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[2019] ZAGPPHC 557
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RDM Road Solutions (Pty) Ltd v Minister of Home Affairs (13760 /2017) [2019] ZAGPPHC 557 (21 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA DIVISION)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 13760 /2017
21/5/2019
In
the matter between:
RDM
ROAD SOLUTIONS (PTY)
LTD
Applicant
and
MINISTER
OF HOME AFFAIRS
Respondent
JUDGMENT
HOLLAND-MUTER
A/J:
[1]
This matter has a very long and unfortunate history between the
parties dating back
as far as 31 March 2011 when the first legal
salvo was fired between the parties.
[2]
The applicant is a company specializing in genera] road haulage of
freight of goods
between the Republic of South Africa and countries
such as Zimbabwe, Zambia, the DRC and Mozambique. The applicant has
various
contracts with SAB Millar, Tongaat Hulett, Omnia Fertilizers,
Boxmore Plastics, Irvines Africa and Trade King to transport goods
and products to and from the various foreign countries by road.
[3]
The applicant has a fleet of thirty-two trucks, all permitted in
terms of prevailing
legislation to undertake services to the foreign
countries. At the end of 2015 the applicant employed five (5) South
African employees
on a permanent basis and thi1ty-eight (38) foreign
employees.
[4]
On 31 March 2011 Goodey A/J, in case number 59612/2010 (not 2014 as
indicated in the
papers all along), made an order in which he
directed that foreign truck drivers employed by applicants (the
current applicant
was the eleventh applicant in that application),
may enter the Republic of South Africa validly and legally with a
visitors permit
as contemplated in section 11(2) or the Immigration
Act, and that the Minister, insofar as he has not done so, authorize
foreign
truck drivers to conduct work in the Republic in terms of
section 11(2). This was a settlement between the parties in that
matter.
See a copy of the judgment on page 45-47 in the application.
[5]
The visitor's visa issued under section 11(2) permits the holder to
perform work to
a maximum period of three (3) months in the Republic
and has an added disadvantage that the holder of such visa may not
open a
bank account in the Republic. The huge disadvantage is that
these employees bas to be paid in cash, creating a risk for employer
and employee.
[6]
A corporate visa on the other band provides the mechanism to be
employed for a period
(usually three years) and the employee is
entitled to open a bank account in the Republic.
[7]
The
applicant had until 18 October 2013 relied upon a corporate visa as
contemplated in section 21 of the Immigrations Act, 13 of
2002
(hereafter referred to as the
''Act”,
to
validate the employment of its foreign employees.
[8]
The applicant's employees were often in the past harassed by
immigration authorities
at the border posts when entering and leaving
the Republic be cause many of these officials for unknown reasons
(incorrectly) did
not accept the validity of the endorsement on
foreign drivers' visas as con templated by the judgment of Goody
A/J above.
[9] The
applicant regularly advertises positions for inter alia cross border
drivers and other
related positions such as mechanics and
administrative personnel to be filled by South Africans. It has been
found regularly that
there are seldom suitable local applicants for
the cross border driver positions for various reasons such as:
(i)
Many
qualified local drivers prefer not to drive post border but to drive
in South Africa;
(ii)
Some
local drivers' reasons for the unwillingness to drive cross border
are fear for illness (malaria), language barriers in foreign
countries, extended periods of traveling abroad over long periods,
adverse against the extended periods at particularly the Beit
Bridge
border post (up to 32 hours) to make border crossing and a shortage
of experienced drivers in South Africa.
[10]
The applicant applied for a corporate visa for the foreign employees
on 23 September 2015, (VFS Reference
Number TRA 1733878). The
applicant had no reason to believe or to expect that the application
would be rejected when applying,
because it had been motivated on
similar grounds as previously during 2010 when it made successful
application for a corporate
visa.
[11]
This application was refused and an internal appeal was lodged on 27
October 2015, the appeal directed
to the Director General, Home
Affairs. This appeal is as contemplated in section 8(4) of the Act.
