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[2024] ZAECMHC 65
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E.M v Minister of Home Affairs and Others (3153/2024) [2024] ZAECMHC 65 (27 August 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION – MTHATHA)
Reportable/Not
Reportable
Case no.: 3153/2024
Matter heard on: 08
August 2024
Judgment delivered on:
27 August 2024
In the matter between:
E[...]
C[...] M[...]
Applicant
And
THE
MINISTER OF HOME AFFAIRS
1
st
Respondent
THE
DIRECTOR GENERAL: DEPARTMENT
OF
HOME AFFAIRS
2
nd
Respondent
THE
CHAIRPERSON OF THE STANDING
COMMITTEE
FOR REFUGEE AFFAIRS
3
rd
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
4
th
Respondent
THE
MINISTER OF JUSTICE AND
CORECTIONAL
SERVICES
5
th
Respondent
HEAD
OF THE MBIZANA
CORRECTIONAL
SERVICES
6
th
Respondent
JUDGMENT
ZONO AJ
Introduction
[1]
This application came to this court by way of urgency pursuant to a
directive issued
on 23
rd
July 2024 directing this matter
to be heard on 30
th
July 2024. On 30
th
July
2024 the matter was postponed to 06th August 2024 for the respondents
to file their answering affidavits. In the 06
th
August
2024 the matter was further postponed for hearing on 08
th
August 2024 with the applicant to file replying affidavit. Both
parties were placed on terms to file their respective heads of
argument on 07
th
August 2024. On 08
th
August
2024 the matter was fully heard.
[2]
The applicant seeks a relief along the following terms:
“
1.
The forms and services provided for in
the Uniform Rules of this court and Practice Manual are
dispensed
with, so as far as needs be and this application is enrolled and
heard on an urgent basis in term of Rule 6(12) (a) of
the Uniform
Rules and Practice Manual of this court
2.
The first, Second and third respondents are directed to issue the
applicant with
a temporary asylum seeker permit in accordance with
section 22(4)
of the
Refugees Act 130 of 1998
pending the
finalization of the asylum application in terms of the
Refugees Act
130 of 1998
and in terms of the
Promotion of Administrative Justice
Act 3 of 2000
.
3.
Subject to the First, Second and third Respondents re-issuing the
applicant with
a temporary asylum seeker in accordance with
section 22(4) of the Refugee Act, the respondents are
interdicted from arresting,
prosecuting, deporting and/or taking any
further steps against the applicant for being illegally in the
republic of South Africa,
unless his asylum application has been
lawfully and finally determined in terms of the
Refugees Act 130 of
1998
and/ or un terms of the
Promotion of Administrative Justice Act
3 of 2000
.
4.
The applicant’s detention from 05
th
July 2024 in
terms of
section 49
of the
Immigration Act 13 of 2002
is declared
unlawful, Unconstitutional and is hereby set aside.
5.
The respondents are directed to release the applicant from detention
forthwith.
6.
The respondents to pay the costs of this application jointly and
severally, the
one paying the other to absolved on a scale as between
attorney and client.
7.
Granting the applicant further and/or alternative relief.
[3]
Stripped of all the verbiage and wordiness applicant’s relief
is multi-pronged:
Firstly, this application is premised on the
provisions of
section 22(4)
of the
Refugees Act of 1998
; under this
relief the applicant seeks an order compelling the first, second and
third respondents to issue him with a temporal
Asylum Permit, pending
finalization of the Asylum application
[4]
Secondly the applicant seeks an interdictory relief in two forms:
First, that the
respondents be interdicted from arresting,
prosecuting, deposing and/or taking any further steps against the
applicant for being
illegally within the borders of this country,
pending determination of his application for Asylum status. Second,
that the respondents
be compelled to forthwith release the applicant.
[5]
In support of that relief the applicant posits the following
background facts:
[6]
The applicant is foreign national of Mozambican discern. He came into
this country
in May 2024 through Lebombo Border which is between
South Africa and Mozambique. According to him he had a valid passport
or travel
documents that would allow him to stay in this country
until 19
th
June 2024. His travel document is not part of
the papers.
[7]
He fled his country for fear of prosecution and fear for his life and
that of his
family, as he was involved in politics and became target
of political violence in his country, so he alleges. It does not
appear
from the papers he came into this country with his family as
his family life was part of the reason to relocate to this country
to
seek Asylum.
[8]
He stayed at Flagstaff District within the area of jurisdiction of
this court. After
his arrival and upon his stay in this country, he
was then advised that he must visit Home Affairs Offices Flagstaff to
indicate
why he was in South Africa, and he did so. He was advised on
his arrival at Flagstaff that Immigration Officers are in Lusikisiki.
[9]
Upon visiting Lusikisiki Home Affairs Offices in July 2024 he could
not be attended
to due to long queues. In fact, he went there only to
enquire about Asylum Seeker permit. He states that he went there
three times
and due financial reasons he could not go there again. He
mentions load shedding as another reason for the failure to get
assistance
at Home Affairs offices.
[10]
The applicant states that he was arrested on 05
th
July
2024 in terms of
Section 49
of
Immigration Act for
Contravention of
Immigration Laws. It is at that time that he explained to the
Immigration Officer who was arresting him that he
wishes to be
assisted with an Asylum seeker application. He was never afforded
opportunity to apply for Asylum temporal permit.
The applicant is of
the view that he should not have been arrested after he expressed his
wish to apply for Asylum seeker status,
he should instead have been
assisted to apply for temporal permit.
[11]
The applicant subsequently appeared in Flagstaff Magistrates court on
08
th
July 2024, represented by his attorney and expressed
his intention to apply for Asylum seeker status and requested to be
released
from custody for purposes of making such application.
Application to be released from custody was refused and the court
informed
him that he will be assisted while in custody. The applicant
was remanded in custody until 24
th
July 2024.
[12]
The applicant states that he instructed his attorney to pen a letter
requesting that he be afforded
an opportunity to apply for Asylum
seeker permit and no response had been forthcoming. The relevant part
of the letter dated 11
th
July 2024 reads as follows-
“
We
therefore,
kindly request you to issue the Asylum seeker permit for the
applicant E
[...]
C[...]
herein.”
Ex
Facie
the allegations and the letter do
not talk to each other. No request for an opportunity to apply for
Asylum was made at applicant’s
instance. Instead applicant’s
attorney requested that the applicant be issued with Asylum seeker
permit
[13]
It is stated that on 16
th
July 2024 applicant’s
attorney got an opportunity to address the court to express
applicant’s intention to apply for
Asylum seeker permit. The
effect of this was that the applicant sought and applied to be
released from custody but the court did
not grant that application
for the second time. I may mention that it is not clear on the papers
how that opportunity was obtained
on 16
th
July 2024 as the
matter was remanded to 24
th
July 2024.
