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2024
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[2024] ZAECQBHC 42
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Omotoso v Director-General of the Department of Home Affairs and Another (1305/2023) [2024] ZAECQBHC 42 (11 June 2024)
FLYNOTES:
IMMIGRATION – Prohibited persons –
Substitution
of decision
–
Whether
court should substitute decisions by respondents –
Exceptional circumstances in support of substitution –
Concession by respondents to review and set aside their decisions
– Stance indicates a commitment by respondents to
want to
reconsider decisions afresh – Indicates a willingness to
deal with applicant’s applications fairly –
Decisions
reviewed and set aside – Matter remitted back to respondents
for reconsideration –
Immigration Act 13 of 2002
,
s 29.
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO: 1305/2023
In
the matter between:
TIMOTHY
OLUSEUN OMOTOSO
Applicant
And
DIRECTOR-GENERAL
OF THE DEPARTMENT
OF
HOME AFFAIRS
First
Respondent
MINISTER
OF THE DEPARTMENT
OF
HOME AFFAIRS
Second
Respondent
JUDGMENT
PITT
AJ
Introduction.
[1]
The applicant was refused a visa application on 14 September 2020 and
subsequently declared a prohibited
person in terms of
section 29
of
the Immigration Act No. 13 of 2002 (“the
Immigration Act&rdquo
;).
[2]
The applicant launched this application to review and set aside two
decisions of the respondents, and
for the court to substitute these
decisions of the respondents. The first decision is the refusal by
the first respondent that
the applicant is not a prohibited person.
The second decision is that of the second respondent to dismiss the
applicant’s
internal review. The applicant also seeks
condonation for the late filing of his application.
Condonation.
[3]
The applicant alleged that the application
was brought outside of the time frames provided for in terms
of the
Promotion of Administrative Justice Act No. 3 of 2000 (‘the
PAJA’) and applied for condonation. The respondents
did not
oppose the application for condonation, leaving it up to the court to
decide. In the exercise of this court’s discretion,
I was
satisfied that there were sufficient grounds for condonation for the
late filing of the application and granted same from
the outset.
Review
and setting aside decisions of the respondents.
[4]
The relief which the applicant sought to have reviewed and set aside
is the decision of the Director
General of the Department of Home
Affairs dated 14 September 2020 refusing to declare the applicant not
to be a prohibited person.
The applicant also sought to review and
set aside the decision of the Minister of Home Affairs dated 9
September 2022 dismissing
the applicant’s internal review
lodged in terms of
section 8(6)
of the
Immigration Act. At
the
commencement of the hearing of the application, the respondents
conceded that their decisions should be reviewed and set aside,
and
they tendered the costs thereof.
Issues
for determination.
[5]
The only issue I am called upon to decide is whether the court
should substitute the decisions
by the respondents.
Whether
the court should substitute the decisions by the respondents.
[6]
The respondents having conceded that the impugned decisions stand to
be reviewed and set aside by the
court, I am left to decide whether
to substitute the decisions of the respondents with that of the
court. The applicant contended
that the court is empowered to
substitute the decisions of the court in these circumstances as
provided for in
section 8
of the PAJA.
[7]
Section 8(1)(c)(i)
of the PAJA provides that the court in procedures
for judicial review may set aside the administrative action (the
decisions) and
may remit the matter for reconsideration by the
administrator (the Department), with or without directions in
exceptional circumstances.
In terms of subsection (1)(c)(ii), the
court may substitute or vary the administrative action or correct a
defect resulting from
the administrative action in exceptional
circumstances.
[8]
The question that then begs to be asked is: what constitutes
exceptional circumstances? It is for me
to decide whether to
substitute the decisions or not. In doing so, I have had regard to
the submissions by both parties. The respondents
opposed the
suggestion by the applicant that the court should substitute the
decisions by the respondents and put up legal arguments
from previous
court decisions. The applicants relied on some of the same decisions
in favour of substitution of the decisions by
the court
in hoc
casu
.
[9]
The applicant submitted that it is established law that once a ground
for review has been established,
section 172(1)(a) of the
Constitution requires that such decision must be declared invalid.
Section 172(b) then requires that the
court must exercise its
discretion to make an order that is just and equitable. It is in this
context, so the applicant submitted,
that the court must decide
whether to remit the matter or substitute or vary the decisions.
[10]
The Supreme Court of Appeal in
Gauteng
Gambling Board v Silver Star Development Limited
[1]
confirmed the provision
in section 8(1)(1)(c)(ii)(aa) of the PAJA instead of remitting the
decision to itself decide in exceptional
circumstances.
