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[2018] ZAWCHC 103
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Kuhudzai and Another v Minister of Home Affairs (11034/16) [2018] ZAWCHC 103 (24 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
no: 11034/16
In
the matter between:
ALECK
TAPIWA
KUHUDZAI
First
Applicant
PAIDAMWOYO
MEMORY
MAKONI
Second
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
Respondent
JUDGMENT
DELIVERED ON 24 AUGUST 2018
SHER,
J:
1.
The applicants, who are husband and wife, seek to review and set
aside a decision by the Minister of Home Affairs which was taken
in
August 2016, whereby he refused their application to be granted
permanent residence (by way of an exemption from the prescribed
requirements) in terms of the provisions of s 31(2)(b) and (c) of the
Immigration Act.
[1]
2.
This was the second such application to the Minister which the first
applicant had brought. He first applied unsuccessfully during
2011,
and the application which is the subject of the current proceedings
was submitted to the Minister in March 2015. There were
lengthy
delays on the part of the Minister in rendering a decision in both of
the applications. In regard to the one which is the
subject of these
proceedings the Minister’s decision was only made after first
applicant launched an application to compel.
Background
3.
The applicants are Zimbabwean nationals. First applicant was the
first to arrive in 2004 together with his twin brother, after
they
were each awarded a ‘prestigious’ presidential
scholarship to study at the University of Fort Hare. First
applicant’s
brother enrolled for a degree in commerce, and
first applicant for a degree in law. Both worked hard and were
successful in their
studies. First applicant’s brother was
granted a permanent residence permit on 24 July 2015.
4.
First applicant was awarded the LLB degree in May 2008. If one has
regard for the transcript of his academic record it appears
that he
was an exceptional student, obtaining some 14 distinctions
during the course of his study.
5.
After graduating first applicant secured an internship at the South
African Human Rights Commission where he was employed until
2009 when
he joined PASOP (People Against Suffering Oppression and Poverty) an
NGO which deals with the rights of immigrants and
refugees, as an
advocacy officer. In November 2009 he was employed for a few months
by the Zimbabwean consulate in Johannesburg
on a ‘special
dispensation’ project for Zimbabwean immigrants, which sought
(in conjunction with SA authorities) to
regularize the status of
Zimbabweans whose entry or residence in SA was not in accordance with
legal requirements. He thereafter
secured articles with a firm of
attorneys in Cape Town, which he completed in 2013. Between 2012 and
2014 he successfully sat for
the attorneys’ admission
examinations, and completed the Practical Legal Training (‘PLT’)
Course. At the time
when he lodged the instant application with the
Minister he was employed by ARESTA (The Agency for Refugee Education,
Skills Training
& Advocacy) an NGO similarly engaged in the field
of refugee assistance, as a Refugee Rights Education and Advocacy
Programme
Manager. He said in his affidavit in support of his
application that although he had fully complied with the academic,
professional
and practical requirements for admission as an attorney,
as a matter of law he could only be admitted if he had obtained
citizenship
or permanent residence.
[2]
6.
As is evident not only from his employment with entities which deal
with asylum-seekers, refugees and migrants but also from
the number
of papers he has presented to governmental entities including the
Department and the Parliamentary Portfolio Committee
for Home
Affairs, which deal with draft legislation and issues pertaining to
such persons, first applicant is clearly passionate
about their
rights. It is also abundantly clear that he has developed
considerable expertise and specialized knowledge in such
areas of
law. As such, he said in his application to the Minister that upon
his admission as an attorney he would like to run a
law clinic for
refugees and asylum-seekers.
7.
Second applicant obtained a BA degree from the University of Zimbabwe
in 2005 and is qualified as a linguistics teacher. In 2011
she
obtained a Diploma in Humanitarian Aid and Project Management. She
married first applicant in Zimbabwe by customary rites on
20
September 2014. She entered the country on a temporary visitor’s
visa, which she subsequently requested be extended so
that she could
continue to remain with first applicant, but her application was
refused. At the time when she jointly made application
for permanent
residence with first applicant she was awaiting the outcome of an
appeal in respect of the extension she had requested.
The
Minister’s decision/non-decision
8.
