SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 20136/2022
C[...] E[...] First Applicant
In her personal and representative capacities
P[...] M[...] E[...] Second Applicant
S[...] M[...] J[…] E[...] Third Applicant
and
MINISTER OF HOME AFFAIRS Respondent
Date of hearing: 14 March 2024
Date of Judgment electronically handed down: 7 October 2024
JUDGMENT
BAWA AJ:
A. Introduction
[1] The applicants sought a special exemption for permanent residence under
section 31(2)(b) of the Immigration Act 13 of 2002 (“the Immigration Act”). The first
applicant (“Ms E[...]”) is the mother of (“S[...]”), a minor child who has severe dystonic
spastic cerebral palsy, is developmentally delayed and non -verbal, and suffers from
a form of quadriplegia. He is unable to move independently and is classified on a
Level IV on the Gross Motor Function Classification Scale. The second applicant
(“P[...]”) is S[...]’s minor sister. The grounds on which the exemptions are sought are
S[...]’s disabilities coupled with the care and support which S[...] receives at a
charitable centre in Cape Town, the Friends Day Centre (“the Friends Centre”) and
medical care from Red Cross Children’s Hospital (“Red Cross”) . The applicants
allege that S[...] would not receive this care in Angola and this was not placed in
dispute. It is clear that the family, and to a greater extent S[...] is a recipient of
largesse from charities and medical organisations, including Red Cross.
[2] The respondent (“the Minister”) informed the applicants that having carefully
considered all the information at his disposal he could not find special circumstances
which would justify the granting of permanent residence to them pursuant to
section 31(2)(b) of the Immigration Act. This refusal is the subject matter of this
review application.
B. Background
[3] S[...] was born on 20 May 2007 in Luanda, Angola and is approximately 17
years of age. As a result of his severe permanent disabilities, he is unable to walk,
cannot talk and cannot take care of himself. He suffers from chronic pain arising
from his body’s rigidity and immobility and will require highly specialised medical
treatment and care for the rest of his life.
[4] Ms E[...] was in a long -term relationship with S[...]’s father, S[...] M[...]. The
family came to South Africa in November 2013. They entered the country using
visitors’ visas which expired on 10 January 2014. The reason they came to South
Africa was to seek the medical care that S[...] required. Shortly after they arrived in
South Africa, Mr M[...] returned to Angola. Mr M[...] subsequently stopped sending
money and cut ties with his wife and children , leaving Ms E[...] as an impo verished
single parent.
[5] In February 2014 Ms E[...] approached the Department of Home Affairs to
apply for a medical treatment visa for S[...] in order to stay in South Africa , but was
informed that the applicants would have to do so from Angola. For various reasons,
including both S[...]’s health and the expense, they did not do so. For all intents and
purposes, the applicants have remained in South Africa unlawfully since the
expiration of their visitors’ visas . There is no indication that prior to the exemption
application to the Minister , any other attempts were made to legalise their stay in
South Africa. As an illegal foreigner in South Africa , Ms E[...] is not eligible for
employment. She is a layperson who , beyond working on an informal basis to
provide for her family’s basic needs, has not secured permanent gainful employment
in South Africa.
[6] S[...] was accepted at the Friends Centre . As confirmed in an affidavit
deposed to by Heather Yelland, a senior physiotherapist practising at the Friends
Centre, it is a special care centre that provides care, activity and therapy for children
and adults with severe to profound physical disabilities. It caters for persons with
special needs in Cape Town . The Friends Centre has capacity to cater for 120
learners. In 2023 it only had 83 fully enrolled learners with severe to profound
disabilities, thus it not operating at full capacity.
[7] The Friends Centre operates on dedicated donor funding including funding
received from the South African Departments of Health and Social Development.
[8] S[...]’s condition is incurable and he will require lifelong care and assistance,
including ongoing therapy to prevent complic ations and maximize his mobility and
function. At no cost to Ms E[...], S[...] receives speech therapy, language stimulation,
aqua and other forms of therapy of the standard required for his condition at the
Friends Centre. The Friends Centre has provided S[...] with an electronic wheelchair
and a tablet to enable him to move himse lf and communicate with others. There is
no mention of S[...]’s life expectancy. There is also no mention of the exact cost
implications to the South African s tate of his medical care, though the evidence
provided is that S[...] needs multilevel surgeries which can be provided at Red Cross,
as this is not included in what is provided by the Friends Centre. It is anticipated that
these surgeries are required to alleviate his chronic pai n and to enable him to
transfer from a wheelchair to a bed, without being lifted when his mother and sister
are no longer able to physically lift him.