[14]
The applicant states that he has satisfied all the requirements of
interdict and contends that
he is entitled to the relief sought in
his notice of motion
[15]
The application is opposed by the respondents. In so doing the first
to fifth respondents have
filed an answering affidavit deposed to by
Ms Nomzolisa Siyanda Jelashe who describes herself as the Head of
Immigration in Lusiskisiki
Home Affairs in the OR Tambo Region
Eastern Cape. Another answering affidavit deposed to by Samkele
Nodada was filed only on behalf
of the fifth respondent. Mr Nodada
describes himself as the Head of Bizana Correctional Centre and an
overseer of the administration
for the whole Correctional Facility.
Nodada’s affidavit was supported by the affidavit of Bomikazi
Daniso who is a female
employee of the Department of Correctional
Services situated at the Bizana Correctional Centre.
[16]
Fifth respondents’ case, as a detention facility is simple that
on 08
th
July 2024 they received the applicant from the
members of South African Police Services, for detention in their
facility and that
detention was justified by a warrant of detention
signed by the Magistrate on the same date, which warrant was pursuant
to an order
of court. The warrant authorized them to receive the
applicant in custody until 24
th
July 2024. On 24
th
July 2024 a further warrant of detention was issued and signed by the
Magistrate following an order remanding the applicant in
custody
until 06
th
August 2024. The date of 06
th
August
2024 was the date on which this matter was set down on urgent basis.
[17]
It is noteworthy from the detention warrants that no bail application
had been made by the applicant
in the Magistrates Court. The charges
the applicant is facing are set out as follows: “
entering
and remained in the Republic without having valid documents”.
The fifth respondent’s stance is that their conduct of
detaining applicant is lawful as it is authorized by the court order
and a valid warrant.
[18]
The second reason for fifth respondent’s opposition is that
there is no basis for a cost
order to be sought against him let alone
an attorney and client scale. That concludes summary of fifth
respondent.
[19]
Ms Jelashe, in her affidavit deposed to on behalf of the first to
fifth respondent states that
on 05
th
July 2024, Mr Matya
who is an Immigration Officer, together with members of South African
Police Service confronted the applicant
at Flagstaff Main Road. After
introducing himself to the applicant, he requested documentation that
permits and legalises his stay
in the Republic as he is a foreign
national. The applicant produced a visa which patently expired on
17
th
June 2024.
[20]
The applicant was then advised that his conduct of being in the
country without valid documentation
is in contravention of the
provisions of
section 49(1)(a)
of the
Immigration Act. Upon
enquiry
the applicant stated the reason why he is in the country. His reason
was that he was working as a panel beater and could
not leave the
country due to a huge work load at his business. Mr Matya advised him
that he was under arrest for contravention
of the provision of
section 49(1)(a)
of
Immigration Act and
further advised of his
Constitutional Rights.
[21]
Verification process then took place through Operation Center and the
results of that process
confirmed that his visa had expired. It
further showed applicant’s multiple movements in and out of the
country for a period
exceeding (14) fourteen years.
[22]
An interviewer of the applicant by Mr Matya was undertaken and the
applicant cooperated. A questionnaire
form was completed with the
participation and cooperation of the applicant.
[23]
From the questionnaire form the following information is discernible:
Applicant’s first
entry into the Republic was in 1996 for
purposes of study. On 18
th
May 2024 a Visa/permit was
issued to him and it expired on 17
th
June 2024. The
applicant is recorded to be self employed as a panel beater under the
name and style Raster Panel Beater at Spaqeni
Administrative Area,
Flagstaff, Eastern Cape. He has a girlfriend A[...] M[...] with whom
he has two children, namely, J[...] M[...],
female of 14 years of age
and M[...] M[...] a female of 10 years of age. In 1999 he was
deported while in Gauteng Province. Nothing
in the questionnaire is
demonstrable of the fact that he is an Asylum seeker. Nothing shows
that he was rehabilitated notwithstanding
that he was deported.
[24]
The applicant was arrested and formally charged and ultimately
detained in Flagstaff Police cells
and he appeared in court on 08
th
July 2024. The first to fourth respondents strongly hold a view that
applicant’s detention was and is lawful. They resist
the
release of the applicant on the basis that such release will be
tantamount to breaking the law as the applicant is still without
any
legal documentation entitling him to be in the country.
[25]
It is contended that no interview in terms of
section 21
of Refuges
Act has been made, and it is in that interview that a good cause must
be shown for applicant’s stay in the country
and that will pave
way for the process of an application for Asylum status to be made in
terms of section 22 of the Act. Simply
put, if there is no good cause
shown in the interview, an application for asylum may not be made.
Applicant can be released after
he has applied for Asylum Seeker
Status.
[26]
In the final analysis the respondent posits a case that applicant’s
case that he is an
Asylum seeker is an afterthought and designed only
to fit the facts of this case. The applicant is shown to have been in
and out
of this country, sometimes entering through Lebombo Border by
foot. In October 2023 he entered the Republic but there is no entry
of his exit or departure from the country.
[27]
The respondent refutes that there are long queues in the Immigration
section as they hardly receive
immigrants seeking assistance from
them as Asylum applications are done in Refugees Reception Office,
the nearest of which is in
Durban. Application for Asylum seeker
status is made following an appointment. No appointment is shown to
have been made.
[28]
The first to fourth respondents concludes by saying the applicant has
not satisfied the requirements
of an interdict. The issue of urgency
was raised in the papers but during argument first to fourth
respondents abandoned that point.
The Legal Framework
[29]
It is important to understand the relevant provisions that find
application in this matter. The
following provisions referred to by
the applicant on the one hand, first to fourth respondents on the
other in their papers, to
wit,
Refugees Act
[1
]
as
well as
Immigration Act.
[2
]
I
must indicate from the onset that
Refugees Act was
amended with
effect from 01
st
January
2020.
[30]
Applications for Asylum are provided for in
Section 21
of the
Refugees Act. The
applicant pins his faith on the provisions of
Section 21(4) of the Refugees. As
Wallis
JA
[3]
quoted
with approval a dictum by
Lord
Steyn
[4]
to underscore a legal position that “
in
law, context is everything,”
[5]
I set
out to deal with the provisions.
[31]
Section 21(4)
of the
Refugees Act provides
as follows:
Application for
asylum
21.(1) ………
(2) ………
(3)
……
(4
) Notwithstanding
any law to the contrary, no proceedings may be instituted or
continued against any person in respect of his or
her unlawful entry
into or presence within the Republic if-
(a) such person has
applied for asylum in terms of subsection (1), until a decision has
been made on the application
and, where applicable, such
person has had an opportunity to exhaust his or her rights of review
or appeal in terms of Chapter
4; or
(b)
such person has been granted asylum
.