[11]
In
Trencon
(Pty) Ltd v Industrial Development Corporation of South Africa Ltd
and Another
[2]
,
the court of first instance granted substitution of the
administrative action and remarked as follows:
‘
It is trite that
the general rule in review proceedings is that a Court would, in the
event it reviews and sets aside an administrative
decision; remit it
to the decision-maker for reconsideration, in some instances, subject
to conditions. The provisions of Section
8(1)(c)(ii) (aa) of PAJA
that the Court, instead of remitting the decision, may itself decide,
should only occur in exceptional
circumstances. See
Gauteng
Gambling Board v Silver Star Development Limited
[3]
.’
[12]
It was held further that the underlying test to be applied by the
Court in terms of its departure from the
general practice of
remitting the matter back to the administrator, has its roots in the
common law principles stated in the seminal
case of
Johannesburg
City Council v The Administrator, Transvaal
[4]
.
The Court continued to say that the
Johannesburg
City Council
case
established the common law principle that a court will be prepared to
substitute an administrative decision where:
‘
47.1
the end result is a foregone conclusion, and it would be a waste of
time to remit the decision to the original
decision-maker;
47.2 any
further delay would cause unjustifiable prejudice to the Applicant;
and
47.3 the original
decision maker has exhibited bias or incompetence to such a degree
that it would be unfair to ask the Applicant
to submit to its
jurisdiction again.
48. In
Gauteng
Gambling Board supra
, the Court added a further principle that
such decision may be taken where the court is as well qualified to
make that decision.’
[13]
The applicant submitted that in the recent decision of
Mgijima
Holdings (Pty) Ltd v State Information Technology Soc limited
the
court granted a substitution order after considering the principles
as laid down in the
Trencon
Constitutional Court case. In
conclusion, the applicant submitted that the above cases support an
order of substitution of the decisions
of the respondents.
[14]
The applicant submitted that the exceptional circumstances in support
of substitution of the administrative
action are as follows:
(a)
The respondents have taken a perfunctory stance to refuse all the
applicant’s applications
that have come before them, and that
it would be a waste of time to order the relevant functionary to
reconsider them.
(b)
To remit the matter to the relevant functionary would delay the
matter and cause the applicant unjustifiable
prejudice. In this
regard, the Minister took more than a year to consider and decide the
internal review against the first respondent’s
decision, thus
forcing the applicant to launch the present proceedings to compel the
Minister to make a decision. The applicant
has also had to bring
contempt of court proceedings because the Minister failed to comply
with the order under case number 561/2022.
(c)
The respondents exhibited bias in dealing with the applicant by
assisting the NPA to lay criminal
charges against him. The
reconsidered decision of the first respondent was used to oppose the
applicant’s bid to be released
on bail, all to form a united
front with the NPA to violate the constitutional rights of the
applicant. Based on the conduct
of the first respondent, the
impugned decision from the applicant’s perspective was taken
for an ulterior motive and in bad
faith or capriciously. In light of
this, it would be unfair to require the applicant to submit the
decisions to the same respondents
again. The applicant’s
counsel further contended that the then Minister of Home Affairs,
Aaron Motsoaledi, commented that
an investigation was also underway
to determine how another evangelist, Nigerian Timothy Omotoso had
acquired South African residency.
This, the applicant pointed out,
suggested bias towards the applicant on the part of the respondents.
In response to this, the
respondents submitted that the Minister’s
comment was in the context of another foreign national evangelist
having escaped
the borders of South Africa to evade arrest and
prosecution by the authorities, and that this was not any bias
towards the applicant.
(d)
The respondents have demonstrated complete incompetence and bad faith
in dealing with his application,
and their actions are tainted with
procedural unfairness.
(e)
The internal review application contains sufficient information to
make a reasonable informed
decision in the matter. The extreme
unfairness which the applicant was subjected to warrants the
substitution by the court in the
circumstances.
[15]
The respondents disagreed with these contentions and submitted that
the court should not substitute the administrative
decisions for the
above reasons. It was submitted on behalf of the respondents that the
common law rule is that courts should be
slow to assume a discretion
which has been entrusted to another functionary or repository of
power by statute. This is based on
the principle of separation of
powers, and to avoid the unwarranted usurpation of powers entrusted
to public authorities by the
relevant statutes. The respondents
contended that the court should remit as a matter of course, save for
exceptional circumstances.
The court was referred to
Intertrade
Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape and
Another
[5]
,
by referencing
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte President
of the Republic of South Africa and Others
[6]
,
in which it was held that:
‘
[46] These
constitutional principles mean that courts, when considering the
validity of administrative action, must be wary of intruding,
even
with the best of motives, without justification into the terrain that
is reserved for the administrative branch of government. These
restraints on the powers of the courts are universal in democratic
societies such as ours and necessarily mean that there are limits
on
the powers of the courts to repair damage that has been caused by a
breakdown in the administrative process.’
