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2023
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[2023] ZAECQBHC 51
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Emenaha v Minister of Home Affairs and Another (2996/2022) [2023] ZAECQBHC 51 (15 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA
C
ASE
NO.: 2996/2022
In
the matter between:
CHIKA
PAULINUS EMENAHA
Applicant
and
MINISTER
OF HOME AFFAIRS
First
Respondent
DIRECTOR-GENERAL
OF HOME AFFAIRS
Second
Respondent
JUDGMENT
NONCEMBU
J
[1]
This is an application wherein the applicant seeks a mandamus
directing the first respondent to consider
and decide upon her
internal review application which was submitted on 24 August 2021.
[2]
The facts of the matter are common cause. The applicant came to
South Africa in 2000 seeking asylum.
In pursuance thereof he
applied for refugee status in terms of the
Refugees Act 130 of 1998
at the Refugee Reception office in Gqeberha.
[3]
Pending finalisation of his application he was granted an asylum.
Seeker temporary perming.
The temporary permit was extended
from the time by the Refugee Reception officer.
[4]
On 9 January 2007, he got married to one Ayanda Dapu, a South African
citizen from which union three
minor children were born.
[5]
During 2007 and as a result of his marriage to the said Ayanda, he
applied for a visitor’s Visa
(Visa) in terms of the Immigration
Act 13 of 2002 (the
Immigration Act).
[6
]
The application was successful, and he was issued with a Visa,
consequent upon his application.
[7]
At a later stage he applied for an extension of his Visa with VFS
offices in Johannesburg whilst he
was temporarily residing there.
[1]
[8]
On 04 May 2021, he received a letter stating that his application for
an extension was unsuccessful.
[9]
The reason advanced for its rejection was that he had tempered with
the Visa. No further particularity
or specificity was provided in
relation to the allegation of tempering.
[10]
The letter further advised the applicant that he could within ten
working days of receipt of the letter make
written
representations to the second respondent to review the decision
by submitting an appeal through the VFS online
portal at
www.vfsglobal.com/dha/South
Africa.
[11]
The applicant only attempted to access the online portal on 4 June
2021, 23 working days after receipt of
the rejection letter.
The online portal was inaccessible by that time, and he could thus
not lodge the internal review.
[12]
On 24 August 2021, with the assistance of his current attorneys of
record, the applicant made written representations
to the first
respondent. The reasons advanced for failure to make the review
within 10 working days was due to having been
in contact with a
friend who had tested positive for Covid. He could only make
the review at an internet shop where he would
be assisted, but due to
being in quarantine he could not make it there in time. After
10 days the online functionality had
lapsed, and he could thus not
access it.
[13]
The review application was served by the sheriff on 2 September 2021
to one Mrs Kabini who is a legal clerk at
the first respondent’s
office. Up to now he has not received any acknowledgment or
response from the first respondent,
hence, he lodged the current
application.
[14]
The respondents are opposing the application on the basis that the
applicant has failed to exhaust the internal
review process as
provided for in terms of the
Immigration Act. They
contended that the
application is premature.
[15]
In support of the above contention, they place reliance on the
provisions of Promotion of Administrative Justice
Act, 3 of 2000
(PAJA (Section 7(2), which provides that no court or tribunal shall
review all administrative action in terms of
this Act unless any
internal remedy provided for in any other law has first been
exhausted.
[16]
To that end the respondents referred to a string of cases pertaining
to review in terms of PAJA and failure to
exhaust internal remedies.
[17]
This reliance however, is misplaced. The applicant’s case
is not one for a review of the respondents’
decision or such
failure to decide, nor is it in terms of PAJA. The applicant is
seeking a declarator that the first respondent
considers his
internal-review application. Put differently, he is seeking to
enforce consideration of his review application
in an effort to
exhaust his internal remedies.
THE
LEGISLATIVE FRAMEWORK
[18]
Section 8(3)
of the
Immigration Act provides
that any decision in
terms of this Act other than the decision contemplated in subsection
(1) that materially and adversely affects
the rights of any person,
shall be communicated to that person in the prescribed manner and
shall be accompanied by the reasons
for that decision.
[19]
In addition to the above, section 8 (4) provides that an applicant
aggrieved by the decision contemplated in subsection
(3) may, within
10 working days from receipt of the notification contemplated in
subsection (3), make an application in the prescribed
manner to the
Director-General for the review or appeal of that decision.
[20]
Section 8(5) provides that the Director-General shall consider the
application contemplated in subsection (4),
where after he or she
shall either confirm, reverse or modify that decision.
[21]
Section 8(6) states that an applicant aggrieved by a decision of the
Director-General contemplated in subsection
(5) may within 10 working
days of receipt of that decision make an application in the
prescribed manner to the Minister for the
review or appeal of that
decision. Lastly, section 8 (7) provides that the Minister
shall consider the application contemplated
in subsection (6)
whereafter he or she shall either confirm, reverse or modify that
decision.