[32]
Secondly, the applicant seeks a temporal Asylum permit and in so
doing he relies on the provisions
of
section 22
(4)
Refugees Act.
[33
]
Section 22(4) of the Refugees Act provides:
“
(
1)
………
(2) …………
(3) ………..
(4)
The permit referred to in
subsection (1) must contain a recent photograph and the fingerprints
or other prints of the holder thereof
as prescribed.”
This provision does not provide support for the
relief sought by the applicant in this regard.
[34]
For the sake of completion reference is made in which applicant’s
papers to
section 2
of the
Refugees Act, which
section deals with
general prohibition of refusal of entry, expulsion, extradition or
return to other country in certain circumstances.
The section
provides.
“
2.
Notwithstanding any provision of this Act or any other law to the
contrary, no person may be refused entry into the Republic,
expelled,
extradited or returned to any other country or be subject to any
similar measure, if as a result of such refusal, expulsion,
extradition, return or other measure, such person is compelled to
return to or remain in a country where-
(a)
he or she may be subjected to persecution on
account of his or her race, religion, nationality, political opinion
or membership
of a particular social group; or
(b)
his or her life, physical safety or freedom
would be threatened on account of external aggression, occupation,
foreign domination
or other events seriously disturbing or disrupting
public order in either part or the whole of that country.”
[35]
It is common cause that the applicant was arrested in terms of
section 49(1)(a)
of the
Immigration Act, which
reads as follows:
“
49(1)
(a) Anyone who enters or remains in the Republic in contravention of
this Act shall be guilty of an offence and liable on
conviction to a
fine or to imprisonment not exceeding three months
.
[36]
The provision of
section 49(1)(a)
of the
Immigration Act should
aptly
be read with the provision of
section 41
of the same Act which
provide as follows:
(1
) When so requested by an Immigration officer or a police officer any
person shall identify himself or herself as a citizen,
resident or
foreigner when so requested by an Immigration officer or a peace
officer, and if on reasonable grounds such immigration
officer or a
police officer is not satisfied that such person is entitled to be in
the Republic, such Immigration Officer or a
peace officer may take
such a person into custody without a warrant and if necessary detain
him or her in a prescribed manner and
place until persons prima facie
status or citizenship is ascertained.”
[37]
Section 48
of the
Immigration Act provides
:
“
No
illegal foreigner shall be exempt from a provision of this Act or be
allowed to sojourn in the Republic on the grounds that he
or she was
not informed that he or she could not enter or sojourn in the
Republic or that he or she was admitted or allowed to
remain in the
Republic through error or misrepresentation, or because his or her
being an illegal foreigner was undiscovered.
[38]
Section 10
of the
Immigration Act provides
for temporary residence
permit in the following words:
“
10.
(1) Upon admission, a foreigner may enter and sojourn in the Republic
only if in possession of a temporary residence
(2)
Subject to this Act, upon application and upon prescribed examination
at the port of entry, one of the temporary residences
set out in
sections 11
to
23
may be issued to a foreigner.
(3)
If issued outside the Republic, a temporary residence is deemed to be
of force and effect only after an admission.
(4)
A temporary residence is to be issued on condition that the holder
is not or does not become a prohibited or an undesirable person.
(5)
For good cause, as prescribed, the Department may attach reasonable
individual terms and conditions to a temporary residence.
(6)
Subject to this Act, a foreigner may change his or her status while
in the Republic
.”
[39]
Section 29
of the
Immigration Act provides
for prohibited persons in
the following words:
“
29.
(1) The following foreigners do not qualify for a temporary or a
permanent
residence permit:
(a)….
(b)….
(c)
anyone previously deported and not rehabilitated by the
Department in the prescribed manner
.”
Both
section 10
(1) on one hand and
Section 29
(1) (c) on the other serve
as a loadstar in this matter. The effect of deportation of the
applicant shall be pivotal and central
in the determination of this
matter.
[40]
During discussion hereunder it will be apparent that the
Refugees Act
130 of 1998
was superseded and amended by
Refugees Amendment Act
which
came into effect from 01
st
January 2020 and updated
on 04
th
January 2023. Some of the provisions relied upon
by the applicant was slightly and cosmetically amended.
Common
Cause Facts
[41]
It is common cause that the applicant is an undocumented foreigner of
Mozambican discern. In
the questionnaire the applicant declared that
he entered the Republic in 1996 for purposes of study. He was
deported in Gauteng
Province. It is not gainsaid that the applicant
entered the Republic by foot on 06
th
June 2010. On 11
th
October 2023 he entered South Africa through Lebombo Border and there
is no record of his departure. He came again to this country
in 18
th
May 2024 with a Visitor’s Visa which expired on 17
th
June 2024. It is important to note that the applicant came into this
country as a visitor and not for any other reason for a specified
period of time. It is further common cause that the applicant failed
to report within five (5) days of his entry into the Republic.
[42]
When the applicant was confronted with the Immigration Officers and
members of South African
Police Service on 05
th
July 2024,
he was arrested in terms of
Section 49(1)(a)
of
Immigration Act and
was formally charged and detained in Flagstaff South African Police
cells. He appeared in court on 08
th
July 2024. The
applicant was remanded in custody until 24
th
July 2024. On
24 July 2024 the applicant was remanded in custody until 06
th
August 2024 which date was the date of hearing of this matter on
urgent basis. On this date all the necessary papers had already
been
filed and it is for that reason it is unknown from the papers what
transpired in court on 06
th
August 2024. In fact, the
challenge was directed at the detention that was precipitated by and
consequent upon decisions taken
on or before 08
th
July
2024 and 24
th
July 2024.
[43]
The applicant pertinently states that he was charged for
contravention of Immigration law of
this country, in particular for
being in the country illegally in terms of
section 49
of
Immigration
Act 13 of 2002
.
[44]
In his first appearance in Flagstaff Magistrate’s Court on 08
th
July 2024, the applicant pertinently contends that his attorney
sought a relief in terms of which he is released for him to be
afforded an opportunity to apply for Asylum status as he had an
intention to do so. The learned Magistrate indicated that he would
not be released from custody. The net and practical effect of the
contention is that an application on behalf of the applicant
for his
release consequent upon by his arrest and detention on 05
th
July 2024 was made and refused by and in the Flagstaff Magistrates
Court.
Discussion:
Effect of the Magistrates Court Orders
[45]
Applicant’s in his papers does not contend that the decisions
by the Magistrates Court
were set aside. The decisions are still
extant and are not challenged herein.