The Director-General of the Department acknowledged receipt of the
application in respect of both applicants, which was lodged
in March
2015, by way of a letter dated 19 May 2015, in which he informed them
that it was under consideration. He said that inasmuch
as the
decision was one which could only be taken by the Minister ‘in
person’ it was a ‘lengthy procedure’.
9.
Some 8 months later a decision had not yet been arrived at, and
following further enquiry the Director-General informed the
applicants in a letter dated 8 January 2016 that the Department was
‘still busy to consider’ (sic) granting them permanent
residence.
10.
The Minister’s failure to attend to the matter for over a year
eventually prompted the applicants to make application
to this Court
on 23 June 2016 for an Order compelling him to make a decision. The
application was enrolled for hearing on 11 August
2016. The day
before it was due to be heard the Minister communicated his decision
to the applicants’ attorney by way of
a letter
[3]
which (with my emphasis in bold where indicated) reads as
follows:
“
APPLICATION
IN TERMS OF SECTION 31(2)(b) OF THE IMMIGRATION ACT, 2002 (ACT NO 13
OF 2002): REQUEST FOR EXEMPTION: MR ALEX TAPHIWA
KUHUDZAI
After
having considered all the information at my disposal, I have decided
not to grant your client the rights of permanent residence
through
exemption in terms of section 31(2)(b) of the immigration Act 13 of
2002. Section 31(2)(b) enables the Minister to grant
exemption to a
foreigner if good cause exists to justify such a decision. After
consultations between the Department of Home Affairs,
the Department
of Justice and Constitutional Development and the Law Society of
South Africa,
I already took a decision on 9 September 2014 that
exemption will not be granted to any foreigner for the purpose of
practising
as an attorney or advocate in South Africa,
which is a
requirement in the Attorneys Act and Advocates Act, respectively.
The
Department of Justice and Constitutional Development made it
explicitly clear that it did not intend to amend these 2 pieces
of
legislation and the Law Society of South Africa maintains that there
is an annual oversupply of law graduates without sufficient
employment opportunities for them in the labour market.
Section
22 of the Constitution of the Republic of South Africa accords the
right to choose a trade, occupation or profession freely
(sic), only
to a South African citizen. The practice of a trade, occupation or
profession may be regulated by law and this is precisely
what the
Attorneys Act and Advocates Act aim to do. My obligation as the
Minister of Home Affairs is first and foremost to consider
the right
of employment of South African citizens before extending this right
to a foreigner. Your client’s case is not unique.
When I took
the policy decision on 9 September 2014, there were 30 cases before
me of foreigners who studied law at South African
Universities and
who requested exemption in order to practice their profession as
lawyers. Since then many more came with the same
request and, as with
Mr Kuhudzai they were informed by the Department of my decision. I do
not think it is fair of Mr Kuhudzai
to compare his case to that of
his brother. Mr Alex Takura Kuhudzai opted to study a BCom degree in
Accounting, a field which does
have a demand for employees other than
South African citizens and permanent residents. After completion of
his studies, he applied
for and was granted a general work visa.
After 5 years continuous work visa status he formally applied for,
complied with all the
prescribed requirements, and was issued with a
permanent residence permit.
Your
client chose his field of study to be law, which is a field that has
no demand for employees other than South African citizens
and
permanent residents
.
The field of law he chose freely and with no guarantee whatsoever
that he would be granted the necessary residential status in
South
Africa to practice his profession. Having said this, I want to put it
on record that Mr Kuhudzai had (sic) not been prejudiced
from earning
an income to sustain his family. The Department had issued him with a
General Work Visa which is valid until 15 July
2019 to work as a
Refugee Right Educator with Arista and, provided that his future work
visa application complies with all the
prescribed requirements, the
visa is likely to be renewed when it expires.
Once
he has completed 5 years of work visa status in the country he may,
just like his brother, formally apply for a permanent residence
permit. Once he is a permanent resident of South Africa, he is free
to choose any profession he wishes to pursue.
I
trust that the matter had been dealt with satisfactorily and that you
and Mr Kuhudzai would now understand the reason why I’m
not
prepared to favourably consider the request for exemption.”
11.
