By Wesley Wood, Partner in the International Transport, Trade & Energy department
Shepstone & Wylie recently acted for a shipowner (“the Owners”) on instructions from its P&I Club, in an application to have trespassers, incorrectly classified by the South African immigration officials as “stowaways”, removed from a vessel to which they had allegedly gained access in Durban and for a declaratory order that the Owners of the vessel were not responsible for the costs of repatriating them to their home country.
The vessel, which had called at Durban in December 2015, was undergoing repairs in late January 2016, when a port security officer allegedly saw three Tanzanian nationals (“the trespassers”) on the gangway attempting to disembark from the vessel. The trespassers were subsequently detained, questioned and returned to the vessel by immigration officials.
Despite all evidence, and the accounts of the trespassers themselves, clearly demonstrating that the trespassers could not possibly have gained access to the vessel prior to the vessel entering the Republic of South Africa (“the Republic”), immigration officials purported to categorise and treat the trespassers as “stowaways” and sought to rely on the provisions of Immigration Directive No. 9 of 2012 (“the Directive”) as well as the Merchant Shipping Act 57 of 1951 (“the MSA”), to hold the Owners of the vessel responsible for the costs of repatriating the trespassers to Tanzania and ordering the Master of the vessel to keep the “stowaways” on board the vessel until their repatriation or until the vessel sailed from the Republic with the “stowaways” on board.
Notwithstanding the fact that the Directive is a document intended for “official internal use only” and therefore has no legal application to third parties, the immigration officials purported to rely on the document and the definition of “stowaway” contained therein for issuing the direction to the Master of the vessel. The Directive states: “A stowaway is a person who without permission, unlawfully boards a vessel at port of entry with the intention of travelling to a destination within or outside the Republic“. The Directive provides further that “A stowaway refused admission shall remain the sole responsibility of and in the custody of owner or person in charge of the ship. The stowaway shall remain detained in the ship that brought him or her to a port of entry until repatriated to a destination outside of the Republic. Alternatively, the ship shall depart with such a stowaway to a destination outside the Republic.”
We understand that trespassers have, in the past, incorrectly been regarded as stowaways by reliance being placed on the Directive, and that shipowners/P&I Clubs have borne the costs of repatriating such individuals.
On the undisputed facts, it was clear that the trespassers were not conveyed to a port of entry on board the vessel and only gained access to the vessel, if at all, whilst the vessel was in Durban and so, the immigration officials’ reliance on this document was in any event, misplaced.
The Owners and Master launched an urgent application for interim relief, inter alia, directing the Minister of Home Affairs (“the Respondent”) to accept a P&I Club Letter of Undertaking (“LOU”) as security for the reasonable costs of the trespassers’ repatriation pending the final determination of the application and to remove the trespassers from the vessel so that the vessel could sail from Durban unhindered. With the interim relief granted and the LOU provided to the Respondent, the trespassers were removed from the vessel by the immigration authorities and the vessel sailed from South Africa without further hindrance after the repairs were completed. This case is precedent for the proposition that governmental departments are now obliged to accept Club LOU’s.
The return date of the rule nisi was extended until the hearing of the opposed motion on 09 December 2016, on which date, the Court, after hearing brief argument from the parties’ respective Counsel, found that the Respondent did not have any powers in terms of the MSA to direct the Owners or the Master to repatriate the trespassers or bear the costs thereof. Presumably, because the Directive was intended for official use only, the Court did not require Counsel to address it on the applicability of the Directive during argument and instead focused on the provisions of the MSA. The interim order was accordingly confirmed and the Respondent, against whom an order for costs was made, was also directed to return the LOU to Shepstone & Wylie’s offices for cancellation.
Given that the final order was made ex tempore, there is unfortunately no written judgment to which one can refer, however, in a matter with similar facts, where evidence leads to the indisputable conclusion that an individual was not conveyed into the Republic on board a vessel, then a shipowner directed by the immigration authorities to repatriate such individual should, by making application to a competent court, if necessary, be able to obtain similar relief as the Owners and Master did in this case.
The Legal Position of “Stowaways” in South Africa
Immigration (and particularly unlawful immigration) is a fairly complex area of law. Of particular relevance is the Immigration Act No. 13 of 2002 (“the Immigration Act”) which deals with deportation and detention of “illegal foreigners”. The Immigration Act does not define a “stowaway” but defines an “illegal foreigner” as “a foreigner who is in the Republic in contravention of this Act“.
Section 34(8) of the Immigration Act provides that the master of the ship on which an “illegal foreigner” arrived shall upon a declaration being made to the master by the immigration officer that the person in question is an illegal foreigner, be detained by the master on board the vessel. This Section imposes an obligation on the master to remove the individual from the Republic.
Section 35(10) of the Immigration Act renders any person in charge of a conveyance, the definition of which includes, inter alia, a ship: “Responsible for the detention and removal of the person conveyed if such a person is refused admission in the prescribed manner, as well as for any costs related to such detention and removal incurred by the Department“.
In the present matter, the trespassers were not brought into the Republic on board the vessel. In the circumstances, Section 34(8) of the Immigration Act could not apply because the vessel was not “the ship on which such foreigner arrived”. Similarly, Section 35(10) was also inapplicable because there is only an obligation on a person in charge of a vessel to detain and remove a person “conveyed”, and refused admission, to the Republic and these trespassers were clearly not conveyed to the Republic by the vessel.
Section 317 of the MSA provides that a “stowaway” is to be considered any person going to sea in a ship without the consent of the owner, master, a ship’s officer or some other person entitled to give that consent or secreting himself for the purposes of going to sea without that consent. The section does not impose any obligation on the master or owner of a vessel in respect of any stowaway found on board a vessel, save that, at the very extreme, a stowaway is to be “deemed to belong to the ship” and imposes upon such a stowaway the obligation to preserve discipline as if he were a member of the crew.
It seems that the immigration officials in the present matter conflated the definition of “stowaway” for the purposes of the MSA with “illegal foreigner” as defined and referred to in the Immigration Act and also misinterpreted the powers conferred on them by the relevant legislation.
For more information on the above contact
Wesley Wood, Partner, International Transport, Trade & Energy department
+27 79 503 6133