C. The exemption application
[9] The application was made in terms of section 31(2)(b) of the Immigrat ion Act,
which states:
“(2) Upon application, the Minister may under terms and conditions
determined by him or her-
(a) …..
(b) grant a foreigner or a category of foreigners the rights of
permanent residence for a specified or unspecified period when
special circumstances exist which would justify such a decision :
Provided that the Minister may-
(i) exclude one or more identified foreigners from such
categories; and
(ii) for good cause, withdraw such rights from a foreigner or a
category of foreigners;
(c) for good cause, waive any prescribed requirement or form; and
(d) for good cause, withdraw an exemption granted by him or her in
terms of this section.”
[10] In effect what must be shown is that there are special circumstances that
warrant the Minister granting a foreigner , or a category of foreigners , rights of
permanent residence. It is common cause that Form 47 of the Regulations provides
that when the Minister takes into account “special circumstances”, the Minister must
be satisfied that the issuance of an exemption to a foreigner would promote
economic growth and would not be to the disadva ntage of South African citizens or
permanent residents. In the exemption application t he applicants submitted that
these con siderations are inapposite to this matter as the purpose behind the
application is not, at its core, to grant Ms E[...] the right to work but to provide S[...]
with care and the medical treatment he requires.
[11] Given that S[...] is reliant on the care from Ms E[...] and P[...], and given the
family unit, permanent residence is sought by the E[...] family as a unit, and receipt
thereof would enable Ms E[...] to find employment and regularise her informal work
to support her family.
[12] Though the Minister exerci ses a broad discretionary power, he must do so
within the confines of legality and the Promotion of Administrative Justice Act 3 of
2000 (“PAJA”).
[13] The special circumstances relied upon by the applicants in the application
were:
“9.1 S[...]’s medical condition and the need for long-term medical assistance
require his continued residency in South Africa for the foreseeable future;
9.2 S[...] has benefitted from vital medical assistance and an exceptional
support system in South Africa, which he would lose and be unable to replace
if required to return to Angola, to his lifelong prejudice;
9.3 There are no other adequate alternative visa or immigration options
available to E[...] family;
9.4 The E[...] family have built a connection to South African society, in
which they have resided and integrated over the past six or so years; and
9.5 The fact that any ministerial exemption would not undermine the South
African economy.”
[14] In addition, the applicants requested that the Minister to cons ider the
application through the prism of the Constitution and the Children’s Act 38 of 2005
(“the Children’s Act”) giving primary consideration to the best interest s of the minor
child, specifically disabled children and to apply section 31(2)(b) of the I mmigration
Act with a humanitarian dimension.
[15] The primary exceptional circumstance relied on to obtain a ministerial
exemption stems from S[...]’s condition and his need to receive specialised treatment
in South Africa. It was stated in the application that S[...]’s condition would severely
deteriorate were he no longer to have access to treatment at the Friends Centre and
Red Cross. The application to the Minister also makes it clear that the applicants (not
only S[...]) are dependent on scholarships and charities which, though generous “are
not certain to continue into the future”.
D. The impugned decision
[16] The Minister is empowered to grant a permanent residence exemption when
special circumstances exist that justify such decision.
[17] The Minister’s decision dated 12 June 2022 is as follows:
“Having carefully considered all the information at my disposa l, I wish to
inform you that I could not find special circumstances which would justify the
granting of permanent residence status to your client and her children.
You have approached me to consider granting Ms C[...] E[...] and her children,
P[...] and S[...], rights of permanent residence status through exemption, inter
alia, because of the fact that S[...] M[...] J[...] E[...] was born with Cerebral
Palsy, a serious impairment. Whilst it is understandable that S[...] receives
medical treatment and therapy in South Africa relating to his medical
condition, the Act does make provision for foreigners to obtain visas for the
purposes of medical treatment. The notion that your client is impoverished
and without funds cannot be t he reason for why they are unable to obtain the
relevant legalising documents. The fact that you have made it clear that they
live off the funding from charity organisations which is not guaranteed to last
indefinitely, makes your client highly likely of becoming a public charge.
You are undoubtedly aware of the economic situation South Africa is facing
and the high rate of unemployment amongst our citizens and permanent
residents. It should be known that the responsibility towards your client lies
with her country of origin, Angola. For these reasons alone, I am not prepared
to favourably consider your application on behalf of Ms E[...] and her children.”
