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[2012] ZASCA 174
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Buthelezi and Another v Minister of Home Affairs and Others (242/12) [2012] ZASCA 174; 2013 (3) SA 325 (SCA) (29 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 242/12
Not Reportable
In the matter between:
PRINCE MANGOSUTHU GATSHA
BUTHELEZI
............................................................................
First
Appellant
MOSIUOA LEKOTA
...........................................................
Second
Appellant
and
MINISTER OF HOME AFFAIRS
.....................................
First Respondent
DIRECTOR-GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS
.........................
Second
Respondent
MINISTER OF INTERNATIONAL
RELATIONS AND COOPERATION
..............................
Third
Respondent
DIRECTOR-GENERAL OF THE
DEPARTMENT OF INTERNATIONAL
RELATIONS AND COOPERATION
............................
Fourth
Respondent
Neutral citation:
Buthelezi & another v Minister of Home Affairs & others
(242/12)
[2012] ZASCA 174
(29 November 2012)
Coram:
NUGENT, HEHER,
TSHIQI and WALLIS JJA and MBHA AJA
Heard:
12 NOVEMBER 2012
Delivered: 29 NOVEMBER 2012
Summary:
Immigration Act 13 of
2002
– visas – whether Minister obliged to grant –
whether unreasonable delay in this case.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from Western Cape High
Court, Cape Town (Baartman Madam J sitting as court of first
instance).
The appeal is upheld with costs
that include the costs of two counsel. The order of the court below
is set aside and substituted
with the following:
It is declared that the First
Respondent unreasonably delayed her decision whether to grant or
withhold the visas relevant to
this case and in so doing acted
unlawfully.
The respondents are to pay the
costs of the applicants, including the costs of two counsel.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (HEHER, TSHIQI and
WALLIS JJA and MBHA AJ CONCURRING)
[1] The 14
th
Dalai
Lama – spiritual leader of the Gelug school of Tibetan
Buddhism, former leader of the government-in-exile of the people
of
Tibet after its annexation by the People’s Republic of China,
and an iconic proponent of world peace – has on two
occasions
in recent times been invited to visit this country. On both occasions
the visit had to be cancelled because visas for
him and members of
his entourage were not timeously forthcoming. This appeal relates to
the second occasion on which that occurred.
On that occasion he had
been invited by the Gandhi Development Trust, various other
institutions, and Nobel Laureate Archbishop
Tutu. The visit was to be
from 7 to 13 October 2011. By 4 October 2011 there had been no
response to applications that had been
made for visas and the
proposed visit was cancelled.
[2] The appellants are both
Members of the House of Assembly. They allege that the visa
applications were dealt with unlawfully.
They wish once again to
invite the Dalai Lama to visit this country but say that he cannot be
expected to accept without being
assured that what had occurred
before had been unlawful and should not be expected to recur. To that
end they applied to the Western
Cape High Court for various forms of
declaratory relief. The respondents were the Minister of Home
Affairs, the Minister of International
Relations and Cooperation, and
the Directors-General of those departments. The application was
refused by Baartman and Davis JJ
and the appellants now appeal with
the leave of that court.
[3] Courts will generally decline
to entertain litigation in which there is no live or existing
controversy. That is principally
for the benefit of the court so as
to avoid it being called to pronounce upon abstract propositions of
law that would amount to
no more than advisory opinions. The
principle so far as appeals are concerned is captured in s 21A of the
Supreme Court Act 59
of 1959, which allows an appeal to be dismissed
on the grounds alone that the judgment or order sought will have no
practical effect
or result.
[4] The application was dismissed
by the court below on the grounds that there was no live controversy.
That was rightly not pressed
in argument before us. Whether the
authorities had acted lawfully was and remains a live issue. That
they would not be called upon
to reconsider their conduct if they had
acted unlawfully goes only to whether a decision on that question
would have practical
effect. In view of the appellants’
intentions it cannot be said that it will not.
[5] It is not necessary to relate
the relief that was sought in the court below. Before us counsel for
the appellants confined himself
to three declarations, each of which
was sought as an alternative to the one preceding it. First, they
asked us to declare that
the respondents had been obliged to issue a
visa. Secondly, to declare that visas had been refused. And thirdly,
to declare that
the ‘conduct’ of the respondents was
unlawful. When probed on what ‘conduct’ specifically was
said to have
been unlawful counsel could offer no more than that the
Minister of Home Affairs had unreasonably delayed her decision, and I
have
approached the matter on that basis.