The first thing which may be pointed out with reference to this
letter is that it clearly dealt only with the application which
was
made by the first applicant, and did not purport to communicate any
decision in respect of second applicant. Notwithstanding
this, the
applicants brought the instant application on the basis that the
Minister’s decision was in respect of both of
them, and
surprisingly, neither the Minister nor his legal representatives
picked up on this and did not take issue in respect
of the second
applicant, and the application was responded to as if it concerned a
joint decision in respect of both applicants.
The matter was also
argued by both counsel for the applicants as well as counsel for the
Minister, on this basis. The failure to
render a decision in respect
of second applicant has obvious implications for the relief which was
sought on her behalf. In my
view, inasmuch as no decision was made in
respect of her she is not entitled to an Order in the terms sought,
but given the delay
concerned she is entitled to alternative relief
in the form of an Order directing the Minister to consider her
application and
to render a decision in respect thereof within a
reasonable period.
12.
Secondly, it must be pointed out that the reference by the Minister
to first applicant’s brother, and his comparison of
their
circumstances, indicates that the Minister had regard for extraneous
considerations which were not contained in the application
which was
put before him by the applicants, but which must have been derived
from a consideration of the contents of the papers
which were filed
by first applicant in the application to compel. In the affidavit and
supporting documents which first applicant
submitted to the Minister
the only information he imparted in relation to his brother was that
he had also been awarded a ‘prestigious’
scholarship
by the Zimbabwean government to study at the University of Fort Hare.
The
grounds of review
13.
S 31(2)(b) provides that the Minister may, upon application, grant a
foreigner or a category of foreigners the right of permanent
residence for a specified or unspecified period, when special
circumstances exist justifying such a decision. The Minister may
also
exclude a foreigner or a group of ‘identified’ foreigners
from such dispensation and may, for good cause, withdraw
such
right(s) from a foreigner or a category of foreigners. S 31(2)(c)
provides that the Minister may for ‘good cause’
waive any
prescribed requirement or form, in respect of any such application by
a foreigner for the grant of permanent residence.
14.
The applicants sought to review the Minister’s decision on a
number of grounds. In the first place they contended that
the
decision had been arrived at because irrelevant considerations were
taken into account, or because relevant considerations
were not.
[4]
In addition, they contended that the decision was reviewable on the
basis that the Minister had not properly applied his mind to
the
circumstances outlined in their papers but had simply given effect to
a ‘blanket’ policy which was in force at
the time in
regard to the consideration of such applications,
[5]
and by doing so the Minister had failed to exercise the discretion
which was given to him in terms of the relevant provision in
the Act.
Finally, the applicants contended that the Minister’s decision
was reviewable
[6]
on the grounds
that it was not rationally connected to the purpose for which it was
taken
[7]
and was not rationally
connected to the information which was before him at the time.
[8]
15.
In response, it was contended that the Minister had arrived at his
decision after due and proper consideration of all the facts
and
circumstances which were before him, and not on the basis of a rigid
and blind application of the policy which had been formulated
in
September 2014 in respect of such applications by foreigners. As such
it was rationally connected both in relation to the information
which
was before the Minister, as well as in relation to the purpose for
which the power was exercised. Respondents pointed out
that the
applicants did not launch a direct, frontal challenge to the
lawfulness or constitutionality of the policy itself and
submitted
that as a result it had to be accepted as being lawful and valid.
Whilst it is indeed so that the applicants did not
seek an order
setting aside the policy or declaring it to be unconstitutional, this
does not mean that the application of the policy
by the Minister in
the circumstances of the matter could not be challenged, both on the
grounds that it was applied in such a way
as to elevate it to an
inflexible rule which did not allow for the Minister to exercise the
discretion which was afforded him in
terms of the statutory provision
concerned, or on the basis that its application led to a decision
which was not rationally connected,
either to the information which
was before the Minister at the time, or to the purpose for which the
discretion was to be exercised.
16.
Respondent’s counsel drew my attention to a number of
decisions
[9]
wherein both the
Constitutional Court as well as the Supreme Court of Appeal have held
that it is entirely permissible for a public
functionary to obtain
guidance from the terms of a policy which may have been adopted on an
issue which requires a decision, particularly
if the decision is a
complex one involving the balancing of a range of competing interests
or considerations, or which requires
specific expertise on the part
of the decision-maker.