(Underlining added)
[18] The applicants seek to have the impugned decision reviewed and set aside in
terms of the PAJA and pray that the Court direct that the applicants be issued with
the exemptions sought, alternatively that the matter be remitted for a fresh decision
within three months. In the founding papers the applicants rely on sections 6(2)(f)(ii),
6(2)(h), 6(2)(i) and 6(2)(e)(iii) of PAJA.1
E. Grounds of review
1 “6 Judicial review of administrative action
(2) A court or tribunal has the power to judicially review an administrative action if -
(e) the action was taken-
(iii) because irrelevant considerations were taken into account or relevant considerations
were not considered;
(f) the action itself-
(ii) is not rationally connected to-
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(h) the exercise of the power or the performance of the function authorised by the empowering
provision, in p ursuance of which the administrative action was purportedly taken, is so unreasonable
that no reasonable person could have so exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful.”
[19] The applicants raised four grounds of review which they contend vitiated the
Minister’s decision.
[20] First, that the Minister erred in finding that the applicants could obtain medical
treatment visas in terms of a medical visa issued under section 17 of the Immigration
Act,2 when as a matter of fact and law they cannot.
[21] The applicants submitted that it was irrelevant whether medical treatment
visas were generally available to other persons who may meet the criteria . What is
relevant is that all three applicants could not obtain medical treatment visas. Even if
S[...] could obtain such visa, such visas are not available to S[...]’s family on whom
he still depends, both as a child and as a person with special needs. This was not a
solution because S[...] would be separated from his family. But even if they could,
Ms E[...] and P[...] would not be allowed to work or study s relative with a medical
visa. As there are no alternative visas or permits which Ms E[...] and P[...] would
qualify for, were S[...] to follow the medical visa route, he would be separated from
his fami ly, who are his primary caregivers. In support of their contentions, the
applicants referred to the Minister’s answering affidavit in which the Minister
acknowledged that medical visas are not a substitute for permanent residence.
[22] Second, medical treatment visas are limited to a maximum of six months in
terms of regulation 16(2). S[...]’s condition is permanent and only an exemption will
provide him with permanent residence. He cannot reasonably be expected to
reapply every six months. In his answering affidavit, t he Minister also admitted that
2 “17 Medical treatment visa
(1) A medical treatment visa may be issued to a foreigner intending to receive medical treatment in
the Republic for longer than three months by-
(a) the Director-General, as prescribed; or
(b) the Director -General through the registrar's office or a des ignated official of an
institution where the foreigner intends to receive treatment, provided that such institution -
(i) has been approved by and is in good standing with the Director-General;
(ii) certifies that it has received guarantees to its sati sfaction that such foreigner's
treatment costs will be paid;
(iii) in the case of a minor, provides the name of a person present in South Africa who is,
or has accepted to act, as such minor's guardian while in the Republic or certifies that such minor wi ll
be accompanied by a parent or guardian to the Republic;
(iv) undertakes to provide a prescribed periodic certification that such foreigner is under
treatment; and
(v) undertakes to notify the Director -General when such foreigner has completed his or
her treatment.”
medical visas are not appropriate where there is a need for medical care in South
Africa on an ongoing basis because of permanent inc apacity. Consequently, the
Minister had misdirected himself in his reliance on the availability of medical
treatment visas.
[23] Third, that the Minister was wrong to find that the applicants were highly likely
to become public charges because they live off funding from charitable
organisations, which is not guaranteed indefinitely. The Friends Centre have
undertaken to support S[...] on a permanent basis.
[24] In respect of the third ground of review, it was submitted that on the evidence
before the Court, the concern that the funding for S[...] would run out, making him a
burden on the State’s purse, is unwarranted. The applicants, in the founding and
supplementary founding affidavits, set out that the Friends Centre has an established
and continuous track record of 64 years. It is alleged that once admitted, the
students receive care for their entire lives. The Friends Centre has made provision
for S[...]’s lifelong stay for free, including advance planning and engagement with
their donors. The applicants argue that the Minister has offered no evidence for the
claim that S[...] is likely to end up a burden to the State and has failed to explain
what facts this conclusion is based on.
[25] In the applicants’ heads of argument, the emphasis had shifted to the fact that
the Friends Centre had resources and was prepared for S[...]’s long-term enrolment
and that the alleged error made by the Minister was in respect of his view of the
alleged unreliability of the care and support provided by the Friends Centre. This, it
was contended, was of limited relevance.
[26] Finally, the applicants state that the decision fails, both implicitly and explicitly,
to take into account the best interests of the child as required by section 28(2) of the
Constitution. The Minister’s decision condemns S[...] to a life of suffering in Angola,
even though charities in South Africa are willing and able to ass ist him . The
Minister’s decision is thus contrary to the best interest s of the child which are
paramount.
[27] In this regard the applicants submit that the Minister failed to treat the best
interests of the child as of paramount importance when refusing the exemptions . In
addition to section 28 of the Constitution , section 6(2)(f) of the Children’s Act
provides that “ [a]ll proceedings, actions or decisions in a matter concerning a child
must … recognise a child’s disability and create an enabling environment to respond
to the special needs that the child has”.