[6] The claim to the first
declaration can be disposed of briefly. That claim was founded upon a
construction placed by the appellants
on
s 10A
of the
Immigration Act 13 of 2002
, read with
ss 29
and
30
.
[7] Subsection (1) of
s 10A
requires any foreigner who enters the Republic to produce to an
immigration officer, on demand, a valid visa granted under subsection
(3). That subsection provides that a visa
‘
(a)
may, subject to any condition that the Minister [of Home Affairs] may
deem fit, be granted by the Minister to any person who
is not exempt
… from the requirement of having to be in possession of a
valid visa, and who has applied for such a visa
in the prescribed
manner and on the prescribed form’.
[8]
Section 29
identifies certain
foreigners as ‘prohibited persons’. They include persons
infected with communicable diseases, members
of organisations that
advocate racial hatred or social violence, and so on. In addition
s
30
permits the Director-General to declare certain foreigners to be
‘undesirable’. ‘Prohibited’ and ‘undesirable’
persons do not qualify for visas.
[9] The submission on behalf of
the appellants was that only ‘prohibited’ and
‘undesirable’ persons may
be refused visas. For the rest,
once an application for a visa is made in the prescribed form, the
Minister is obliged to grant
it.
[10] The submission needs only to
be stated to be rejected. ‘Prohibited’ and ‘undesirable’
persons do not
qualify for visas. If they apply then their
applications need not be considered. Applications from others must be
considered, and
the Minister has a discretion to grant or refuse
them. That is what the language of the section says. The word ‘may’
in subsection 3(a) is not capable of meaning ‘shall’,
as submitted by counsel for the appellants. Moreover, to
construe it
that way would give rise to absurdities so obvious they need not be
enunciated.
[11] Whether the appellants are
entitled to either of the alternative declarations calls for
consideration only of the facts. This
being an application for final
relief, the facts stated by the respondents are decisive where they
conflict with those stated by
the appellants, except where
allegations or denials by the respondents are so far- fetched or
untenable that they may rejected
on the papers alone.
[12] The facts alleged by the
respondents are contained in an affidavit deposed to by the
Director-General of Home Affairs, confirmed
and elaborated upon by
the Minister of Home Affairs. According to that evidence in May 2011
the Gandhi Development Trust told the
South African High Commissioner
in New Delhi that it wished to invite the Dalai Lama to this country
to award him the Mahatma Gandhi
International Award for
Reconciliation and Peace on 9 October 2011. The evidence of the
deponents makes it plain that the proposal
raised serious concern
that the visit by the Dalai Lama would put at risk the friendly
relations between this country and the government
of the Peoples’
Republic of China (I will refer to it as China), which claims
sovereignty over the territory of Tibet. It
can be expected in those
circumstances that the High Commissioner would have wasted no time
communicating news of the proposed
visit to the government. Indeed,
the Minister of Home Affairs was made aware of the intended visit by
no later than early June
2011. Meanwhile, the High Commissioner
replied to the Trust advising that a formal application for a visa
would need to be submitted
at the appropriate time.
[13] On 20 June 2011, and again
on 4 August 2011, the High Commissioner and senior immigration
officials met with a representative
of the Dalai Lama to discuss the
forthcoming visit, and the requirements for the grant. On the latter
occasion the High Commissioner
‘encouraged’ the Dalai
Lama’s representative to submit the visa applications closer to
the time of the visit.
The explanation given for that ‘encouragement’
was that a visa may be issued only for three months, and thus a visa
issued before then would be invalid by the time the visit commenced.
It is accepted by the respondents that that was not correct.
[14] On 26 August 2011
applications for visas for the Dalai Lama and members of his
entourage were submitted to the High Commissioner.
The applications
were not accompanied by the passports of the applicants, and they did
not include the prescribed fee, and it seems
that other formalities
had not been complied with. The office of the Dalai Lama was told
that the applications would not be processed
until all the
formalities had been met.
[15] The Dalai Lama and members
of the entourage who were to accompany him were then travelling
abroad and their original passports
could not then be furnished. By
20 September 2011 the passports had been furnished, the fees had been
paid, and all the formalities
had been met. The applications were
then submitted to the Department of Home Affairs, and the Minister
was advised that a compliant
application had been received.