[10]
In
Arun
Property Development
[11]
the Constitutional Court pointed out that the objects of setting a
policy are usually to arrive at reasonable and consistent
decision-making,
and to provide a guideline and a measure of
certainty to the public, by avoiding the need for a case-by-case,
fresh enquiry into
every similar request for the exercise of public
power.
17.
However, as much as there can be no doubt that the setting of a
policy on a complex issue involving difficult and competing
interests
serves a salutary purpose by providing some certainty and a kind of
presumptive default position in regard to how a future
decision which
needs to be taken might be approached, the cases I was referred to
make it equally clear that where such decision
requires the exercise
of a discretion the policy cannot serve to fetter it as if it is a
rule to be followed blindly or inflexibly
without exception
[12]
and the decision-maker is still required to conduct a proper and
balanced weighing-up of the position adopted by the policy or
the
answer offered by it to the question before him, in relation to the
other relevant factors he may be required to take into
account in the
context of the circumstances before him, in order to arrive at his
decision.
18.
Thus, in
Kemp
[13]
the Supreme Court of Appeal
[14]
pointed out that there can generally be no objection to an official
exercising a discretion in accordance with an existing policy
provided it is apparent that he has satisfied himself ‘independently’
that it is appropriate to the circumstances of
the particular case.
In that matter the Court upheld a decision which had been taken by
the Director of Animal Health, whereby
he had refused, in the
exercise of a statutory discretion which he had, to grant a permit
for the importation of a consignment
of sable antelope from Zimbabwe.
In arriving at his decision the Director had relied on an embargo on
the importation of cloven-hoofed
animals which had been put into
operation a year earlier by the Directorate after it had been warned
by the Zimbabwean authorities
of an outbreak of foot-and-mouth
disease. On a consideration of the circumstances in terms of which
the decision was taken the
SCA concluded
[15]
that although the embargo had been decisive for the Director’s
determination it could not be said that he considered himself
bound
to refuse the permit because of it, and his decision had not been
made without due and proper regard for the circumstances
surrounding
the application for the permit.
19.
In my view the opposite is true in this matter. It is patently
evident from the first paragraph of the Minister’s letter
that
he considered himself bound to the policy position which he arrived
at on 9 September 2014 ie that
no
exemption in terms of s
31(2)(b) and (c) would be granted to any foreigner seeking permanent
residence for the purpose of practising
as an attorney or advocate in
South Africa. That this decision was adopted as an inviolate rule to
be followed in all cases where
such foreigners made application for
permanent residence in terms of s 31(2)(b) is evident from the
Minister’s statement
that first applicant’s case was not
‘unique’ and he had not only refused to grant any
exemption to the 30 or
so cases which were pending before him at the
time when he took the “
policy decision
” but had
also refused to do so in respect of all those that came thereafter.
As he put it: “
Since then many more came with the same
request and as with Mr Kuhudzai they were informed by the Department
of my decision
” ie the 2014 policy decision.
20.
That the Minister failed to properly and ‘independently’
consider whether it was appropriate to apply the policy
position he
had adopted in light of the circumstances set out by first applicant
is further evident if one considers the remaining
contents of his
letter. Although he claimed to have arrived at his decision after
considering all the information at his disposal,
he went on to set
out the specific factors which motivated his decision. Other than
referring to first applicant’s having
chosen law as his ‘field
of study’ and working as a ‘Refugee Rights Educator’
in terms of a work visa,
and seeking to distinguish his circumstances
from those of his brother, the Minister made no reference to any of
first applicant’s
other personal and meritorous circumstances,
which were material and relevant to a consideration of his
application. In this regard
there was, for example, no indication
whatsoever that the Minister had any regard for the fact that
although first applicant had
only held his work visa
[16]
for about 2 years at that time, he had been residing lawfully in the
country since 2004 ie for some 14 years already (on the strength
of
study and work visas). Ordinarily, foreigners in the country on a
work visa are legally entitled
[17]
to apply for permanent residence after the expiry of a period of 5
years. The only reason why first applicant was apparently unable
to
do so was because he had not yet resided in the country on a single
work visa for a continuous period of 5 years. In the circumstances
it
is clear from the reasons which the Minister gave for rejecting the
application that he failed to apply his mind to the full
panoply of
facts and circumstances which had been put forward in the
application, and thereby failed to consider whether there
were
special circumstances present which justified the grant of permanent
residence rights to the first applicant, and whether
in consequence
thereof good cause existed to waive the prescribed requirements. By
doing so he failed to properly exercise the
discretion which was
conferred upon him by the Act, and his decision falls to be set
aside.