[12]
The section 8(4) appeal was eventually rejected by the Director
General of Home Affairs during May
2016 after a long delay and after
the applicant obtained a mandatory interdict against the Director
General of Home Affairs during
April 2016 under case number 2502 1/20
16 . The court order directed the Department of Home Affairs to
provide its findings on
appeal and to supply reasons for such
findings. This was done during May 2016.
[13]
The
Director General of Home Affairs' rejection was on the basis that:
“
The
reasons are that. foreign language as a requirement unfairly
discriminates against the locals and ..
“
.
[14]
The
applicant then appealed to the respondent in terms of section 8(6) of
the Act. This appeal was lodged on 19 May 2016. The respondent
rejected the appeal and served a letter of rejection on the applicant
on 1 November 2016. The reason for the rejection was once
again the
foreign language issue. See par 45-46 on p 22 of the founding
affidavit.
[15]
This rejection was the basis for the first review application brought
by the applicant before this
court. This review served before
Raulinga J on 5 February 2018. Raulinga J, when reviewing and
rescinding the order subject
to the appeal, directed that the
initial application by the applicant be remitted for reconsideration.
The order provided for the
applicant to supplement its original
application as appropriate within 60 days and that the respondent
reconsider the internal
appeal thereafter. This application be
fore Raulinga J was brought under the auspices of the
Promotion of
Administrative Justice Act, No 3 of 2000
,
[16]
The
applicant remitted the appeal in terms of section 8(6) of the Act to
the respondent on 4 July 2018 for reconsideration as directed
by the
court order above. See annexure "FA6". All necessary
documentation were annexed to the letter for reconsideration.
[17]
The
response from the respondent was most likely the letter dated 20
August 2018 (annexure "FA2"). In this letter the
Assistant-Director Appeals notified the applicant, with reference to
the applicant's letter dated 8 December 20 I 4, that applicant's
review
or appeal in terms of section
8(4)
is
rejected. The reason advanced is once again the foreign language
issue being discriminating against locals and that the curriculum
vitae of preferred candidates were not annexed. See discussion below.
[18]
It
is important to note that these reasons are similar to those advanced
earlier when rejecting the original application and raises
the
question whether the official task to reconsider indeed applied
his/her mind to the reconsideration of the application. In
view of no
opposing papers or opposition. the likelihood thereof becomes more
and more relevant.
[19]
This
result induced the applicant to lodge this application.
[20]
It
is also necessary to note that, although requested on more than one
occasion, the respondent never made any recommendation, positive
or
negative, available to the applicant. The importance thereof is that,
al though the Department of Labour (DOL) may make
recommendations, the decision is to be taken by Home Affairs . lf
there were negative recommendations made by DOL, the applicant
must
be informed thereof to respond thereto. This did not happen at any
stage since the initial application was lodged with Home
Affairs.
Docs
the Respondent's decision dated 31 July 2018 constitute an
administrative action and/or whether such decision resorts
under
the exclusion of PAJA?
[21]
In my view it is not necessary to dwell on this issue. The previous
order granted by Raulinga
J on 5 February 2018 has answered this
question. Suffice to state that I am satisfied that the decision
taken to reject the initial
application and the subsequent remitting
thereof for reconsideration is warranted. The decision taken
constitutes an administrative
act for the following:
*
there
was a decision taken by an organ of state (the Department);
*
the
decision was taken by performing a public function;
*
the
decision was taken in terms of legislation;
*
the
decision adversely affect rights of a party; and
*
the
decision has 8 direct, external legal effect and it does not fall
under any of the listed exclusions.
See
Hoexter, Administrative
Law in South Africa
2
nd
ed at 197. Also see
.JD de Ville, ,Judicial Review of
Administrative Action in South Africa,
Lexis-Nexis Chapter 2 at
35 and on.
[22]
The decision taken does not fall under any of the listed exclusions
(such as the exercise of executive
power, legislative or judicial
functions and other decisions expressly excluded by the Constitution)
and otherwise satisfy all
the above elements.
See
De Ville supra
T 59-62 and
Hoexter supra
at 234-245.
Also see the listed exclusions in section 1 of PAJA.