[16]
In
University
of the Western Cape and Others v Member of the Executive Committee
for Health and Social Services and Others
[7]
,
the learned judge held that the mere fact that a court considers
itself as qualified to make the decision as the administrator
does
not
per
se
justify
usurping the administrator’s powers and functions.
[17]
In
Trencon CC
, it was also held that a case implicating an
order for substitution requires courts to be mindful of the need for
judicial deference
and their obligations under the Constitution. The
Constitutional Court held further that even if exceptional
circumstances exist,
a court must be satisfied that it would be just
and equitable to grant an order for substitution.
[18]
In
Trencon CC,
it was held that before substituting the court
must consider the following factors:
(a)
The court will not be in as good a position as the administrator
where the application of the
administrator’s expertise is still
required, and the court does not have all the pertinent information
before it. This will
depend on the facts of each case and the stage
at which theimpugned administrative action was taken.
(b)
Only once the above step has been established, does the second
consideration whether a decision is a
foregone conclusion come into
consideration. A foregone conclusion exists only where there is only
one outcome of the exercise
of an administrator’s discretion
resulting in remittal being futile. Where an administrator has not
adequately applied its
unique expertise and experience to the matter,
it may be difficult to find that the decision was reached, and such
decision is
a foregone conclusion.
[8]
(c)
A court must consider other relevant factors, including delay which
can weigh in favour of both
remittal and substitution, but delay
occasioned by litigation should not cloud a court’s decision in
reaching a just and
equitable remedy. The appropriateness of a
substitution order must depend on the consideration of fairness to
the impugned parties.
[9]
[19]
In
Trencon
CC
it
was also held that the considerations of ‘
in
as good as position’
and
’
foregone
conclusion’
are
interrelated and interdependent. There can never be a foregone
conclusion, the respondents argued, unless a court is in as good
a
position as the administrator. Even if the administrator has applied
skill and expertise as well as the court having all the
relevant
information before it, the nature of the decision may dictate that a
court defer to the administrator. The aforementioned
being typical in
instances of policy-laden and polycentric decisions, such as in the
present matter.
[10]
The
respondents further contended that in the administrative review
context of section 8(1) of the PAJA, and the wording of ss
(1)(c)(ii)
(aa), substitution remains an extraordinary remedy, and remittal is
still almost always the prudent and proper course.
[20]
The respondents submitted that it can be gleaned from the record that
no other consideration or whether the
applicant has indeed met the
requirements for a general work visa has been considered. The
applicant does not deny this, but merely
states that the task of
deciding his application was done with incompetence and relies on the
fact that his waiver application
as well as previous applications
were unsuccessful. The applicant did not deny that the impugned
decisions are dependent
on one another and that the Minister may not
need to consider the applicant’s internal appeal. The applicant
simply contended
that the present Director-General wants ‘another
bite’ in the matter and that the Director-General by virtue of
his
support not to declare the applicant a prohibited person on
account of the wrong premise is incompetent.
[21]
It was submitted on behalf of the respondents that the court is not
in as good a position as the Director-General
or the Minister to
determine whether the impugned decisions can be substituted with the
orders prayed for by the applicant. The
respondents argued that the
fact that much time had passed as a result of litigation, the court’s
judgment must not be clouded
not to remit the decisions for
reconsideration.
[22]
In
Kalisa
v Chairperson of the Refugee Appel Board and Others
[11]
,
in deciding whether an order for substitution by granting the
applicant asylum was justified in applying the principles set out
in
Trencon
CC,
it
was held that –
‘
The fact that the
delay in the final determination of the applicant’s application
for asylum might be charged with the potential
for unpalatable
outcomes should he not be granted refugee status is no basis, by
itself, for deciding that he qualifies for such
status. If the court
cannot be sufficiently satisfied on the evidence it has before it
that he does so qualify in terms of the
Act, it cannot make a
substitution order that it could be assured was lawful, and thus
conformable with the standard to which administrative
decisions are
bound by s 33(1) of the Constitution.’
[23]
The court did not substitute the decision of the Refugee Appeal Board
in
Kalisa
but gave directions for the reconsideration of the
applicant’s application for asylum by the relevant authorities
afresh.
