Khalid Rashid's detention and deportation ruled Unlawful, after much deliberation.

By Tahir Sema

Khalid Mahmood Rashid’s detention and deportation has been ruled in court as unlawful, by the Supreme Court of Appeal (SCA) in Bloemfontein. The ruling has been welcomed by Rashid’s legal team in South Africa. Although Rashid’s advocate, Zehir Omar after welcoming the ruling, still had a few grievances, stating that it is however unfortunate that the court had failed to advance jurisprudence on the matter as a crime against humanity.

The Rashid case shrouded in mystery is undoubtedly the most astounding of stories in recent times, that which perplexed South Africans at large and the human rights fraternity.

The story received a tremendous amount of interest and coverage from the local media, because of the nature of the still unexplained reasons for Rashid’s detention and deportation. The Rashid matter above all, caused an outcry over the alleged violation of his human rights.

Rashid was deported from South Africa to Pakistan in 2005. He was detained at the Cullinan police station from November 1, 2005 and was then deported to Pakistan on November 6. The SCA after much deliberation decided in court, that the detention at the Cullinan police station and the subsequent deportation from this facility was unlawful.

Rashid was arrested in the middle of the night at his home in KwaZulu-Natal by armed men and later deported from the country from Waterkloof air base. He has since disappeared in Pakistan, amid charges of participation in international terrorism.

Businessman Ismail Ebrahim Jeebhai, who began court procedures on Rashid's behalf, brought an application against the Minister of Home Affairs in the High Court in Pretoria, failing which, he then appealed to the SCA on the issue of Rashid’s disappearance. The high court had held in February 2007 that Rashid's arrest, detention and deportation had been carried out lawfully, which prompted Jeehbhai to approach the SCA.

The SCA judgment however stated that Rashid's arrest on October 31, 2005 at a home at Estcourt in KwaZulu-Natal, where he was staying was lawful because evidence showed he was an illegal foreigner. The Estcourt arrest was carried out at the home of Jeebhai's brother, Mohamed Ali.

Jeebhai, Omar and Yasmin Naidoo revealed that leading members of the then executive, including the Minister of Safety and Security and the Minister of Intelligence were involved in giving instructions to subordinates to seize Rashid and to send him back to Kenya and later Pakistan.

Advocate Omar said “What is interesting is that these revelations and this judgment is proof of the interference by the executive into the affairs of the judiciary. It is further confirmation that Jacob Zuma too is the victim of interference by the executive which resulted in his persecution spanning a period of several years.”

In 2006 Government spokesperson Joel Netshitenzhe was convinced that Omar, seemed bent on portraying the government as breaking its own laws and constitutional provisions.

Netshitenzhe told reporters at a briefing on the cabinet's twice-monthly meeting that Omar was using "unethical" means to suggest the Government was involved in "such heinous acts as rendition," stating explicitly that "the South African Government would never do those kinds of things."

The SCA said the facts before the court revealed that Rashid had entered the country a few months earlier and had fraudulently obtained documents authorizing his stay in the country.

Omar protested, saying “despite Rashid being illegally in the country, his removal was still unlawful. Whether he is in the country illegally or not, that is an issue for debate. In terms of section 2 of the Refugee Act, a person may very well be an illegal immigrant in the country, but it is illegal for our Government to send him back if he faces persecution in the country he comes from because of his political or religious beliefs”.

The court maintained that as an illegal foreigner he was therefore liable to arrest. However what seemed to have been the deciding factor for the SCA’s decision to rule that the detention and deportation of Rashid was unlawful, was the fact that the SCA held that the Immigration Act required that a warrant be issued, by an immigration officer for the detention of an illegal foreigner and also for his removal from that place of detention. Neither Rashid’s detention nor his removal from detention for deportation was backed by a warrant.

In what seemed like a bitter sweet victory for the legal team representing Rashid, the Supreme Court rejected two further arguments by the team’s legal representatives. The first was that Rashid's deportation was a disguised extradition and the second, that his deportation was a crime against humanity.

Omar described the courts rejection of these arguments as “unfortunate. The Supreme Court of Appeal did not interpret and apply the concept of enforced disappearance, if the court acted now, in support of the Rashid case being a crime against humanity; it would have undeniably served as a deterrent in South Africa, for crimes against humanity.”

Concluding the long drawn court proceedings, the judgment also ordered the minister of home affairs to pay the costs incurred by Jeebhai and his attorneys during high court and SCA proceedings.