PCTP) Act 7 of 2013. The order would operate as an interim order pending the delivery of this

    judgment.

    [2] The application was only opposed by the first respondent. The Commission for Gender

    Equality (amicus) intervened as amicus curiae at my invitation, and was admitted by agreement

    of the detainees and the first respondent. I invited the amicus to assist the court with certain

    factual enquiries and to make submissions on legal issues that arose from the papers but not

    addressed by the parties. These arose mainly from an allegation by the first respondent that the

    detainees are suspected of being victims of the crime of trafficking in persons for the purpose of

    sexual exploitation. I requested the amicus to investigate the circumstances of the detainees

    and report back to the court with recommendations on the appropriate legal response to their

    plight. I am indebted to the amicus for their prompt and positive response to my invitation, as

    well as to the pro bono legal team for the amicus, Advocate Llewellyn Morland and their

    instructing attorneys, for availing themselves on an urgent basis, for promptly investigating the

    circumstances of the detainees and for providing me with a succinct but valuable report.

    BACKROUND FACTS

    [3] The detainees are 4 (four) female citizens of the Kingdom of Thailand (Thailand). They

    are detained at Lindela in the custody of the third respondent pending their deportation to

    Thailand. They are detained for contravening section 41 (1) (c) of the Immigration Act 13 of

    2002. They were arrested on 20 November 2015 and detained at the Johannesburg Police

    Station from 20 November 2015 until 3 December 2015, when they were relocated to Lindela.

    More than two months after their arrest when this application came before me, they were still

    detained at Lindela.

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    [4] At the hearing of this application, I mero motu raised a concern whether the detainees

    founding and supporting affidavits were deposed to in the presence of the commissioner of

    oaths. Counsel for the detainees tendered the evidence of the detainees instructing attorney to

    address my concern. I refused him permission to lead this evidence because in respect of the

    facts within the knowledge of the commissioner of oaths, the evidence constitutes inadmissible

    hearsay evidence. I dealt with this application over several days in the week it was on the urgent

    motion court roll. The detainees instructing attorney had several opportunities to address my

    concern but failed to do so.

    [5] Although on the face of the notice of motion and supporting affidavits, the application

    purports to be brought by the detainees, I am not satisfied that the application is indeed brought

    by them. My dissatisfaction with the manner in which their founding and supporting affidavits are

    deposed to is based on the following grounds:

    5.1 It is common cause that all four applicants are Thai speaking and have at best a

    poor command of English. Evidently, they signed their affidavits using non-English

    alphabets. The legal team for the amicus interviewed the detainees at Lindela on 28

    January 2016. They were assisted by a Thai translator. The detainees affidavits are

    deposed to in English. No evidence has been put before the court regarding how their

    affidavits were translated;

    5.2 The commissioner of oaths certificate that appears on the affidavits is in English.

    There is no evidence attesting to the language in which the oath was administered to the

    detainees;

    5.3 According to the certificate by the commissioner of oaths, all the detainees

    deposed to the affidavits at Krugersdorp on 19 January 2016. The place, date and time

    of deposition is hand written in English in the commissioner of oaths certificate. The

    commissioner of oaths signed the affidavits using a pen with a different colour and ink

    type. The commissioner of oaths stated a business address in Nigel, which he allegedly

    wrote by hand on these affidavits;

    5.4 The detainees attorney also deposed to a supporting affidavit. Ex facie, a pen

    with the same colour and type of ink was used for signature of the attorney, the

    signatures of the detainees as well as the insertions in the commissioner of oaths

    certificate.

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    5.5 Of all the deponents, the detainees attorney is the only person who understands

    English.

    [6] In light of the above facts, I am not satisfied that the oath was administered by the

    commissioner of oaths, that the detainees signed their affidavits in his presence and that the

    detainees have personal knowledge of the contents of their affidavits.

    [7] Notwithstanding my dissatisfaction with the appropriateness of the application for the

    release of the detainees, I am concerned that the first respondent has detained them for more

    than 30 days pending their deportation and has failed to put a version before court explaining

    his delay in deporting them. Furthermore, the first respondent and the amicus have raised

    issues of public interest that warrant that I grant the detainees further relief in the interests of

    justice.

    [8] The first respondent brought to my attention that there is a strong likelihood that the

    detainees are persons who have been trafficked. The first respondent point out that when

    informed that they are to be deported, they opted not to appeal against their impending

    deportation. Instead, they agreed to be deported. Their sudden change of stance is according to

    the first respondent suspicious. The first respondent contended that as suspected victims of

    trafficking in persons, the detainees require the protection of this court. Therefore the court

    should not release them but rather allow the first respondent to deport them to their home

    country, Thailand. Interestingly in the founding affidavit the detainees are not open with the

    court regarding the circumstances that led to their arrest.

    [9] According to the first respondent the detainees were arrested during a duly authorized

    raid on a hotel in Johannesburg. The raid was conducted by members of the first and second

    respondents. The raid was precipitated by information received by these respondents that the

    hotel was operating a brothel and was used as a distribution centre for the trafficking and

    smuggling of human beings into South Africa. The detainees are part of 40 (forty) Thai women

    that were arrested during the raid.

    [10] On 24 November, the detainees were interviewed by an immigration officer who

    informed them of the reason for their detention. The interviewing officer recorded the interview

    on (DHA-1746) Form 6. The detainees informed the interviewing officer that they do not

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    understand English. A Thai interpreter was made available and provided interpretation services

    during the interview. Pursuant to their interviews, all the detainees were issued with the various

    notices in relation to their detention and pending deportation.1 The detainees dispute that they

    were served with these notices.

    [11] According to the first respondent, the position of the detainees is as follows:

    11.1 SL deposed to an affidavit that when she was arrested, she was working as a sex worker

    at the hotel where the arrest took place.

    11.2 TH entered the country on 15 October 2012. Her visa expired on 2 December 2012.

    11.3 CD entered the country on 15 August 2015. Her visa expired on 15 September 2015.

    11.4 CK entered the country on 3 September 2015. Her visa expired on 3 November 2014.

    11.5 All the detainees entered South Africa on 30 (thirty) days visitors visas. Although she was

    in possession of a valid visa when she was arrested, SL invalidated her visa by engaging in

    remunerated work. Therefore she was been correctly arrested with the intention to deport her.

    Since their visas expired, TH, CD and CK remained in the country illegally and failed to take any

    steps to regularize their stay. Similarly to SL, the other three detainees were also engaged in

    sex work at the

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