[28] In terms of s ection 11 of the Children’s Act , in mat ters concerning disabled
children, due consideration must be given to the following: (a) providing the child with
conditions that ensure dignity, promote self -reliance and facilitate active participation
in the community and (b) providing the child and the child’s caregiver with the
necessary support services. In matters concerning children with chronic illness, due
consideration must be given to providing the child with the necessary support
services.
[29] Mr Simonsz, with Ms Labuschagne, for the applicants submitted that the
paramount consideration for the Minister ought to have been whether his decision
would be in S[...]’s best interests. Applying the principles set out in S v M ,3 which
dealt with the sentencing of a primary caregiver of children , it was argued that the
Minister ought to have considered whether his decision would promote a life of
dignity, nurture a life f ree from avoidable trauma, and provide both the child and the
child’s caregiver with the necessary support services. Instead, it was submitted, the
decision exposes S[...] to a life of unending misery.
[30] Further, that it was not constitutionally permissible for the Minister to take the
approach that he had, namely that Angola bore the responsibility for S[...] and that it
was neither appropriate nor justifiable to grant permanent residence on the basis that
S[...] would receive better medical treatment in South Africa . The Minister was
exercising a public power concerning a disabled child in South Africa and as such he
was required to treat S[...]’s best interests as of paramount importance.
3 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 CC at paras [19] – [20].
[31] It was further submitted that the consequences for S[...] if he returned to
Angola were so harsh , and the burden on South Africa , if he remained , were so
negligible that the decision could not be found t o be reasonable, rational or
constitutional.
F. Minister’s submissions
[32] Mr Rosenberg, who appeared for the Minister, correctly submitted that the
Minister is vested with a broad discretion in terms of section 31(2)(b) of the
Immigration Act and provided that the discretion was properly exercised (which it
was submitted was the case), his decision was valid and should not be set aside on
the basis that a court , or another decision -maker, would have reached a different
conclusion, o r on the basis that the plight of the applicants were exceptional and
deserving of sympathetic treatment.
[33] He submitted that t he Minister had appreciated the nature and extent of
S[...]’s disability, however, S[...]’s needs, deserving as they were, did not , without
more, trump all other considerations.
[34] The Minister, also a qualified medical doctor , averred that he was unde r no
misapprehension as to the nature of S[...]’s condition and his needs and the short -
term character of medical treatment visas.
[35] It was submitted that t he Minister was obliged to take a range of factors into
account, which factors had been listed in the reasons for his decision . The Minister
had considered the medical reports supporting the application for exemption which
made it clear that S[...]’s condition required long-term treatment and support and that
his family played an important role as caregivers. The Minister also took into
account the fact that South Africa had provided S[...] with medical services since
2014 and that the support available in South Africa would probably significantly
exceed that which he would receive in Angola. Further, the Minster fully appreciated
the challenges which S[...] might face on return to Angola in the short, medium and
long term. I pause to note that in the answering affidavit, the Minister stated that the
application lacked detailed and satisfactory evidence of the lack of appropriate
medical treatment and care in Angola . This, the applicants submit, was an
impermissible supplementation of the reasons for his decision. Be that as it may, the
application was argued on the basis that South Africa offered health care to S[...] that
was not available to him in Angola.
[36] The Minister took the view that severe disability and the relative lack of
capacity in an applicant’s country to deal satisfactorily with such disability is not
sufficient, without more, to justify an exemption and the grant of permanent
residency. Similarly, the fact that the applicant would be better off under South
African healthcare was also not in and of itself a justifiable basis for granting
permanent residence.
[37] Further, the Minister was of the opinion that there was an insufficient basis to
conclude that the charitable treatment being received would continue indefinitely and
it was likely that such generosity would not be maintained in the long term. In light of
the high demands on South Africa’s medical, social , and economic resources as a
result of high unemployment , the primary responsibility for the applicants lay with
Angola rather than South Africa.
[38] The Minister submitted that in weighing all the factors in favour of, and those
operating against , the granting of the application , he decided not to exercise his
discretion to grant permanent residence . Reliance was placed on MEC for
Environmental Affairs and Development Planning v Clairisons wherein it was stated:4
“The law remains, as we see it, that when a functionary is entrusted with a
discretion, the weight to be a ttached to particular factors, or how far a
particular factor affects the eventual determination of the issue, is a matter for
the functionary to decide , and as he acts in good faith (and reasonably and
rationally) a court of law cannot interfere”.
[39] The Minister characterised the applicants’ challenge , based on the
aforementioned four grounds on the part of the Minister, as material mistakes of fact.
4 2013 (6) SA 235 (SCA) at para [22].
