This is an appeal against the whole of the High Court judgment. On 15 October 1996 the High Court 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. It did not deal with the legal points raised by the appellant because it lacked facts.
The Supreme Court established that the appellant, at the time of his arrest and detention, had a visitor's entry permit and, unless the permit was cancelled in terms of s 36(3) of the Immigration Act, it was not null and void.
Section 41 of the Immigration Act permits persons to remain in Namibia if they had not been informed or had been permitted to enter or remain in Namibia through oversight, misrepresentation, or owing to the fact having been undiscovered as such a prohibited immigrant. Further, the visitors entry permit, unless and until is cancelled, it is not null and void.
arrest, detention, illegal immigrant, prohibited immigrant, visitor's permit, constitutionality of legislation, unlawful arrest and detention
The appellant had entered Namibia on 22 February 1996 without valid documents. He was served with a notice to leave Namibia and he complied. On an unspecified date and before 12 June 1996 he again entered Namibia. Either before 22 February or on that date he had applied for refugee status and the application was refused. He had then been given a visitor's entry permit but had not revealed the fact that on 22 February he had been served with a notice to leave. On 12 June 1996, after failing to show his passport and to report to the immigration offices, the appellant was arrested and detained. He subsequently brought two urgent applications in which he requested an order declaring him not to be a prohibited immigrant, declaring the provisions of the Immigration Control Act to be unconstitutional and invalid and declaring his detention to be unlawful and invalid.
The Supreme Court decided that the appellant’s detention on 12 June 1996 is unlawful.
Section 41 of the Immigration Act permits persons to remain in Namibia if they had not been informed or had been permitted to enter or remain in Namibia through oversight, misrepresentation, or owing to the fact having been undiscovered as such a prohibited immigrant. Further, the visitors entry permit, unless and until is cancelled, it is not null and void.