[23]
In terms of PAJA a court has the power to review the decision if, in
the context of this application,
the decision was materially
influenced by an error of law (section 6(2)(d)), was taken for as
reason not authorized by the empowering
provision (section
6(2)(e){i)), was taken because of irrelevant considerations were
taken into account or considerations were not
considered (section
6(2)(c)(iii)) or the decision was taken arbitrarily (section
6(2)(e)(iv)).
THE
REVIEW OF THE RE-SUBMITTED APPLICATION:
[24]
The applicant re-submitted it's application to Home Affairs on 4 July
2018 as per annexure ·'rA6".
The letter when resubmitting
the application as per the Court order clearly indicates that it is
done in te1ms of section 8(6)
of the Act. The only response
thereafter from Home Affairs is dated 20 August 2018 (annexure
''FA2”).
[25]
The court is satisfied that when the impugned decision was taken by
the respondent in
reconsidering
the application, the
respondent failed to apply its mind for the following reasons:
*
the
application was submitted
on 4 July 2018 (annexure "FA6") and not on 8 December 2014
as indicated in the letter dated 31 July 2018 (annexure ''FA2");
*
the
contents of annexure ''FA2" lists the same grounds for rejection
as was the case when the application was first considered
during
2016. No other ground or re,1son for rejection but for the
foreign
language
issue
and the failure to annex the curriculum vitae of preferred candidates
were listed by the respondent
*
a
negative recommendation was received form DOL, but despite re
quested to forward any DOL recommendations to the applicants
as
requested, it was not done. The applicant was not given the
opportunity to respond to any negative DOL recommendation;
* the
response of the respondent in the replying letter (informing the
applicant
of the
outcome
of
the application to review the appeal in terms of section 8( 4) of the
Immigration Act), warrants the inference that the respondent
did not
apply it's mind in this instance at all. This was not an appeal in
terms of section 8(4) of the Act but to re-consideration
the decision
after being referred back to the respondent by Raulinga J. When
reviewing and setting aside the decision taken by
the respondent, the
order further provided that the applicant may approach the court
should the respondent fail to reconsider the
reviewed decision. The
respondent did not indicate whether it followed section 8(6)in the
reconsidering of the reviewed decision.
[26]
I am satisfied that the impugned decision falls within the parameters
of the Administrative Law and
is subject to judicial review. Sections
6 & 8 of PAJA finds application when reviewing such decisions.
[27]
Section 6(1) regulate the institution of proceedings for judicial
review and section 8 determines the
proceedings for judicial review.
Section
8 of PAJA determines as follows:
"Remedies
in proceedings for judicial review:
(1)
The court or tribunal, in proceedings for judicial review in terms of
(section 6(1). may grant any order
that is just and equitable,
including orders-
(a)
directing the administrator-
(i)
…
(ii)
…
(b)
...
(c)
setting aside the administrative action
and-
(i)
remitting
the matter for reconsideration by the administrator, with or ·without
directions; or
(ii)
in
exceptional cases-
(aa) substitute
or varying the administrative action or correcting a defect resulting
from the administrative action,
or...
(my
emphasis)
[28]
It
was submitted on behalf of the applicant that the present application
before the court amounted to be an exceptional case authorizing
the
court to substitute the decision as sought in the Notice of Motion.
The court requested counsel on behalf of the applicant
for written
heads of argument and to address the specific issue whether by
substituting the existing decision the court was not
intruding onto
the executive usurping executive powers.
[29]
The courts are normally reluctant to substitute its decision for that
of the administrative authority
such reluctance of the courts'
acceptance and understanding of the principle of separation of powers
and the distinction between
appeals and reviews. See
De
Ville supra p 335-338.
[30]
De
Ville
opines
that the question as to whether a court will depart will be answered
with reference to the entire context of the case and
will include the
following considerations:
*
whether
the administrator in question is left with any discretion in the
matter or whether the end result is a foregone conclusion;
*
the
importance of time considerations in the present case;
*
the
willingness of the administrator to re-apply its mind to the issue;
*
indications
of bias or incompetence on the side of the administrator;
*
the
circumstances as it exits now as opposed to when the matter was
decided by the administrator; and
*
the
competence of the court
vis-a-vis
that
of the administrator in deciding the issue.