However, because none of the mistakes of fact were uncontentious and objectively
verifiable, it was submitted, relying on South Durban Community Environmental
Alliance v MEC for Economic Development, Tourism and Environmental Affairs :
KwaZulu-Natal Provincial Government and Another,5 that contesting the assessment
and weighing of the facts by the decision -maker does not amount to a recognisable
ground of review.
G. Evaluation of review grounds
(i) Relevant law
[40] The Minister is bound by the reasons given for refusing the exemption
applications and cannot raise or rely on further reasons in an answering affidavit to
justify the decision taken. Indeed, the Minister confirmed that the factors he took into
account were listed in the reasons for his decision, yet apparent from the answering
papers, the Minister sought to supplement those reasons.
[41] The Supreme Court of Appeal (“the SCA”) in National Lotteries Board v South
African Education and Environment Project6 stated that:
41.1. the duty to give reasons for an administrative decision is a central
element of the constitutional duty to act fairly;
41.2. the failure to give reasons, which includes proper or adequate reasons,
should ordinarily render the disputed decision reviewable;
41.3. such a decision would ordinarily be void and cannot be validated by
different reasons given afterwards – even if they show that the original
decision may have been justified because in truth the later reasons are not
the true reasons for the decision, but rather an ex post facto rationalisation of
a bad decision.
5 2020 (4) SA 453 (SCA) at para [23].
6 National Lotteries Board v South African Education and Environment Project 2012 (4) SA 504 (SCA)
at para [27].
[42] Although the above pronouncement was obiter dictum in National Lotteries
Board, the principle that a decision maker is bound by the reasons given has
consistently been followed and applied.7 The Constitutional Court in National Energy
Regulator of South Africa and Others v PG Group and Others, 8 affirmed the SCA’s
decision in National Lotteries Board to the effect that reasons formulated after a
decision has been made ca nnot be relied upon to render the administrative decision
rational, reasonable and lawful.
[43] As far as review based on mistakes of fact is concerned , in Airports Company
South Africa v Tswelokgotso Trading Enterprises CC 9 the Court summarised the
current state of the law as follows:
“In sum, a court may interfere where a functionary exercises a competence to
decide facts but in doing so fails to get the facts right in rendering a decision,
provided the facts are material, were established, and meet a threshold of
objective verifiability. That is to say, an error as to material facts that are not
objectively contestable is a reviewable error. …”
(ii) Grounds of review
[44] At the outset I point out that the applicants’ contentions that S[...] would not be
provided with adequate care by the medical care system in Angola w ere not placed
in dispute, although no substantive evidence to that effect was contained in the
exemption application before the Minister concerning the quality of care in Angola.
The Minister took it no further than saying that “the medical care provided to S[...] in
South Africa would probably significantly exceed that available in Angola”.
7 See also Minister of Defence and Military Veterans v Motau and O thers 2014 (5) SA 69 (CC)
footnote 85; Umgeni Water v Sembcorp Siza Water (Pty) Ltd and Others; Minister of Water &
Sanitation v Sembcorp Siza Water (Pty) Ltd and Others 2020 (2) SA 450 (SCA) at para [52]; Becker v
Minister of Mineral Resources and Energy and Others [2023] 2 All SA 73 (WCC) at para [85].
8 2020 (1) SA 450 (CC). See also Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape
Gambling and Racing Board and Another 2023 (2) SA 305 [SCA] at para [19].
9 2019 (1) SA 204 (GJ) at para [12].
[45] In relation to the first ground of review , much reliance is placed on the
phraseology in the decision that “the Act does make provision for foreigners to obtain
visas for the purposes of medical treatment.”
[46] The Minister’ s position was that he had appreciated medical visas did not
provide a basis for medical treatment in South Africa on a long term and permanent
basis. The Minister had stated that he was aware of the limitations attaching to the
grant of medical visas.
[47] At no stage does the Minister state he is refusing the exemption application
on the basis that the applicants should be applying for a medical visa. In this regard
the first ground is premised on a misconstruction of what is stated in the reasons. On
my reading of the Minister’s reasons - when read in their entirety - it cannot be said
that he laboured under any illusion that the medical visa was akin to that of
permanent residence, nor does he suggest that Ms E[...] and P[...] would be entitled
to apply for such. There is no suggestion that S[...] should be seeking a short-term
visa twice a year as suggested by the applicants. The Minister perceives the second
ground of review as simply a reformulation of the first ground.