[18]
21.
Similarly, the Minister made no attempt to deal with the anomaly that
notwithstanding that the avowed purpose of his policy
position was to
protect the employment rights and opportunities of South African
citizens who were desirous of working in the legal
profession, an
area which according to him was overstocked with law graduates, his
department had nonetheless seen fit to grant
first applicant, upon
completion of his studies (a) work visa(s) which allowed him to
render legal advice and services to refugees
and asylum-seekers, for
a number of years. This aspect perhaps is more closely related to the
other principal ground on which the
Minister’s decision was
challenged viz that it was irrational (in that it was not ‘rationally
connected’ in the
respects set out above) and was thus
reviewable in terms of s 6 of PAJA.
22.
In the penultimate paragraph of his letter the Minister said that
once first applicant has completed “
five years of work visa
status in the country he may, just like his brother, formally apply
for a permanent residence permit”
and once he was a
permanent resident he was “
free to choose any profession he
wished to pursue
”.
23.
In the answering affidavit which he filed on behalf of the Minister
the Director-General went further and confirmed that based
on the
facts which were before the Court it was “
likely
”
[19]
that when first applicant’s current work visa expires in July
2019 he will qualify for permanent residence and will then
be “
free
to exercise his chosen profession
”.
[20]
24.
It is thus abundantly clear from the passages referred to that as far
as the Minister is concerned, once first applicant has
completed a
period of 5 years of continuous temporary residence on a work visa
basis in July 2019, he will be eligible to apply
for permanent
residence, without restriction in regard to his desire to work in the
legal profession, and according to the Director-General
in all
probability it will be granted to him on this basis, at which point
he will clearly be eligible to apply to be admitted
as an attorney
and to practice freely in the area of refugee and immigration law.
25.
One would have thought that in order to give effect to his declared
intention to protect local members of the legal profession
from
encroachment on their work opportunities by foreigners who have
studied and qualified in this country, the Minister would
not only
have taken a policy decision that such foreigners would not be able
to obtain permanent residence via the ‘short
route’ (ie
by obtaining exemption from having to wait for the prescribed period
of 5 years ‘continuous’ temporary
(work) visa status to
be over before they could be eligible to apply), but that in addition
there would be a further restriction
in place in regard to them being
eligible to apply for permanent residence thereafter. The object
which the policy seeks to achieve
after all, is supposedly to protect
the legal profession from competition by foreigners. One can hardly
say that one is trying
to restrict foreigners from competing with
locals in regard to a specific profession or trade if the restriction
you impose only
pertains to them acquiring permanent residence
quicker than would normally be the case, but once they have waited
out the prescribed
time period they are not restricted and are just
as free as any citizen or permanent resident to practice in such
profession and
to compete with locals. In this sense the decision
which was arrived at by the Minister was not rationally connected,
both in regard
to the purpose for which the discretion which he had
in terms of s 31(2)(b) was to be exercised, as well as in regard to
the information
which was before him in relation to first applicant’s
circumstances. Put simply, it was irrational to hold that first
applicant’s
application for permanent residence should be
refused in order to protect local lawyers from his competing with
them, if in a period
of a little less than 3 years after the decision
was taken he would be perfectly free to do so without restriction. It
seems to
be little more than an arbitrary decision which unfairly
restricts first applicant temporarily from being able to earn a
livelihood
in a profession which he has been working in for a number
of years already, for which he clearly has both the passion and the
necessary
aptitude.
26.
In my view therefore the decision to refuse first applicant’s
exemption application was not rationally connected to the
purpose for
which the power was to be exercised and to the information which was
before the Minister at the time, and falls to
be reviewed and set
aside.
The
appropriate remedy
27.