These
are not exhaustive and the primary consideration is fairness to alI
concerned.
See
De Ville supra p 336-337; and footnote 348.
[31]
Holmes AJA
echoed that a court has a discretion to be
exercised judicially upon consideration of all the facts of a case
... and that it is
in essence a question of fairness to both parties.
See
Livestock and Meat Industries Control Board v Garda
1961 (1)
SA 342
A at 349G.
[32] Turning
to the application before court, the following aspects need to be
considered:
[33]
When considering the case in particular, the following observations
are made:
*
It
is not clear whether the decision dated 20 August 2018 is a response
to the application being remitted subsequent the court order.
If it
is then it demonstrates the ineptitude of the administrative organ.
No reasons for arriving at the decision other than the
earlier
reasons, were given.
*
If
the decision taken was indeed taken on 31 July 2018 (annexure
''
FA2" ),
it
is clear that the respondent has rejected the applicant' s
application on at least four different occasions for the same
arbitrary
reasons. It then amounts to irrational decision making.
There is no indication that the guidelines in the court order by
Raulinga
J was considered. There is nothing suggesting that the
recommendations by DOL was given to the applicant although requested
and
in my view an aspect to consider after the remitting of the
reviewed application. This amounts to the ignoring of the basic
principle
of
audi
alteram partem rule
in
that the applicant is not given an opportunity to respond to negative
considerations.
*
The
prejudice towards the applicant in that it cannot freely appoint
permanent drivers on a three year contract, that these foreign
drivers at present cannot open a bank account in South Africa leaving
them ex posed and vulnerable being remunerated in cash.
*
Local
drivers more than often opt not to drive cross-border, resulting in
the applicant's business being jeopardized. The applicant
cannot
appoint drivers on a more permanent scale.
*
The
issue of foreign drivers being more suited to drive abroad and to
communicate in the foreign languages in neighbouring countries,
in
particular at border control posts.
* When
appointing drivers in terms of section 11(2) permits which is
severely ineffective.
The endorsements on these permits are often not
accepted at border control causing undue long delays and constant
harassment of
these drivers by border control officials.
[34]
If
the above is taken into account and considered, I am of the view that
this case qualifies to be an exceptional case wan-anting
the relief
in section 8(1)(c)(ii)(aa) of PAJA.
[35]
De Ville supra p 338
concludes that even in the event that the
court substitutes its decision for that of the administrative
authority, the matter is
refereed back to the authority to take the
decision as required. The decision thus remains that of the authority
and not of the
court. This ensures that the cou11 would not risk
intervening with the powers of the executive.
Conclusion:
[36]
l am of the view that this case qualifies to be an exceptional case
in terms of section 8(1)(c)(ii)(aa)
of PAJA and that it would be
justified to follow that process. The conduct of the respondent in my
view warrants the appropriate
cost order sought.
[37]
I would also take the opportunity to thank Advocate Pretorius for the
helpful heads or argument. It
was of great assistance to finalize the
judgment.
ORDER:
1.
The
decision taken by the respondent dated 31 July 2018 and delivered to
the applicant on
20
August
2018 in which the respondent upheld the rejection of an application
for a Section 21 Corporate Visa, in terms of the
Immigration Act, 13
of 2002
, is hereby reviewed and set aside;
2.
The Respondent is directed to issue the Applicant with a Corporate
Visa as applied for on 23 September
2015, under VFS Reference Number
TRA1733878 (alternatively TRA2536694) provided that such corporate
visa shall be valid for a period
of three (3) years from date of
issue;
3.
The respondent is to pay the costs of the application on an attorney
and client scale.
J
HOLLAND-MuTTER A/J
ACTING
JUDGC OF THE GAUTENG DIVISION (PRETORIA)
OF
THE HIGH COURT
BY
ORDER OF COURT
TO:
MCMENAMIN VAN HUYSSTEEN & BOTES
ATTORNEYS
FOR APPLICANT
REF:
J HARMSE /IM l 118
TEL:
012-344 0525
ADV
K PRETORIUS
083
736 1167
FOR
THE RESPONDENT: NO APPEARANCE