[48] It was also not the Minister’s position that Ms E[...] and her daughter could
apply for medical visas. The entire gist of the exemption applications was that of
S[...] requiring medical care and treatment and his dependence on his mother and
sister for care. Ms E[...] and P[...] have not shown any special circumstances
independent of S[...]’s care that would warrant them being granted permanent
residence. Quite correct ly, given this interdependence of the applica nts, their
applications were reliant on whether or not S[...]’s medical and care needs are
sufficient to constitute special circumstances which qualify them (as his caregivers )
to obtain permanent residency. The Minister indicated in his answering papers that
his refer ence to medical visas was not a factual error. Rather that he sought to
make the point that medical visas are available in appropriate circumstances for
medical treatment and that in principle , permanent disability with the accompanying
ongoing need for medical care and treatment in South Africa is not in and of itself a
basis for obtaining permanent residence rights in South Africa. When an applicant
applies for a medical visa to enter South Africa, consideration is given as to whether
or not to grant a foreigner a visa to enter South Africa for medical treatment. If such
is refused, then such person cannot enter and vice versa . In the instant case no
such permission was sought.
[49] I do not read the Minister’ s reference to medical visas in his reasons as a
conclusion that the applicants could have obtained medical treatment visas in terms
of section 17 of the Immigration Act, nor was he saying that they should rather have
applied for such visa. The Minister in his reasons points out that the Immigration Act
makes “provision for foreigners to obtain visas for the purposes of medical
treatment.”
[50] In other words, as the Immigration Act makes specific provision for visas to be
obtained for medical treatment , and if an applicant seeks to have medical care in
South Africa, that is the provision under which applications should be made, so that
proper consideration is given as to whether an applicant should be granted a visa to
enter South Africa for the purposes of getting medical care.
[51] By implication, a s such medical visas are not available to S[...]’s family on
whom he still depends, both as a child and as a person with special needs , they are
not a solution because S[...] would be separated from his family.
[52] The Minister did not in his reasons indicate that a medical visa was an
alternative. I t follows that the Minister would have been aware that medical visas
could only be issued for a maximum period of six months at a time. 10 Indeed the
Minister confirms in his answering affidavit that medical visa s are not a means to
obtain indefinite medical care in South Africa in circumstances where there is a
permanent incapacity. This was also not the basis on which the applicants lawfully
sought entry to South Africa. One could understand why caution would be exercised
in relation to the need for permanent care and medical treatment being a basis on
which to obtain permanent residence in South Africa.
10 Regulation 16(2).
[53] In relation to the third ground, the Minister argued that the third review ground
had been refashioned in the applicants’ head of argument. The applicants had
accepted in their founding papers that they were dependent on the charity of others
and that there could be no certainty that thes e charities would support them
indefinitely. It is indeed so that all the applicants are supported by charity. S[...] is
only at the Friends Centre for four hours of the day . As far the Friends Centre is
concerned, the extensive evidence before the Court about the sustainability of free
care being provided for S[...] by the Friends Centre was not before the Minister when
he made his decision.
[54] With reference to Ms E[...] and P[...], a ll that the exemption application
discloses is that the former does informal “work” and the latter is still a minor. To
draw the conclusion that the applicants are dependent on charity is not a factual
error based on what was put before the Minister. Even with regard to the Friends
Centre and its operations , i ts funding comes from donors and governmental
departments. Given that the essential medical care is provided by Red Cross, a s
much of an assurance as the Friends Centre seek to provide to the Court, there is an
element of uncertainty in relation to the costs of S[...]’s medical care and how Ms
E[...] and P[...] would be supported. Given the level of unemployment in South Africa
and high percentage of unemployment in the unskilled labour market, which Ms E[...]
finds herself in, the exemption application does not provide clarity as to how this
family will not be a burden to the State. The Friends Centre does not provide meals,
or other necessities nor is it a residential facility shelter to S[...] and/or his family. It
operates from 08h15 to 14h00 Mondays to Friday during the school term , which
coincides with that of the Western Province school system and so S[...] is not cared
for at the Friends C entre after school hours, on weekends and during school
holidays. It is thus up to Ms E[...] and P[...] to care for S[...] during those times.
[55] There is no mistake of fact on the part of the Minister in relation hereto . Ms
E[...] and her children have been dependent on charitable support. This is also so
stated in the founding affidavit. In the Minister’s view it was unlikely that this charity
would endure indefinitely and it was probable that at some point the applicants would
require State assistance and as such become a “public charge”.
[56] The fourth ground relates to S[...] and P[...]’s rights as minor children. There
is no indication from the reasons furnished that their rights as children were taken
into account. The Minister accepted he was required to give due and full
consideration to the nature and importance of S[...]’s condition and what would be in
his best interests – he indicated to the court that he had done so and in coming to his
decision, he indicated that he recognised the quality of care which S[...] was
receiving in South Africa and what challenges he would face by fo rfeiting those
benefits. Though he indicated that he was aware of the rights in the Constitution and
the Children’s Act and took them into account, there is no indication from the
reasons furnished that the Minister did indeed apply his mind to the fact t hat two of
the applicants were minor children who has already spent several years in South
Africa. It appears from the reasons that the Minister did not have r egard to the
exemption application through the prism of section 28 of the Constitution read with
the Children’s Act. This is the primary reason why this decision is being set aside.