[46]
It bears repetition that an application for the release of the
applicant from custody was suitably
made. An application for the
release of the application from custody is quintessentially an
application challenging applicant’s
detentions. It is now
common cause that challenge was not successful and applicant’s
application for him to be released was
refused.
[47]
During argument applicant’s Counsel was invited to comment if
it is legally kept and sound
to make a fresh application for the
release of the applicant when there are at least more than one orders
by or made in the Flagstaff
Magistrates Court refusing the same
application. The court was advised that it has jurisdiction to grant
an order releasing the
applicant.
[48]
I am mindful of the fact that this point was not pertinently raised
by the respondents in their
papers. However, that point is apparent
on the papers of all the parties, especially if regard is had to the
applicant’s
and sixth respondent’s papers.
[49]
The Constitutional Court
[6]
in
Cusa
held
that:
“
67.
These
principles are, however, subject to one qualification. Where a point
of law is apparent on the papers, but the common approach
of the
parties proceeds on a wrong perception of what the law is, a court is
not only entitled, but is in fact also obliged, mero
motu, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on
an incorrect
application of the law. That would infringe the principle of
legality. Accordingly, the Supreme Court of Appeal
was
entitled mero motu to raise the issue of the Commissioner’s
jurisdiction and to require argument thereon
[50]
In the light of the fact that the point of the existence of the
unchallenged court orders remanding
the applicant in custody,
contemporaneously refusing applicant’s application to be
released is apparent on the papers, I
am of the view that it was
correct that I invited parties, especially applicant’s Counsel
to make submissions thereon as
that is a point of law having a
bearing on the Rule of law.
[51]
Even if it can be said that respondents’ failure to expressly
and pertinently raise in
their papers the issue of the existence of
an unchallenged court order remanding the applicant in custody
,
ipso facto
refusing application for the applicant’s release
constituted a concession, that concession would not be binding to
this court
if it is found to be incorrect in law. In what follows I
deal crisply with legal concession in case one may seek to equate
respondents’
failure to pertinently raise the point in the
papers with a concession.
[52]
The Constitutional Court
[7]
in
Matatiele
Ngcobo
J
writing
for the majority held that:
“
67.
Here,
we are concerned with a legal concession. It is trite that this Court
is not bound by a legal concession if it considers the
concession to
be wrong in law……... This Court firmly rejected
the proposition that it is bound by an incorrect
legal concession,
holding that “if that concession was wrong in law [it] would
have no hesitation whatsoever in rejecting
it.” Were it to
be otherwise, this could lead to an intolerable situation where this
Court would be bound by a mistake
of law on the part of a litigant.
The result would be the certification of law or conduct as consistent
with the Constitution when
the law or conduct in fact is inconsistent
with the Constitution
.
”
[8]
[53]
It is arising from applicant’s founding papers that during his
first appearance in Flagstaff
Magistrate’s Court an application
for his release from custody was made and same was refused and as a
corollary of such refusal
the applicant was remanded in custody. It
is further apparent on the papers, especially on the fifth
respondent’s answering
papers that the applicant was remanded
in their facility.
[54]
Section 165(5) of the Constitution provides that “
An order
or decision issued by a court binds all persons to whom and organs of
state to which it applies.”
The Magistrates Court orders
refusing the release of the applicant and consequently remanding him
in custody are binding not only
on the applicant, but also on the
fifth respondent which is an organ of state keeping the applicant in
detention.
[55]
All orders of court whether correctly or incorrectly granted have to
be obeyed until they are
properly set aside.
[9]
An order of court of law stands until set aside by a court of
competent jurisdiction.
[10]
Until
that is done, the court order must be obeyed even if it may be
wrong
[11]
. There is
presumption that the judgment is correct
[12]
.
Most importantly a person may be barred from approaching the court
until he has obeyed an order of court that has not been properly
set
aside.
[13]
“
In
Somali
Association of South Africa
”
,
Ponnan
J
in
his unanimous judgment held that “
no
democracy can survive if court orders can be shunned and trampled.
Litigants have duly not frustrated their enforcement by court
of
Constitutional Rights.”
[14]
[56]
The reason, in my view why a litigant must be barred from approaching
a court other than the
one where the order was granted, when that
court order has not been set aside, is simple that such conduct is
tantamount to
forum shopping
. Approaching another court when
validity of the court order in the Magistrates Court is not impugned
and there is no intention
of impugning it leads to an ineluctable
conclusion that the litigant is engaged in a
forum shipping,
which conduct is unacceptable. The court is approached to grant a
contradictory order in the face of a valid binding orders, which
conduct is undesirable as it adversely affects legal certainty.
[57]
For, it is well settled in our law that until a decision is set side
by a court in proceedings
for judicial review it exists in fact and
it has legal consequences that cannot simply be overlooked.
[15]
Although this
dictum
was
used in the context of administrative actions, by parity of reasoning
it applies with equal or more force in court orders or
judicial
pronouncements.
[58]
The legal consequences that the court orders of the Flagstaff
Magistrates Court will continue
to produce is that the applicant is
lawfully detained in terms thereof until they are set aside. Were it
to be otherwise there
would be no legal certainty and an order to the
contrary would engender a confusion, inconsistency and legal
uncertainty. On this
ground alone the applicant must be non-suited.
Applicant’s detention is not unlawful in the light of the
orders of the Magistrates
Court.
[59]
An order for the release of the applicant is in the nature of
mandatory interdict or a
mandamus,
which
must satisfy all the requirements of a final interdict. There are
three requisites for the grant of a final interdict, all
of which
must be present:
[16]
‘’
(a)
A clear right on the part of the applicant
(b)
An injury actually committed or reasonably apprehended.
(c)
the absence of any satisfactory remedy available to the applicant.’’
[60]
The third requirement of absence of satisfactory remedy is obviously
not satisfied in this regard.
Authorities are replete that an order
of court is enforceable, applicable and had binding force until it is
set aside by a court
of competent jurisdiction.
[17]
The remedy available to the applicant is to approach a court of
competent jurisdiction in appropriate proceedings for an order
setting aside the court order of the Flagstaff Magistrates court.
That is quintessentially the remedy available to the applicant
affording him the same relief sought in paragraphs 4 and 5 of notice
of motion. The present proceedings are not proceedings challenging
or
seeking to set aside the court order of the Flagstaff Magistrates
Court.
[61]
I accordingly find that the relief sought in paragraphs 4 and 5 of
the notice of motion are incompetent
and cannot be granted. The
application concerning the release of the applicant is unsuccessful.
The applicant is lawfully detained
in terms of the orders of the
Flagstaff Magistrates Court which have not been set aside.