The applicants submitted that in the event the Court found in their
favour it should exercise its discretion
[21]
to substitute the Minister’s decision with one of its own, by
granting first applicant permanent residence, by way of exemption,
in
terms of 31(2). They contended that in the event that the matter was
to be remitted to the Minister for reconsideration it would
effectively be the third time he would be asked to apply his mind to
principally the self-same facts, at least insofar as the first
applicant was concerned, and this would be unfair and prejudicial to
the parties, given the lengthy delay involved in the process
which
the first applicant has engaged in since the time of his first
unsuccessful application in 2011. The applicants submitted
that
little purpose would be served in remitting the matter to the
Minister as his 2014 policy decision was still in place and
the
outcome of any remittal would therefore be a foregone conclusion.
28.
In
terms of PAJA
[22]
the Court has a discretion to substitute a decision only in
exceptional cases. In
Gauteng
Gambling Board
[23]
the
Supreme Court of Appeal held that an exceptional case is one where,
upon a proper consideration of all the relevant facts a
court is
persuaded not only that the outcome is a foregone conclusion, but
that it is in as good a position as the designated functionary
to
make the decision and the discretion to exercise the power should not
be left to the functionary. The Constitutional Court has
subsequently
warned that substitution is an ‘extraordinary remedy’
[24]
and remittal is still ‘almost always the prudent and proper
course’.
[25]
And where
the decision involves the exercise of specialized skills or expertise
or involves competing policy choices a court is
also required to show
judicial deference
[26]
lest it
should make itself guilty of overreach. In addition, although delay
is an important factor that must be weighed in the
balance, sight
must not be lost of the fact that the time spent awaiting
adjudication in the litigation process itself may be a
large
component thereof.
[27]
29.
In my view given the important policy considerations involved this is
not a matter where the court should venture its own decision,
and it
is not in as good a position as the designated functionary is to
consider the merits of the application. This is also not
a matter
where the outcome is necessarily a foregone conclusion, one way or
the other. Although the 2014 policy still appears to
be extant, it
cannot be said that the Minister may not be prepared to reconsider
the first applicant’s application afresh
without being shackled
by the policy, given the remarks which the court has made in this
judgment, and in light of the facts of
this matter. It may well be
that on proper reflection the Minister may recognize the anomaly and
unfairness in refusing first applicant’s
exemption application
at a time when he will only be a year or so away from being able to
obtain permanent residence in any event,
in the ordinary course, once
his work visa expires. Furthermore, given that the Minister still has
to arrive at a decision in respect
of the second applicant it is not
desirous that the applications should be dealt with separately on a
piecemeal basis, by two different
entities. In my view the proper
course is for the matter to be remitted insofar as the first
applicant is concerned, and the Minister
should be directed to
consider the application by both applicants jointly, and to make his
decision known in regard to both of
them, at one and the same time.
30.
During argument I was informed that as the applicants were
impecunious their legal representatives had generously offered to
act
for them on a
pro
bono
basis. This is admirable, and is to be commended at a time when the
legal profession is often criticized by members of the public
of only
having its own interests at heart. It was apparent to the Court that
both the applicants’ attorneys as well as their
counsel, in
particular, had put in many hours of work both in regard to the
drafting of the papers as well as in regard to the
drafting of heads
of argument and preparation for the hearing. In my view, given that
as a result of such efforts the applicants
managed to achieve
substantial success in regard to the principal relief which they
sought, it would be an injustice not to order
that the respondent
should be liable for the reasonable costs of such efforts, as taxed
or agreed, and by making such an Order
the respondent will be no
worse off than would have been the situation otherwise. In further
submissions which were received from
the applicants’ counsel I
was referred to a number of matters
[28]
in which the Courts were prepared to make such an Order. In my view,
the effect of such an Order would not be to encourage impecunious
persons to litigate recklessly, spuriously or vexatiously.
[29]
It still remains within the discretion of every Court to decide in
each matter whether costs should be awarded, and if so, to whom
and
in what measure.
31.
In the result the application must succeed. For the sake of
completeness I point out that the terms of the Order which follows
hereunder, in respect of the first applicant, is modelled on that
made in
Littlewood
.
[30]
32.
I make the following Order:
32.1
The decision by the Minister of Home Affairs dated 10 August 2016,
refusing the first applicant’s application (in terms
of
s
32(1)(b)
and (c) of the
Immigration Act 13 of 2002
) for the grant of
permanent residence by way of an exemption from the prescribed
requirements, is set aside and such application,
supplemented by such
additional or further information as may be required for a proper
determination thereof, is remitted to the
Minister for
reconsideration within a period of 60 (calendar) days from date of
this Order.