[57] The Minister submitted that the paramountcy of the best interests of the child
does not operate as a trump to all other rights and con siderations. Indeed, this is
correct but it does require a balancing of rights to be undertaken and there is no
indication that such balancing occurred.
[58] On the totality of the evidence presented before this Court, the inescapable
conclusion is tha t the Minister failed to consider the impact of his decision on S[...]
and P[...] with reference to their rights encapsulated under section 28 of the
Constitution read with section 36 of the Constitution and the relevant provisions of
the Children’s Act.
[59] Consequently, the Minister's decision must be reviewed and set aside on the
grounds that he failed to consider relevant information under section 6(2)(e)(iii) of
PAJA.
[60] The Minister set out a number of further factors he took into accou nt which, in
brief, included:
60.1. S[...]’s severe disability and Angola’s inability to deal with it did not
justify an entitlement to permanent residence;
60.2. Evidence as to the availability in Angola in relation to appropriate
medical treatment was brief, undetailed, and unsatisfactory;
60.3. Medical visas are available for particular medical needs and
emergencies;
60.4. Better medical facilities in South Afr ica w ere not an appropriate and
justifiable reason for granting permanent residence;
60.5. Insufficient bas es to conclude that the charitable support to the
applicants would continue indefinitely and would probably taper off in the
longer term; and
60.6. High demands on South African medical services, economic and social
resources and unemployment rate.
[61] Though all th ese reasons are relevant, they were not all contained in the
reasons provided to the applicants in response to their exemption application. To
the extent that some of these reasons are not included in the reasons furnished to
the applicant by the Minister , there is no indication that such were considered at the
time the decision was taken n or the extent of the weight given thereto. The
furnishing of full and complete reasons is important so that the basis on which
decision-makers take decisions that affec t the rights of those affected is clear and
not open to doubt or speculation regarding what the decision -maker intended or
meant. In my view the explanation fr om the Minister falls foul of the principle
articulated in the National Lotteries Board and other cases referred to above.
[62] Had the reasons as set out in the answering affidavits been the reasons
articulated in response to the exemption application , there would have been greater
clarity provided to the applicants as to the reasons for the Minister’s decision.
[63] In reaching this conclusion I make no findings that the position of the E[...]
family constitutes special circumstances. Given the conclusions reached above, this
is for the respondent to decide as I am not in a position to do so for reasons set out
below.
H. Substitution
[64] The applicants argued that this was a case in which the Court should
substitute the Minister’s decision in terms of section 8(1)(c)(ii)(aa) of PAJA with an
order issuing the permanent residence exemptions.
[65] The test for when it is appropriate for a court to substitute is set out in Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
Another:11
“To my mind, given the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably hold greater weight.
The first is whether a court is in as good a position as the administrator to
make the decision. The second is whet her the decision of an administrator is
a foregone conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors. These may
include delay, bias or the incompetence of an administrator. The u ltimate
consideration is whether a substitution order is just and equitable. This will
involve a consideration of fairness to all implicated parties. It is prudent to
emphasise that the exceptional circumstances enquiry requires an
examination of each matt er on a case -by-case basis that accounts for all
relevant facts and circumstances.”
[66] The applicants submit that all of the relevant information, facts, and medical
history is before the Court. They say that their core claims are undisputed, namely
that S[...] receives exceptional, free and lifelong care in South Africa and that there
are no alternative mechanisms by which the applicants can stay in South Africa.
11 2015 (5) SA 245 (CC) at para [47].
They argue that the issue of whether the Friends Centre will, at some future stage ,
no longer be able to support S[...] should be decided in their favour.
[67] In light of the aforementioned and the constitutional statutory duties resting on
public decision-makers when making decisions in respect of children, the applicants
submit that it is a foregone conclusion that S[...] and his family are deserving of
permanent residence exem ptions. Any other outcome would be so detrimental to
S[...] that it should not be permitted.
[68] The Minister submitted that the applicants’ argumen t which relied on the
assumption that the Friends Centre would take care of all of S[...]’s needs and that
S[...]’s interests are dispositive of the application was incorrect.
[69] The Minister further submitted that were the Court to set aside the Minister’s
decision on the ground that one or more of the grounds relied upon by the
applicants, the Court could not conclude, when regard is had to S[...]’s best interests,
that the result is a foregone conclusion. It would be an unwarranted infraction of the
separation of powers for the Court to embark on the required weighing up process
and to exercise a discretion which has been conferred on the Minister.