Immigration
Act and
Refugees Act (Amendment
Included)
[62]
Even if I am wrong in holding that the applicant is lawfully detained
because of the court orders
which refused applicant’s
application to be released and consequently remanding him in custody,
there is in my view another
basis upon which the relief concerning
the release of the applicant cannot succeed.
[63]
The applicant contends that on 05
th
July 2024 he was
“
arrested, charged and detained for contravention of
Immigration Laws of this country,”
in particular, so the
contention goes, “
for being in the country illegally in
terms of
section 49
of the
Immigration Act 13 of 2002
.”
From this contention there is no dispute that the applicant is
illegally in this country. There is no dispute further that the
applicant was arrested and detained in terms of the Immigration Laws.
[64]
Section 41
of
Immigration Act provides
:
“
When
so requested by an Immigration officer or a police officer any person
shall identify himself or herself as a citizen, resident
or foreigner
when so requested by an Immigration officer or a peace officer, and
if on reasonable grounds such immigration officer
or a police officer
is not satisfied that such person is entitled to be in the Republic,
such Immigration Officer or a peace officer
may take such a person
into custody without a warrant and if necessary detain him or her in
a prescribed manner and place until
persons prima facie status or
citizenship is ascertained.”
[65]
On the facts of this case, upon being requested by an Immigration
Officer Mr Matya, who was accompanied
by members of South African
Police Services, the applicant identified himself as a foreign
national of Mozambican discern. Upon
this identification the
Immigration officer, Mr Matya was not satisfied on reasonable grounds
that the applicant was entitled to
be in the Republic. No documents
permitting him to be in the Republic were produced and in fact the
applicant himself understands
himself to be in the Republic
illegally. The applicant after a process of interview had taken place
was arrested and subsequently
detained.
[66]
Necessary conditions that must exist before an administrative power
can be exercise, are referred
to as jurisdictional facts. In the
absence of such preconditions or jurisdictions the administrative
authority effectively has
no power to act at all.
[18]
The jurisdictional facts that must exist before an Immigration
Officer or a police officer can take a foreigner into custody and
detain him or her without a warrant are the following:
“
(
a)
An immigration Officer must request any person to identify him or
herself.
(b)
person so requested shall identify himself or herself
(c)
the Immigration Officer must, on reasonable grounds, not be satisfied
that such person is entitled to be in the Republic.”
Once
these jurisdictional facts are satisfied, the Immigration Officer can
exercise his power to take a foreigner into custody and
detain him or
her. It is gleaned from the applicant’s papers that these
jurisdictional facts did exist. On this basis applicant’s
custody or detention was and is justified.
[67]
It is, at this stage appropriate to advert to the provisions of the
Refugees Amendment Act as
amended with effect from 01
st
January 2020, and to the relevant Regulations.
Section 4(1)
of the
Refugees Amendment Act deals
with exclusions from refugee status in
the following relevant manner:
“
(1)
An asylum seeker does not qualify for refugee status for the purposes
of this Act if a Refugee Status Determination Officer
has reason to
believe that he or she—
(a)……
(i)
has failed to report to the Refugee Reception Office within five days
of entry into the Republic as contemplated in
section 21
, in the
absence of compelling reasons, which may include hospitalisation,
institutionalisation or any other compelling reason:
Provided that
this provision shall not apply to a person who, while being in the
Republic on a valid visa, other than a visa issued
in terms of
section 23
of the
Immigration Act, applies
for asylum.”
[68]
Section 21(1)
of the
Refugees Amendment Act deals
with applications
for asylum and incorporate the following relevant provisions:
“
(1)
(a) Upon reporting to the Refugee Reception Office within five days
of entry into the Republic, an asylum seeker must be assisted
by an
officer designated to receive asylum seekers
”
It
is manifest from the papers that the applicant resurfaced in this
country in May 2024 through Lebombo Border. No report within
five
days contemplated in
section 4(1)(i)
and
section 21(a)
of the
Refugees Amendment Act was
made and five days had long elapsed at the
time of his arrest in July 2024. Applicant was excluded for Refugee
status.
[69]
Regulation 7
of the new Regulations is fundamentally important for it
provides as follows:
“
7.
Any person who intends to apply for asylum must declare his or her
intention, while at a port of entry, before entering the Republic
and
provide his or her biometrics and other relevant data as required,
including
(a)
fingerprints;
(b)
photograph;
(c)
names and surname;
(d)
date of birth and age;
(e)
nationality or origin; and
(f)
habitual place of residence prior to travelling to the Republic. and
must be issued with an asylum transit visa contemplated
in
section 23
of the
Immigration Act.”
There
is clearly an interplay between the
Immigration Act and
Refugees
Amendment Act and
for proper construction they need to be considered
conjunctively.
[70]
Section 49(1)(a)
of the same
Immigration Act criminalises
an act of
entering or remaining in the Republic in contravention of the Act and
prescribes a sentence for those offenders. The
section is worded as
follows:
“
Everyone
who enters or remains in the Republic in contravention of this Act
shall be guilty of an offence and liable on conviction
to a fine or
to imprisonment not exceeding three months
.”
[71]
Section 10
(1) of the
Immigration Act provides
:
“
10.
(1) Upon admission, a foreigner may enter and
sojourn in the Republic only if in possession of a temporal
residence.
(2)
Subject to this Act, upon application and upon prescribed examination
at the port of entry, one of the temporary residences
set out in
sections 11
to
23
may be issued to a foreigner”
The
provisions are squarely in sync with
Regulation 7
of the new
Regulations titled “
Asylum Transit Visa”.
An
intention of becoming an asylum in this country is declared not at
any other place, but at the port of entry. A temporal residence
or
asylum transit visa is issued to the foreigner in those circumstances
for a specific purpose of making an application for asylum.
An
application for asylum must be made within five (5) days of entry. It
is an imperative legislative requirement that foreigner’s
failure to report to Refugee Reception Office within Five days of
entry into the Republic excludes the asylum seeker for asylum
status
and disqualify him for Refugee status. No compelling reasons by the
applicant for having failed to do what the law requires
of him.
Compelling reasons includes the reasonableness of the explanation
given by the asylum seeker. Reasons must be coherent
and tangible. No
reasonable explanation was given. Long queues and high taxi fares are
not tangible reasons.
[72]
It is common cause that the applicant was once deported in 1999 in
Gauteng and was never rehabilitated.
Infact it is the first to fourth
respondents who brought this important fact to the court’s
attention, and that was not denied
by the applicant in the replying
affidavit. It means that atmost good faith was lacking on the part of
the applicant notwithstanding
that it was required. By virtue of that
deportation in 1999 the applicant became a prohibited person in the
Republic.