Discussion
[24]
In order for a court to substitute the decisions of the respondents,
it must be just and equitable
in the context of such exceptional circumstances which
prevail at the time. The respondents submitted that it would not be
just
and equitable in the circumstances to remit the decisions to the
respondents for consideration afresh. This indicates to me a
commitment
by the respondents to want to reconsider the decisions
afresh. This, together with the concession of the review and setting
aside
of their decisions at the commencement of the proceedings,
indicates a willingness on the part of the respondents to deal with
the applicant’s applications fairly.
[25]
For the above reasons, I find that the decisions must be remitted
back to the respondents for reconsideration.
To ensure that the
respondents perform their functions and actually decide to the
applicant’s applications, it is best to
put time frames within
which the respondents must make their decisions. I also find that I
am not in a better position than the
respondents to substitute their
decisions
in hoc casu,
that such applications are processed in
a polycentric or policy-laden environment, and the respondents will
be best suited to consider
such applications
.
[26]
I further hold the view that the respondents’ decisions were
not a foregone conclusion, and I believe
they will not be a foregone
conclusion when reconsidered by the respondents as they are public
officials who owe the applicant
a duty to consider his applications
fairly and objectively. There was no factual allegation that the
respondents’ officials
acted maliciously or otherwise when
dealing with the decisions of the applicant.
[27]
I accept that there was a lengthy delay
in hoc casu
occasioned
by litigation which does not cloud my decision in reaching a just and
equitable remedy. Since the respondents are responsible
for the
administration of applications in respect of the decisions, they are
best placed to reconsider the applicant’s applications
for work
permits such as those applied for by the applicant. It is unfortunate
that there was a long delay in the litigation of
this matter.
However, the matter has now been heard and the relief is in favour of
the applicant. Strict time frames will ensure
that the respondents
act within reasonable time to process the applicant’s
applications and provide him with their outcomes.
[28]
My conclusion is that there
does not appear to be
an ‘exceptional case’ put forward by the applicant
to justify substitution or correction
in
hoc casu
. In the circumstances, it is
appropriate to set aside the decisions of the respondents, and to
remit the matter back to the respondents
for reconsideration of the
applications of the applicant within a stipulated time frame.
Costs
[27]
The respondents tendered the applicant’s costs of the review
application since they conceded the review
and setting aside of the
decisions. This justifies the tender of costs in the circumstances.
[30]
The respondents further argued that, since they conceded the review
and setting aside of the decisions and
tendered the costs thereof,
they must not be ordered to pay the costs of the substitution if the
applicant does not succeed. I
disagree with this point. I believe
that the issue of substitution is an integral part of the entire
application and must not be
separated from it. In my view, the
applicant enjoys considerable success on the application as a whole.
Order
1.
The decision of the Director General of the Department
of Home
Affairs dated 14 September 2020 refusing to declare the applicant not
to be a prohibited person is hereby reviewed and
set aside.
2.
The decision of the Minister of Home Affairs dated
9 September 2022
dismissing the applicant’s internal review lodged in terms of
section 8(6)
of the
Immigration Act is
hereby reviewed and set aside.
3.
The first and second respondents’ decisions
at 1 and 2 above
are
remitted to the respondents for
reconsideration. The first and second respondents are directed to
reconsider:
3.1
whether to declare the applicant not to be a prohibited person;
3.2 whether
the applicant’s particulars are to be removed from the visa and
entry stop list of the Department
of Home Affairs;
3.3
whether the applicant’s general work visa should be extended
subject to conditions as may
be imposed thereon in terms of the
Immigration Act No. 13 of 2002
; and to provide the applicant with
their decisions in respect of 3.1, 3.2 and 3.3 above within 30 days
of this judgment being served
on the respondents.
4.
The respondents shall pay the costs in respect of
the application
jointly and severally, the one paying the other to be absolved on
High Court scale A.
DV PITT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Adv
Nyondo
Instructed
by
Maci
Incorporated
Gqeberha
Counsel
for the Respondents
Adv
Sibeko SC
Adv
Van Schalkwyk
Instructed
by
State
Attorney
Gqeberha
Heard
on
1
February 2024
Date
judgment delivered
11
June 2024
[1]
2005(4)
SA 67 (SCA).
[2]
(58961/2012,
70100/2012) [2013] ZAGPPHC 147 (3 June 2013).
[3]
Supra.
[4]
1969 (2) SA 72
(T) at 76.
[5]
2007 (6) SA 442
(Ck) at paras 45-46.
[6]
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paras 85-86.
[7]
1998 (3) SA 124
(C) at 131F-H.
[8]
Trencon
CC
at
para 49.
[9]
Trencon
CC
at
para 53.
[10]
Trencon
CC
at
para 50.
[11]
2020 (4) SA 256
(WCC) para 36.