32.2
The Minister is directed to consider the application by the second
applicant for the grant of permanent residence by way of
an exemption
from the prescribed requirements (in terms of
s 32(1)(b)
and (c) of
the
Immigration Act 13 of 2002
), supplemented by such additional or
further information as may be required for a proper determination
thereof, and to render his
decision in respect thereof within a
period of 60 (calendar) days from date of this Order, together with
his decision in terms
of the preceding paragraph.
32.3
The respondent shall be liable for the applicants’ costs of
suit, as taxed or agreed.
SHER
J
Attendances:
Heard:
26 June 2018
Further
submissions: 27 July 2018
Appellants’
counsel: S Khoza
Appellants’
attorneys: DA Barnes & Associates
Respondents’
counsel: M Adhikari
Respondents’
attorneys: State Attorney (Cape Town)
[1]
No.
13 of 2002.
[2]
In
terms of s
15(1)(a) of the Attorneys’ Act 53 of 1979.
S 24
of the
Legal
Practice Act 28 of 2014
similarly provides that a duly qualified
person may only practise as a legal practitioner if he/she is a
South African citizen
or a permanent resident in the Republic.
[3]
Dated 10 August 2016.
[4]
This would constitute a ground of review in terms of s 6(2)(e) of
the Promotion of Justice Act 3 of 2000 (‘PAJA’).
[5]
Paras
[15](e) and [27] of the founding affidavit.
[6]
In terms of s 6(2)(f) of PAJA.
[7]
S
6(2)(f)(ii)(aa)- see para [15] of the founding affidavit.
[8]
This
would constitute a ground of review in terms of s
6(2)(f)(ii)(cc) of PAJA. As the applicants put it, the decision was
not rational ‘when seen within the factual matrix’
in
which it was made (
vide
para
[23] of the founding affidavit).
[9]
MEC
for Education in Gauteng Province and Ors v Governing Body of the
Rivonia Primary School & Ors
2013
(6) SA 582
(CC);
Arun
Property Development (Pty) Ltd v Cape Town City
2015
(2) SA 584
(CC);
Kemp
NO v Van Wyk
2005
(6) SA 519
(SCA);
MEC
for Agriculture, Conservation, Environment and Land Affairs, Gauteng
v Sasol Oil and Ano
2006
(5) SA 483 (SCA).
[10]
Sasol
n
9 at para [19].
[11]
Note 9 at para [47].
[12]
Kemp
& Ors v Van Wyk
n 9 at paras [1] and [10];
Sasol
n
9 at para [19].
[13]
Id.
[14]
Per Nugent JA.
[15]
At para [11].
[16]
W
hich
is valid until 15 July 2019.
[17]
In terms of s 26(a) of the Act.
[18]
See
Littlewood &
Ors v Minister of Home Affairs and Another
[2005] ZASCA 10
(22 March 2005) at paras [16]-[17];
Tima &
Ors v Minister of Home Affairs
[2015] ZAGPPHC 763 (9 July 2015) at paras [20]-[23].
[19]
B
arring
any new facts which might emerge.
[20]
Paras [41] – [42] of the answering affidavit.
[21]
In terms of s 8(1)(c)(ii)(aa) of PAJA.
[22]
Id.
[23]
Gauteng
Gambling Board
v
Silverstar Development Ltd & Ors
2005 (4) SA 67 (SCA).
[24]
Trencon
Construction v Industrial Development Corporation
2015 (5) SA 245
(CC) at para [42].
[25]
Id.
[26]
Id
paras
[43]-[46].
[27]
Id
paras
[52]-[53].
[28]
See
inter
alia Minister of Justice & Constitutional Development & Ors
v Southern African Litigation Centre & Ors
2016 (3) SA 317
(SCA);
Zeman
v Quickelberge & Ano
(2011) 32 ILJ 453 (LC);
Thusi
v Min of Home Affairs
2011 (2) SA 561 (KZP).
[29]
A
s
was pointed out in
Zeman
n 28 at para [108], although a
pro
bono
litigant may not always be awarded costs in the event of success,
he/she will invariably always be potentially at risk of having
costs
awarded against him/her in the event of failure.
[30]
Note 18 at para [17].