[70] I am inclined to agree with the Minister. Were the Court to be careless in
assuming powers bestowed on the Minister, especially in the context of S[...]’s
medical condition, it may well create a ground for permanent residence carved as an
exemption that was not contemplated by the Legislature . S[...] is most fortunate. I
cannot but be mindful of the number of children born in the Western Cape, and for
that matter in South Africa, with special needs like S[...], and as reflected in a
number of judgments, albeit in the context of medical negligence cases , who are not
provided with “world -class therapy” by way of charitable assistance or receive
access to electric wheelchairs and electronic equipment which has been afforded to
S[...]. These judgments reflect that the cost of the care and medical treatment
required by children, with the same or very similar condition s, as S[...] are calculated
to run into millions of rands.12
[71] Apart from the charitable assistance, the evidence is that S[...] requires
extensive medical care . Whilst this can be provided by Red Cross t he applicants’
application is silent on how the costs of such medical care would be borne. There is
nothing to indicate that this will not be borne by the State.
[72] It is thus understandable that caution needs to be exercised in relation to the
need for perman ent care and medical treatment being a basis on which to obtain
permanent residence status in South Africa. The reality is that indeed the South
African government is likely to bear the costs of S[...]’s medical care – it does so
already directly in relat ion to the “free” medical treatment provided to him at Red
Cross and even contributes indirectly to his care as the Departments of Health and
Social Services respectively provide subsidies and/or assistance to the Friends
Centre. It is also so that S[...] is only at the Friends Centre a few hours each day.
Currently, he is being cared for the remainder of the time by Ms E[...] and P[...], but if
that is no longer possible for whatsoever reason, then in all likelihood it will have to
be the State that steps in to care for him in a special facility. The implications thereof
require careful consideration, more so, because it may set some sort of precedent. I
am certainly not equipped to give proper consideration to what ultimately is a policy -
laden decision to make.
[73] In light thereof, and g iven the broad discretion of the Minister, I take the view
that the decision should be set aside and be remitted for reconsideration. Albeit that
this matt er comes before this Court by way of a review of an exemption, I cannot
exclude the possibility that it potentially has significant cost implications for the public
purse or may result in an unintended precedent being set with far wider imp act than
only the applicants in this matter.
12 See generally a reflection of the costs in MEC for Finance, Eastern Cape and Others v Legal
Practice Council and Others 2023 (2) SA 266 (ECMk); TN obo BN v MEC for Health, Eastern
Cape 2023 (3) SA 270 (ECB); MSM obo KBM v MEC for Health, Gauteng 2020 (2) SA 567 (GJ)
([2020] 2 All SA 177; [2019] ZAGPJHC 504)
[74] While the applicants sought that in the event the matter is remitted, the
Minister should be given three months to redetermine the matter, I am mindful that
there is a new incumbent Minister who would have to consider the application afresh
and may require a longer period of time or more information.
I. Conclusion
[75] The applicants are not lawfully in South Africa and have remained in South
Africa undocumented for approximately ten years. They entered under the guise of
a visitor ’s visa “for holiday purposes” when there purpose was to come to South
Africa specifically to obtain medical care for S[...]. This, without applying for a
medical visa, thereby not giving the South African authorities an opportunity to grant
or refuse a medical visa and/or to grant or refuse entry based on the facts. It is only
now that an application for permanent residence is sought for the first time.
[76] The applicants have been assisted on a pro bono basis. Although the
application has succeeded and the decision is remitted back to the Minister for fresh
reconsideration, however, in the circumstances I make no order as to costs.
[77] The following order is made:
1. The respondent's decision in terms of which the applicants’ application
for exemption in terms of section 31(2)(b) of the Immigration Act 13 of 2002 is
reviewed and set aside;
2. The matter is remitted to the Minister for reconsideration in the light of
this judgment and to do so within a period of six months;
3. There is no order as to costs.
___________________________
N Bawa
Acting Judge of the High Court
Delivered: This judgement was prepared and authored by the Acting Judge
whose name is reflected and is handed down electronically by circulation to
the Parties / their legal representatives by email and by uploading it to SAFLii.
The date of the judgment is deemed to be 07 October 2024.
Appearances:
Counsel for the applicant: Adv D Simonsz, with Adv Labuschagne instructed by Cliffe
Dekker Hofmeyr Inc
Counsel for the respondent: Adv S Rosenberg SC instructed by State Attorney,
Cape Town
Date of hearing: 14 March 2024
Date of Judgment electronically handed down: 7 October 2024