[73]
Section 29
of the
Immigration Act provides
for prohibited persons,
and it provide thus:
“
29.
(1) The following foreigners do not qualify for a temporary or a
permanent residence permit:
(a)….
(b)…
(c)
anyone previously deported and not rehabilitated by the Department in
the Prescribed manner.”
[74]
The applicant manifestly does not have a permit required by the
legislation. It is equivocally
clear that the applicant does not only
lack in possession of the permit, he also does not qualify for any
permit in this country.
If he is released from custody, he will
perpetually roam the street of the country as an illegal immigrant as
no rehabilitation
process has been initiated on his behalf or at his
instance. There will be no virtue in releasing the applicant even for
purposes
of applying for permit as he is disqualified from getting
one by operation of the law. He is also excluded in terms of
section
4(1)(i)
of the
Refugees Amendment Act and
disqualified for Refugees
status.
[75]
Provision of the
Immigration Act are
imperative. Where a statute
provides words of exclusive nature such as
only
such
provisions are peremptory.
[19]
Section 10
of
Immigration Act is
imperative as it is exclusive in
nature. It strictly requires, in limited terms, foreigners in
possession of temporal residence
permit to enter and sojourn in the
Republic.
[76]
Section 29(1)
of
Immigration Act regards
any person who does not
qualify for a temporal or a permanent residence permit as a
prohibited parson. A person who was previously
deported and not
rehabilitated is regarded as a prohibited person. His stay in the
Republic is inherently prohibited.
Innes
CJ
[20]
in
Schierhout
observed
as follows:
“
It
is a fundamental principle of law that a thing done contrary to the
direct prohibition of the law is void and of no effect but
must be
regarded as never having been done – and that whether the law
giver has expressly so decreed or not; the mere prohibition
operates
to nullify the act.”
Disqualification
in
section 4(1)(i)
of
Refugees Amendment Act is
equally imperative.
[77]
Section 41
of the
Immigration Act is
couched, as well in imperative
and is enacted as a remedial measure to the prohibited acts by the
foreigners. The purpose of
Section 29
and
41
of the
Immigration Act
reads
with
section 4(1)(i)
of
Refugees Amendment Act, is
to
circumvent presence or prevent a foreigner who is a prohibited person
to be on the streets of this country. It is for that reason
releasing
an illegal Immigrant is generally unlawful.
Jafta
J
[21]
in
Cools
Ideas
observed:
“
77………
It
is a basic principle of our law that a court can never lend its aid
to the enforcement of an illegal act.”
It
is an illegal act to be in the country without the necessary
documentation and as an illegal immigrant, which act cannot be
enforced.
[78]
In
Pottie
[22]
Fagan
JA
pointed
out that:
“
The
usual reason for holding a prohibited act to be invalid is not the
inference of an intention on the part of the legislature
to impose a
deterrent penalty for which it has not expressly provided, but the
fact that recognition of the
fact by
the court will bring about or give legal sanction to very situation
which the legislature wishes to prevent.”
[79]
Section 49(1)(a)
of the
Immigration Act criminalizes
an act of
entering and remaining in the Republic in contravention of the Act.
The law cannot and does not countenance an ongoing
illegality which
is also a criminal offence. To do so, would be to subvert the
doctrine of legality and to undermine the rule of
law. Courts have a
duty to ensure that doctrine of legality is upheld. The courts have a
concormitant duty to uphold the doctrine
of legality, by refusing to
countenance an ongoing statutory contravention and criminal
offence.
[23]
[80]
In a nutshell provision of
Immigration Act and
Refugees Amendment
Act, especially
those referred to above are peremptory and they
require exact compliance. A statutory requirement construed as
peremptory needs
exact compliance for it to have the stipulated legal
consequence and any purported compliance falling short of that is a
nullity.
[24]
[81]
Section 165(2) of the Constitution enjoins the courts as they are
vested with judicial authority
to apply and enforce the law in the
following imperative terms:
“
The
courts are independent and subject only to the Constitution and law,
which they must apply impartially and without fear, favour
or
prejudice.”
In
interpreting and expatiating on this
Jafta
J
[25]
observed
as follows:
“
99.
In our democratic order, it is the duty of courts to apply and
enforce legislation like the Housing Protection Act. If the validity
of legislation is not impugned, there can be no justification for not
enforcing it, let alone giving legal effect to prohibited
conduct.”
[82]
This matter concerns and turn into sharp focus to the interpretation
of statutes.
Wallis
JA
[26]
in
the unanimous judgment of
Endumeni
Municipality
observed
that:
“
18.
Over the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules to our own. It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments. The relevant authorities
are collected and
summarised
in Bastian Financial Services (Pty) Ltd v General Hendrik
Schoeman Primary School. The present state of the law
can be
expressed as follows. Interpretation is the process of attributing
meaning to the words used in a document, be it legislation,
some
other statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions
in the
light of the document as a whole and the circumstances attendant upon
its coming into existence. Whatever the nature of
the document,
consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context
in which the
provision appears; the apparent purpose to which it is directed and
the material known to those responsible for its
production. Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors.
15
The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute
what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for
the parties other
than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’,
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.
[83]
The purpose and context of the
Immigration Act and
Refugees Amendment
Act is
to prohibit undocumented foreign Immigrants into the country.
A different interpretation may lead to an absurdity.
[27]
[84]
The applicant seeks refugee on the provisions of
Refugees Act 130 of
1998
. In relying on the provisions of this Act he seeks relief set
out in paragraph 2 and 3 of the notice of motion. He seeks an order
directing first, second and Third respondents to issue him with a
temporary Asylum seeker permit pending finalization of Asylum
application. For that relief he relies on the provisions of
section
22
(4) of the same Act.
[85]
A further relief is a pure interdict against arrest, prosecution,
deportation and taking any
steps against him for being illegally in
the Republic. Ordinary principles of interdict will apply to
determine this relief. I
will deal with this one later. In what
follows I deal with the provisions of
section 22(4)
of the Act.
Anterior to that I re iterate that the old
Refugees Act was
amended
by
Refugees Amendment Act and
it is not relevant and operative.
[86]
Section 22(4)
of the Act does not entitle the applicant to any
temporary asylum seeker permit. All it does it prescribes the
requisites that
must be contained in the permit referred to in
subsection 1. Reliance on this provision for a temporary asylum
seeker permit is
misplaced and cannot entitle the applicant to the
relief he seeks. Where a litigant relies upon a statutory provision,
it is not
necessary to specify it, but it must be clear from the fact
alleged by the litigant that the section is relevant and
operative.
[28]
The section
relied upon
[29]
does not avail
the applicant to the relief he is seeking. That militates against the
cause of action; whether a cause of action
is properly identified.
