A Zimbabwean father was arrested last week and is at risk of being deported as an illegal immigrant – all because he took a job at a petrol station, contrary to the terms of his permit that he works as a domestic worker instead.
Immigration officials believe that Trust Chepesani lied and never intended to be a domestic worker at all.
They say the fact that he works at a petrol station amounts to a breach of the terms of his work permit.
Police arrested him on Tuesday and detained him at the Ravensmead Police Station holding cells for the purpose of deportation. For days he couldn't work or see his two-week-old baby. By sunset on Friday he had still not been released, prompting his lawyers to take action.
They lodged an urgent application in the Western Cape High Court asking for his immediate release on the basis that the Immigration Act states that detention for deportation must be confirmed by a warrant of court within 48 hours.
Chepesani did not appear before a magistrate and the lawyers argued that to detain him further was unlawful.
In an affidavit, Munyaradzi Nkomo, a candidate attorney at immigration firm Craig Smith and Associates, said he was told a magistrate at the Bellville Magistrate's Court was only available to hear the matter today, which meant Chepesani would remain behind bars for the weekend.
This, Nkomo said, amounted to an infringement of Chepesani's rights to freedom and security.
He added that Chepesani's baby's rights were also violated by his continued detention, saying the Constitution provided that a child's rights in any matter were paramount.
The matter went to court at 8pm on Friday, but by then lawyers for the Home Affairs department had agreed to release him. Judge Siraj Desai made the agreement an order of court.
However, the department refused to return Chepesani's passport.
Chepesani's counsel, Adam Brink, pointed out in court that the passport was the property of the Zimbabwean government and was Chepesani's primary source of identification which he needed to register his newborn child.
However, arguing for the department, Hayley Slingers submitted that Chepesani had a chequered history, saying he had come to South Africa previously — in 2007 — via Musina, Limpopo, without a permit or passport.
He was later granted amnesty and, when he next entered the country, he obtained his current permit which validates him to work as a domestic worker — a job he doesn't hold today.
Slingers alleged that Chepesani obtained the work permit through “fraudulent misrepresentation” —words which judge Desai described as “harsh”.
She offered to provide Chepesani with a certified copy of his passport, saying: “He is going to do whatever he can to stay, whether legal or illegal.”
The judge said the case involved fundamental liberties.
"It's a serious matter to detain a man for even an hour more than he should," he said.
He added he was unable to apportion blame because, on the one hand, the immigration officials claimed a magistrate was not available, while, on the other, the magistrates claimed they were not told that the 48-hour period had expired.
"But whoever is to blame, it is a totally unsatisfactory state of affairs," judge Desai said.
He directed the Home Affairs department to provide Chepesani with documents to prevent his rearrest and protect him during his release.
The Home Affairs minister was ordered to pay costs. – WeekendArgus