[22]
Notably, the section makes no provision for a time frame within which
the Minister has to adjudicate an application
contemplated in
subsection (6). However, it has been accepted in a
number of court decisions that in cases of
this nature, where no
time-limit is stated on the statute, a reasonable period is the
standard for consideration.
[23]
What constitutes a reasonable period will depend on the circumstances
and facts of each case. In the present matter,
at the time that the
application was lodged, over a year had lapsed since the lodging of
the internal review with the first respondent.
Surely it can be
accepted that a reasonable period had come and gone for the first
respondent to consider and decide upon the applicant’s
review,
even if that entailed a referral back to the second respondent, which
was the alternative relief sought in the review.
The first respondent
failed to make a decision on the applicant’s review.
[24]
Discernible from the aforementioned legal framework, the issue for
determination in this matter is two-fold. Firstly,
whether or not the
applicant’s failure to first lodge a review with the
Director-General as contemplated in subsection (4)
renders his review
to the Minister (first respondent) premature, and if so, whether that
entitles the Minister to not consider
the applicant’s internal
review.
[25]
Secondly, whether or not the first respondent is obliged to consider
and decide upon the applicant’s internal
review application
against the second respondent’s functionaries as contemplated
in subsection (6).
[26]
In answering this question, the applicant sought reliance in a
decision from this Division where Pakade J stated
the following:
“
[9]
The finding in the judgment is that the Director-General is the
administrative head of the department
and everybody below him is his
assistant in the running of the administration of the department.
He is quite distinct from
the Minister who is the political head of
the department. The court reasoned that an internal appeal
against the decision
of the administrative personnel cannot go to the
Director-General as that is deemed to be his decision. The
court opined-that
could never have been the intention of the
legislature in enacting Section 8 (4) of the Immigration Act, 13 of
2002. The
subsection is therefore, in the view of the court, in
breach of the rules of natural justice especially the one which
precludes
a man from being a judge in his own cause. The
legislature could never have intended to concentrate the powers of
administration
to one person. That is an absurdity so glaring
which could never have been contemplated by the legislature. In
light,
of the aforegoing, I find it difficult to buy the idea that
another court may find differently in this matter……”
[27]
The above was confirmed by the full bench on appeal.
[28]
From the above authorities, it is clear that the first respondent is
the appropriate person who is obliged to deal
with the internal
appeal.
[29]
Furthermore, in the internal appeal lodged with the first
respondent,
[2]
the alternative
relief sought by the applicant is the remission of the matter to the
Director-General for consideration coupled
with a condonation for
failure to lodge the review within 10 working days.
[30]
In the circumstances, I find it hard to understand the respondent’s
vigorous opposition to the application
in what can be termed, in
Pickering J’s words, as being “baseless” “entirely
unnecessary” and “cynical
in the extreme”.
[31]
The second respondent acknowledges that after 10 days the online
functionality which was to allow the applicant
to make his internal
review was disabled and as such, he could not access it. At no
point did the respondents suggest the
withdrawal of the application
and that they would reinstate the online functionality so that it can
accept the applicant’s
internal review, which evidently was an
alternative prayer in the applicant’s amended notice of motion.
[32]
As a further display of the respondent’s callous attitude in
opposing the matter, it is only the second respondent
who deposed to
and filed an answering affidavit, this notwithstanding that no relief
was sought against the second respondent.
[33]
Whilst the deponent professes to have access to documents pertaining
to the applicant in this matter and thus personal
knowledge of the
matter, nowhere in the affidavit does he say that he deposes to same
also on behalf of the first respondent.
There is simply no
response from the first respondent whatsoever. In essence therefore,
there is no opposition from the first respondent
in this matter.
[34]
A further concern that is worth noting, is that the second
respondent, in his affidavit, does not even address
the unmotivated,
unreasoned rejection of the applicant’s Visa application which
the applicant raises.
[35]
Furthermore, and significantly, as mentioned earlier in this
judgment, the main opposition mounted by the respondents
is based on
a misconception that the application is one of judicial review.
As demonstrated above, that is a baseless
misconception
which cannot be sustained on the papers.
[36]
In the result the following order shall issue;
(a)
The first respondent is directed to consider and decide upon the
applicant’s internal review
application within 30 days from
date of service of this order.
(b)
The first respondent is ordered to pay the costs of the application.
V
P NONCEMBU
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the applicant
:
A
M Maseti
Instructed
by
:
Maci Incorporated
Gqeberha
Counsel
for the respondents
:
L Hesselman
Instructed
by
:
The office of the State Attorney
Gqeberha
Date
of hearing
: 31
August 2023
Date
judgment delivered
:15
September 2023
[1]
VFS is the agent of the Department of Home Affairs responsible for
providing Visa facilitation service to manage Visa and permit
applications at various centres in South Africa.
[2]
Annexure
“CPE010”
to the founding affidavit.