Section 22(4)
of the Refugees Amendment Act provide:
“
22
(4)
The visa referred to in subsection (1) may, pending the decision on
the application in terms of section 21, from time to time
be extended
for such period as may be required.”
This
matter is not about extention of a visa.
[87]
If the order can be granted in the form it is sought, compelling the
administrative functionary
to perform functions in terms of an
inapposite and incorrect provision, the functions performed will
obviously be invalid. In
Liebenbeg
NO
[30]
Jafta
J
held
“
In
our law, administrative functions performed in terms of an incorrect
provisions are invalid, even if the functionary is empowered
to
perform the function concerned by another provisions.”
The
existence of an apposite and correct provision does not rescue the
function from invalidity. Accordingly, the relief is incompetent.
[31]
[88]
However, section 22(4) makes reference to section 22(1) of the same
Refugees Act. In
any event for a proper context subsection (1) and
(4) are ineluctably required to be read together.
Section 22(1)
of
the Act reads as follows:
“
22.
(1) The Refugee Reception Officer must, pending the outcome of an
application in terms of
section 21(l)
, issue to the applicant an
asylum seeker permits in the prescribed form allowing the applicant
to sojourn in the Republic temporarily,
subject to any conditions,
determined by the Standing Committee, which are not in conflict with
the Constitution or international
law and are endorsed by the Refugee
Reception Officer on the permit
.”
[89]
Refugees Amendment Act is
not materially different from the old Act.
Section 22(1)
deals with asylum seeker visa as follows:
“
(1)
An asylum seeker whose application in terms of
section 21
(1) has not
been adjudicated, is entitled to be issued with an asylum seeker
visa, in the prescribed form, allowing the applicant
to sojourn in
the Republic temporarily, subject to such conditions as may be
imposed, which are not in conflict with the Constitution
or
international law
.
[90]
A permit contemplated in these provisions can only be issued if the
jurisdictional requirements
exist, without which the power to issue
the temporal asylum permit or visa cannot be exercised by the
decision-maker.
[32]
The first
precondition that must exist is the application for asylum that must
be pending at the time of an application for temporary
asylum seeker
permit or visa
[91]
At the risk of repetition these provisions refer to an application
made in terms of section 21(1).
Section 21(1) of old Act reads as
follows:
“
An
application for asylum must be made in person in accordance with the
prescribed procedures to a Refugee Reception Officer at
any Refugee
Reception Office.”
[92]
Section 21(1)(b) of the new Act deals with the application for asylum
as follows:
“
(b)
An application for asylum must be made in person in accordance with
the prescribed procedures to a Refugee Status Determination
Officer
at any Refugee Reception Office or at any other place designated by
the Director-General by notice in the Gazette.”
Here
too, no material differences are apparent from the old act.
Provisions provide for the first jurisdictional fact that must
be
satisfied before a power to issue a temporal asylum seeker permit may
be exercised. That jurisdictional fact is the existence
of the
application for asylum that has not been adjudicated. It is apparent
on the applicant’s papers that an application
in terms of
section 21(1) for asylum seeker permit had not been made at the time
of his arrests and detention. Infact the applicant
categorically
contends that he wants to be released solely for him to make such an
application. Plainly the basis for this application
is the lack of a
jurisdictional fact to be granted temporary asylum seeker permit. If
there is no application for asylum pending
adjudication as a
necessary prerequisite, no temporary asylum seeker permit may be
issued.
[93]
The relief sought in paragraph 3 and 4 of the notice of motion can,
as well not be granted for
lack of a necessary jurisdictional facts
or necessary preconditions. In the absence of such necessary
preconditions or jurisdictional
facts the administrative authority
effectively has no power to act at all
[33]
.
Jurisdictional facts refer broadly to preconditions or conditions
precedent that must exist prior to the exercise of the power
and
procedures to be followed, or formalities to be observed when
exercising the power.
[34]
These facts are jurisdictional because the exercise of power depends
on their existence or observance as the case may be.
[35]
[94]
Lastly on this aspect, both section 21(1) and section 22(1) of both
Acts impose a duty on a particular
functionary to exercise the power
to issue asylum seeker permits. For purposes of this matter the
Refugee Reception Officer or
Refugee Status Determination Officer is
the statutorily appointed functionary to exercise power to issue
temporary asylum seeker
permits. It is not the Minister and the
Director General of the Department of Home Affairs that are empowered
to issue temporary
asylum seeker permits. The Refugee Reception
Officer or Refugee Status Determination Officer is not joined as a
party in the present
proceedings. The functionary is therefore a
necessary party to be joined. An order directing that a temporary
asylum seeker permit
must be issued is incompetent in the absence of
a statutorily appointed decision-maker who is a necessary party. For
this reason,
again the relief cannot be granted.
[95]
A party is a necessary party to be joined in the proceedings if he
has a direct and substantial
interest in the matter.
[36]
On the facts of this case and for the reason that the party
statutorily empowered to exercise a power to issue the permit
concerned
is not a party before court, and for the facts that, even
if that party was joined, it is manifestly clear that the necessary
preconditions
for the exercise of power have not been satisfied, the
relief sought in paragraph 2 and 3 of the notice of motion cannot be
granted.
[96]
Accountability is a central value of our Constitution.
[37]
This means that our law must be developed and interpreted in a manner
that ensures that all bodies exercising public power are
held
accountable. However, it also means that court should be slow to
infer the delegation of power to bodies that cannot be held
directly
accountable through ordinary political processes.
[38]
This is not out of kilter with the Uniform Rules of court governing
joinder of necessary parties.
[97]
In the amalgam of all the facts in this case it is plain that
granting an order in circumstances
where the public official would
not have power to exercise in terms of the empowering provision would
be lending its aid to the
enforcement of an illegal act, an act this
court is eschewed from.
[39]
A
court can give a licence to public officials to break the law or to
act contrary to the dictates and prescribed requirements
of the law.
That would be antithetical to the doctrine of legality which the
court must ensure that it is observed and upheld.
[40]
That order would bring about or give legal sanction to the very
situation the legislature wishes to prevent.
[41]
[98]
Refugee Reception Officer or Refugee Status Determination Officer, on
the facts of this case,
would not have power to issue the temporary
asylum seeker permit. It is a fundamental tenet of our law that the
doctrine of legality
which requires that power should have a source
in law is applicable whenever public power is exercised. Public power
can only be
validly exercised if it is clearly sourced in law.
[42]
The
law in the present circumstnces does not empower the relevant
official or functionary to issue temporary asylum permit.
[99]
The interdict sought in paragraph 3 of the notice of motion was
dependant upon granting of paragraph
2 of the notice of motion.