[16] The deponents explain at
some length that the national interest of the country takes priority
in visa applications that ‘attract
great public and
international interest’, and that the overriding consideration
in ‘sensitive’ applications with
foreign policy
implications would be the best interest of the country. They draw
attention to South Africa’s important trade
connections with
China, which need to be taken account of in its foreign policy. The
Director-General alleges that ‘well
aware of the possible
implications for our relations with China … in any decision
that the Minister took, and having had
discussions with colleagues in
DIRCO who, in the context of the One China Policy that South Africa
has adopted, expressed their
reservations concerning the visit of the
Dalai Lama, the Minister looked into all relevant factors that would
have a bearing on
her decision’. He says that ‘while the
views of DIRCO were being refined and finalised for input into the
decision-making
functions of Home Affairs’ the Dalai Lama and
his entourage withdrew their applications. He alleges that the
Minister was
‘still seized with the matter’ when she was
advised that the application had been withdrawn. In contrast, the
Minister,
while on the one hand confirming what was said by the
Director-General, says on the other hand that she was ‘awaiting
the
views that I had requested from officials in departments of state
that have a direct and substantial interest in the visit of the
Dalai
Lama to our country, particularly DIRCO, when I was advised that he
and members of his entourage had withdrawn their applications
for
visas’.
[17] I accept that the proposed
visit raised matters of high diplomatic importance, justifiably
calling for consultation, advice
and consideration of the kind
described in the respondents’ affidavits. But that begs the
question what time was required
to complete that process. If the
respondents mean to convey that they were not able to commence that
process before compliant applications
were received then that is
disingenuous. But if they mean instead that four months was not
sufficient for the process then their
vague evidence of what was
done, and the complete absence of any explanation of when it was
done, falls far short of showing that
they had insufficient time. On
the contrary, the evidence points only to deliberate procrastination.
[18] The suggestion that the High
Commissioner and senior immigration officials genuinely believed that
the validity of a visa may
in no circumstances exceed three months,
and that a visa even for that period could not be issued with
inception at the commencement
of the visit, and that an application
could not be considered and decided upon in anticipation of the visa
being issued, is so
untenable that it can be summarily rejected. The
same is to be said of the suggestion that the matter could not
receive attention
before a fully compliant application had been made.
The only inference I can draw from their conduct is that they were
intent upon
procrastination.
[19] Counsel for the respondents
rightly accepted that the Minister was required by law to dispose of
an application for a visa
with reasonable promptitude. We were asked
to infer from the delay in this case that a decision to refuse the
application had indeed
been made and that the respondents chose not
to announce it for the political implications that an announcement
held. I do not
think the evidence justifies that inference and for
that reason a declaration that the visa had been refused is not
warranted.
But what is justified by the evidence is an inference that
the matter was deliberately delayed so as to avoid a decision. It
hardly
needs saying that the Minister is not entitled to deliberately
procrastinate. Procrastination by itself establishes unreasonable
delay.
[20] The appeal is upheld with
costs that include the costs of two counsel. The order of the court
below is set aside and substituted
with the following orders:
1. It is declared that the First
Respondent unreasonably delayed her decision whether to grant or
withhold the visas relevant to
this case and in so doing acted
unlawfully.
2. The respondents are to pay the
costs of the applicants, including the costs of two counsel.
__________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
1
st
appellant: A Katz SC
D
Simonsz
Instructed
by:
Eisenberg
& Associates, Cape Town
Webbers,
Bloemfontein
For
2
nd
appellant: M du Plessis
A
Coutsoudis
Instructed
by:
Nortons
Incorporated, Johannesburg
McIntyre
& Van der Post, Bloemfontein
For
1
st
& 2
nd
Amici Curiae: J Brickhill
M
Bishop
Instructed
by:
John
Smith & Associates, Cape Town
Lovius
Block, Bloemfontein
For
3
rd
& 4
th
Amici Curiae: D Borgström
Instructed
by:
Legal
Resources Centre, Cape Town
Lovius
Block, Bloemfontein
For
2
nd
, 3
rd
& 4
th
respondents: M T
K Moerane SC
L
T Sibeko SC
L
Gcabashe
Instructed
by:
Office
of the State Attorney, Cape Town
The
State Attorney, Bloemfontein