A high court judge on Monday slammed the actions of the Department of Home Affairs for removing a young Pakistani national and her mother from their Fresnaye, Cape Town, residence despite his telephonic court order which prohibited immigration officials from deporting the pair.
Ayesha Danyal, a 16-year-old matriculant at Springfield Convent, told the Cape High Court on Monday how immigration officials had acted aggressively when trying to deport herself and her mother, Farhad.
Ayesha is the niece of Pakistani national Rehan Syed, who is being investigated for posing as a bogus diplomat.
Syed was among the members of the public gallery who laughed as Judge van Zyl grilled immigration official Gideon Christians, who was in charge of the operation.
The mother and daughter were sitting in the airport boarding lounge, about to be deported to Karachi in Pakistan, on a flight via Johannesburg and Dubai, when their lawyers intervened with a written court order from the judge.
Ayesha and Farhad were arrested about 6am on Saturday at their Kloof Road house by immigration officials from the alien control unit, when it was found their temporary residence permits had expired.
The officials had obtained a search-and-enter warrant.
Van Zyl, however, granted an order, via telephone, to stop their removal and arrest on Saturday morning. This was ignored by Christians as he had been advised by an advocate at home affairs to only withdraw if he had a written order.
Christians, who faced a charge of contempt of court as a result of his actions, insisted on Monday that he was acting on instructions of his head office in Pretoria.
"I regard your ignoring of my telephonic court order as a serious contempt of court," Van Zyl told Christians. "Even if the order comes from the state president or the minister of home affairs, I can override it. This court is not bound by any instructions."
Van Zyl added: "Is this regarded as in order at home affairs? I am shocked that this happened in what I thought was the new South Africa. This sounds more like the old South Africa where people's privacy was invaded in the most appalling ways.
"You can't just hide behind instructions," he continued. "People had acted on instructions where there had been genocide. It is not always a defence."
Christians conceded that he did not feel right in attempting to deport the Danyals. "My opinion was that this was not the proper procedure to follow."
Van Zyl said it did not make sense to remove the mother and daughter while they were awaiting a decision from the Department of Home Affairs after Farhad had applied for exemption from the Aliens Control Act.
"Everybody in this country has the right to their freedom as guaranteed by the constitution - be he the biggest mafioso or criminal in the country," he said.
Van Zyl ruled that Christians should not be found guilty of contempt of court because the reasons he had given for his actions proved that he had not deliberately ignored the court order.
He further ordered that a temporary study permit be arranged for Ayesha. He assured her that she would be able to attend her matric dance on Friday.
Van Zyl said the Danyals would be granted leave to stay in South Africa until their residence dispute had been resolved and advised that the matter be reviewed.
Lesego Moloisane appeared for the Department of Home Affairs, instructed by Cape state attorney Luigi Gava. Anton Katz for the Danyals was instructed by Steve McLoughlin.