Because paragraph 2 of the notice of motion does not succeed, the
whole edifice which include, paragraph
3 of the notice of motion
collapses. Once relief for temporary asylum seeker permit collapses,
the interdict piggy backed thereon
naturally falls away.
[100]
Having said all the above I find that applicant’s application
in its entirety cannot succeed and as a corollary
it must fail. There
is no reason for costs not to follow the result.
Order
[101]
In the result I make the following order:
101.1
The application is dismissed with costs.
Zono AJ
Acting Judge of the
High Court
APPEARANCES:
For
the applicant
:
Adv MQOKOZO WITH MS NGCEZA
Instructed
by
:
NGCEZA INC ATTORNEYS
20
Main Street
Flagstaff
Cell
No: 0739214156
Ref:
flagstaff/mm/mva/19
C/O
A MAVIYO ATTORNEYS INC
24
Hemming Street
Mthatha
For
the Respondents
:
ADV MALIWA
Instructed
by
:
STATE ATTORNEY
Broadcast
House
No
94 Sission Street
Fortgale
Mthatha
[1]
Refugees
Act No 130 of 1998
[2]
Immigration
Act No 13 of 2002
.
[3]
Minister
of Home Affairs and others v Scalabrini Centre, Cape Town and others
2013 (6) SA 421(SCA).
2,
2013 (4) ALL SA 571
SCA Para 89
[4]
R V
Secretary of the State for the Home Affairs Department Ex Parte Daly
[2001] UKHL26
[2001] UKHL 26
; ;
[2001] 3 ALL ER 433
(HL) at 447 A
[5]
Aktiebolaget
Hassle and Another v Thomed (Pty) Ltd
2003 (1) SA 155
SCA Para 1
[6]
Cusa
v Tau Ying Metal Industries and others
[2008] ZACC 15
;
2009 (2) SA 204
CC
Para
67
[7]
Matatiele
Municipality v President of the Republic of South Africa
2006 (5) SA
47
(CC) Para 67
[8]
Electoral
Commission of South Africa v Speaker of the National Assembly and
others
2019 BCLR 89
(CC) Para 79-80
[9]
Master
of the High Court Northern Gauteng High Court, Pretoria v Motala
2012 (2) SA 325
(SCA) Para 11
[10]
Bezuidennhout
v Petensie Sitrus Beherend Bpk 2001 (!) SA 224 (E) at 229 B-C; MEC
for Economic Affairs, Environmental and Tourism
v Krusenga
2018 (6)
SA 264
(CKHC) at 277 C
[11]
Culverwell
v Beira
1992 (4) SA 490
(W) at 494 A-C
[12]
MEC
for Economic Affairs, Environmental and Tourism v Krusenga
2010 (4)
SA 122
SCA; Makings v Makings
1958 (1) SA 338
(A) at 349
[13]
Minister
of Home Affairs v Somali Association of South Africa
2015 (3) SA 545
SCA at 570F-571A Para 34; Byliefedt v Redpath 1982(1) SA 702 (A) at
714
[14]
Gauteng
Gambling Board and another v MEC for Economic Developmnet, Gauteng
2013 (5) SA 24
(SCA) Para 52; Minister of Home Affairs and others v
Somali Association of South Africa, Eastern Cape (SASAEC) and
Another
2015 (3) SA 545
Para 35
[15]
Ouderkraal
Estates’ (Pty) Ltd v City of Cape Town and others
2004 (6) SA
222
(SCA);
2004 (3) ALL SA 1
Para 26; South African Broadcasting
Corporation SOC Ltd and others v Democratic Alliance and others
2016
(2) SA 522
(SCA),
2015 (4) ALL SA 719
SCA Para 45
[16]
Setlogelo
v Setlogelo
1914 AD 221
at 227
[17]
Section
165(5) of the Constitution; Authorities referred to above
[18]
Kimberly
Junior School and another v Head of Northern Cape Education,
Department and others
2010 (1) SA 217
(SCA), 2009 (4) ALL A 135
(SCA) Para 11
[19]
LAWSA
Vol 25 Part
1, Page 399
Para 366
[20]
Schierhout
v Minister of justice
1926 AD 99
at 109
[21]
Cools
Ideas 1186 CC v Hubbard and another
2014 (4) SA 474
(CC) Para 77
[22]
Pottie
v Kotee 1954(3) SA 719 (A) at 726H-727A
[23]
Lester
v Ndlambe Municipality and another
2014 (1) ALL SA 402
(SCA);
2015(6) SA (SCA) Para 23, 24, 27 and 28
[24]
Shalala
v Klerksdorp Town Council and another
1969 (1) SA 582
(T) at 587
A-C; LAWSA Vol
25 Page 399
Para 366
[25]
Cools
Ideas 1186 CC v Hubbard and another
2014 (4) SA 474
(CC) Para 99
[26]
Natal
Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593
SCA Para 18
[27]
Cools
Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC) Para 28
[28]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental affairs and
Tourism and others 2004(4) SA 490(CC),2004(2) BCLR 687 (CC)
Para 27
[29]
Yannakou
v Apollo Club
1974 (1) SA 614
(A) at 623 F-H
[30]
Liebenberg
No v Bergriver Municiplaity and others23 (5) SA 246 Para 93
[31]
Nxumalo
v The president
2014 (12) BCLR 1457
(CC) Para 14; Zuma v Democratic
Alliance and others; Acting National Director of Public Prosecutions
and another v Democratic
Alliance
2018 (1) SA 200
(SCA) Para 58
[32]
Paola
v Jeeva No
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) Para 11, 14 and 16
[33]
Kimberly
Junior School and another v Head of the Northern Cape Education
Department and others
2010 (1) SA 217
(SCA) Para 11
[34]
MEC
for Health Eastern Cape and another v Kirland Investments (Pty)Ltd
2014 (3) SA ( CC) Para 98
[35]
Cora
Hoxter: Administrative Law in South Africa, 2
nd
Edition
Page 290
[36]
Amalgamated
Engineering Union v Minister of Labour 1949 (3) 637 (A) at 651
[37]
Rail
Commuters Action Group and others v Transnet Ltd t/a Metrorail and
others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
CC Para 73-76
[38]
AAA
Investments (Proprietary) Limited v Micro Finance Regulatory Council
and another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) Para 89
[39]
Cools
Ideas 1186 CC v Hubbard and another 2014 (4) 474 (CC) Para 77
[40]
Lester
v Ndlambe Municipality and another
2015 6) SA 283
SCA Para 24
[41]
Pottie
v Kotze
1954 (3) SA 719(A)
at 726 H-721A
[42]
AAA
Investments (Proprietary) Limited v Micro Finance Regulatory Council
and another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) Para 68